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Showing 81 to 100 of 1634 Records
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2023 (8) TMI 1554
Exemption from GST on hostel accommodation services - tariff heading and the rate of taxability of the supply of service - Taxability of in-house food supply as part of composite supply.
Exemption from GST on hostel accommodation services - HELD THAT:- The hostel accommodation is not equivalent to residential accommodation and hence it is held that the services supplied by the Applicant would not be eligible for exemption under Entry 12 of Exemption Notification No. 12/2017-CT(Rate) dated 28.06.2017 and under the identical Notification under the TNGST Act, 2017, and also under Entry 13 of Exemption Notification No.09/2017-IT(Rate) dated 28.06.2017, as amended.
Tariff heading - rate of taxability of the supply of service - HELD THAT:- The hotels are meant for a temporary stay (2-5 days) and have lot of facilities and staff, but hostels are used for a longer period and have basic facilities with minimal staff required by the inmates to stay at a reasonable rate. Therefore, hostel services cannot be equated to a hotel accommodation and hotel GST rates cannot be applied to a hostel. Therefore, the supply of hostel accommodation services (Tariff heading 9963) is taxable @ 9% CGST +9% SGST under Sl.No. 7(vi) of the Notification (Sl. No. 7 (ix) as per original notification).
Taxability of in-house food supply as part of composite supply - HELD THAT:- The natural bundle has the characteristic of where one service is the main service and the other services are ancillary services which help in better enjoyment of the main service. Further, there is a single price for the combined services. The principal activity of the Applicant is supply of accommodation Services. While providing such services, the charges are being realised in a consolidated manner for the value of food and other like services rendered. The Applicant has stated that they do not charge separately for the other services provided by them. Thus, the services provided by the Applicant are composite in nature.
As per Section 8 of the CGST Act, 2017, for a Composite supply, the tax rate on the principal supply will be treated as the tax rate on the given composite supply. Since the Applicant provides a number of services in a composite manner, the hostel accommodation services provided by the Applicant, being the principal supply, which is taxable @18%, will be tax rate for the composite supply provided by them.
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2023 (8) TMI 1553
Seeking withdrawal of Advance Ruling Application - Supply under GST or not - legal cost apportionment by FWEL to the Applicant - requirement to pay tax under Reverse Charge Mechanism (RCM) - HELD THAT:- The statement of facts, supporting documents filed by the Applicant along with application, submissions/Additional submissions made during personal hearing are carefully examined. The letter dated 26.07.2023 (sent by email on 26.07.2023) of the Applicant taken on record wherein they have stated that they have decided to withdraw the ARA application filed by them.
As the Applicant has requested for withdrawal of their Advance Ruling Application, the application is treated as withdrawn without going into the merits or detailed facts of the case.
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2023 (8) TMI 1552
Dishonour of Cheque - prayer to quash the summoning order - no finding recorded regarding filing of complaint against the applicant in connection with bouncing of the cheques upon the applicant although the same was said to be sent on 30.09.2019 - HELD THAT:- This Court finds that the law has been well settled by the judgement Yogendra Pratap Singh vs. Savitri Pandey and Another [2014 (9) TMI 1129 - SUPREME COURT] that the cause of action for filing a complaint case under Section 138 of the N.I Act could not arise prior to expiry of 15 days from the date of service of legal notice on the accused.
This Court finds that in the light of the judgment passed by the Hon'ble Supreme Court in Yogendra Pratap Singh - versus- Savitri Pandey and another, the complaint filed by the complaint is pre-mature as the cause of action for filing the complaint case under Section 138 of the Negotiable Instruments Act, 1881 had not crystalised on 23.10.2019 and accordingly, the complaint itself was pre- mature and hence not maintainable.
Consequently, the condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the applicant could not have been summoned under the said Section. The question of any presumption regarding existing debt under Section 138 of the Negotiable Instruments Act, 1881 also could not arise as the complaint itself was not maintainable.
Accordingly, the present application is hereby allowed.
