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2023 (2) TMI 1399
Maintainability of the present appeal - Unexplained source of funds for purchase of property - assessee had filed additional document to substantiate the source of funds for purchase of property - CIT(A) deleted addition - Whether the CIT (A) violated Rule 46A(1) by accepting additional evidence? - As argued AO failed to consider the documents filed by the assessee in “tapal” on the date of passing assessment order - HELD THAT:- Hon’ble Madras High Court in the case of Smt. B Jayalakshmi [2018 (8) TMI 208 - MADRAS HIGH COURT] held that where the CIT (A) on the basis of remand report from AO allowed the claim of assessee, the Revenue was not entitled to maintain an appeal before the Tribunal against the said order of CIT(A). The Hon’ble High Court while holding so placed reliance on the decision in the case of Jivatlal Purtapshi [1967 (2) TMI 8 - BOMBAY HIGH COURT].
Thus, we hold that once the AO in remand report had accepted the claim of assessee and the CIT (A) based on the remand report deleted the addition, no appeal could have been filed by the Department in respect of the said issue. Consequently, the ground no. 3 raised by the Department in its appeal is misconceived and not maintainable.
In view of our findings that ground no. 3 of appeal is not maintainable, the other two (2) grounds raised in appeal have the tax effect of Rs. 12,36,000/- which is less than the mandatory limit prescribed by the CBDT vide Circular No. 3/2018 for filing of appeal before the Tribunal. Hence, the appeal of Revenue is liable to be dismissed on account of low tax effect.
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2023 (2) TMI 1398
Allowability of TDS in form 26AS reflected in the revised form - claim not made in the original return of income or during the assessment proceedings - CIT(A) directed the AO to allow credit of TDS if corresponding income was also shown in the ITR - HED THAT:- It is an admitted fact that for taxation purpose, the learned Assessing Officer considered the income relevant for the TDS reflected in form 26AS as revised.
When the AO considered the corresponding income and has before him all the relevant facts in the shape of form 26AS as on the date of assessment, he is duty bound to assist the assessee, if the assessee is not aware of the discrepancy in respect of the income as per books and as per form 26AS. When form 26AS along with the reconciliation of income as per books and form 26AS was produced before him, learned Assessing Officer cannot accept the income for tax purpose and refuse to allow credit of corresponding TDS. Both must go hand in hand. Appeal of the Revenue is dismissed.
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2023 (2) TMI 1397
Rejection of benefit under the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 (SVLDRS) - non-payment of service tax on rent over immovable property and such members are allowed to file a declaration under the Scheme Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - HELD THAT:- In the present case, the petitioner in engaged in rendering services and is duly registered with the respondent as service provider. The communication sent to the petitioner that they are in the process of rejecting his application for consideration under the SVLDRS is Annexure P-9 and final order is Annexure P-11.
Order Annexure P-11 is set aside and matter is remanded back to the designated Committee to pass a fresh order.
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2023 (2) TMI 1396
Revision u/s 263 - Taxability in India of amount received towards repairs and maintenance support services - as argued services were rendered outside India without any of the personnel of the assessee visiting India, hence cannot be treated as FTS under section 9(1)(vii) of the Act or under Article 12 of the DTAA - HELD THAT:- The nature of receipts, both from rendition of repair and support services as well as off-shore sale of Zebra products was examined by the Assessing Officer in assessment year 2016-17 and after thorough inquiry, assessee’s claim was accepted. In the impugned assessment year, as facts on record would reveal, the AO has conducted necessary inquiry with regard to the activities carried out by the assessee and receipts earned there from. He has called for and examined the agreements with the Indian customers. Thus, it cannot be said that the AO has not made the requisite inquiry.
