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Showing 1 to 20 of 1404 Records
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2016 (10) TMI 1404
Penalty levied u/s 271AAA - undisclosed cash found during search for which the assessee could not substantiate the manner of earning such income - CIT(A) deleted penalty levy - HELD THAT:- Penalty u/s 271AAA is not leviable, if the assessee in the course of search in a statement under sub section (4) of section 132 admits the undisclosed income and specifies the manner in which the said income has been derived, substantiated the manner in which the undisclosed income is derived and pays the tax together with interest in respect of the undisclosed income.
The first requirement of immunity under section 271AAA is that the assessee admits the undisclosed income in a statement recorded u/s 132(4) of the Act and specifies the manner in which the income has been derived.
We find that the assessee in response to question no. 19 to the statement recorded u/s 132(4) has admitted the undisclosed income and stated that the income derived from the business of financing and brokerage. Therefore, the first condition is satisfied.
Second requirement is to substantiate the manner in which the undisclosed income was derived. CIT (A) has reported that the AO himself in the assessment order and also in the penalty order reported that the surrender made by the assessee was on account of undisclosed business of financing and brokerage.
Therefore, this observation of the ld. CIT (A) is not disputed by the revenue. Therefore, the second requirement is also met by the statement of the assessee.
The third requirement is of law that the assessee pays tax along with interest on the undisclosed income. The revenue has not disputed the payment of tax and interest thereon. Therefore, in view of the above discussion, we do not find any reason to interfere in the order of ld. CIT (A), same is hereby upheld. The ground of the revenue is dismissed.
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2016 (10) TMI 1403
TP Adjustment of interest free loan and guarantee commission - HELD THAT:- Assessee-company advanced interest free loan to its wholly owned subsidiary company at UK. While considering the addition made by the AO on the direction of the DRP, this Tribunal found that the matter needs to be re-examined by the DRP and verify the availability of surplus funds with the assessee for the purpose of advancing loan to Associate Enterprise in UK.
Since factual situation arises during the year under consideration is similar as that of assessment year 2010-11, this Tribunal is of the considered opinion that the matter needs to be reconsidered in the light of observation made by this Tribunal for assessment year 2010-11.
Accordingly, the orders of the lower authorities are set aside and the issue of disallowance of interest on the borrowed loan is remitted back to the file of the AO to re-examine the issue as observed by this Tribunal for assessment year 2010-11 [2016 (3) TMI 1486 - ITAT CHENNAI] and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee.
Addition of guarantee commission - HELD THAT:- It is not known for the earlier assessment year, namely, assessment year 2010-11, in the case of Redington (India) Ltd. [2014 (10) TMI 669 - ITAT CHENNAI] whether the assessee has paid actual commission to bank or not. If the assessee has paid commission actually to the bank, then the matter would stand differently.
Therefore, as rightly observed by the DRP, the matter needs to be verified whether in the case of Redington (India) Limited (supra), the assessee has paid the commission actually for availing the facility from the bank. Since the exact factual situation is not available on the record, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the AO. Accordingly, the order of the lower authority is modified and the AO is directed to refer the matter to TPO once again to find out the actual facts with regard to payment of commission to bank and thereafter decide the issue afresh in accordance with law after giving a reasonable opportunity to the assessee.
Disallowance u/s 14A - HELD THAT:- As it has to be ascertained whether the assessee has any liquid cash on hand on the date of investment. Moreover, the claim of subsidiary company also needs to be verified with reference to shareholding pattern of so-called subsidiary company. Since the shareholding patter is not on record, this Tribunal is of the considered opinion that the matter needs to be reconsidered. Accordingly, the orders of the lower authorities are set aside and the issue of disallowance u/s 14A of the Act is remitted back to the file of the AO. AO shall re-examine the matter in the light of the material that may be filed by the assessee and thereafter compute the disallowance stipulated under Rule 8D(2) of the Income-tax Rules, 1962.
Interest free loans granted to subsidiary companies - HELD THAT:- Shareholding pattern of the so-called subsidiary company is also not available on record. In those circumstances, this Tribunal cannot conclude that the advance was made to subsidiary company. Moreover, the commercial expediency in investing the money was not established by filing necessary material before this Tribunal. In those factual circumstances, giving one more opportunity to the assessee to produce necessary material would not prejudice the interest of the Revenue.
Accordingly, the orders of the lower authorities are set aside and the issue of disallowance of interest on the free loans and advances to subsidiary company is remitted back to the file of the AO to reexamine the issue in the light of the material that may be filed by the assessee and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee.
Disallowance of claim of software expenses - HELD THAT:- If the application software is only for a short period, then it can be treated as revenue expenditure. However, if the application software is for a longer period, then it will have enduring benefit, therefore, it has to be capitalized. Since the facts need to be verified.