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2023 (8) TMI 1551
Assailing the Arbitral Award - section 34 of the A&C Act - Validity of claims for escalation cost and prolongation of contract - HELD THAT:- The petitioner’s contention that Contractor never claimed that the endorsement was given under duress, is fallacious as the Contractor in its rejoinder before the AT, clearly outlined the circumstances under which the said endorsement was given. This Court also finds strength in the submission of the learned counsel for Contractor that, only when the petitioner tried to take the benefit of the endorsement in its statement of defence, did the Contractor give explanation in its rejoinder. Whether such an endorsement can be enforced against the claimant to deny its legitimate claims, especially when the impugned Award holds the petitioner guilty of delay, would not require much deliberation.
Issuance of NOC or other similar ‘no claim’ certificate by a party, in favour of another contracting party, by itself does not disentitle the party having a claim from explaining the circumstances in which NOC is issued. Reverse of the same is equally true. There is no absolute rule which outrightly negates the evidentiary value of NOC’s or ‘no claim’ certificate.
In the present case, the AT has opined that the NOC issued by the Contractor was involuntary and hence, cannot be enforced against the Contractor to deny a claim, to which it was otherwise entitled. AT has given a finding of fact in this regard, after examining the circumstances under which NOC was issued by the Contractor. There is nothing patently illegal about such finding. Thus, there is no reason for this court to interfere with this finding.
Petitioner’s second contention that the AT erred in awarding claim on account of prolongation of Contract, as there was no clause in the Contract providing for the same, is also meritless. It is pertinent to note that the Contractor had claimed damages towards the escalation cost, on account of breach of Contract by the petitioner. Admittedly, the Project was completed to the satisfaction of the petitioner, and the delay in execution was attributable to the petitioner. Clause 10C of the Contract provided for increase in cost of materials and labour during the period of extension. The claim was sub-divided into two sub heads i.e., claim on account of increase in wages for labour on prevailing wages as per Clause 10C and claim on account of increase in prices of material. The AT observed that the petitioner had granted extension of time considering the hindrances, and without levy of any compensation, which showed that the delay was attributed to the petitioner.
The AT found the same violative of Section 73 of the Contract Act, which entitles a party to claim compensation for breach of the contract committed by the other contracting party. Even if contract does not provide for price escalation, it would not preclude a party to claim escalation in price, as a measure of damages suffered by it, if the other contracting party is guilty of causing delays in completion of contractual works.
The AT, while considering the contentions raised by the petitioner, came to the conclusion that the endorsement given by Contractor, while seeking extension of time, would not come in its way in seeking escalation cost, especially when the delay was attributable to the petitioner. In the considered opinion of this Court, the view taken by the AT was both possible and plausible, and needs no interference in light of the narrow scope of Section 34 of the A&C Act.
The objections fail and the petition along with pending application is dismissed with no order to costs.
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2023 (8) TMI 1550
Challenge to order of the Head of the Institution in refusing to consider her application for transfer - rejection of transfer application on the ground of "out of 10% - HELD THAT:- The service conditions gives right to claim transfer on fulfillment of certain conditions. An application for transfer has to be considered on the basis of existing and/or prevailing rules. There are no material to reject the said application of the petitioner by the Head of Institution on the ground of “out of 10%” and no sufficient material is produced to justify the said stand. The order of rejection has to be considered on the basis of the reasons mentioned and not on any other extraneous consideration. The argument made that pupil teacher ratio was a relevant factor is not borne out from the impugned order of the Head of the Institution. There cannot be any doubt that in an appropriate situation interest of the student could be the over-riding consideration.
In a given situation it is possible that although a teacher is eligible for transfer an immediate replacement may not be possible and the recruitment process for the said post would take such time the transfer may be given effect to from a future date. However, once a teacher fulfills the eligibility criteria, the authority must take steps to fill up the resultant vacancy as per the norms existing at the relevant point of time by way of local arrangement or by recruiting a permanent teacher for the said post within a reasonable time.
The Commissioner of School Education is directed to consider the application for transfer of the petitioner on verification of the record and production of relevant documents by the school authorities.
The order under challenge is thus, set aside - appeal allowed.
