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Showing 1 to 20 of 1570 Records
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2023 (3) TMI 1571
Seeking extension of stay on recovery of outstanding demand - HELD THAT:- As observed, while considering the initial stay application filed by the assessee, the Tribunal vide order [2022 (9) TMI 1664 - ITAT DELHI] had granted conditional stay subject to adjustment of refund of Rs. 39,00,00,000 against the outstanding demand.
Though, early hearing of the appeal was directed, however, the cause of non-disposal of appeal cannot be attributed to the assessee. We are informed, now the appeal is fixed for hearing on 03.05.2023.
Since, the material facts based on which stay was earlier granted to the assessee have not changed, we are inclined to extend the stay for a further period of 180 days from the date of this order or till the disposal of the corresponding appeal, whichever is earlier. In the result, the stay application is allowed.
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2023 (3) TMI 1570
Disallowance of interest received by assessee by holding it to be revenue in nature - HELD THAT:- There is no dispute regarding the principle compensation received by assessee pursuant to an award passed by Subordinate judge of Kozhikode. The award included additional compensation with interest at the rate of 9% pa. for a period of one year from 23.04.2014. The award also included interest of 15% pa. till the date of payment. In our considered view, the interest of 9% received by assessee for a period of one year on the additional compensation was by way of accretion to the value and therefore would not fall within the ambit of the expression “interest” as envisaged u/s. 145A(b) of the act.
Any interest received by the assessee at the rate of 15% for not depositing the compensation within the time frame as directed by the court would assume the character of income. We therefore are of the opinion that only such interest amount i.e. attributed for delayed deposit of the compensation can be treated as income in the hands of the assessee.
In the present facts of the case, AO treated the entire interest received to be income from other sources on which benefit of deduction u/s. 57(iv) has been allowed as deduction. This computation of disallowance is not in accordance with law. What could be considered for disallowance is only in respect of the interest amount computed at 15%, received by the assessee.
We therefore, remand this issue to the AO for necessary verification. The assessee is directed to file the award passed or the intimation issued by the Collector bifurcating the interest payment computed at 9% and/or 15%. AO is directed to consider only the interest that is computed on the compensation at 15% for disallowance, and to grant necessary deduction u/s. 57 of the act, if any. Grounds raised by the assessee stands partly allowed for statistical purposes.
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2023 (3) TMI 1569
Addition on account of low Melting gains shown by the assessee compared to earlier financial years - HELD THAT:- As decided in own case [2022 (10) TMI 1280 - ITAT PUNE] for A.Y.2014-15 held it is a fact that assessee purchases old ornaments. The purity depends on many factors. It is very difficult to generalise the purity. We have gone through the melting gain register which was submitted in the paper book. It is observed that assessee has maintained a proper register
AO has not pointed out any defect in the said melting gain / loss register. The AO has also not pointed out any defect in the books of accounts maintained by the assessee. It is also a fact that the ITAT Pune Bench in assessee’s own case for earlier year has decided this issue in favour of assessee. Therefore, we are of the opinion that the ld.CIT(A) has rightly directed the AO to delete the addition following the ITAT Pune Bench’s decision for the A.Y. 2009-10, accordingly, grounds of appeal raised by the Revenue are dismissed.
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2023 (3) TMI 1568
In the High Court of Gauhati, under the judgment presided over by HONOURABLE MR. JUSTICE DEVASHIS BARUAH, the court addressed a matter involving the petitioner, represented by Mr. D. Mozumder and Mr. B. D. Deka, and the respondent, represented by Mr. G. Goswami, Standing Counsel for the Railways. An additional affidavit was submitted by respondent No. 4 on 01.03.2023, containing allegations in paragraphs 3 and 4. The court decided to grant the petitioner an opportunity to respond to these allegations by filing an affidavit-in-reply within ten days. The case is scheduled to be listed again on 28.03.2023.
