|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1732 Records
-
2019 (6) TMI 1737
TP Adjustment - Comparable selection - HELD THAT:- ICRA Management Consulting Services Ltd. - This company was selected as a comparable by the Transfer Pricing Officer himself in assessment year 2008–09. Similarly, though, in assessment year 2009–10 the Transfer Pricing Officer rejected this company as a comparable, however, while deciding assessee’s appeal [2017 (3) TMI 1174 - ITAT MUMBAI] the Tribunal accepted it as a comparable. Respectfully following the decisions of the Tribunal in assessee’s own case as well as in case of others as cited supra, we direct the Assessing Officer to include this company as a comparable.
ICRA Management Consulting services Ltd. - On a perusal of the order passed by the Tribunal in case of Carlyle India Advisors Pvt. Ltd. [2015 (11) TMI 1713 - ITAT MUMBAI] it appears that the margin of this company for F.Y. 2009–10 has been computed at 16.26%. The reason for such computation according to the learned Sr. Counsel is due to proportionate allocation of unallocated expenditure to all the segments including investment advisory segment. In our view, the aforesaid claim of the assessee merits consideration. Therefore, we direct the AO to factually verify assessee’s claim with regard to the actual margin of the investment advisory segment of the company and, thereafter consider the same for computing the arm's length price of the assessee. However, before taking any decision on this issue, the assessee must be provided adequate opportunity of being heard.
ICRA Online Ltd.- The primary issue which requires to be considered is, whether the assessee and this company are functionally similar to be considered as comparables. In this regard, a detailed analysis of the functions performed by the assessee and the comparable has to be analyzed. Undisputedly, the Departmental Authorities had no occasion to factually verify the reasons / grounds on which the assessee seeks exclusion of this company as a comparable. Therefore, in the interest of fair play and justice, we are inclined to restore the issue relating to the comparability of this company to the AO for fresh adjudication after due opportunity of being heard to the assessee.
Disallowance of risk adjustment - It is the plea of the assessee that compared to it, the comparables are risk bearing entities. In fact, it is seen from the order of the Transfer Pricing Officer, he had rejected one of the comparables selected by the assessee i.e., ICRA Management Consultancy Services Ltd. by stating that it is a high-risk entity. Thus, according to the Transfer Pricing Officer also, risk is a relevant factor for comparability analysis. In view of the aforesaid, though, in principle we agree with assessee that risk adjustment in appropriate cases has to be allowed, however, the working of risk adjustment furnished by the assessee requires verification at the end of the AO/ TPO. We, therefore, restore the issue to the AO / TPO for factual verification of assessee’s claim of risk adjustment qua the comparables. Needless to mention, the AO must decide the issue in accordance with law and after providing adequate opportunity of being heard to the assessee keeping in view the decisions to be cited by the assessee.
Excluding Motilal Oswal Investment Advisors Pvt. Ltd. as a comparable - After careful reading of the decisions cited before us, we are of the considered opinion that the issue relating to the comparability of this company is no more res integra in view of the judicial pronouncements cited before us. Undisputedly, this company is in the business of investment / merchant banking which is completely different from investment advisory service provided by the assessee. This company has to be excluded as a comparable. Therefore, consistent with the view expressed in the judicial pronouncements cited before us, we uphold the decision of learned Commissioner (Appeals) in excluding this company as a comparable. Grounds raised are dismissed.
-
2019 (6) TMI 1736
TP Adjustment - MAM selection - assessee had applied TNMM method and had aggregated all the transactions including transaction of purchase of raw material along with payment for Intra group services and had held that the arm's length price of international transactions were at nil. However, the TPO had applied CUP method
HELD THAT:- As coming to the facts of present case, which are similar to the facts before the Tribunal in assessee’s own case relating to assessment year 2009-10 [2018 (3) TMI 2014 - ITAT PUNE] and applying the same parity of reasoning, we reverse the orders of authorities below in applying CUP method to arrive at the arm's length price of transactions of Intra group services at nil.