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2023 (8) TMI 1549
Gross abuse of the process of law - making false statements 'On Oath' before this Court - prceedings under Section 340 of Cr.P.C. - Whether or not the present case is barred by the provisions of the Benami Act? - HELD THAT:- The present application, though having been filed under Section 340 of the Cr.P.C., is being treated as an application under Order VII Rule 11 CPC. All the parties have made their submissions with reference to provisions of Order VII Rule 11 CPC dealing with rejection of plaint.
While considering submissions under Order VII Rule 11 CPC, the court only has to see the contents of the plaint in order to gauge whether or not the plaint discloses any cause of action and is not otherwise barred by any law. Defence as may be raised in the written statement or in the arguments for rejection of plaint, are not relevant for adjudication under Order VII Rule 11 CPC. Thus, in the case of Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others [2006 (1) TMI 600 - SUPREME COURT], Supreme Court has held 'A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint.'
Whether or not the present case is barred by the provisions of the Benami Act; or whether or not the plaintiff will or will not have benefit of exceptions as provided in the Benami Act, is an aspect which would have to be decided on the basis of the evidence on record. These are matters of fact which require trial. Disputed questions have been raised on behalf of the parties, which cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. "Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the pliant, without any doubt or dispute shows that the suit is barred by any law in force." In the facts and circumstances of the present case, this question cannot be decided at the stage of the application under Order VII Rule 11 CPC and suit cannot be rejected at the threshold by applying principles of Order VII Rule 11 CPC.
Thus, it is apparent that the question with respect to benami transaction would have to be determined by this Court on the basis of various tests/circumstances as laid down by Supreme Court in the aforesaid judgment. These facts and circumstances on the basis of which the question of benami transaction is to be determined, would be established only on the basis of evidence to be led by the parties. Therefore, it is clear that suit cannot be dismissed at this stage on the basis of the contention raised on behalf of defendant no.1 that suit is barred by the Benami Act.
Perusal of the plaint clearly discloses cause of action in favour of plaintiff. Reading of the plaint does not disclose prima facie that the plaint is barred by any law. Therefore, the plaint cannot be rejected under Order VII Rule 11 CPC in a summary manner without trial. The various issues as raised on behalf of the plaintiff and defendant No. 1 can only be decided after trial and considering the evidence on record.
The present application is found without any merits and the same is accordingly dismissed.
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2023 (8) TMI 1548
Seeking grant of regular bail - Smggling of contraband - Compliance with procedural requirements under the NDPS Act, particularly regarding the drawing of samples and preparation of seizure memo - HELD THAT:- It is noteworthy that, firstly, Section 52 of the NDPS Act is directory in nature, secondly, non-compliance of the said provision, in itself, cannot render the actions of the Investigating Officers null and void and lastly, whether non-compliance of rules, in cases involving commercial quantity, could be a ground for grant of bail, will have to be examined considering the nature of violation of such standing procedure and consequences thereof.
In the opinion of this Court, the applicant also cannot claim parity with the accused persons in SURAJ VERSUS STATE GOVT. OF NCT OF DELHI [2023 (8) TMI 1546 - DELHI HIGH COURT] and PRIYARANJAN SHARMA VERSUS STATE OF NCT DELHI [2023 (8) TMI 1547 - DELHI HIGH COURT] as the situation(s) involved therein were far from what are involved herein. In any event, reliance placed by the learned counsel for the applicant on the aforesaid cases is misplaced, as the period undergone in the present case is far less than what was involved therein and bail granted to the accused therein was under the facts of those cases. Even otherwise, it is trite that parity is not the sole ground for granting bail to an accused like the applicant herein, more so, whence there is a huge difference between the quantum of contraband recovered/ involved in the present case - the Court must not forget that the burden always remains on the prosecution to prove the guilt of the accused beyond reasonable doubt and it cannot be ignored that the applicant has yet not come up with any plausible explanation, during trial, as to the reason for his possession of such large quantities of contraband.
Admittedly, the charges are yet to be framed and no witnesses have been examined so far before the learned Trial Court. Releasing the applicant on bail at this stage may amount to the applicant influencing the witnesses or tampering with evidence.