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2023 (3) TMI 1567
Jurisdiction - Whether the order passed by the Armed Forces Tribunal would be amenable to challenge in the writ jurisdiction Under Article 226 of the Constitution of India before any High Court? - HELD THAT:- Often many jurisprudential principles of other tribunals cannot be imported into the decisions of the Armed Forces Tribunal. The Armed Forces have their own Rules and procedures, and if there is proper exercise of jurisdiction in accordance with the norms of the Armed Forces, the High Court or this Court have been circumspect in interfering with the same, keeping in mind the significance of the role performed by the Armed Forces.
The principles of basic structure have withstood the test of time and are emphasized in many judicial pronouncements as an ultimate test. This is not something that can be doubted. That being the position, the self-restraint of the High Court Under Article 226 of the Constitution is distinct from putting an embargo on the High Court in exercising this jurisdiction Under Article 226 of the Constitution while judicially reviewing a decision arising from an order of the Tribunal.
On the legislature introducing the concept of "Tribunalisation" (one may say that this concept has seen many question marks vis-à-vis different tribunals, though it has also produced some successes), the same was tested in L. Chandra Kumar3 case [1997 (3) TMI 90 - SUPREME COURT] before a Bench of seven Judges of this Court. Thus, while upholding the principles of "Tribunalisation" Under Article 323A or Article 323B, the Bench was unequivocally of the view that decisions of Tribunals would be subject to the jurisdiction of the High Court Under Article 226 of the Constitution, and would not be restricted by the 42nd Constitutional Amendment which introduced the aforesaid two Articles.
This should have put the matter to rest, and no Bench of less than seven Judges could have doubted the proposition. The need for the observations in the five-Judges' Bench in Rojer Mathew3 case [2019 (11) TMI 716 - SUPREME COURT (LB)] qua the Armed Forces Tribunal really arose because of the observations made in Major General Shri Kant Sharma and Anr.3 [2015 (11) TMI 1316 - SUPREME COURT].
Thus, it is, reiterated and clarified that the power of the High Court Under Article 226 of the Constitution is not inhibited, and superintendence and control under Article 227 of the Constitution are somewhat distinct from the powers of judicial review Under Article 226 of the Constitution.
Conclusion - The power of judicial review under Article 226 is part of the Constitution's basic structure and cannot be restricted by the Armed Forces Tribunal Act.
Appeal disposed off.
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2023 (3) TMI 1566
Seeking a direction by issuance of a writ in the nature of mandamus to respondents 2 and 3 to consider the representation - Recalling of a Look Out Circular (LOC) issued against the petitioner - HELD THAT:- It is deemed appropriate to notice the office memoranda issued by Government of India in the Ministry of Home Affairs from time to time. It would suffice for the journey to commence from the judgment of the Delhi High Court in the case of SUMER SINGH SALKAN v. ASSISTANT DIRECTOR AND OTHERS ILR [2010 (8) TMI 1083 - DELHI HIGH COURT] wherein it is observed that 'Since the matter pertaining to these offences is subjudice, it will not be appropriate to comment on this aspect but suffice it to say that the action against the petitioner of issuing RCN was uncalled for in view of the fact that neither offence, for which the petitioner is facing trial in India, is an extraditable offence, nor any request for extradition of the petitioner has been made for the last 7 years despite knowing whereabouts of the petitioner. I, therefore, consider it a fit case for quashing the RCN issued against the petitioner at the behest of Delhi Police. The RCN, is therefore, hereby quashed.'
The petitioner is issued summons on 26-11-2021 after his arrival and stay in India for more than three months by the ED for investigation or questioning in a criminal case registered against one Mr. Srikrishna, brother of the petitioner in Crime No.153 of 2020. On registration of the crime against several persons, the ED also registers an Enforcement Case Information Report in ECIR No.1 of 2021 which was registered on 04-01-2021. Therefore, there are two proceedings pending against the brother and father of the petitioner and several others in the predicate offence or under the provisions of the Prevention of Money Laundering Act, 2002.
An accused or any other person who is connected with the proceeds of crime, but may not be accused in the predicate offence, has a bounden duty to co-operate with the investigation. If the investigation does not get completed on account of his noncooperation which would result against others not being taken to logical conclusion, it would defeat the delivery of justice as it would defeat discovery of crime. Therefore, it is for the petitioner to give complete details and desist answering vaguely to the ED, explain as to why temporary mails were created for transactions and reveal the password that the ED is asking. Therefore, his travel beyond the shores of this nation will be subject to such clearance by the ED.
