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Showing 1 to 20 of 1687 Records
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2019 (12) TMI 1690
Seeking withdrawal of petition and pursuing an alternate remedy under Section 54 of the TNVAT Act, 2006 - Classification of goods - recorded music CD/DVD under Entry (13-A) (e) in Parts C to I Schedule to TNVAT Act, 2006 - taxable @14.5% or at 4% / 5% in terms of Entry No.68, Part B to the I Schedule as “Information Technology Products”? - HELD THAT:- The present Writ Petitions are disposed with liberty to pursue the aforesaid remedy by invoking the revisional powers under Section 54 of the TNVAT Act, 2006.
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2019 (12) TMI 1689
Anti-competitive practices - abuse of dominant position in the market for upstream terminalling services at Visakhapatnam Port - contravention of the provisions of Sections 3 and 4 of Competition Act, 2002 - bypass restriction imposed by SALPG is primarily for commercial interest and the restrictions - denial of market access.
HELD THAT:- The Commission rightly held that protection of commercial interest by a dominant enterprise, at the cost of competition, is contrary to its responsibility cast under the Act. SALPG has pointed out that allowing bypass would reduce the discharge rate i.e. from 1000 MT/hour to 250-300 MT/hour, thereby increasing the demurrage charges to OMCs. Seen from the perspective of competition, the Commission is of the view that if option of bypass is allowed, the users, i.e. OMCs could in that case decide on the choice to make for after weighing the cost and other relevant factors. In other words, it is for the customers to decide whether they would like to pay for use of the cavern or opt for higher vessel retention.
It rightly observed that effective competition does not necessarily mean prevalence of the most efficient to the exclusion of relatively less efficient choices to consumers. Therefore, in the absence of capacity constraints to accommodate the services offered by EIPL, restraint on competition exerted by SALPG on the pretext of the former being less efficient, would not be justified.
The bypass restriction imposed by SALPG is primary with a view to protect its commercial interest at a cost competition and the plea taken before the Commission was an after-thought. The Commission rightly held that ‘SALPG’ requiring users to necessarily use the cavern and pay higher charges is an unfair imposition in provision of terminalling services; and is likely to discourage imports and restrict the services otherwise offered by the Informant. The impugned restriction on bypass of the cavern facility are in contravention of Section 4(1) read with Section 4(2)(a)(i), Section 4(2)(a)(ii) and Section 4(2)(b)(i) of the Act. The bypass restrictions restricted the business of ‘EIPL’ was unreasonable which denied the Informant market access, in contravention of Section 4(2)(c) of the Act.
Conclusion - i) Dominant entities must not impose unfair conditions or deny market access, and must comply with contractual obligations to share infrastructure. ii) The restriction imposed by SALPG on bypass of the cavern facility are in contravention of Section 4(1) read with Section 4(2)(a)(i), Section 4(2)(ii) and Section 4(2)(b)(i) of the Act.
In absence of any merit, the appeals are dismissed. The interim order passed on 19th September, 2018 is vacated.
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2019 (12) TMI 1688
Validity of reassessment proceedings - non issuance and non service of notice under section 143(2) - HELD THAT:- In the case of ACIT vs. Geno Pharmaceuticals Ltd. [2013 (10) TMI 218 - BOMBAY HIGH COURT] has held that where no notice under section 143(2) has been issued while making assessment u/s 143(3) r/w section 147, the assessment so framed is bad in law as the AO can not proceed to make an enquiry on the return filed in compliance to the notice issued under section 148 of the Act and thus dismissed the appeal of the Revenue by holding that no substantial question of law arose out of the appeal of the Revenue. Similarly, in the case of CIT vs. Laxman Das Khandelwal [2019 (8) TMI 660 - SUPREME COURT] the Hon’ble Apex Court has held that no notice under section 143(2) was ever issued by the Department, therefore, the finding rendered by High Court and the Tribunal and the conclusion arrived at were correct and there is no reason to take a different view in the matter.
Thus, assessment proceedings and the consequent reassessment order passed u/s 143(3) r.w.s. 147 are bad in law as the mandatory notices under section 143(2) was not issued. Accordingly, we quash the proceedings initiated by the AO under section 147 and also the consequent reassessment order. Assessee appeal allowed.