There is no merit in the upward adjustment made in the hands of assessee on account of two segments i.e. Marketing Services and Administrative Services. Reversing the same, we direct the Assessing Officer/TPO to apply TNMM method to determine and benchmark the transactions on aggregate basis along with other transactions. Consequently, no adjustment to be made in the hands of assessee on account of said segment of payment for Intra group services. Appeal of assessee is allowed.
-
2019 (6) TMI 1735
Non-payment of service tax - services to Indian Railways in the nature of ‘Maintenance or Repair Service’ - Extended period of limitation - HELD THAT:- The appellant was having a bonafide belief that since he was providing services to Indian Railways which is part of Government of India, the services are not liable to be charged under the levy of service tax particularly in terms of Sl. No. 12 of Mega Notification No. 25 of 2012-ST dated 20.06.2012. Therefore, the extended period of limitation was not available to revenue for raising the present demand. Since the extended period of limitation is not available the penalty under Section 78 of Finance Act, 1994 was also not leviable to the appellant.
After setting aside the penalty under Section 78 and setting aside the demand which is beyond the normal period of limitation, the impugned order is set aside.
Appeal allowed.
-
2019 (6) TMI 1734
TP Adjustment - exemption u/s 10A - Treatment to interest income - ITAT Directing to adopt 16.63% Arm’s Length margin for transaction relating to non US entities based on MAP concluded with US Tax Authorities
ITAT justification in holding that exemption u/s 10A is allowable prior to the setting off, of brought forward losses and unabsorbed depreciation.
ITAT justification in holding interest income as business income
HELD THAT:- It is an agreed position that all these questions had came up for consideration before this Court in case of this very Assessee for the earlier assessment years [2016 (5) TMI 1627 - ITAT MUMBAI] Revenue Appeals were dismissed by an Order [2019 (4) TMI 219 - BOMBAY HIGH COURT]. That being the position, without recording separate reasons, this Appeal is also dismissed.
-
2019 (6) TMI 1733
Rectification of mistake - mistake on the face of record or not - classification of goods - Beneficiale Liquid - DSN Capsules - the appellant filed two separate appeals for the two periods - Revenue states that as the impugned order is common, the said final order will have a binding effect on the appeal, which is pending. Further, he also states that the appellant is seeking a review of the appeal already disposed of, which is not desirable - HELD THAT:- Under the facts and circumstances, firstly both the appeals should have been disposed of together. Secondly, judgement cited by the learned Counsel for the appellant have not been considered as no reason have been cited in the final order for deferring with the views expressed in those judgements. Further, the appellant has suffered prejudice, as appeals were not disposed of together.
Both the appeals tagged together for final hearing - ROM application allowed.
Put up for hearing on 15.07.2019.
-
2019 (6) TMI 1731
Correct classification of the “Minute Maid Nimboo Fresh” manufactured by the appellant along with other aerated waters - HELD THAT:- The said classification now stands finally decided by the larger Bench of the Tribunal in the case of M/s. Brindavan Beverages Private Limited & Others v. CCE & ST, Hapur vide Misc. Order No.70132-70134/2019 dated 30.04.2019 [2019 (10) TMI 762 - CESTAT ALLAHABAD (LB)] where it was held that 'three products MMNF, Nimbu Masala Soda and Nimbooz would classify under Tariff Item No. 2202 90 20 as fruit juice based drinks.'
Matter remanded to original adjudicating authority for fresh consideration in the light of the law declared by the larger Bench.
-
2019 (6) TMI 1730
Deduction u/s 80IB(10) on proportionate basis - areas of some of the residential units were found to be exceeded 1000 square feet on physical verification which is violation of the Act - whether ITAT was justified in allowing deduction u/s 80IB(10) even when the project was not completed before 31st March 2008 as per provision of the section despite the fact that the local Municipal Corporation has raised an objection that NOC from the ULC Department was not obtained by the assessee firm ?
HELD THAT:- Assessee had completed construction of entire housing project before 31st March, 2008, which was the last date of such completion. The assessee had also applied for completion certificate before the local authorities before such date. The local authority however, took some time in issuing such certificate, primarily since the urban land ceiling certificate was not immediately available. Thus, it can be seen that there was substantial compliance on the part of the assessee.