It cannot also be ignored by the ED that the petitioner cannot be kept on tenterhooks by the sword of LOC hanging on him for all time to come. The LOC is issued on 13.01.2022 and more than a year has passed by. The ED shall also bear in mind plethora of judgments rendered by constitutional Courts from time to time where emphasize is on the right to travel abroad being a fundamental right. A positive direction is not rendered in the peculiar facts of the case at hand - it is deemed appropriate to direct the Enforcement Directorate to complete the investigation insofar as the petitioner is concerned, within an outer limit of 6 weeks from the date of receipt copy of the order for which, the petitioner shall co-operate and give such information that is necessary for completion of such investigation. After 6 weeks’, the ED shall consider the representation of the petitioner for withdrawal of LOC issued against him.
Conclusion - The ED is directed to complete the investigation related to the petitioner within six weeks and to reconsider the LOC based on the petitioner's cooperation.
Petition disposed off.
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2023 (3) TMI 1565
Deduction of 18% from the RA bills submitted by the petitioner towards Goods and Services Tax (GST) - HELD THAT:- There is no dispute that the petitioner has submitted bids based on the SR rates notified on 25.11.2016 and these rates included tax as was applicable under the provisions of Indirect Tax Regime. Crucially, as pointed out by Sri. S.Mahesh, the petitioner has signed the subject agreement specifically agreeing to the second respondent deducting taxes at source as per applicable law. The intent of the parties in signing the contract including the terms as aforesaid, even before it could be opined that the term will include any upward variation in the tax rates, will have to be examined in the back drop of the evidence that will be brought on record to substantiate the intent as respectively claimed by them.
There cannot be any directions in the absence of such evidence. The parties have agreed to resolve the disputes through arbitration and therefore, this Court is of the considered view that all questions must be left open to be decided in the arbitral proceedings, if the petitioner proposes to have recourse to such remedy.
Conclusion - The petitioner is bound by the 2019 agreement, which allows for GST deductions, and that disputes regarding these deductions should be resolved through arbitration.
Petition disposed off.
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2023 (3) TMI 1564
TP Adjustment - computation of operating cost - rejection of segmental profitability furnished by the assessee - TPO has not accepted assessee’s claim and allocated to both the AE and non-AE segments on the basis of the turnover of the respective segments - HELD THAT:- When the employees of AE and non-AE segments are separately identifiable based on books of accounts maintained by the assessee, we do not find any valid reason why an aggregate approach has to be adopted and the employee cost has to be apportioned between the AE and non-AE segments based on turnover.
It is evident, neither the TPO, nor learned DRP have disputed the fact that the assessee has maintained separate accounts for employee cost.
Basically, DRP has rejected assessee’s claim for two reasons, firstly, on what basis the common employees were allocated is not clear and, secondly, hourly work-sheet of employees was not made available. We do not find the aforesaid reasoning of DRP acceptable. Firstly, as discussed earlier, the assessee has maintained project-wise list of employees working in AE segment.
Therefore, the allegation of DRP that on what basis the common employees were allocated is not known does not seem to be borne out from record. Insofar as, the non-maintenance of hourly work-sheet of employees, we are of the view that there is no valid reason for the assessee to maintain such hourly worksheet, when it is not raising its invoices on hourly basis. We do not approve the decision of the TPO and learned DRP in allocating employees cost between the AE and non-AE segments. Therefore, the PLI computed by the assessee has to be accepted. This ground is allowed.
Comparable selection - Korus Engineering Solutions Pvt. Ltd. - On perusal of the annual report of the company placed in the paper-book, it is observed that the information regarding the business profile of the company is sketchy and lacks necessary details. Further, the balance-sheet and profit and loss account do not give the break-up of the source of revenue earned. Therefore, due to lack of information regarding the functional profile of the company available in the public domain, it cannot be ascertained, whether it is functionally similar to the assessee. Simply based on certain information in the website of the company functional similarity cannot be adjudged. Therefore, for this reason, the company, in our view cannot be selected as a comparable.