Tribunal is of the considered opinion that the matter can be verified by the AO. Accordingly, the orders of the authorities below are set aside and the AO is directed to verify the nature of expenditure and thereafter decide the issue in accordance with law after giving a reasonable opportunity to the assessee.
Disallowance of export commission - HELD THAT:- Tribunal is of the considered opinion that the matter needs to be re-examined by the AO. Accordingly, the orders of both the authorities below are set aside and the issue of disallowance made by the AO u/s 40(a)(ia) of the Act is remitted back to the file of the AO. AO shall re-examine the issue afresh in the light of the provisions of Income-tax Act after considering the withdrawal of circular issued by CBDT and the judgment of Faizan shoes Pvt. Ltd. [2014 (8) TMI 170 - MADRAS HIGH COURT] and thereafter decide the issue in accordance with law after giving a reasonable opportunity to the assessee.
Additional depreciation u/s 32(1)(iia) - HELD THAT:- Tribunal is of the considered opinion that the matter needs to be reconsidered in the light of the decision of this Tribunal in the assessee's own case for assessment year 2010-11. Accordingly, the orders of the authorities below are set aside the issue of additional depreciation is remitted back to the file of the AO. AO shall re-examine the matter afresh in the light of the decision of this Tribunal for assessment year 2010-11 and thereafter decide the issue afresh in accordance with law after giving a reasonable opportunity to the assessee.
Credit for TDS - HELD THAT:- AO shall verify the TDS certificates and thereafter give credit in accordance with law after giving a reasonable opportunity to the assessee.
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2016 (10) TMI 1402
Cancellation of exemption granted in favour u/s 12AA - activities of the Board could not be termed to be charitable in nature - pursuit of charitable purposes is a necessary condition for the grant and continuance of registration u/s 12AA - Whether the authority granting registration u/s 12AA of the Act has the inherent power to withdraw such registration when the objects are found to be not charitable in nature? - HELD THAT:- The cancellation of registration without justifiable reasons may, therefore, cause additional hardship to an assessee institution due to attraction of tax-liability on accreted income. The field authorities are, therefore, advised not to cancel the registration of a charitable institution granted u/s 12AA just because the proviso to section 2(15) comes into play.
Substantial questions of law, so framed by this Court, on which the appeal came to be admitted, no longer arises for consideration, as it is for the appropriate authority i.e. the AO to examine the matter in the light of the returns furnished by the assessee and the material placed by the parties with regard to the income generated with respect to each financial year. Revenue stands advised to take appropriate action in terms of the clarification issued by the appropriate authority.
We dispose off the present appeal with the direction to the Assessing Officer to pass appropriate orders, in the light of the aforesaid circular No. 21/2016, dated 27.5.2016.
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2016 (10) TMI 1401
Deduction u/s 80IA of Daman Unit 1 & 2 - Penalty u/s 271(1)(c) - HELD THAT:- It is clear from the above order of Tribunal that quantum addition / disallowance so made by the Revenue authorities in the Assessment Year 1999-2000 to 2001-2002 [2016 (7) TMI 183 - ITAT MUMBAI] have been deleted by the Tribunal.
Facts and circumstances during the Assessment Year 2002-2003 to 2005-2006 are pari-materia, respectfully following the order of the Tribunal in assessee’s own case on exactly similar facts, we set aside the order of the lower authorities and allow assessee’s claim for deduction under Section 80IA/80IB for the Assessment Year 2002-2003 to 2005-2006. Since, addition itself has been deleted in the Assessment Year 1999-2000 to 2004-2005, the penalty orders so passed by AO has no legs to stand. Appeals of the assessee are allowed.
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2016 (10) TMI 1400
Maintainability of the Public Interest Litigation (PIL) - scope of interference in the matter of public contracts in exercise of power under Article 226 of the Constitution of India and the test therefore - award of the Contract/Concession Agreement in favour of Noida Toll Company (the Concessionaire) is justified or not - 'User fee' levied and collected by Noida Toll Bridge Company is legally sustainable or not - its effect on Article 13 (the Clause) of the Concession Agreement - Articles 14 (the Clause) of the Concession Agreement (for computation and recovery of total cost of project and returns thereon) - effect of proposed amendments to the Concession Agreement viz-à-viz relief prayed.
HELD THAT:- It is concluded as follws:
(a) This Public Interest Litigation is legally maintainable.
(b) In the facts of the case, interference with the Concessionaire agreement is warranted in exercise of powers of judicial review under Article 226 of the Constitution of India.
(c) Selection of Concessionaire in the facts of the case is violative of Article 14 of the Constitution of India and is found to be unfair and unjust. We, however, do not deem it fit to nullify the entire Concession Agreement.