Additionally, when the AO was in session of the assessment proceeding for the impugned assessment year, the assessment proceeding for assessment year 2016-17 got concluded and the final assessment order accepting assessee’s claim was available before the AO. Thus, the view taken by the AO in the impugned assessment year in not bringing to tax the receipts from repair and support services as well as off-shore sales were consistent with the view taken by the Assessing Officer in the final assessment order passed for assessment year 2016-17, in pursuance to the directions of learned DRP. Thus, in these circumstances, it can very well be held that the view taken by the Assessing Officer, though, may not be the only view on the issue, but, is a possible view.
That being the case, the issue is highly debatable. Therefore, the only because the view taken by the Assessing Officer is not acceptable to the Revisionary Authority or does not matched with the view of the Revisionary Authority, it cannot be said that it is not a possible view.
As regards the observations of the Revisionary Authority regarding treaty shopping and non-availability of the treaty benefit to the assessee, we must observe, learned Revisionary Authority has ventured into uncharted territory without disclosing his mind to the assessee and providing an opportunity to the assessee to rebut the charges. Thus, in our view, the observations of learned CIT with regard to the assessee being an entity transposed to avail treaty benefit cannot be accepted as the assessee never got an opportunity to meet the allegations of the Revisionary Authority. Decided in favour of assessee.
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2023 (2) TMI 1395
Maintainability of review application filed against the order dismissing the Special Appeal - error apparent on the face of the record justifying the review of the Division Bench's order or not - HELD THAT:- The Full Bench decision in State of U.P. through Secretary, Secondary Educations & Ors. vs. C/M, Sri Sukhpal Intermediate College, Tirhut, Sultanpur & Ors. 2015 (5) TMI 1266 - ALLAHABAD HIGH COURT [LB]] holding that in the absence of sanctioned post, a direction for payment of salary cannot be given is not helpful.
The provision of review is not to scrutinize the correctness of the decision rendered rather to correct the error, if any, which is visible on the face of the order / record without going into as to whether there is a possibility of another opinion different from the one expressed.
The Division Bench in allowing the review petition has dealt with the matter as it is seized of the special appeal itself and has virtually reversed the decision by taking a completely new stand for the payment of salary to teachers’ subjectwise. It amounts to rehearing and rewriting the judgment in appeal without there being any error apparent on the face in the earlier order. The Division Bench thus clearly exceeded its review jurisdiction in passing the impugned order.
Conclusion - i) The review application is not maintainable as there is no error apparent on the face of the record. The Court emphasized that review jurisdiction is limited and should not be used as a substitute for an appeal. ii) The Division Bench exceeded its review jurisdiction by effectively rehearing the appeal and reversing its earlier decision.
The impugned order allowing the review set aside - appeal allowed.
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2023 (2) TMI 1394
Review jurisdiction by the High Court under Order 47 Rule 1 of the Code of Civil Procedure, 1908 (CPC) - Whether in the facts and circumstances of the case the High Court is justified in allowing the review application filed under Order 47 Rule 1 CPC and setting aside the reasoned judgment and order passed in main writ petition? - HELD THAT:- From the reasoning given by the High Court, it appears that according to the High Court the judgment and order passed in Writ Petition No. 8606 of 2010 was erroneous. While passing the impugned judgment and order the High Court has observed and considered the Survey Report dated 12.12.2007 which was already dealt with by the High Court while deciding the main writ petition and the High Court discarded and/or not considered the Survey Report dated 12.12.2007. Once the Survey Report dated 12.12.2007 fell for consideration before the High Court while deciding the main writ petition thereafter the same could not have been considered again by the High Court while deciding the review application.
From the impugned judgment and order passed by the High Court it appears that the High Court has decided the review application as if the High Court was exercising the appellate jurisdiction against the judgment and order dated 03.03.2017 passed in Writ Petition (MD) No. 8606 of 2010 which is wholly impermissible while considering the review application under Order 47 Rule 1 read with Section 114 CPC.
The High Court has considered the review application as if it was an appeal against the order passed by the High Court in Writ Petition No. 8606 of 2010. As observed hereinabove the same is wholly impermissible while deciding the review application. Even if the judgment sought to be reviewed is erroneous the same cannot be a ground to review the same in exercise of powers under Order 47 Rule 1 CPC. An erroneous order may be subjected to appeal before the higher forum but cannot be a subject matter of review under Order 47 Rule 1 CPC.