Insofar as the other contention of the assessee regarding substantially less export turnover compared to the assessee, we are unable to accept assessee’s claim as neither the assessee, nor TPO have applied the export turnover filter. For the reasons discussed above, we direct the AO to exclude this company as a comparable.
TCE Consulting Engineers Ltd. - assessee seeks exclusion of the aforesaid company is due to substantially low export sales turnover, which works out to 6.21% of the total turnover as compared to 100% exports of the assessee - On a specific query, appearing for the assessee fairly submitted that neither the assessee has applied the export turnover filter in its TPSR, nor the TPO has applied the said filter. Therefore, in our view, at this stage, we cannot introduce a fresh filter to select/reject comparables as it will disturb the entire TP analysis of the assessee and the TPO. Therefore, we are inclined to uphold the selection of this comparable.
Onward Technologies Ltd. - only ground on which the assessee seeks exclusion of this company is due to failure of Related Party Transaction (RPT) of more than 25% - Both the TPO and learned DRP have applied RPT filter of more than 25%. Therefore, any company having RPT of more than 25% has to be excluded. However, considering the fact that the assessee is raising the issue of RPT for the first time before the Tribunal, we are inclined to restore the issue to the AO for examining assessee’s claim and excluding the comparable in case RPT is found to be more than 25%. Ground is partly allowed.
Working capital adjustment - We direct the AO to examine assessee’s claim, keeping in view the relevant statutory provisions and judicial precedents applicable to the assessee. Needless to mention, the assessee must be afforded reasonable opportunity of being heard to the assessee before deciding the issue. This ground is allowed for statistical purposes.
Computational error in computing the operating profit margins of the comparables - As we direct the AO to examine assessee’s claim with reference to the facts and materials on record and rectify the computational error, if any, in computing the profit margin of the comparables. The assessee must be afforded reasonable opportunity of being heard before deciding the issue.
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2023 (3) TMI 1563
Cancellation of registration of petitioner - failure to furnish returns for a continuous period of six months - HELD THAT:- The present writ petition is disposed of with liberty to petitioner to move an application for revocation of the cancellation order under Section 30 of CGST Act read with under Section 23 of the CGST Rules, within two weeks from today.
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2023 (3) TMI 1562
Jurisdiction of the DRI Officials to issue a show cause notice or pass any adjudication orders - HELD THAT:- The said issue is covered by the decision of the Supreme Court in Canon India Private Limited v. Commissioner of Customs [2021 (3) TMI 384 - SUPREME COURT]. It is stated that the Act was subsequently amended by the Finance Act, 2022, which came into effect from 30.03.2022.
In terms of Clause 97 of the said Act, various actions which would have been invalid in view of the decision of the Supreme Court in Canon India Private Limited v. Commissioner of Customs have been validated.
The hearing of these batch of petitions is adjourned to 20.07.2023.
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2023 (3) TMI 1561
Validity of the assessment order framed u/s 143(3) - notice u/s 143(2) being jurisdictional requirement was served beyond the stipulated time provided therein - HELD THAT:- Undeniably, it was holiday dated 30 September 2018 being Sunday which was also the last working day for the service of notice under the provisions of section 143(2) of the Act for the year under consideration.
If last working day happens to be a holiday then the authorities concerned have been given power to make the necessary compliance on the next working day.
Thus apparently, it appears that the AO has made sufficient compliance by issuing the notice on the next working day being 1 October 2018 despite the fact that the office of the income tax was operational dated 30 September 2018 and the notice was digitally sign by the AO on 30 September 2018.
To our understanding the Sunday being a holiday cannot be assumed or working day like any other day of the work. In-fact, the officers were working even on the Sunday for the reason that there was cut-off date for framing the assessment as well as for filing the income tax return. In other words, there was more workload on the Government Officers and therefore they had to work even on the holiday. But that does not mean that such holiday shall be presumed as a working day like any other normal day.