(d) Right to levy and collect User fee from the commuters as conferred upon the Concessionaire under the Concession Agreement suffers from excessive delegation and is contrary to the provisions of the U.P. Industrial Area Development Act' 1976. Article 13 (Clause) of the Concession Agreement is held to be bad and inoperative in the eyes of law.
(e) The method of calculation of the Total Project Cost and appropriation of the User fee collection under Article 14 (Clause) of the Concession Agreement is held to be arbitrary and opposed to Public Policy. Article 14 (Clause) of the Concession Agreement is severed, therefrom.
(f) The proposed Amendments do not affect the reliefs which have been prayed for in the petition.
It is directed that, henceforth, NOIDA Toll Bridge Company, the Concessionaire shall not impose or recover any User fee/Toll from the commuters for using the DND Flyover.
This Public Interest Petition is allowed to the extent indicated above.
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2016 (10) TMI 1399
Adjustment of amount lying in the PD account against the existing liability of the assessee - Whether the appeal is maintainable u/s 249(4)? - HELD THAT:- CIT(A) had correctly allowed the appeal of the assessee in view of the decision in the case of ACIT vs. Sunil C Gupta [2015 (7) TMI 352 - ITAT AGRA] wherein the Hon'ble Bench held that cash seized to be adjusted against advance tax liability as Explanation 2 to Section 132B. Appeal of assessee allowed.
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2016 (10) TMI 1398
Levy of Excise Duty/Excisability - Galvanized parts of Transmission Line Towers - scope of excisable goods in terms of Clause (d) of Section 2 of the Central Excise Act, 1944 - HELD THAT:- The question of duty liability on Aluminium/Zinc Dross has been a subject matter of decision in the appellant's own case KEC INTERNATIONAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2016 (12) TMI 1317 - CESTAT MUMBAI] by the Tribunal. The Tribunal, after examining the decision of the Hon'ble Bombay High Court in HINDALCO INDUSTRIES LIMITED VERSUS THE UNION OF INDIA, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CENTRAL EXCISE [2014 (12) TMI 657 - BOMBAY HIGH COURT], held that the appellants are not liable to duty on such items.
There are no merit in the impugned order and accordingly, the same is set aside - appeal allowed.
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2016 (10) TMI 1397
Sale of the mortgaged project - part construction carried out - invocation of provisions of Section 13(12) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- The Court is informed that the respondent No.1 has not even nominated a counsel, on whom an advance copy of the present petition could be served. As a result, the respondent No.1/Bank has been served directly at the address given in the memo of parties. Despite the same, none is present on behalf of the said respondent.
Issue notice to the respondents on the petitioner filing the process fee, by ordinary process and speed post, returnable on the date fixed - Till the next date of hearing, the respondents shall maintain status quo in respect of the subject project.
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2016 (10) TMI 1396
Section 35F of the Central Excise Act, 1944 – pre-deposit - HELD THAT:- Following the case of Nimbus Communications Limited v/s Commissioner of Service Tax and Another [2016 (8) TMI 451 - BOMBAY HIGH COURT], these Petitions are dismissed. However, we grant six weeks time to the Petitioners to comply with the condition as imposed in the statute for availing of the remedy of appeal. If the amount is deposited, and proof is produced, the Tribunal shall entertain the appeal and decide it on merits so also in accordance with law. The Writ Petitions are disposed off.
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2016 (10) TMI 1395
Validity of Revision u/s 263 - unexplained investment in shell companies - allegation of benami transactions in the name of individuals of village Kharora to induct share application money/share capital - HELD THAT:- In Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] made it clear that even incorrect assumption of facts would satisfy the requirement of order being erroneous. In case the orders are passed without applying the principle of natural justice or without application of mind then also the Commissioner can exercise his revisional powers - As expression prejudicial to the interest of the revenue has very vide connotation and was not confined to loss of tax. If the AO adopts one or two courses available under law and it results in loss of revenue then the order cannot be said to be erroneous or prejudicial to the interest of revenue within the meaning of Section 263 but where the view taken by the Income-tax Officer is unsustainable then the order passed by the Assessing Officer is not only erroneous but also prejudicial to the interest of Revenue.
As far as the present cases are concerned, the whole issue is, where did this huge amount of Rs. 39.08 crores came from? The Income Tax Officer issued a detailed notice and a questionnaire but in his order has not decided any of the questions raised by him. His order is totally a nonspeaking order and he has not even decided the issue as to from where money came into the hands of the so-called share holders of these shell companies.
We are of the considered view that the Commissioner of Income Tax was fully justified in issuing notice u/s 263 of the Act and further directing the Assessing Officer to pass a fresh order after considering the entire material. It is not as if the Appellants before us will not have an opportunity to present their case before the Assessing Officer. The Settlement Commission has clearly held that the manner in which these investments were made in these shell companies leaves many questions unanswered. Truth must be found out.