As decided in Tarnetar Corporation [2012 (10) TMI 803 - GUJARAT HIGH COURT] under similar circumstances held that assessee had completed the construction well before March 31, 2008, is not in doubt. It is, of course, true that formally the BU permission was not granted by the municipal authority by such date. It is equally true that Explanation to clause (a) to section 80IB(10) links the completion of the construction to the BU permission before granted by the local authority. If substantial compliance thereof is established on record, in a given case, the court may take the view that minor deviation thereof would not vitiate the very purpose for which the deduction was being made available.
-
2019 (6) TMI 1729
Penalty u/s 271(1)(c) - non specifying the limb of the penalty imposable - stereotyped notice - defective notice u/s 274 - HELD THAT:- From the perusal of the notice issued u/s 274 r.w.s. 271(1)(c) apparently goes to prove that the Assessing Officer initiated the penalty proceedings by issuing the notice u/s 274/271(1)(c) of the Act without specifying whether the assessee has concealed ''particulars of income" or assessee has furnished "inaccurate particulars of income", so as to provide adequate opportunity to the assessee to explain the show cause notice.
Rather notice in this case has been issued in a stereotyped manner without applying any mind which is bad in law, hence is not a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act., as held by the various Court including the Hon'ble Karnataka High Court in M/s SSA’s Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] which has been affirmed by the Apex Court by dismissing the SLP and by the Apex Court in the case of ‘Dilip N. Shroff vs. JCIT’ [2007 (5) TMI 198 - SUPREME COURT] Hence, we have no hesitation to delete the penalty levied by the AO and affirmed by the Ld. CIT (A). Decided in favour of assessee.
-
2019 (6) TMI 1728
Refund for service tax paid under Site Formation, Excavation, later realizing it falls under mining service - classification of services - HELD THAT:- It is found that the issue of classification under head of ‘supply of tangible goods for use’ was raised first time before this Tribunal and the same was neither claimed before the lower authority nor it was considered, therefore, as requested by the Ld. Counsel, the matter can be re-considered afresh by the adjudicating authority.
Matter remanded to the adjudicating authority for considering a fresh on all the issues.
-
2019 (6) TMI 1727
Dishonour of cheque - Condonation of delay of 9 days in filing the complaint - dismissal of application without conducting an enquiry - sufficient cause was present or not, is not perused - acquittal under Section 255(1) Cr. P.C. - HELD THAT:- Section 142(b) of the NI Act states that such complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. A proviso was added to Section 142 of the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). Before carrying out the amendment to Sections 138 to 142, a working group was constituted to make recommendation as to what changes were needed to effectively achieve the purpose of Section 138. Accordingly, the relevant provision of the NI Act was amended and a new provision was added as Section 142(b), wherein it is stated that cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. In the statement of objects and reasons of Act 55 of 2002, it is stated that the existing provisions in the Negotiable Instruments Act, 1881 namely Sections 138 to 142 in Chapter 17 have been found deficient while dealing with the dishonoured cheques. Courts are expected to dispose of such cases as per the procedure contained in the Act, though it was noticed that the procedure to deal with such matters is cumbersome.
Sufficient cause be shown in the complaint itself or in the application for condonation of delay or in the affidavit, if any, or in other materials which would be sufficient to satisfy the court that the complainant had sufficient cause for not filing the complaint within the specified period. It is further held that a detailed enquiry giving an opportunity to the parties to adduce oral evidence is not necessary at the stage of taking cognizance to decide whether the delay deserves to be condoned. The accused has to be heard before condoning the delay.
In Sarah Mathew v. Institute of Cardio Vascular Diseases [2013 (11) TMI 1587 - SUPREME COURT] that the date relevant for computation of period of limitation is the date when the criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when a court/Magistrate takes cognizance. The court below has not considered the factum as laid down in the decisions cited supra and without giving any proper explanation to the delay, the complaint filed by the appellant/complainant was dismissed.