The object of working on the holiday was to reduce the workload. Thus, the benefit granted under the General Clause Act as discussed above cannot be deprived to the Revenue.
Accordingly, we hold that the notice, though digitally signed on 30 September and the same was put to service dated 1 October 2018, has been served after the sufficient compliance under the law and therefore in the given facts and circumstances, the assessment framed cannot be held as not maintainable - Appeal filed by the assessee is hereby dismissed.
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2023 (3) TMI 1560
Addition u/s 68 - unexplained cash credit - assessee failed to discharge the onus cast upon it to prove that the LTCG claimed as exempt u/s 10(38) was genuine - abnormal rise in the price of shares of scrip Wagend Infra venture Ltd., which against the human probability in view of the fact that the company was neither making any profit nor declared dividend -CIT(A) deleted addition - HELD THAT:- AO has not conducted any investigation or enquiry in respect of the information submitted by the assessee and relied on the information of the third party whose statement was not cross examined.
CIT(A) has considered the detailed facts, submissions and the financial transactions and catena of judicial decisions to test check the creditworthiness and identity of the investee company. The CIT(A) has also observed that the assessee has discharged its burden on submitting the information in the proceedings. Further in the case of the assessee’s father case, the long term capital gains on sale of same scrip/shares was accepted as dealt in the above paragraphs and the CIT(A) opined that there cannot be two different actions by the revenue in respect of same scrip/ shares.
AO has failed to make further enquiries/investigations and relied on the statement of third party.
CIT(A) has dealt on the facts and provisions of law and judicial decisions and the applied the ratio of decisions to the present case and deleted the addition.
DR could not controvert the findings of the CIT(A) with any new cogent material or information to take different view. Decided against revenue.
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2023 (3) TMI 1559
Dacoity - challenge to sentence passed by the sentencing court - impugned judgment is based on conjectures and surmises - convicting court did not record the statement under section 313 of the Code properly which violates the fundamental principles of natural justice - HELD THAT:- The convicting court was not justified in convicting the appellants for the offence punishable under section 395 IPC. The prosecution could prove that the appellant Bharat Kumar Goswami had participated in snatching of bag from the complainant Manish Aggarwal PW1 and subsequently recoveries as detailed herein above were affected at the instance of the appellants and convict Kanhaie Jha. The impugned judgment convicting the appellants for the offence punishable under section 395 was passed on factually and legally unsustainable surmises and assumptions and without adequate support of evidence. It is proved that the appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen property. The prosecution, from the quality and quantity of evidence, could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jitu and Azad @ Gaurav for the offence punishable under section 411 IPC.
The Criminal Appeals bearing no 593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @ Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to challenge the impugned judgment passed by the convicting court whereby appellants along with the convict Kanhaie Jha were convicted for the offence under section 395 IPC is partly allowed. The appellant Bharat Kumar Goswami is convicted for offences punishable under section 379/356 IPC and the appellants Jitender @ Jitu and Azad @ Gaurav are Convicted for offence punishable under section 411 IPC.
The order on sentence dated 04.06.2022 passed by the sentencing court is also modified. The appellant Bharat Kumar Goswami is sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for offence punishable under section 379 IPC and to undergo rigorous imprisonment for a period of six months along with fine of Rs. 500/-in default of payment of fine to further undergo simple imprisonment of one month for offence punishable under section 356 IPC. Both the sentences shall run concurrently. The benefit of section 428 of the Code is extended to the appellant Bharat Kumar Goswami.
The appellants Jitender @ Jitu and Azad @ Gaurav are individually sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for the offence punishable under section 411 IPC. The benefit of section 428 of the Code is extended to the appellants Jitender @ Jitu and Azad @ Gaurav.
Applications disposed off.