During search and seizure operations conducted in the office of Shri Sunil Kumar Agrawal, Chartered Accountant, 232 bank pass books of different individuals were found. All the pass books pertain to only two banks i.e. Union of India, Main Branch, Raipur and Union of India, Pandri Branch, Raipur. There has to be some explanation why all the villagers of Kharora would open bank accounts in Raipur. A number of these companies are having their registered office in the office of Shri Sunil Kumar Agrawal, Chartered Accountant. Therefore, CIT was justified in coming to the conclusion that there was ample material to point out that there may have been benami transactions in the name of individuals of village Kharora to induct share application money/share capital in the 13 shell companies. Decided against revenue.
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2016 (10) TMI 1394
TP Adjustment - comparable selection - Applicability of turnover filter - TPO has applied turnover slab of Rs.1 crore to Rs.200 crores for excluding some of the companies - HELD THAT:- As it gives ambiguous result as two entities having difference of Rs.1 crore cannot be considered as comparable, whereas on the other hand difference of Rs.199 crores can be considered as comparable company. Therefore, such classification of comparables on the basis of Rs.1 Crore to Rs.200 Crores of turnover is not appropriate and acceptable. The turnover, no doubt, is a relevant factor to be taken into account, but there should be some proper and reasonable parameter to apply the difference of turnover between the assessee and the comparable which may be a reasonable multiple.
This Tribunal in case of ITO Vs. Maxim India Integrated Circuit Design Pvt. Ltd. [2016 (3) TMI 1138 - ITAT BANGALORE] has taken a similar view as under. Accordingly, by applying the turnover filter of 10 times to the turnover of the assessee's on both sides the following 10 companies are directed to be excluded from the set of comparables as not satisfying the turnover filter of 10 times of the turnover of the assessee - i.e., R S Software (India) Ltd., Geometric Software Solutions Co. Ltd.,Tata Elxsi Ltd. (Seg.), Visual Soft Technologies Ltd. (Seg.),Sasken Communication Technologies Ltd. (Seg.), iGate Global Solutions, Flextronics (Seg.),L&T Infotech Ltd., Satyam and Infosys
Bodhtree Consulting Ltd., Exensys Software Solutions Ltd.,Sankhya Infotech Ltd., Four Soft Ltd. and Thirdware Solutions Ltd. be deselcted on functional dissimilarity with the software development services provider like the assessee.
We direct the A.O./TPO to exclude these five companies namely (i) Bodhtree Consulting Ltd., (ii) Exensys Software Solutions Ltd., (iii) Sankhya Infotech Ltd., (iv) Four Soft Ltd. and (v) Thirdware Solutions Ltd. After exclusion of 10 companies on the ground of having turnover more than 10 times than the assessee and 5 companies as functionally not comparable only two companies are left which are as under :
i) Lanco Global Systems Ltd.
ii) Sasken Communication Technologies Ltd. (Seg.)
Accordingly, the TPO/A.O. is directed to recomputed the ALP by considering the benefit as per the proviso to section 92C.
Exclusion of expenses from the export turnover as well as total turnover while computing the deduction u/s 10A - HELD THAT:- The Hon’ble Karnataka High Court in the case of CIT v M/s Tata Elxsi Ltd. & Others [2011 (8) TMI 782 - KARNATAKA HIGH COURT] had held that while computing the exemption u/s 10A, if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded from the total turnover in the denominator.
Comaprable deselected on high turnover and functional dissimilarity - Accel Transmatic Ltd. (Seg.), Avani Cincom Technologies Ltd., Celestial Labs Ltd., E-Zest Solutions Ltd., Ishir Infotech Ltd.,KALS Information Systems Ltd. (Seg.) and Thirdware Solutions Ltd.
Claim of deduction regarding Employees Stock Compensation paid to the parent company - assessee has submitted that the assessee did not claim the deduction for a sum paid in respect of Employee Stock Option which was paid by the assessee to its parent company in lieu of the shares allotted to the employees of the assessee under Employeees Stock Option Scheme - HELD THAT:- There is no dispute that for the year under consideration the assessee did not claim the deduction in respect of the payment made to the parent company on account of Employees Stock Option and compensation. However we find that an identical issue has been considered in assessee's own case for the Assessment Year 2008-09 and it was held that it is an allowable deduction. Therefore, so far as the issue of allowability of the deduction is concerned it has been decided in favour of the assessee by this Tribunal by following the decision of the Special Bench in the case of Biocon Ltd. [2013 (8) TMI 629 - ITAT BANGALORE] However since the relevant to details of the claim has not been examined by the Assessing Officer
Apportionment of the expenditure between 10A and non-10A units is also required to be examined and verified. Therefore the claim of the assessee has to be apportioned between units eligible under Section 10A and the units which is not eligible for the deduction under Section 10A and then it has to be allowed against the respective income of the separate units. In view of the above facts and circumstances of the case, we set aside this issue to the record of the Assessing Officer for a limited purpose of verification and examination of the relevant record regarding apportionment of the amount between the 10A unit and non-10A unit.