Conclusion - In the present case while allowing the review application the High Court has exceeded in its jurisdiction and has exercised the jurisdiction not vested in it under Order 47 Rule 1 read with Section 114 CPC and therefore the impugned judgment and order passed by the High Court allowing the review application and setting aside the order dated 03.03.2007 passed in Writ Petition No. 8606 of 2010 is unsustainable and the same deserves to be quashed and set aside.
The related writ petitions and contempt petition were remitted back to the High Court for fresh consideration in accordance with the law.
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2023 (2) TMI 1393
Petition for a final relief and that there is no specific prayer for any specific interim order - HELD THAT:- It is not inclined to grant any interim order in the matter.
Let the respondents file affidavit-in-opposition within four weeks, petitioner to file reply thereto, if any, within two weeks thereafter. List this matter for final hearing after eight weeks.
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2023 (2) TMI 1392
Validity of order passed u/s 143(3) r.w.s.144C on the non-existing amalgamating entity - HELD THAT:- The reply of the AO also does not support the case of the revenue that there was no mention of assessment year in letter dated 1/4/2020 of Hindustan Unilever limited. This is also once again not correct for the simple reason because in every communication made by the assessee at all stages of assessment proceedings, the assessee clearly in the subject matter itself mentioned Hindustan Unilever limited (legal successor to GlaxoSmithKline consumer healthcare limited). The replies submitted by the assessee are also on the letterhead of Hindustan Unilever limited and signed by officers of Hindustan Unilever limited. We have mentioned many communication above wherein the letters are addressed intimating the assessing authorities about the fact of business reorganisation on account of amalgamation. Therefore, the arguments advanced by the AO and the secretary of learned dispute resolution panel are not acceptable.
Facts in the case of decision of PCIT V Mahagun Realtors Limited [2022 (4) TMI 347 - SUPREME COURT] was of no indication given to the assessing authority about amalgamation and return was also filed pursuant to the notice suppressing the facts of amalgamation demonstrating the non-existent entity as the real entity on which assessment was to be made.
Thus, we quash the assessment order passed for assessment year which were passed in the name of GlaxoSmithKline consumer healthcare limited (amalgamating company) instead of in the name of Hindustan Unilever limited (amalgamated company) despite timely and in sufficient manner giving the intimation of the scheme of amalgamation of amalgamating company with amalgamated company. Thus, when the assessment orders were passed, amalgamating company was non-existent entity, therefore not a person, who can be assessed under the income tax act. Thus, the orders passed by AO are illegal, and not valid. Decided in favour of assessee.
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2023 (2) TMI 1391
Disallowance of depreciation on goodwill raised by the assessee post demerger - whether goodwill is not covered under the definition of intangible assets u/s 32? - HELD THAT:-Gains arising on transfer of a capital asset in a scheme of amalgamation/demerger to the amalgamated/resulting company being an Indian Company is exempt.
Depreciation to amalgamated company and amalgamating company in the year of amalgamation and depreciation to demerged company and the resulting company in the year of demerger shall be apportioned in the ratio of the number of days for which the assets were used.
By the virtue of proviso to Section 32(1), the depreciation in the hands of the assessee is allowable only to the extent, as if, demerger has not taken place. Therefore, the assessee being a demerger company cannot be allowed depreciation on the assets created as a consequence of the scheme which is more than the deprecation allowable earlier entity. Amalgamation and demerger are by nature meant for better business purposes and are generally revenue neutral. Appeals are hereby dismissed.