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2023 (3) TMI 1558
Non-compliance with the directions issued by a Division Bench of this Court - failure to provide the duly endorsed copies of the documents seized vide panchnama - HELD THAT:- The Petitioner(s) does not dispute that the directions issued by the Division Bench vide in M/S ATLANTIC INTERNATIONAL TRADING PVT. LTD., MS BLUE STAR INTERNATIONAL PVT LTD., MS SUNFLAME TRADING PVT LTD. AND ORS. VERSUS COMMISSIONER, CENTRAL EXCISE AND CENTRAL GST COMISSIONERATE DELHI SOUTH & ANR. [2022 (11) TMI 1540 - DELHI HIGH COURT], with respect to cloning of data from the digital devices which were seized during the searches dated 17.09.2020 and 24.11.2020 have been completed and handed over to the Petitioner(s) herein.
The Respondent has placed on record its stand with respect to the circumstances in which it has been unable to furnish the documents seized vide panchnama dated 17.09.2019. The Respondent has stated that the said file is untraceable and the Respondent has initiated steps for tracing the said file. In these circumstances this Court is of the opinion that there is no wilful disobedience by the Respondents of the directions issue vide order dated 22.11.2022.
Petition dismissed.
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2023 (3) TMI 1557
Condonation of delay in filing appeal - Whether delay in filing of an appeal under Section 21 of the National Investigation Agency Act, 2008 beyond 90 days can be condoned under Section 5 of the Limitation Act, 1963? - HELD THAT:- Baburam Upadhyay [1960 (11) TMI 116 - SUPREME COURT] has considered the provisions of Section 116A (1) of the Representation of People Act, 1951 and held that, since the period of limitation was different from that of the Code of Civil Procedure, and Representation of People Act, 1951 being a special law, the period of limitation prescribed in Representation of People Act, 1951 shall apply. However, it has held that, Section 12 of the Limitation Act, 1963 would apply to exclude the time taken by the appellant to obtain the certified copy of the impugned order.
Hukudev Narain Yadav [1973 (12) TMI 92 - SUPREME COURT] has considered the issue as to whether Section 4 to 24 of the Limitation Act, 1963 stood excluded by the provisions of the Representation of People Act, 1951 or not. It has held that, Court has to see whether scheme of special law, nature of remedy of law show that the legislature intended to limit the provisions of the Limitation Act, 1963. Even if the special law does not exclude the provisions of the Limitation Act, 1963 by express reference, Court has to examine whether and to what extent the provisions of nature, subject matter and scheme for special law exclude their operation.
The time period that has been stipulated in Section 21 of the Act of 2008 is the bone of contention in the present proceedings since the appellants are seeking to prefer an appeal which is beyond 90 days from the date of the impugned judgement and order of the Special Court. The impugned judgement and order of the Special Court is otherwise appealable in view of the same having finally disposed of the trial, convicting the appellants and sentencing the appellants to imprisonment. - It has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations but only provide periods within which action must be brought to Court. The object of limitation statute is to compel litigants to be diligent in seeking remedies in Courts of law by prohibiting stale claims. The law of limitation does not destroy the primary or substantive right itself but puts an end to the accessory right of action. The judicial remedy is barred but the substantive right itself survives and continues to be available. The rules of limitation are not meant to destroy the rights of the parties.
Section 12 of the Limitation Act, 1963 is founded on the principle that no party can be prejudiced by an act of Court. In such context, where the Court has delayed the delivery of the certified copy of its judgement or order, the period taken by the Court to deliver the certified copy of its judgement or order is excluded from the calculation of the period of limitation prescribed by the statute for preferring an appeal.
Conclusion - An appeal sought to be filed after expiry of the period of 90 days from the date of the judgement or order or sentence, under Section 21 of the Act of 2008 cannot be entertained. The period of 90 days from the date of the judgement or order or sentence has to be calculated on the principles analogous to Section 12 of the Limitation Act, 1963.
Application dismissed as not maintainable.
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2023 (3) TMI 1556
Failure to appreciate that the onus lay on the respondent to prove that the conditions imposed in specific Central Excise Notifications were satisfied in the instant case - failure to discharge onus of proving that the two conditions mentioned in the said notifications - role of the Apex Bodies was in the nature of selling or commission agents and not that of direct purchasers of the said goods from the respondent or not.