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2016 (10) TMI 1393
Reopening of assessment - notice issued beyond four years - addition of the provision of FBT and the expenditure incurred on Social Forestry for earning exempt income - HELD THAT:- We find that the provision of FBT was mentioned in the Profit and Loss account which was before the AO at the time of original assessment proceedings. Therefore, it cannot be said that there was a failure on the part of the assessee to disclose truly and fully all the material facts before the AO.
So far as the expenditure Social Forestry for earning exempt income is concerned, we find that this amount was added by the A.O. in the computation of income as per the normal provisions of the Act. Therefore, it cannot be said full facts related to this issue were not disclosed before the A.O. at the time of original assessment.
We find that there was no failure on the part of the assessee to disclose truly and fully all the material facts before the Assessing Officer at the time of original assessment proceedings. In the light of the proviso to Section 147 of the Act, we do not find any error or infirmity in the findings of the ld. CIT(A). Appeal filed by the Revenue is accordingly dismissed.
Adjustment of MAT credit entitlement while computing book profit u/s. 115JB - AO noticed that the assessee has credited an amount as MAT credit entitlement which was not reduced from the net profit for computing book profit and there is no provision for any adjustment in respect of MAT credit entitlement credited to the Profit and Loss account - HELD THAT:- Provision for current tax is shown at Rs. 7,41,01,907/- and MAT credit entitlement has been separately shown at Rs. 6,13,84,689/- It can be further seen that the provision for current tax is shown at gross amount. The net amount comes to Rs. 1,27,17,218/-, if the MAT credit entitlement is reduced from provision for current tax. If the assessee had shown the net amount of Rs. 1,27,17,218/- and added back the same for the computation of book profit, the revenue would have accepted this computation. But for the accounting principles and set guidelines both the amounts were shown separately. Considering these facts in totality, we do not find any logic in making the addition for computing the book profit; the same has to be deleted. Ground accordingly dismissed.
Exchange Fluctuation on repayment of Foreign Currency Term Loan - revenue or capital expenditure - HELD THAT:- Foreign Exchange Fluctuation loss on account of working capital is at Rs. 183.67 lacs. Since, this loss is attributable to the working capital requirement, therefore, it has been considered as a revenue loss. This needs to be verified by the A.O. In the interest of justice and fair play, we restore this issue to the files of the A.O. A.O. is directed to examine the aforementioned chart by calling for necessary details from the assessee. The assessee is directed to provide necessary details for examination. Needless to mention, the A.O. shall give a reasonable opportunity of being heard to the assessee before deciding this issue afresh. In the result, Ground treated as allowed for statistical purpose.
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2016 (10) TMI 1392
Condonation of delay - Appeal filled as time barred by 26 days - CIT(Appeals) instead of considering the submissions of the assessee found that appeal of the assessee is late by 26 days and since no application for condonation of delay has been filed therefore, appeal of the assessee has been dismissed - HELD THAT:- Matter requires re-consideration at the level of the ld. CIT(Appeals). CIT(Appeals) noted the facts of the case and written submission of the assessee in the impugned order but did not pass any order on merit. He has held that appeal is time barred by 26 days and in absence of application for condonation of delay, appeal was dismissed.
There is no fact mentioned in the impugned order if any opportunity was given to the assessee to file application for condonation of delay in this regard. Further, there appears justification in the contention of ld. counsel for the assessee that appeal before ld. CIT(Appeals) was not time barred by 26 days.
CIT(Appeals), before considering the appeal to be time barred should have given sufficient opportunity to the assessee to explain the time barring matter and should have given oppor tunity to the assessee to file application for condonation of delay in this regard. The order of the ld. CIT(Appeals) therefore, vitiate due to these reasons.
Set aside the orders of the ld. CIT(Appeals) and restore the matter in issue to the file of ld. CIT(Appeals) with direction to re-decide appeal of the assessee by giving opportunity to the assessee to file application for condonation of delay.
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2016 (10) TMI 1391
Levy of Service tax - Technical Testing and Certification Services - payments made by the appellant to the USFDA - reverse charge mechanism - HELD THAT:- Identical issue in respect of the appellant for the earlier period 18.4.2006 to 31.3.2008 was before the Tribunal in ROHA DYECHEM PVT LTD, VIDHI DYESTUFF MFG LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2016 (4) TMI 111 - CESTAT MUMBAI], the Bench held that such payments are not covered under the reverse charge mechanism as these are fees which are payable to USFDA.