Seeing the gravity of the offence involved and the factual matrix of the case that colossally large quantities of alleged NDPS medicines were recovered from the possession of the applicant and further most relevantly as the applicant is yet to come up with any explanation, why he was in possession of such large quantities of contraband, in the opinion of this Court, grant of bail to the applicant at this stage will not be appropriate and is not called for.
The present application seeking grant of regular bail registered under Section (s) 8/21/22/28/29/30 of the NDPS Act at Central Bureau of Narcotics, Delhi, is dismissed.
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2023 (8) TMI 1547
Grant of bail - recovery of contraband - contrary to the procedure laid down under Section 52A (2) of NDPS Act - whether the sampling was done correctly or incorrectly or whether the samples have been tampered with, will not be a question which needs to detain this Court as of now? - HELD THAT:- This Court has considered the judgments of the Single Bench of Bombay High Court in case of SANTOSH PANDURANG PARTE VERSUS AMAR BAHADUR MAURYA AND ANR. [2023 (7) TMI 1486 - BOMBAY HIGH COURT] and agrees with the observations made therein. Applying the ratio in the present case, it appears that there has been a prima facie violation of provisions of Section 52A (2) of NDPS Act not only in terms of drawing of samples by the complainant on 16.10.2019, which, according to clause (c) of sub-Section (2) of Section 52A of NDPS Act was conferred and vested only upon the Magistrate and none else. That apart, even sending of the samples drawn by the complainant, instead of those drawn by Magistrate, for chemical analysis to the FSL, prima facie appears to be in violation of provisions of Sections 52A of NDPS Act.
The judgment of the Supreme Court in Bothilal’s [2023 (4) TMI 1188 - SUPREME COURT] also makes it clear as to in what manner the prosecuting agencies are to not only prepare an inventory of the contraband seized but also the manner in which the Magistrate alone is empowered or competent to draw the samples in accordance with Sections 52A(2)(c) of NDPS Act. The same appears, prima facie, to have been violated in the present case.
This Court is of the considered opinion that the applicant has made out a case for release on regular bail and accordingly the applicant be released on bail on his furnishing personal bond in the sum of Rs. 2 Lakhs with one surety of like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - the bail application stands disposed of.
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2023 (8) TMI 1546
Seeking grant of regular bail - commercial quantity of contraband under the NDPS Act - Applicability of Section 37 of the NDPS Act concerning stringent conditions for bail - HELD THAT:- It is manifest from the perusal of the Nominal Roll on record that the applicant has already spent 03 years 08 months and 10 days (approx.) in judicial custody and is thus entitled to be released on regular bail by virtue of the ratio laid down by the Supreme Court in Rabi Prakash [2023 (7) TMI 1459 - SC ORDER] and Mohd Muslim [2023 (5) TMI 321 - SUPREME COURT].
Though the FIR was registered on 16.10.2019, the trial is still at the stage of examination of prosecution witnesses and it appears that it would take some time for the prosecution evidence to be concluded and thus, the liberty of an individual cannot be restrained without any reasonable cause.
Keeping in view the ratio laid down by the Supreme Court in Mohd. Muslim, prima facie and as of now, there is no material placed on record by the respondent to show that the applicant, if released, may involve himself in similar offences. It is also clear from the aforesaid that there has to be tangible or ascertainable material for the Court to reach any such conclusion. The absence whereof cannot be read against the individual.
The applicant is entitled to be and is released on regular bail upon furnishing a personal bond of Rs.2,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court, subject to the fulfilment of conditions imposed - bail application allowed.
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2023 (8) TMI 1545
Validity of assessment w/o issuing notice u/s 143 - HELD THAT:- Admittedly, the notice was issued by the AO u/s 148, within thirty days. A return was filed much later on 31.03.2009, after eight and a half months.
On identical facts, in Chand Bihari Agrawal [2023 (8) TMI 158 - PATNA HIGH COURT] this Court considered the issue and held against the revenue.
We find that the question of law has to be answered in favour of the assessee and against the revenue
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2023 (8) TMI 1544
Unexplained cash credit u/s 68 - bogus share capital transaction - HELD THAT:- As in respect of 11 shareholders, there cannot be doubt about their identity and creditworthiness. Moreover, the transactions have been fully explained and confirmed by the shareholders, therefore, there is no doubt about the genuineness of the transaction.