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2023 (2) TMI 1390
Addition made u/s 14A - Expenditure incurred in relation to income not includible in total income - AO has made disallowance of administrative expenses which was deleted by CIT(A) - HELD THAT:- Admittedly, the assessee has made huge investments and has earned exempted income to the tune of Rs. 1,29,82,706/- only. The decision for making the investments in the shares is a very complex decision which are generally taken by the top management. Likewise, a lot of research is done before taking the decision for making the investments which is generally carried out by the staff. Similarly, in a board meeting the expenses on refreshment, travelling, patrol and stationary are generally incurred. The services of the accountants are also used to record the necessary transactions in the books of accounts. The books of accounts are generally audited and therefore the services of the auditors also utilized inrelation to the investment made by the company. Thus, the argument of the learned AR is not acceptable that there was no expense incurred with respect to the impugned investments. Accordingly, we hold that the disallowance made by the AO on account of administrative expenses in pursuance of the provisions of rule 8D is correct and as per the provisions of law.
The investments which have yielded the dividend income in the year under consideration should only be considered for the purpose of making the disallowance under section 14A read with rule 8D of Income Tax Rule. We draw support and guidance from the judgement of Vision Finstock Ltd. [2017 (7) TMI 1277 - GUJARAT HIGH COURT] - Decided against assessee.
Addition on account of preliminary expenses u/s 35D - AO was found that the assessee has claimed deduction on account of preliminary expenses amortized for the issue of QIP shares - HELD THAT:- As relying on Metrocom Industries Ltd. [2016 (7) TMI 1374 - GUJARAT HIGH COURT] we hold that the expenses claimed by the assessee are eligible u/s 35D of the Act. Hence, the ground of appeal of the Revenue is hereby dismissed.
Disallowance of deduction u/s 80-IA(4) - whether the assessee is acting as a developer or works contractor? - HELD THAT:-Assessee who is only engaged in the activity of development of infrastructure facility is eligible to claim the deduction u/s 80IA(4)
We have analyzed one contract/agreement with the government on sample basis. However, the reasons given in the contract before us shall also be applied in all the contracts which was subject to the deduction under section 80-IA(4) of the Act. In view of the above, the grounds of appeal of the Revenue with respect to the admissibility of the claim of the assessee under section 80-IA (4) of the Act are hereby dismissed.
Principle of consistency - Once the revenue admitted assessee as developer under the same facts and circumstances, then in subsequent year on same fact and circumstances principal of consistency should be applied.
Whether interest income is to be excluded on gross basis or net basis while the computing the deduction u/s 80IA(4)? - We hold that only net interest income should be excluded while the computing the eligible income u/s 80IA(4) of the Act. Hence, the ground of appeal of the Revenue is hereby dismissed.
CIT(A) confirming the action of learned AO in re-computing deduction u/s. 80IA(4) by allocating expenditure of head office etc to different eligible units - Hon’ble Supreme Court held in the case of CIT vs. Sterling Foods [1999 (4) TMI 1 - SUPREME COURT] that there must be for the application of the words "derived from" a direct nexus between the profits and gains and an industrial undertaking. Sections 80-I and 80-IA also use the expression "derived from". If there must be a direct nexus between the profits and gains and an industrial undertaking, it must follow equally that there must be a direct nexus between an industrial undertaking and the expenses which are sought to be apportioned/attributable to it. Expenses which do not relate to an industrial undertaking/unit under consideration and they relate to other units or to the head office of the assessee, cannot be taken into consideration while computing the deduction under the said provisions.
There is no specific finding by the AO and the Ld. CIT(A) about the nexus of allocated expenses with the eligible unit. In the absence of any nexus between the allocated expenses with the eligible unit, the AO cannot allocate such expenses. Hence, the CO of the assessee is allowed.
Estimation of income - bogus purchase - CIT(A) confirming/restricting 25% disallowance - HELD THAT:- As in case of non- existent parties from whom the purchases are shown to have been made, the most logical approach would be that only part of such purchases can be disallowed, in the cases where the corresponding sales are treated as genuine, or alternatively the profit embedded in such sales can only be brought to tax. Therefore, what can be taxed in such transactions is profit element embedded in such alleged non genuine purchases and the entire or peak amount of such purchases cannot be treated as bogus.