As in the case of the appellant itself in ROHA DYECHEM, this Bench has allowed the appeal and set aside the demands raised, respectfully following the same, it is held that the impugned orders are unsustainable and liable to be set aside - appeal allowed.
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2016 (10) TMI 1390
Assessment u/s 153A - approval u/s.153D without application of mind - HELD THAT:- Approval has been given u/s.153D of the Act without application of mind.
Assessment u/s.153A of the Act is wrong against law and facts and is not liable to be sustained in the eyes of law, therefore the assessment order u/s 153A is hereby ordered to be set aside
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2016 (10) TMI 1389
Nature of expenditure - Payment of royalty - Revenue or capital expenditure - HELD THAT:- Whether the payment of royalty by assessee to Carraro SpA, Italy is revenue or capital in nature, has been laid to rest by the Tribunal while deciding the appeal of the Department [2013 (2) TMI 877 - ITAT PUNE] for assessment years 2003-04 and 2004-05 decided the issue in favour of the assessee by holding royalty payment as revenue expenditure. Royalty paid in respect of goods sold in domestic market and the amount of royalty pertains to and is necessarily an expense incurred to earn sales revenue during the year, hence same is revenue expenditure.
Amortization of loose tools - principle of consistency - uniformity in treatment and consistency when the facts and circumstances in different years are identical - HELD THAT:- We would like to observe that loose tools refer to patterns/dies further required to manufacture components according to design and technology specifications of the assessee. These components are used in the products manufactured by the assessee. Undisputedly, the dies and designs are provided by the assessee to the suppliers of the components. Merely for the reason that the loose tools are in possession of the suppliers of the components, it does not mean that the loose tools ceases to be the assets of the assessee. The assessee has provided the loose tools to the suppliers of the components for its own convenience. It is not the case of the revenue that the assessee has charged for the dies/patterns (loose tools) from the suppliers.
Hon'ble Supreme Court of India in the case of Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] and Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] has emphasized on the principle of consistency. There should be uniformity in treatment and consistency when the facts and circumstances in different years are identical, particularly in the case of same assessee.
Revenue appeal dismissed.
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2016 (10) TMI 1388
Seeking enforcement of foreign award - whether the award, which is based on the application of Singaporean law of limitation, would be unenforceable in India on the ground that it is violative of the public policy in India? - Whether the Arbitrator had stepped outside his jurisdiction by considering the claims made by the petitioner for teleport and occasional services, as they were, purportedly, not part of the main agreement? - HELD THAT:- Once it is accepted that the law of limitation would be the Singaporean law, as has also been ruled by the learned Arbitrator, the next tertiary issue which would arise for consideration would be: Would such a conclusion, lead to violation of the public policy in India.
The Court, in Shri Lal Mahal's case [2013 (7) TMI 643 - SUPREME COURT], ultimately, upheld the dicta laid down in its earlier judgment in Renusagar Power Company V. General Electric Company [1993 (10) TMI 232 - SUPREME COURT], which adumbrated that public policy in the context of foreign award has to be viewed in a narrower sense, and that, in order to attract the bar of public policy qua enforcement of a foreign award, it must invoke something more than just a mere violation of the law of India.
In the instant case, the objections articulated clearly do not fall foul of the head, the fundamental policy of India
Frankly, given the scope of Section 45, this argument was not available before the learned Arbitrator. However, since, in any event, such a submission was made, the learned Arbitrator, evidently, dealt with the same and held that as the Singaporean law of limitation applied, the agreement, which was otherwise lawful and binding, was neither null and void, nor inoperative or incapable of being performed, within the meaning of Section 45 of the 1996 Act.
Thus, no fault can be found with the reasoning of the learned Arbitrator, and therefore, this submission, being misconceived, is also rejected - petition allowed.
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2016 (10) TMI 1387
Disallowance of commission expenses - Whether allowable business expenditure? - HELD THAT:- All the agents have confirmed that they have rendered the services and also received the commission. All the commission agents are being assessed to income tax and they have deposited tax liability after claiming normal business expenditure for earning such business income. Such income has been disclosed by the agent and identity of the commission agent is proved.
We find that the agents have rendered the services, motivated the agriculturists, compilation of their requirements, submission of return relating to land records, prepare the file from Jan Panchayat office, arranging delivery of goods by Marketing Federation sites, supply of pipe, installation of pipes to the agriculturists and maintenance of pipes for the prescribed period. Therefore, the assessee has made these services.