So far as, the increase in investment of Rs. 2 lakhs by Smt. Sarala Devi Chiripal, the same is meagre amount and hence, doubt cannot be raised about the creditworthiness of the said shareholder also.
Amount invested by ‘Arun Kunar Anil Kumar HUF’, the said investor admittedly is closely related to the assessee company. The gross income of the said creditor as per ITR, as mentioned by the Assessing Officer himself is 13.68 lakhs for the year under consideration.
The said ‘Arun Kunar Anil Kumar HUF’ has duly confirmed the transactions. In response to the notice issued u/s 133(6) by the Assessing Officer, the said Arun Kunar Anil Kumar HUF has duly enclosed the copy of their cash book, photocopy of bank pass book, photocopies of application of shares, photocopy of their profit & loss account, Balance sheet and ITR form for the financial year 2014-15 and it was duly confirmed that they have invested in the assessee company from their own sources. AO has not pointed out any defect or infirmity in the evidences furnished by the assessee as well as by the said shareholder - No justification on the part of the lower authorities to make/confirm the impugned additions and the same are, accordingly, ordered to be deleted.
Addition of differential value of sale consideration and stamp duty value of the property sold by the assessee - HELD THAT:- Since, in this case, the assessee, right from the very beginning, had claimed that the market value of the land was less and that there was no taker of the land and the land was sold as a distress sale, the assessee had duly requested to the Assessing Officer to appoint a departmental valuation officer, which request was not acceded to by the Assessing Officer and there is no rebuttal to the contention of the assessee that the market value of the land was less than the stamp duty value, therefore, we do not find justification on the part of the lower authorities in making/confirming the impugned additions and the same are accordingly ordered to be deleted.
Appeal of the assessee stands allowed.
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2023 (8) TMI 1543
Classification of goods - electric motor - falling in capital goods under entry 27 of Schedule-IV or not - HELD THAT:- Considering the fact that the electric motor(s) sold by the respondent-assessee are used only for the purpose of operating the plant and machinery; that the said fact qua the usage of the electric motor(s) is not disputed by the Revenue and that in M/s Gulab Art Handi Craft, Jodhpur, while dealing with the classification of electric motors, the learned Tax Board classified the same to be embracing the term “part and accessory of the plant and machinery”, it can be conclusively said that owing to their usage, the electric motor(s) sold by the respondent-assessee fell well within the ambit of Entry No. 27 of Schedule IV of the Rajasthan Value Added Tax Act, 2003.
As a result, the question of law, is answered in favour of the respondent-assessee and against the petitioner-Revenue.
The present Sales Tax Revision/Reference is dismissed.
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2023 (8) TMI 1542
Assessment u/s 153A - incriminating material found during the course of search u/s 132(1) found or not? - HELD HAT:- This Court in the case of CIT Vs. Saumya Construction Pvt. Ltd. [2016 (7) TMI 911 - GUJARAT HIGH COURT] wherein it is observed that in absence of incriminating material, no addition can be made in the Assessment Order. It has also observed that no disallowance of exemption of Long Term Capital Gain could be made as the same was part of books of accounts and return of income. It has also been observed by the CIT(A) that no addition could be made on the basis of the statement of third party and without having incriminating documents found during the course of search at the place of assessee. Tribunal has observed that there was no assessment pending and no abatement of the assessment originally completed for the year under consideration.
There is a concurrent findings of fact regarding non discriminating material/documents found during the course of search place of the assessee.
So far as the present case on hand is concerned, this Court would consider the decisions of Abhisar Buildwell (P) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] and in the case of Principal Commissioner of Income Tax, Vadodara-3 Vs. Narmada Chematur Petrochemicals Ltd [021 (12) TMI 1081 - GUJARAT HIGH COURT]
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2023 (8) TMI 1541
Assessment u/s 153A/143(3) - addition made u/s 14A r.w.r. 8D(2) - whether no incriminating documents/materials were found or seized during the search? - ITAT deleted addition - HELD THAT:- After taking note of the submissions on either side the Tribunal on facts has recorded that there is no reference at all by the AO to any incriminating material found during the search and the various additions were undisputably made on the basis of the observations of the AO during the assessment proceedings for which there were no incriminating materials found during the search.