Thus, we find that it is fair and just to restrict the addition to an extent being 12.5% of the bogus purchases. See case of Ratangiri Stainless(p) Ltd. [2017 (4) TMI 402 - ITAT MUMBAI]
Addition on account of ESOP expenses - assessee has issued 25,00,000 equity shares at a price of Rs. 50/- per share to the eligible employee of the company as per the ESOP scheme - AO disallowed the same by observing that expenses on ESOP debited to Profit & loss accounts is not an expenditure incurred wholly and exclusively for the purpose of the business - HELD THAT:- We have carefully considered the order passed in the case of Biocon Ltd. [2013 (8) TMI 629 - ITAT BANGALORE] where it has been held that ESOP compensation expenditure is not a notional expenditure but an allowable expenditure under Section 37(1) - object of issuing of shares at a lower issue price than the market price to the employees under ESOP must be taken into consideration and thereby it cannot be treated as short receipt of securities premium but a cost on account of compensation to the employees. Thus, principally the claim on account of deduction of ESOP compensation is allowable. Decided in favour of assessee.
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2023 (2) TMI 1389
The High Court of Madras, under the Hon'ble Mrs. Justice T.V. Thamilselvi, addressed a matter regarding a bail petition. The petitioner's counsel highlighted an error in a previous order where the bail type was incorrectly stated as anticipatory bail under Sec.438 of Cr.P.C. The counsel requested the correction to reflect the accurate nature of the petition as a bail under Sec.439 of Cr.P.C. Consequently, the Court directed the Registry to amend the cause title in the order and issue a corrected copy to the petitioner in Cr.O.P.No.28591 of 2022 dated 16.12.2022.
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2023 (2) TMI 1388
Receipt of compensation along with interest on compulsory acquisition of its land - claim of assessee towards exemption on this is by way of reference to provisions contained in Section 96 of the RFCTLAAR Act, 2013 read with CBDT Circular no. 36/2016, dated 25/10/2016.
HELD THAT:- It is not a case where an exemption has been claimed u/s 10(37) of the Act as observed by ld. AO. The only objection of ld. AO is that exemption is not available to assessee, it being a company not covered under the definition as contained in Section 10(37) of the Act as it is available only to assessees having status of “individual” or “HUF”. We note that Section 96 of the RFCTLAAR Act, 2013, provides that no income-tax or stamp duty shall be levied on any award or agreement made under this Act except u/s 46 and no person other than a specified person u/s 46(1) of the RFCTLAAR Act, 2013, shall be liable to pay any fee for copy of the same.
CBDT Circular no. 36/2016, dated 25/10/2016 in para 3 states that exemption provided u/s 96 of the RFCTLAAR Act, 2013 is wider in scope than exemption provided under the existing provisions of the Act.
CBDT Circular no. 36/2016, dated 25/10/2016 provides that in absence of specific provisions in the Income-tax Act, 1961, award under the RFCTLAAR Act, 2013, in the hands of land losers, both for agricultural and non agricultural land is tax free, both under normal and MAT provisions, under the Act.
No reason to interfere with the findings of ld. CIT (A) directing ld. AO to delete the addition made in this respect. Accordingly, grounds taken in this respect are dismissed.
Disallowance made towards salary expenses - CIT (A) has meritoriously dealt with the issue after going through the material placed on record for which, we do not find any reason to interfere with the same. Accordingly ground taken in this respect is dismissed.
Disallowance of donation expenses claimed in the profit and loss account, it is a fact that assessee had suo moto added it back while computing its income and, therefore, no disallowance is called for in this respect as held by ld. CIT(A). Before ld. CIT(A), assessee has made a fresh claim of deduction u/s 80G of the Act in respect of donation made by it. Ld. CIT (A) after verifying the documents in this respect has held it to be allowable, though claimed for the first time before him. For this, we do not find any reason to interfere in the finding given by the ld. CIT(A). Accordingly, ground taken in this respect is dismissed.