The Market Federation did not require any middleman for giving order to the company but when the notice was issued to Market Federation, they have explained why the services of middleman is required. Therefore, this has been explained by the Marketing Federation itself. Therefore, CIT(A) has allowed the claim. Moreover, the assessee has also claimed that it has earned more revenue after deputing the middleman commission agent. Therefore, it may be allowed. Therefore, we are of the view that the learned CIT(A) is justified in his action and our interference is not required at all. Decided against revenue.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As decided in Kamal Kumar Jagdish Prasad [2016 (6) TMI 1474 - ITAT INDORE] no stretch of imagination can Section 14A or Rule 8D be interpreted so as to mean that the entire tax exempt income is to be disallowed. The window for disallowance is indicated in Section 14A, and is only to the extent of disallowing expenditure “incurred by the assessee in relation to the tax exempt income”. This proportion or portion of the tax exempt income surely cannot swallow the entire amount as has happened in this case. The question of law is answered in favour of the assessee.
Thus we set aside the orders of the authorities below with the direction to the Assessing Officer to consider the above High Court judgments cited above and decide the issue in view thereof, after affording a reasonable opportunity of being heard to the assessee. Appeal of the assessee is allowed for statistical purposes.
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2016 (10) TMI 1386
TP Adjustment - Normal Gross Profit Mark-Up over Cost computation - inclusion of abnormal loss in the cost of consumption of Raw Material for the purposes of calculation - whether abnormal loss is purely during the course of normal manufacturing operations and does not constitute/is not attributable to any international transaction between assessee co. and its AE - HELD THAT:- As apparent that the assessee has incurred certain costs which are extraordinary in nature. However, the claim of the assessee is half-hearted as assessee has not furnished the details of the cancellation of order and what are the materials, which were procured by the assessee against which order of the buyer who got bankrupt. Further, there are no details available that what the realisable value of those materials is and how the valuation loss were determined.
Agreeing with the contention of the assessee that extraordinary cost/ abnormal cost cannot be included in the cost for working PLI of the assessee, but assessee has prove first about the actual loss incurred leading concrete evidences. We set aside this issue to the file TPO/AO to examine with respect to quantity, price and quality or specification of the material revalued with respect to the material which was purchased or designed by the assessee specifically for that buyer who cancelled the orders and gone bankrupt. The appellant is also directed to furnish all this information to justify its claim and also to show the nature and extent of extraordinary loss incurred by the assessee with evidences.
Directions given by the Ld. Dispute resolution panel with respect to the selection of certain companies which were incurring persistent losses - grievance of the assessee was only with respect to the only one comparable that is Scott industries Ltd. - TPO has refused to give effect to the direction of the LD. DRP on the ground that the annual report of the company is not available in public domain. It was submitted by the Ld. authorized representative that assessee has submitted the copy of the profit and loss account of the party for 3 years from prowess database, which has not been considered by the Transfer pricing officer. DR also submitted that same may be considered if the proper information is provided by the appellant to the Ld. assessing officer. We set aside ground of the appeal of the appellant to the file of TPO to consider the letter submitted for exclusion of the above comparable, as directed by the Ld. DRP, if he is satisfied about the correctness of the information, which should be reliable and authentic.
Applicability of the transfer pricing adjustment only to transactions with related parties - No hesitation in holding that the transfer pricing adjustment should be restricted to the international transactions only and it cannot be applied to uncontrolled transactions. Recently in CIT V Hindustan Unilever Limited [2016 (7) TMI 1245 - BOMBAY HIGH COURT] has held that While determining ALP of international transactions, benchmarking has to be done only on AE transactions and not for entire turnover. Therefore respectfully following that decision we direct ld TPO/AO to restrict the adjustment on account of ALP to the extent of the transaction with AE only.
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2016 (10) TMI 1385
Doctrine of Lis Pendens vis-à-vis the temporary injunction - Protection to the parties from transfers pendente - Would plaintiffs' registering notices of their suits under Section 18 of the Indian Registration Act (though such registration may not be compulsory) not secure for plaintiffs more than what an injunction could secure - Availability of adequate protection before an injunction to restrain transfer pendente lite is issued - temporary injunction to restrain transfers pendente lite, to consider imposition of conditions short of granting injunction, which should protect the plaintiff's interest, like, seeking an undertaking that no equities would be claimed on account of sale or development of properties - applicability of judgment in VASANT TATOBA HARGUDE AND ORS. VERSUS DIKKAYA MUTTAYA PUJARI [1979 (9) TMI 202 - BOMBAY HIGH COURT].
HELD THAT:- The Hon'ble Supreme Court in the case of Sarvinder Singh v. Dalip Singh made this legal position further clear by observing that, "the effect of the Doctrine of Lis Pendens is not to annul the transfer, but only to render it subservient to the rights of the parties to the litigation. In other words, the section 52 in fact, does not have the effect of wiping out a transfer pendent lite altogether, but only subordinates it to the rights of parties based on the decree to the suit. As between the parties to the transfer, that is, the transferor and the transferee, transfer of the title is perfectly valid, and operates to vest the title of the transferor in the transferee. The words "so as to affect the rights of any other party thereto under any decree or order which may be made therein" make it quite clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order.