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2019 (12) TMI 1687
Reopening of assessment u/s 147 - petitioner company is a beneficiary of entries from a transaction with two entry operators and their sister concerns - assessment reopened beyond a period of four years - HELD THAT:- As pointed out that in the entire reasons recorded, there is not even a whisper regarding any failure on the part of the petitioner to disclose fully and truly all material facts and therefore, the assumption of jurisdiction by the AO u/s 147 of the Act, without there being any failure on the part of the petitioner to disclose fully and truly all material facts, is without authority of law.
Having regard to the submissions advanced by the learned advocate for the petitioner, issue Notice, returnable on 20.01.2020.
By way of ad-interim relief, further proceedings pursuant to the impugned notice dated 28.03.2019 issued by the respondent u/s 148 of the Act for assessment year 2012-13 are hereby stayed.
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2019 (12) TMI 1686
Attachment of Bank Accounts by Tax Recovery Officer - Section 33(1) of I&B Code - HELD THAT:- It is hereby directed that the attachment be lifted in respect of the Bank Accounts detailed as Biotor Industries Limited in Yes Bank Ltd., Mukund Branch, Account No. 05966370001199 IFSC Code - YESB0000596.
The Revenue Department as well as the Banks shall cooperate with the Liquidator so that without hindrance the assets of the Debtor Company, under Liquidation, can be liquidated, as well as the debt of the all the stake holders can simultaneously be satisfied in the proportion of their respective claims subject to availability of funds - the directions Application of the Liquidator is allowed.
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2019 (12) TMI 1685
Rectification of mistake under Section 35C (2) of the Central Excise Act, 1944 - errors apparent on the face of record or not - HELD THAT:- It is settled principle of law, now that the decision has to be well reasoned and passed after consideration of the facts relevant to the record the finding in respect of the issues raised before the authority/ appellate authority. Irrelevant facts and arguments need not be included in the order, and those which are not relevant for arriving at the decision should be avoided. Also decision need not be loaded with unnecessary information and legal knowledge of the author of the judgment.
The entire application made for the recall of the impugned order is based on the submission that the tribunal has while passing the impugned order not recorded any finding in respect of the decision rendered by co-equal bench of CESTAT Chennai in case of IndusInd Bank Ltd. [2019 (2) TMI 26 - CESTAT CHENNAI] - Even if for the moment the argument as made in the application for rectification of the order, the final conclusions arrived in the impugned order will not change.
The Rectification of Mistake Application filed by the Applicant is disposed of.
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2019 (12) TMI 1684
Disallowance u/s 40A(3) - cash payments - payments were made on the last date of the month, which happened to be a Sunday - assessee failed to submit reason as to why payment had to be made on Sunday, and as to why cheque payment could not be made even if it was a holiday - HELD THAT:- Hon’ble Kerala High Court in the case of M.K. Agrotech P. Ltd. [2019 (1) TMI 37 - KARNATAKA HIGH COURT] took the view that the explanation of assessee that DDs were not crossed because the suppliers wanted quick realisation was an acceptable explanation and there is a valid justification for not invoking the provisions of section 40A(3) of the Act. In our view the aforesaid decision of the Hon’ble Karnataka High Court will not support the plea of assessee in the present case.
The assessee in the present case except making a statement that cash payments were made on the last day of the month and cash payments were made keeping in view the business exigencies is not supported by any evidence as to whether the last day of the month is the last day for payment and the assessee would suffer any other consequences if the payment is not made beyond the last date of the month.
The assessee has not made out any valid justification for not making the payments of sums of above Rs.20,000 in the manner required by the provisions of section 40A(3) - therefore do not find any grounds to interfere with the order of CIT(Appeals). Appeal of the assessee are dismissed.
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2019 (12) TMI 1683
Monetary limit of filling SLP - Low tax effect - HELD THAT:- Exemption from filing certified copy of the impugned order is granted - Delay condoned.
Special leave petition is dismissed on the ground of low tax effect.
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2019 (12) TMI 1682
Acceptance of methodology of payment of taxes on deemed sale value u/s 5 of Tamil Nadu Value Added Tax Act, 2006.
The argument advanced on behalf of the petitioner is that the method of accounting decided upon and fixed on the direction of the Tax Audit Officers at the time of inspection on 17.07.2009 is being followed consistently by it till date.
HELD THAT:- The learned single Judge has directed an assessment to be completed, de novo, including specifically the issue of whether the plea raised by the petitioner in regard to method of accounting is bonafide or otherwise. Thus, there is some merit in the argument that the issue as to whether the method of accounting followed was bonafide or otherwise, should be considered specifically as a preliminary issue particularly, in the light of statement dated 17.07.2009.