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2023 (2) TMI 1387
Application u/s 9 of Insolvency & Bankruptcy Code, 2016 (I&B Code) seeking initiation of Corporate Insolvency Resolution Process (CIRP) against Nyka Steels Private Limited, Corporate Debtor - HELD THAT:- This Bench is of considered view that the Operational Creditor has provided the steel material to the Corporate Debtor for which the Corporate Debtor has failed to pay the outstanding dues of the Operational Creditor - It is also observed that the Corporate Debtor has appeared on few occasions in the matter, but has not contested the contents of the Application.
After perusal of the material on record, this Bench is of considered view that the there is no reason to deny the Petition under section 9 filed by the Operational Creditor to initiate the CIRP against the Corporate Debtor.
On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,00,000/- (Rupees One Crore Only) is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, there are no objection on record against the application filed for initiation of CIRP against the corporate debtor. Hence, the Application filed by the Operational Creditor is liable to be admitted.
The application is complete and has been filed under the proper form and default of the Corporate Debtor has been established.
Conclusion - The application under Section 9 of the IBC is admitted, as the Operational Creditor has established the default by the Corporate Debtor.
Application admitted.
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2023 (2) TMI 1386
Denial of exemption u/s. 11 - assessee, a company formed and registered u/s. 8 of the Companies Act, 2013 (corresponding to sec. 25 of the Companies Act, 1956), i.e., for carrying out public charitable objects, registered as a charitable institution u/s. 12A - turnover, extending to almost the entirety of the gross receipt, as against the cap of 20% thereof, it did not fall to be covered u/s. 2(15), as amended - HELD THAT:- Every business, by employing people, as indeed sourcing goods/services, promotes employment, both directly and indirectly, as also the skill-set required for the same. It cannot, however, for that reason, be regarded as ‘charitable’, assigned a specific meaning in law. Basic to a claim of providing relief through sourcing, i.e., the assessee’s case in fine, is, a legal obligation in its respect apart, a better value transfer to a class of farmers on a regular basis, both absent/unshown, which could also further it as regards it's business being not a pure commercial exercise, favourably impacting it qua income application for Objects 1 & 2, where shown.
There is, in view of the foregoing, nothing to hold that the assessee’s trading business is being run for the benefit of the poor, the sub-stratum of it’s case, much less as part of it’s mandate. It’s claim for exemption u/s. 11 on the profits of the said business, constituting the primary source of it’s income for the relevant years, cannot, accordingly, be upheld, and stands rightly denied by the Revenue.
Assessee has filed a compilation of case law, which were not referred to during hearing and, accordingly, not responded to by the other side. The same, accordingly, do not form part of the Tribunal’s record.
This explains our non-reference thereto, which though stand browsed to find as not in conflict with anything stated herein so as to impact our adjudication, which is based on the facts borne out by the record; the first legal principles; and the settled law in the matter. Decided against assessee.
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2023 (2) TMI 1385
Dishonour of Cheque - challenge to conviction and sentence order passed - summary trial of all offences under Chapter XVII of N.I. Act - applicability of provisions of Sections 262 to 265 of Cr.P.C. - HELD THAT:- In the case on hand, the evidence of respondent was recorded by the Trial Court in the absence of the petitioner but the petitioner did not appear before the Court, which compelled the Court to hold that the petitioner had no cross examination of the respondent and posted the case for recording the statement of the petitioner under Section 313 of Cr.P.C. The petitioner did not again appear and therefore the Trial Court issued non-bailable warrant against him, which due to various reasons could not be executed. The records of this case disclose that fullest opportunity was granted to the petitioner to participate in the trial. The Trial Court was therefore justified in passing a judgment based on the available material.