The complainant has not offered any explanation for the delay in filing the complaint and accordingly, the complaint was dismissed. The court below has not discussed or considered the application in detail and has not considered whether there was any sufficient cause on the side of the complainant to file the complaint after the prescribed period of limitation. It is true that the respondent/accused shall be heard before passing the order in the petition for condonation of delay. The court below has dismissed the application without conducting an enquiry on it and therefore, the findings entered with regard to point No.4 in the judgment is erroneous.
The matter is remanded to the court below to re- consider point No.4 alone, after giving an opportunity to the appellant/complainant to give evidence regarding the delay in filing the complaint after the statutory period of limitation with notice to respondent/accused, and dispose of the matter within three months from the date of receipt of a copy of this judgment - Appeal allowed in part.
-
2019 (6) TMI 1726
Unexplained investment in purchase of property, in terms of Section 69 - Determination of real ownership - property belonged to the partners or firm - defence of the petitioner was that the property belonged to the individual partners and did not constitute a partnership asset - firm submitted that the property in question had been purchased from a mortgagor in satisfaction of mortgage debt in their capacity as co-owners.
HELD THAT:- The issue of ownership of the property has not been appreciated by the respondent in proper perspective. The Commissioner himself stated that the property has been jointly purchased by all five partners of the firm. How he arrives at this conclusion is unclear. No doubt, the property could have been jointly purchased. However, that by itself does not make it a partnership asset. The transaction thus ought to have been examined especially in the context of ownership, that is, whether, the same had been purchased using the funds of the firm or the funds of the individuals and whether the ownership vests in the name of the firm or the joint name of the partners.
In the light of the fact that the impugned order is bereft of any proper reasoning for confirmation of the order of assessment, it is of the view that this issue be re-visted and examined by the Commissioner, after taking into account the submissions of the assessee and any supporting evidences that may be produced before him in this regard.
The impugned order is thus set aside and the matter is remanded to the file of the Commissioner of Income Tax, who will hear the petitioner de novo and pass a speaking order.
-
2019 (6) TMI 1725
Seeking a declaration of invalidity of a Lease Deed executed on its behalf - execution of the subject Lease Deed and the authority of the person to execute the Deed on behalf of the owner, namely, the society - burden of the plaint is that the Lease Deed was purportedly executed by the President of the plaintiff-society without any authority - HELD THAT:- The charter of the society, which is on record, suggests clearly that the society shall be represented by a Manager acting as the President of the Administrative Committee in all cases, whether in Court or outside and whether actively or passively. The only restriction against such Manager or President is that he shall not take any initiative on important subjects prescribed in the internal statute of the society without the resolution of the Administrative Body. There is indeed nothing in the charter or otherwise to show that the society is forbidden by law or as a matter of contract from creating a lease of its property in favour of any villager.
A person who deals with a society or corporate body must no doubt familiarize himself with the constitution of the society or corporate body (in case of a company, it would be its Memorandum and Articles of Association), but once it is found that there is no restriction on the authority of the person to execute the act in such constitution, there is no further duty on the person to enquire into the internal management of the society or the corporate body and assess whether or not due procedure has been followed for executing the act in accordance with the rules of management applicable to the society or corporate body, as the case may be.
There is one more reason why the onus was on the plaintiff in the present case. Under Section 106 of the Evidence Act, the burden of proving any fact which is especially within the knowledge of any person is upon that person. Its own internal statute was a matter which was clearly within the special knowledge of the plaintiff.
The impugned order of the learned Ad-hoc District Judge is accordingly set aside and the suit of the plaintiff is dismissed.
-
2019 (6) TMI 1724
CENVAT Credit - Liability to pay 6% of the value of the bagasse and press-mud - amendment of Rule 6 (1) of the Cenvat Credit Rules by way of insertion of explanation (1) and (2) in the CCR - HELD THAT:- There was no requirement for payment of 6% of the value of goods, even after the amendment of the provisions of Rule 6, the lower authorities has relied upon the decision of Hon’ble Supreme Court in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] laying down that the bagasse and pres-mud cannot be held to be manufactured items.