The impugned order is set aside - the petitioner is directed to appear before the Assessing Authority on Friday the 20 th December, 2019 at 10.30 a.m. without expecting any further notice in that regard - the writ petition disposed off.
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2019 (12) TMI 1681
Misdeclaration and undervaluation of imported goods - Timber - rejection of declared value - enhancement of value - reliability on statements - demand of differential duty - Tribunal held that, undervaluation are not supported by any cogent evidence. Further the goods by other importers are also on same price. Hence, the declared value cannot be doubted - Demand do not sustain - appeal allowed - HELD THAT:- We find no reason to interfere with the impugned order of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad.
The appeal is accordingly dismissed.
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2019 (12) TMI 1680
Challenged the order passed by Ld. Commissioner (Appeals) - enhancing the penalty ignoring the mandate of Regulation 5 of the Customs (Provisional Duty Assessment) Regulations, 2011 - HELD THAT:- The Commissioner (Appeals) while allowing the appeal filed by the Department had enhanced the penalty to Rs. 50,000/- On perusal of Regulation 5, it is seen that it prescribes the maximum limit of penalty. The minimum amount of penalty has not been prescribed and has been left to the discretion of the authority. The expression “which may extend to” does not relate to the minimum amount of penalty but to the maximum amount of penalty which could be imposed.
Thus, the impugned order is set aside and the order of the Adjudicating Authority is re-stored. Appeal filed by the appellant is thus allowed in the above terms.
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2019 (12) TMI 1679
Drawing the award relating to the properties in question acquired by the KIADB under the provisions of the Karnataka Industries Area Development Act, 1966 - absolute owners of the land converted from agricultural to nonagricultural purposes or not - HELD THAT:- On perusing the material on record, it is ex facie apparent that the Notification dated 20/12/2016 at Annexure-A issued under Section 28(1) of the Act, 1966 would make it clear that the compensation shall be determined in terms of the Act, 2013.
This Court in W.P.No.11209-11212/2019 [2019 (4) TMI 2150 - KARNATAKA HIGH COURT], while considering the resolution of the Board Meeting held on 27/08/2016 observed that the acquisition proceedings being initiated subsequent to the New Act, 2013 coming into force, the compensation has to be determined in terms of the provisions of the Act, 2013. Such statement indeed was made in the statement of objections filed by the KIADB in the said matter.
The endorsement dated 03/07/2019 at Annexure-H cannot be sustained and is accordingly quashed. The respondents shall determine the compensation in terms of the Act, 2013, in so far as the petitioners’ land acquired are concerned for the purpose of development by respondent No.2.
Petition disposed off.
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2019 (12) TMI 1678
Dismissal of appeal of the assessee for non-appearance on various dates - as alleged CIT(A) Passed non speaking order - HELD THAT:- It was the duty of the CIT(A) to pass a speaking order while disposing the appeal ex-parte. The principle audi alteram partem is the basic concept of the natural justice. The expression audi alteram partem implies that a person must be given an opportunity to defend himself which is sin qua non of every civilized society the right to notice, the right to present case and evidence, right to refer advert evidence, right to examine, right to legal representation, disclosure of evidence to party, report of enquiry be shown to the other party and reasoned decision or speaking order is must.
We find that in the instant case, though hearings were fixed on various dates but the assessee could not avail the proper hearing because of owing to the fact that an FIR was lodged against the assessee and he was taken into custody from 07.08.2018. The Hon'ble Gujarat High Court had granted bail to the assessee vide order dated 07.01.2019. And in this way the assessee was not aware regarding the passing the order of by the ld.CIT(A).
Therefore, we are of the view that the assessee must be given one more opportunity of being heard and to represent his case. Therefore, in exercise of the powers conferred under Rule 28 of Tribunal Rules, we restore back to the file of the learned ld.AO to provide one more opportunity and also thereby to consider all the points so raised by the assessee. The assessee will file necessary evidences on which he wants to rely upon. Appeal filed by the Assessee is allowed for statistical purposes.