Tribunal held that it is the settled legal position that in order to make addition in an unabated assessment on the date of search, there has to be incriminating material found during the search. Tribunal rightly decided the issue in favour of the assessee.
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2023 (8) TMI 1540
Disallowance on account of late deposit of employees contribution of provident fund - HELD THAT:- The impugned issue is fully covered in the case of Checkmate Services Private Limited [2022 (10) TMI 617 - SUPREME COURT] But the contention of the Counsel is that the date of payment of the salary should be considered for calculating the delay in the deposit of EPF/ESI under the respective acts, therefore, in the interest of justice and fair play we deem it fit to restore this quarrel to the files of the AO - AO is directed to consider the date of payment of salaries and decide the issues afresh as per the provisions of the law. This common grievance is allowed for statistical purpose.
Denial of foreign tax credit - assessee has filed Form-67 beyond the due date in respect of the claim of foreign tax credit - HELD THAT:- It is also not in dispute that one of the requirements of rule 128 for claiming FTC is that Form-67 is to be submitted by assessee before filing of the return. In our humble opinion this requirement cannot be treated as mandatory and it is directory in nature for the simple reason that under rule 128(9) there is no provision for disallowance of FTC in case if there is a delay in filing Form-67. In our considered opinion this is only a procedure delay and there is no negative or adverse consequence provided for non adherence to such procedure.
Since in the present case the claim of the assessee was denied on this technical aspect without going into the merits of the FTC, therefore, we deem it fit to restore the issue to the files of the AO. AO is directed to decide the claim of foreign tax credit as per the provisions of the law after admitting/accepting form-67. This common grievance is also allowed for statistical purpose.
Denial of TDS credit for punching incorrect TAN by the assessee in its return of income - HELD THAT:- We have gone through the orders of the authorities below. We are of the considered view that the TDS credit should not have been denied for such technical reason when the TDS credit is duly reflected in form 26AS, therefore, we direct the AO to allow the credit of TDS reflected in Form 26AS as per the provision of the law.
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2023 (8) TMI 1539
Money Laundering - scheduled offences - Provisional attachment order - assets disproportionate of known sources of income - HELD THAT:- The first issue is in reference to the application of the Act of 2002. It is in reference to the offence under the Prevention of Corruption Act, 1988. It was not a scheduled offence in the year 2002 but was added by the notification issued in the year 2009 followed by further amendment in the year, 2013. According to the appellant, the check period to find out disproportionate property to the known-sources of income is of the period prior to the amendment and therefore the Act of 2002 could not have been enforced to attach the property. It is for the reason that amendment of year 2009 and 2013 has not been given retrospective effect - The relevant date to find out the scheduled offence is the date when one projects tainted property to be untainted or involves oneself in money laundering and not the date of actual commission of predicate offence. The check period of income may be from the year 2004 to 2014 but the FIR was registered in the year 2014 and thereupon, ECIR was recorded on 12.02.2015. It is much subsequent to the amendment in the Act of 2002 to make an offence under the Prevention of Corruption Act to be a scheduled offence. In view of the above, it is not found that amendment under the Act by the notification of year 2009 or 2013 have been given retrospective effect in this case.
It is to show that no offence under Section 13 (1) (d) or 13 (2) of the Act of 1988 is made out. The appellant is not having disproportionate property to the known-sources. It is found that facts available record prima facie shows a case of disproportionate property in the hands of the appellant to his known-sources.
An order of attachment pre supposes the conditions referred to above and given under Clause (a) and (b) of sub Section (1) of Section 5. In the instant case, the respondents have failed to show any likelihood of concealment or transfer of the properties so as to frustrate the proceeding of confiscation rather the property in question was attached by the Special Court much prior to the order for provisional attachment - The property can be attached by the respondent department under Section 5 of the Act of 2002 but it can be when they possess material to show that property may be concealed, transfer or be dealt with in any manner to frustrate the proceeding of confiscation. When the property was already attached by the Special Court, how it could have been transferred or concealed - reasons to believe were recorded without application of mind.