HELD THAT:- The learned Tribunal had disposed of a batch of appeals and in one such appeals CEXA/4/2007 was filed by revenue against the impugned order of the Tribunal. By judgment dated 9th September, 2022 [2022 (9) TMI 561 - CALCUTTA HIGH COURT] the appeal filed by the revenue was allowed. Following the said decision other connected appeal filed by the revenue was also allowed.
The instant appeal filed by the revenue is allowed and the substantial questions of law are answered in favour of the revenue.
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2023 (3) TMI 1555
Approval of Resolution Plan - contingent liability - HELD THAT:- The claim even if allowed in favour of M/s Shapoorji Pallonji and Co. Pvt. Ltd. will have no bearing on the rights and obligations of the appellant - M/s. Adani Power Limited, which are in terms of the Resolution Plan. It has been held by the judgment dated 23.02.2023, that the appellant cannot be saddled with any liability except what is mentioned in the Resolution Plan.
The appeal is dismissed on the ground that the appellant has no grievance.
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2023 (3) TMI 1554
Revision u/s 263 - development fees from its students had been directly carried to the balance sheet under the nomenclature “Development Fund’ instead of being routed through the income and expenditure account and this was then treated as part of the Revenue and therefore the taxable income u/s 11 (1) - HELD THAT:- CIT (E) simply stated that the impugned assessment order was erroneous and prejudicial in the interest of Revenue.
ITAT has in the impugned order discussed in detail the explanation offered by the Assessee regarding application of funds. Inter alia, it was noticed that CIT (E) had taken the total revenue earned, granted 15% accumulation, without considering the capital expenditure to the tune of Rs.258 crores. As noted by the ITAT, if the said bill taken into account the taxable income would be a loss. It would have been observed the 15% accumulation granted to the Assessee. Further, even after treating the development fees of Rs.111 crores as revenue income, the net figure would still be a loss.
As noted by the ITAT, if only the CIT (E) had undertaken an inquiry, he would have come to the above conclusion and there would have been no need to act to the taxable income of the Assessee. The Court is satisfied that no error has been committed by the ITAT in concluding that the order of the CIT (E) is unsustainable in law. No substantial question of law arises.
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2023 (3) TMI 1552
Provisional attachment order passed u/s 24(3) of the Prohibition of Benami Property Transactions Act - Petitioners’ Counsel has stated that the date of the transaction as reflected in the order impugned was prior to 25th October, 2016 and therefore, the proceedings ought to be quashed - HELD THAT:- Respondents, as admitted that the dates of the transactions in regard to the Benami properties was indeed before coming into force the Benami Transactions (Prohibition) Amendment Act, 2016. The only objection raised in the present case is that the review petition stands filed which is pending hearing before the Apex Court. It is further stated that in view of the pendency of the Review Petition, no order has been passed in the present case.
This Court by virtue of the Judgment and Order passed in Mahanti Traders Private Limited V/s. Union of India & ORs [2022 (12) TMI 1551 - BOMBAY HIGH COURT] considering the directions of Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] the provisional order of attachment and order of reference had been quashed. We see no reason not to adopt similar course (supra).
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2023 (3) TMI 1551
Exemption u/s 54F - denial of claim for not constructing the building within the due date as prescribed by the section 54F - HELD THAT:- In the case on hand, the assessee has invested the entire amounts before filing of the return of income as mandated in sec.54F & has claimed exemption u/s 54F.
On perusal of the documents filed by the assessee we observed that the assessee had genuine reason for not constructing the building within the due date as prescribed by the section 54F but the intention of the assessee was to construct of the residential house building.
As construction cannot be considered as the assessee has constructed a house property at plot No. 197 as observed by the AO.
Accordingly the assessee is eligible for the proportionate deduction as per section 54F since the entire sale proceeds were not used for the new assets.
Since the purchase of property from BDA is subjudice with the Hon’ble High Court of Karnataka and the assessee could not show us the status of the case before the Hon’ble High Court. If in case the assessee gets refund from the BDA, in such case the assessee will be liable for capital gain tax as per law. Accordingly we direct to AO to compute the capital gain in above terms. Appeal of the assessee is partly allowed.
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9911796707