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2019 (12) TMI 1677
Rectification u/s 154 - period of limitation - time limit for rectification of mistake under section 154(7) - dividend distribution tax paid u/s 115O for computing book profit u/s 115JB is not correct - HELD THAT:- The first rectification order was passed by the AO on 13.03.2012 at the instance of assessee. Admittedly no issue of book profit under section 115JB was the subject matter of the rectification order passed on 13.03.2012. AO issued show cause notice for rectifying the order on the issue of book profit only for the second proposed rectification.
From the above discussions, it is clear that the legal position is that the time limit for rectification of mistake under section 154(7) is to be considered from the date of the original order or in subsequent rectification order only if the said rectification order dealing with the same which is sought to be rectified.
Thus having noted that the first rectification order dealt with entirely different, it is clear that the time limit for passing the impugned order indeed expired on expiry of four years from the end of the financial year, in which, the original order sought to be rectified was passed i.e. on 31.3.2009. As relying on Ashu Engineers & Plastic Pvt Ltd [2011 (4) TMI 1519 - ITAT MUMBAI] we are of the view that the rectification order passed u/s 154 is clearly beyond the prescribed limitation of period provided u/s 154(7). Appeal of the assessee is allowed.
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2019 (12) TMI 1676
Scope of Section 17(5)(d) - construction of immovable property (shopping malls) intending for letting out for rent - input tax credit from construction against output GST on rental income - High Court held that assessee is required to pay GST on the rental income arising out of the investment on which he has paid GST, it is required to have the input credit on the GST, which is required to pay u/s 17(5)(d) of the CGST Act - HELD THAT:- The learned senior counsel appearing for the petitioners prays for time to file reply.
List after four weeks. Additional documents, if any, may also be filed by the parties in the meantime.
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2019 (12) TMI 1675
Rectification of mistake - time limitation - application rejected on the ground that it is filed beyond six months of passing of the impugned final order - Section 35C(2) of the Central Excise Act - HELD THAT:- No doubt the Tribunal vide order in case of NATIONAL ENGG. INDS. LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR [2001 (11) TMI 104 - CEGAT, COURT NO. I, NEW DELHI] and the final Order in case of M/S. RSPL LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE, ALWAR [2019 (4) TMI 2151 - CESTAT NEW DELHI] has held that the ROM application can be entertained within six months from the date of the order. However, on the other hand, the learned Advocate has placed reliance on the decisions of Hon‟ble Gujarat High Court in case of LILADHAR T KHUSHLANI VERSUS COMMISSIONER OF CUSTOMS [2017 (2) TMI 200 - GUJARAT HIGH COURT] where it is held It is reported that the rectification application was submitted within the period of six months from the date of receipt of the order/dispatch order, and therefore, the impugned order passed by the learned CESTAT cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Tribunal to consider the rectification application in accordance with law and on its own merits treating the same to have been filed within the period of limitation provided under the Act.
Further, reliance was placed on the decision of VADILAL INDUSTRIES LTD. VERSUS UNION OF INDIA [2005 (12) TMI 103 - HIGH COURT OF GUJARAT AT AHMEDABAD], wherein it is held that relevant date of six months for filing of ROM has to be reckoned from the date of receipt of the order by the appellant.
Thus, it is found that any person will notice error apparent in the order only when he receives the order and examine it. This aspect is based on the various decisions of the High Courts referred above - it is thus concluded that the relevant date for computation of six months, as envisaged in the provision of Section 35C(2) of the Central Excise Act, will be from date of receipt of the order by the appellant.
The Section 129 (B) (2) of the Customs Act, 1962 is parimateria to Section 35C(2) of Central Excise Act, 1944 and hence the decision of SUNITADEVI SINGHANIA HOSPITAL TRUST VERSUS UNION OF INDIA [2008 (11) TMI 249 - SUPREME COURT] will be applicable to Central Excise Act, as well.
Thus, it is found that all the submissions made by the appellant were not considered by the Tribunal except it got swayed by the admission on part of Shri Alok Aggaral, proprietor of the appellant accepting the clandestine removal. It is apparent from the record that the provision of Section 9D of the Central Excise Act, 1944 as mentioned to have been submitted by appellant, have not been considered while adjudicating the case rather reliance on the third party evidences for alleged clandestine removal of manufactured goods by the appellant - thus, vital aspect which are very much essential to be considered by the Tribunal could not have been considered in the said final order.
Thus, the errors as pointed out in the impugned order are errors apparent on record. Accordingly, ROM is allowed.