It is however with clarity that if, the Special Court withdraws the attachment order or the trial pursuant to the FIR is completed, the respondents would be at liberty to exercise their authority under Section 5 (1) of the Act of 2002 in case of an apprehension of concealment or transfer of property.
The appeal disposed off.
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2023 (8) TMI 1538
Request of adjournments multiple times without valid reasons - Penalty u/s 271BA - On the date of third hearing when this case was called out for hearing, none appeared but an e-mail request received from assessee for adjournment which was placed before us - HELD THAT:- It seems that the assessee is not serious in perusing the present appeal as it is seen that the approach of the assessee is very casual before this Tribunal. The assessee as litigant cannot take the adjournment as right. The assessee should come and explain the reasons for seeking time. The bench in earlier two occasions granted the time as requested. Whereas in third application we note that the approach is very causal and the ld. AR of the assessee considering this court as ‘’walk-in- place’’ where appellant can approach whenever they want. Even though the sufficient opportunity were granted in earlier occasions the assessee did not file any paper book or written submission to substantiate the grounds of appeal.
In spite of the fact that on earlier two occasion the adjournment were granted but on the last date also the assessee very causally sent an application for adjournment. From this, it appears that the assessee is not interested to pursue their case.
So, in the circumstances, following the decision of CIT Vs. Multiplan India (P) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] and also on the judgement of Estate of Late Tukhoji Rao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] the appeal of the assessee is not admitted and is dismissed in limine.
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2023 (8) TMI 1537
Accrual of income in India - assessee has “Permanent Establishment” in India or not? - HELD THAT:- We observe from the record that identical issue is decided in favour of the assessee in the A.Y.2010-11 [2019 (7) TMI 859 - ITAT MUMBAI] and held that assessee did not have a Permanent Establishment in India. Thus we allow the grounds raised by the assessee.
Alternative plea of attribution of profits and estimation of gross profit - Since, we have already allowed of the appeal holding that assessee does not have a PE in India and thus income of the assessee is not allowable to be taxed in India, the aforesaid grounds of appeal are rendered academic and infructuous.
Levy of interest u/s.234A - We are inclined to remit this issue back to the file of AO with a direction to verify the records submitted by the assessee on merit and as per law. It is needless to say that assessee may be given a proper opportunity of being heard. Accordingly, Ground No. 8 is remitted back to the file of AO for statistical purpose.
Taxation of royalty income u/s. 44DA - We are inclined to remit this issue back to the file of AO with a direction to verify the records submitted by the assessee on merit and as per law. Assessing Officer is further directed to determine the royalty as per the direction of APA.
Appeal filed by the assessee is partly allowed for statistical purpose.
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2023 (8) TMI 1536
Clandestine removal - differential value between the figures mentioned in return and balance sheet - period from January 2007 to February 2010 - HELD THAT:- Firstly, there is no direct evidence of clandestine removal such as transportation, recipient of goods, receipt of consideration etc. However, the difference between the balance sheet and ER-1 returns need to be explained as per the satisfaction of the Adjudicating Authority. On going through various documents such as balance sheet, ledger, chartered accountant certificate, we find that the appellant have claimed that there is no clandestine removal, hence, there is force in the said submission of the appellant. However, it is observed that the Adjudicating Authority has not properly verified such documents whereby the appellant have explained the difference between the sales figure shown in balance sheet and ER-1.
The matter needs to be re- considered as a whole on the basis of the documents submitted by the appellant.
Appeal allowed by way of remand to the Adjudicating Authority for passing a fresh de novo order within a period of two months from the date of this order.
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2023 (8) TMI 1535
Denial of relief u/s 90 - Form 67 was not filed correctly - HELD THAT:- Form No. 67 has been filed by the Appellant before the processing the return of income under Section 143(1) of the Act. Therefore, respectfully following the decision of Sonakshi Sinha [2022 (10) TMI 107 - ITAT MUMBAI] we remand the issue raised in present appeal back to the file of AO with the direction to grant foreign tax credit to the Appellant as per the aforesaid decision after verification. Ground No. 1 raised by the Appellant is allowed for statistical purposes.
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9911796707