There is no merit in the contention of the petitioner that the Trial Court committed an error in passing a judgment of conviction in the absence of the petitioner and therefore, this revision petition lacks merit and the same is hereby dismissed. At this stage, the learned counsel for the petitioner submits that the petitioner had already paid a sum of Rs. 10,000/- to the respondent before the Trial Court and that the same may be considered while executing the order of sentence. If the petitioner has paid a sum of Rs. 10,000/- being part of the fine, the Trial Court is directed to take into the account the same at the time of executing the order of sentence.
Conclusion - The summary trials under the N.I. Act do not require the accused's presence for recording evidence, provided the Magistrate has not opted for a summons trial. The conviction and sentence imposed by the Trial Court upheld.
Revision petition dismissed.
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2023 (2) TMI 1384
Scope of definition of ‘sale price’ as defined under Section 2(h) of the Central Sales Tax Act, 1956 - exclusion of cost of freight or the cost of installation in cases where such cost is separately charged from ‘sale price’ - levy of tax on element of freight on goods against Form “C” in view of the provisions of Section 8(1) of the Central Sales Tax Act, 1956.
HELD THAT:- On perusal of the provisions of Section 2(36) of the RVAT Act and Section 2(h) of the CST Act, as referred above, it is beyond doubt that as per the Explanation III of Section 2(36) of the RVAT Act, the cost of freight, and other related expenses like insurance, would not be included in the sale price if the same are charged separately in the invoice, even if the same are included by the dealer for or on behalf of the buyer. Similarly, as provided under Section 2(h) of the CST Act, the cost of freight, when the same is separately charged in the invoice, would not form part of the sale price. The provisions of both related Acts, whose authorities are common, have to be interpreted in harmonious, peaceful and in the intended manner.
Time and again, the Apex Court, in Baroda Electric Meters Ltd. Vs. Collector of Central Excise [1997 (7) TMI 126 - SC ORDER], Escorts JDB Ltd. Vs. Commissioner o Central Excise, Delhi-II [2002 (10) TMI 96 - SUPREME COURT] has held that the freight separately invoiced will not form part of the ‘sale price’ as defined in Section 2(h) of the CST Act and Section 2(36) of the RVAT Act. The literal translation of the said provisions is unambiguous and specifically excludes freight from sale price if it is separately charged/invoiced.
Even the Division Bench of this Court has categorically held, in COMMERCIAL TAXES OFFICER, ANTI-EVASION, CIRCLE-II, JAIPUR VERSUS M/S. ROCA BATHROOM PRODUCTS PVT. LIMITED [2022 (1) TMI 1479 - RAJASTHAN HIGH COURT], that freight cannot be added in the assessable value if the same is separately reflected in the invoice.
Conclusion - The freight charges being reflected separately in the invoice are held to be permissible deductions. Separately charged freight and insurance should not be included in the sale price for tax purposes under the CST Act and RVAT Act.
The questions of law framed above are answered in favour of the petitioner-assessee and against the respondent-Revenue - Revision allowed.
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2023 (2) TMI 1383
Sanction of Scheme of Arrangement - Sections 230 to 232 of the Companies Act, 2013, read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, and the National Company Law Tribunal Rules, 2016 - HELD THAT:- As the shareholders of M/s. Digi content Limited had rejected the proposed scheme, it cannot be comprehended, how the approval can be granted to the Scheme which involves all three companies.
There are no merit in sanctioning the proposed scheme of amalgamation between the Petitioner Companies. The present Company Scheme Application being devoid of merits stands dismissed.
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2023 (2) TMI 1382
Miscellaneous Application u/s 254 - seeking the recall of order passed by this Tribunal [2022 (5) TMI 1407 - ITAT PUNE] on the ground that the ground of appeal no. II Non-TP Issues-2 & 3 remain un-adjudicated - HELD THAT:- The assessee is correct to the extent that the ground of appeal no. II Non-TP Issues – 2 & 3 remain un-adjudicated. However, the contention of the assessee that the ground of appeal no. II Non-TP Issues-2 & 3 were covered by the decision of the Co-ordinate Bench of this Tribunal in assessee’s own case for the assessment year 2011-12 [2021 (9) TMI 139 - ITAT PUNE] required to be examined.