There are no merits in the present appeal - the appeal filed by the revenue is dismissed.
-
2019 (6) TMI 1723
Deduction of excise duty on closing stock - Serious accounting principal errors made by Department in formulating the grounds in this intended appeal - HELD THAT:- The learned tribunal in its impugned order [2018 (1) TMI 1739 - ITAT KOLKATA] has given very detailed and cogent reasons in support of its finding, particularly, the one stating that its decision is based on a Supreme Court Judgement in the case of Berger Paints India Ltd [2004 (2) TMI 4 - SUPREME COURT]. Furthermore, in the subsequent assessment years 2007-08, 2008-09 and 2009-10, the tribunal came to a similar finding which order according to available instructions are still in force. Moreover, a similar order has been passed by the tribunal in the case of Exide Industries referred to at paragraph 8 of the impugned judgement and order of the tribunal.
Thus we do not think any substantial question of law has been raised in this appeal.
-
2019 (6) TMI 1722
Estimation of income - bogus purchases - CIT(A) reduced the same to 5% - HELD THAT:- As decided in M Haji Adam & Co [2019 (2) TMI 1632 - BOMBAY HIGH COURT] the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases.
Thus respectfully following the aforesaid judgement of the honourable High Court set aside the matter to the fife of the assessing officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases.
-
2019 (6) TMI 1721
Deduction u/s. 36(1)(viia) - assessee has not made any provision for bad and doubtful debts in its original return of income, but filled in its revised return - AO held the bank have not created any provision for bad and doubtful debts before filing the original return - HELD THAT:- Before creating reserve for bad and doubtful debts the same should be got approved by the Directors / Member of the bank. As the assessee has not created any reserve for bad and doubtful debts in the original return of income, it is clear that, the bank has not created any reserve for bad and doubtful debts during the year. The fact is also evident from the statement of Break-up of the Details of income furnished in support of the original return of income which was signed by the Managing director and General Manager of the bank, wherein no such reserve was created.
It s clear from the decision of the Hon’ble High Court of Punjab & Haryana in the case of State Bank of Patiala [2004 (5) TMI 12 - PUNJAB AND HARYANA HIGH COURT] that making of provision equal to the amount claimed as deduction, in the account books is necessary for claiming deduction u/s. 36(1)(viia). Since the assessee has not made any provision in the books of accounts, as admitted by the assessee before the AO by its letters dated 21.12.2016, in the respective assessment years, the assessee is not entitled for the impugned deductions for the respective assessment years. Further, the relevant portion of the order of the co-ordinate Bench of this Tribunal in the case of M/s.The Salem Dt. Central Co.Op Bank Ltd., Salem [2017 (6) TMI 1386 - ITAT CHENNAI] Circular is very clear that the deduction is permissible only to the extent of provisions actually created in the books of accounts for the relevant Assessment Year. This view is supported by the decision of the Hon’ble Punjab & Haryana High Court cited supra. Therefore, we do not find any infirmity in the order of the Ld.CIT(A) and the same is allowed. Appeals filed by the assessee are dismissed.
-
2019 (6) TMI 1720
Tax Recovery notices sent to tenants/lessees of the writ petitioners - it is the case of the writ petitioner that the moneys payable to them by their lessees cannot be appropriated by the Department towards alleged dues of writ petitioner's father's brother Late Mr.P.N.Subramaniam - HELD THAT:- This Court deems it appropriate to pass an order directing the second respondent to consider all objections raised by the writ petitioners in the aforesaid representation dated 20.06.2019, give an opportunity of personal hearing to the writ petitioners, as also opportunity to submit supporting documents and thereafter pass a considered order qua the impugned notices. The second respondent, in the course of this exercise, shall also hear out others, who are deemed necessary more particularly, the children of late Mr.P.N.Subramaniam. The second respondent is directed to complete this exercise within a period of eights weeks from the date of receipt of a copy of this order.