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2019 (12) TMI 1674
Eviction of the Appellant tenant Under Section 12 of the Rent Control Act - whether Section 13(2) of the Rent Control Act is ultra vires the Constitution of India, by reason of lack of legislative competence of the Chhattisgarh State legislature to enact the provision? - HELD THAT:- A law made Under Article 323B(1) of the Constitution may exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court Under Article 136 with respect to the matters falling within the jurisdiction of the said Tribunals. However, Article 323B(2) (d) or any other provision of the Constitution does not enable the State Legislature to enact law which provides for statutory appeals to the Supreme Court.
Section 13(2) of the Rent Control Act purports to confer a right of statutory Second Appeal to the Supreme Court. Even in case of concurrent findings of the Rent Controller and Rent Control Tribunal, where no serious question of law were involved, an appeal would have to be entertained and decided. Such a provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature, as argued by the learned Attorney General. Article 200 as observed does not and cannot validate an ultra vires enactment, which the concerned Legislature lacked competence to enact.
Article 138(2) of the Constitution provides that the Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court - A special agreement means, an independent agreement arrived at between the Government of India and the Government of a State through deliberations and negotiations and not just an approval of legislation by the President on the aid and advice of the Council of Ministers.
In any case, the Supreme Court may exercise further jurisdiction pursuant to a special agreement between the Government of India and the State Government on any particular issue, provided Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court. Parliament has not enacted any such law enabling the Supreme Court to exercise jurisdiction in respect of a subject matter agreed upon between the Government of India and the State Government. Article 138(2) is not attracted.
In exercise of its extraordinary power of superintendence and/or judicial review Under Article 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-assess or re-analyze the evidence and/or materials on record. Whether the High Court would exercise its writ jurisdiction to test a decision of the Rent Control Tribunal would depend on the facts and circumstances of the case. The writ jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of law.
The State Legislature lacked legislative competence to enact Section 13(2) of the Rent Control Act - Section 13(2) of the Rent Control Act declared ultra vires the Constitution of India, null and void and of no effect.
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2019 (12) TMI 1673
Jurisdiction - power of 'Directorate of Enforcement' to attach the property of the 'Corporate Debtor' or part thereof - CIRP process undergoing - Operational Creditor or not - Proceeds of crime - it was held by NCLAT that The Director, Deputy Director and other officers of 'Directorate of Enforcement' are prohibited from attachment of any property of the 'Corporate Debtor' (Bhushan Power and Steel Limited) without prior approval of this Appellate Tribunal.
HELD THAT:- Issue notice returnable in February, 2020.
In the meantime, there shall be stay of Provisional Attachment Order No.11/19 dated 10.10.2019 passed by the Directorate of Enforcement (ED).
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2019 (12) TMI 1672
Principles of Estoppel - Non-consideration of appellant’s work experience in an Army Hospital for grant of weightage and consequential selection and appointment as General Medical Officer in the State of Bihar - work experience not considered on the ground that Rule 6(iii) of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 mandated that only services rendered in employment of a hospital run by the Government of Bihar could count under the head of work experience - HELD THAT:- The underlying objective of principle of Estoppel is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance - In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
The question of permissibility of giving weightage for ‘work experience’ in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses - The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents’ interpretation of ‘work experience’ as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant’s challenge cannot be turned down at the threshold.
Statutory Interpretation - HELD THAT:- There is no doubt that executive actions like advertisements can neither expand nor restrict the scope or object of laws. It is therefore necessary to consider the interpretation of the phrase ‘Government hospital’ as appearing in the Rules - The former interpretation to the term, as accorded to it by the respondents, forms a narrower class whereas the latter interpretation used by the appellant is broader and more inclusive.
Literal Interpretation - HELD THAT:- Presence of the word ‘any’ in Rule 5 is also critical. It indicates a legislative intent to bestow a broad meaning to hospitals eligible for accrual of work experience. Importing the restrictive definition of Rule 2(a) would hence lead to an anomalous situation in having both expansive and restrictive adjectives applied to the same underlying noun. Consequently, an expansive interpretation of the phrase to be adopted, and not weight to be laid on Rule 2(a), as urged by the respondents - if faced between a choice in which only a few people would be eligible versus a fairly large group, we feel that the latter ought to be adopted to have a diverse pool of applicants. This would promote merit, bring better doctors and further the Constitutional scheme of providing equal opportunity in public employment to the masses - the provisions of the Rules in the case-at-hand cannot be construed or explained by applying the principle of literal interpretation.