Thus it is a fit case to recall the appeal for the limited purpose of adjudication of the ground of appeal no. II Non-TP Issues-2 & 3.
Miscellaneous Application filed by the assessee stands allowed.
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2023 (2) TMI 1381
Bribery/illgal gratification - acceptance of bribe in violation of Section 7 and Section 13(1)(d) of the Prevention of Corruption Act - evidence presented was sufficient to prove the demand and acceptance of the bribe beyond a reasonable doubt or not - HELD THAT:- Presumption permissible to be drawn under Section 20 of the Act can only be in respect of offence under Section 7 of the P.C. Act and not under Section 13(1)(d)(i) and (ii) of the Act. It is only on truth of acceptance of illegal gratification such presumption can be drawn under Section 20 of the Act that such gratification was received for doing or for forbearing to do any official act.
Here in this case demand cannot be said to have been proved. Evidence, it is settled principle of law, is to be considered from the point of view of human probability. According to P.W. 1, the accused persons demanded a sum of Rs. 35,000/- as bribe but did not give any instruction as to the place where the money would be given or taken. The witness P.W. 1 along with CBI officers after pre-trap proceedings came to Kharagpur Railway Station and made a phone call to Mr. Paritosh Saha. The call was received by Mr. D. Ghosh, who advised the caller to make a call after an hour. Till then no intimation was given as to the place where P.W. 1 was supposed to hand over the money but P.W. 1 and the members of the raiding team boarded a train from Kharagpur Railway Station for Howrah and made a phone call to Paritosh Saha which was again received by Mr. D. Ghosh and D. Ghosh asked him to come to Santragachi with further instruction to call him before reaching Santragachi.
The money, as stated by P.W. 15, was not recovered from the possession of the accused persons. So far recovery of money is concerned P.W. 1 stated that when Partha Pratim Ghosh was trying to go away at that time CBI officials caught hold of him. According to P.W. 2, white colour envelope was recovered from the rear seat of the car and according to P.W. 15, Partha Pratim Ghosh was arrested while he was running towards Vidyasagar Setu. Money was recovered not from his possession but from the rear seat of the car.
The discrepancies cannot be considered to be minor in nature, pebbles in shapes, rather they appear to be boulders and Court should not jump over it. Of course, discrepancy as to the date of demand stated by P.W. 1 should be considered as minor one.
Conclusion - The prosecution had not proven the charges beyond a reasonable doubt. The accused person is found to be not guilty to the charges under Section 7 and 13 (1)(d)(i) and (ii) of the P.C. Act. He be set at liberty and be released from bail bond, subject to furnishing a bond under Section 437A of the Cr.P.C. for six months.
Let a copy of this judgement be sent down along with lower Court record to the learned Trial Court for information and necessary compliance.
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2023 (2) TMI 1380
Reduction of share capital - disallowance of capital loss claimed by holding that there is extinguishment of rights of 153340900 shares - whether no such extinguishment of rights is made out by the assessee as required u/s 2(47) and there is no reduction in face value of share? - HELD THAT:- Undisputed facts are, pursuant to the order passed by the High Court of Bombay, number of shares has been reduced to 9988. As significant to note that the face value of the share has remained same at Rs. 10/- even after the reduction.
AO’s view that the voting power has not changed as the percentage of assessee’s share of 99.88% has remained unchanged is untenable because if the shares are transferred at face value, the redeemable value would be Rs. 99,880/- whereas the value of 14,95,44,130 number of shares would have been Rs. 1,49,54,41,300/-.
ITAT has rightly followed authority in Karthikeya V.Sarabhai [1997 (9) TMI 2 - SUPREME COURT] with regard to meaning of transfer by holding that there was no transfer within the meaning of that expression contained in Section 2(47) - Decided in favour of the assessee.
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