On disposing of the representation, the order disposing of the representation shall be served on each of the writ petitioners under due acknowledgement within seven working days from the date of disposal/order. The impugned notices shall, therefore, be kept in abeyance till the disposal of the representation of the writ petitioner dated 20.06.2019 in the aforesaid manner. If the outcome is in favour of the writ petitioners, that will be the end of the matter and the impugned notices will stand dropped. If the outcome is otherwise, the impugned notices shall be kept in abeyance for a further period of a fortnight from the date of communication of disposal of representation to the petitioner under due acknowledgement.
-
2019 (6) TMI 1719
Recovery proceedings - notice has been issued to the tenants of the petitioners u/s 226(3) - as inter-alia contended that the prohibitory order i.e., impugned notice, has been issued to the tenants of the petitioners, but the petitioners are not partners in the said firm - as contended in the representation that without proceeding against the partners of said firm, who are still available and who have means, it is unfair to proceed against the petitioners who are only legal heirs/daughters of one of the partners, who is no more and whose demise was more than two decades ago - HELD THAT:- It would serve the ends of justice if the respondent i.e, Tax Recovery Officer-8, Greams Road, Chennai, is directed to consider all the objections raised by writ petitioners in the aforesaid representation dated 27.05.2019, give an opportunity of personal hearing to the writ petitioners, as also opportunity to submit supporting documents and thereafter pass a considered order qua the impugned notice.
The aforesaid Tax Recovery Officer in the course of this exercise, shall also hear out the four partners of said firm. The respondent is directed to complete the exercise within a period of eights weeks from the date of receipt of a copy of this order. On passing orders, a copy of the order shall be served on each of the writ petitioners within 7 working days under due acknowledgement.
Thus impugned notice shall be kept in abeyance till the disposal of the aforesaid representation dated 27.05.2019 in the aforesaid manner, which shall be done as expeditiously as possible and in any event within a period of eight weeks as stated above. If the outcome is in favour of the writ petitioners, that will be the end of the matter and the impugned notice will stand dropped. If the outcome is otherwise, the impugned notice shall be kept in abeyance for a further period of a fortnight from the date of communication of disposal of representation to the petitioner under due acknowledgement. Though the petitioner counsel says that there are four partners, this Court is informed that it there are nine partners in said firm. It may not be necessary go into those aspects of the matter and suffice to say that all the partners of said firm who are now available shall also be heard.
-
2019 (6) TMI 1718
Estimation of income - bogus purchases - purchase from the grey market - quantification of the profit element embedded in making of such bogus/unsubstantiated purchases - HELD THAT:- As decided in M. Haji Adam & Co. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases
Thus we set aside the matter to the file of the assessing officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases - Appeals by the assessee allowed for statistical purposes.
-
2019 (6) TMI 1717
Nature of expenses - Repair and Maintenance to Building - revenue or capital expenditure - expenditure is eligible either u/s 30 or u/s 37(1) of the Income Tax Act as per the submissions of the Ld.AR - HELD THAT:- Assessee incurred expenditure for fixing Alco Bond Sheets on outside wall of the factory building to maintain the present structure and also incurred expenditure in respect of interior work. The assessee incurred expenditure only for keeping an existing asset into its present condition. Besides this, the assessee has not carried out any extension to the existing building, which could classify the said expenses as capital expenditure.
AO has not brought any material on record to show that it is an adverse material contrary to the bills and the work carried out by the assessee and the said expenses were giving an enduring benefit to the assessee. All these repairs are done to preserve and maintain an already existing asset. In the course of such repairs, if they have upgraded the facilities by fixing of Alco Bond sheets on outer walls of the building, which do not constitute a new asset or a new advantage.
The contention of the Ld. AR that expenditure cannot be covered as current repairs, the same is eligible u/s 37(1) of the Income Tax Act as revenue expenditure as the repairs were done to preserve and maintain an already existing asset and to improve its longevity. There was no new assets created by the assessee. Therefore, CIT(A) as well as the Assessing Officer was not right in making disallowance of current repairs out repairs & maintenance of building. Decided in favour of assessee.
........
|
9911796707