Purposive Interpretation - HELD THAT:- The purpose behind formulation of the Rules was to recognize the unique challenges of hospitals in Bihar and in-centivise doctors to work in nonprivate hospitals. There is some substance in the submission of learned counsel for the respondents that Bihar is predominantly poor and thus requires doctors having exposure to such challenging environment as compared to their counterparts in private hospitals. Experience in a nonprivate hospital instills sensitivity in its doctors, making them more adept to understand the ail and agony of poor patients. Such experience will undoubtedly be useful in furthering the object of Government hospitals and must be given due weightage while selecting suitable candidates. Interpreting ‘Government hospitals’ to include only a small class of persons who have worked under the Government of Bihar, is thus clearly erroneous and anti merit. Such an objective would not be defeated by the understanding of the Rules.
Thus, Rule 5 & 6(iii) of the Bihar Health Service (Appointment and Service Conditions) Rules, 2013 are construed to include the experience gained by a doctor in any hospital run by the Bihar Government or its instrumentalities, as well as any other nonprivate hospital (including those run by the Central Government, Municipalities and Panchayati Raj Institutions; or other public authorities) within the territory of Bihar. Respondents are accordingly directed to rework and prepare a fresh merit list by granting due weightage to the appellant and other similarly placed candidates, within two months.
Appeal allowed.
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2019 (12) TMI 1671
Deduction u/s. 80JJAA - workmen as employed for more than 300 days - AO disallowed deduction relating to the workmen who have not completed 300 days in the year under consideration - definition of “regular workman”[Excluding workman employed for a period of less than 300 days] - AO was of the view that the deduction u/s. 80JJAA is allowable from the profits and gains derived by the assessee to the extent of 30% of the additional employee cost incurred in the course of business during the previous year in respect of the additional wages paid to the new employees who are employed on regular basis and completed 300 days of employment - assessee submitted that deduction should not be restricted to the employees joined before 5th June but should be extended in respect of the employees completed 300 days on or before filing the return
HELD THAT:- The identical issue has been considered by the ITAT in the assessee’s own case for the assessment year 2013-14 [2019 (4) TMI 2120 - ITAT BANGALORE] and held that the assessee is eligible for deduction u/s 80JJAA on additional wages paid to the new regular workmen employed in the financial year relevant to the assessment year 2012-13 provided they continue to be qualified under the regulation of regular workmen.
Thus we consider it is deem it fit to remit the matter back to the file of AO to examine the issue in the light of the decision of this Tribunal and direct the AO to allow the deduction as per the direction given in the order supra. The assessee has to furnish the details of new workmen employed and the additional wages incurred before the AO. Accordingly, the order of the lower authorities are set aside and the issue is remitted back to the file of the AO to decide the issue afresh on merits. Assessee ground is allowed for statistical purpose.
Disallowance of commission - disallowance u/s. 40(a)(ia) as well as colourable device to inflate the expenses - HELD THAT:- With regard to the disallowance made u/s 37(1) of the Act, the AO issued the notice under section 142(1) of the Act directing the assessee to establish the marketing services rendered by the assessee and made the addition holding that the assessee did not establish the marketing services rendered by the holding company M/s. Aquarelle International Ltd. However in subsequent paragraphs though without prejudice, the AO made the addition under section 40(a)(ia) of the Act.
While making the disallowance under section 40(a)(ia) of the Act the AO made the observation that payment was genuine and the agents have rendered the services. Therefore, as rightly argued by the Ld. AR there was a contradictory finding in respect of the services rendered by the foreign agent to the assessee. CIT(A) rejected the application of the assessee for admission of additional evidence, however, the Ld. CIT(A) reached conclusions on the basis of additional evidence produced by the assessee, without even calling for the remand report.
Having rejected the application for admission of additional evidence the Ld. CIT(A) ought not to have placed reliance on the same additional evidence for concluding that the M/s. Aquarelle International Ltd., has not rendered the marketing services to the assessee. CIT(A) also ought to have called for the remand report and made verification of the facts submitted in the additional evidence before taking the additional evidence as basis for coming to conclusions - entire issue needs to be re-examined by the AO to establish whether the M/s. Aquarelle International Ltd. has rendered the services for receipt of commission or not and whether the payment is in the nature of technical services or not. Assessee ground allowed for statistical purposes.
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9911796707