The Law Commission, therefore, in its report, after referring to the laws operating in the U.K. and other countries, recommended amendment in Section 18 of the Indian Registration Act, 1908, on the lines of the Bombay Amendment Act. In view thereof, the Rule of Lis Pendens now applies only when a notice of pendency of the suit, in which any right to involve property is directly and specifically in question, is registered under Section 18(ee) of the Registration Act. The Law Commission, accordingly, suggested corresponding amendment in Section 52 of the TP Act, on the lines of Bombay Amendment Act XIV of 1939.
By Order XXXIX Rule 6, the Court is empowered to make interlocutory orders and which are not of injunction, but permitting sale of any movable property, being the subject-matter of such suit or attached before Judgment in such suit; if that is subject to speedy and natural decay, or if that is required for any other just and sufficient cause, which makes it desirable to have it sold at once. Order XXXIX Rule 7 permits, detention, preservation, inspection etc. of subject-matter of the suit and interlocutory order can be made in that behalf - The power to grant temporary injunction in a mandatory form also flows from the same provision, namely, Order XXXIX Rule 1 CPC. A temporary injunction in a mandatory form is distinct and separate from a mandatory injunction. The object of such a temporary injunction is to preserve status-quo and to prevent irretrievable injury and grant of the same is not a matter of quest.
Once it is held to be so, it automatically follows that even if plaintiff registers the notice of his suit under section 18(ee) of the Registration Act, it will not secure the plaintiff more than what an injunction could secure. Even accepting that transferees pendent lite, in view of such registration, are deemed to have notice of such pendency of the lis and could not claim to be transferees without notices, such transfers do not have the effect of rendering the transaction illegal, which consequence is entailed in case of transaction, if it is in breach of injunction order. Therefore, it has to be held that registration of the suit or proceedings, though preferable and desirable, cannot be a substitute to the order of interim injunction, in terms of extending protection to the parties.
The question as to whose decisions are binding, Article 141 of the Constitution, provides that, "the law declared by the Supreme Court shall be binding on all courts within the territory of India." - It is also well-settled that though there is no specific provision, like, Article 141 of Constitution making the law declared by the High Court binding on subordinate courts, it is implicit in the power of supervision conferred on a superior Court that the Courts subject to its supervision would confirm to the law laid down by it.
Thus it is summarised as below:-
i). Section 52 of TP Act does not provide adequate protection to the parties from transfers pendent lite. The question does lay down a correct proposition of law that, transferees pendent lite are not required to be or entitled as of right to be impleaded as parties to the suit, and they cannot resist execution proceedings in view of provisions of Order XXI Rule 100 of the Code, as amended by this Court.
ii). Mere registration of notices of pending suit cannot secure for plaintiffs more than or even equivalent to what an injunction could secure, as the consequences of alienation in breach of interim injunction render such alienation illegal and expose the party to the consequences provided under Order XXXIX Rule 2A and Rule 11 CPC, in addition to the punishment for contempt of Court. Hence, such registration of notices of pending suit, though desirable as an additional safeguard, cannot be preferable or substituted to clamping an order of injunction on adversary.
iii). Though it may not be inappropriate for the Court to expect the plaintiff to show that the provisions of Section 52 of TP Act do not afford adequate protection, it cannot laid down as a blanket proposition of law that in each and every case, plaintiff is expected to show it as a condition precedent for grant of injunction order.
iv). Though depending on the facts of the case, the Court can consider imposition of conditions, like, seeking an undertaking that no equities would be claimed on account of sale or development of property; effecting sale only after putting transferees to notice that their rights would be subject to pending suit or requiring the parties to inform the Court promptly of creation of such interest, those conditions can be in addition to or independent of the order of injunction, but cannot be in place of or short of granting injunction.
v). In the light of the decisions of the Hon'ble Supreme Court in the case of STATE OF U.P. AND ORS. VERSUS AJAY KUMAR SHARMA AND ORS. [2015 (11) TMI 1795 - SUPREME COURT] and NEW INDIA ASSURANCE CO. LTD. VERSUS HILLI MULTIPURPOSE COLD STORAGE PVT. LTD. [2020 (3) TMI 1368 - SUPREME COURT], we answer this question to the effect that, in case of conflict between the decisions of Co-ordinate Benches, it is not the later but the earlier one in point of time, which should be followed and applied by the Subordinate Courts to the facts and circumstances of a case before it, unless, of-course, earlier decision is considered and explained in the later decision."
The Registry is directed to place this matter, as per the present assignment, before the learned Single Judge for hearing of the Appeal.
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