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2020 (6) TMI 840
Legality of orders issued under Disaster Management Act, 2005 - vires of Section 10(2)(l) of Disaster Management Act, 2005 - violation of Article 14, Article 19(1)(g) of the Constitution of India - reinforcement of pre-existing right of the worker to get their wages without any reduction - HELD THAT:- It is true that the orders dated 29.03.2020 which was passed in exercise of power under Section 10(2)(l) of the Disaster Management Act, 2005, stood withdrawn by subsequent order dated 17.05.2020 w.e.f. 18.05.2020. The consequence of the subsequent order dated 17.05.2020 is that the obligation cast on the employer to make payment of wages of their workers at their workplace, without any reduction, for the period their establishments are under closure during the lockdown is no longer in operation. However, the issue regarding obligation of the employer as per order dated 29.03.2020 when it remained in force is still to be answered especially when the petitioners challenges the order as ultra vires to Disaster Management Act, 2005, as well as violative of Article 14, 19(1)(g) and Article 21.
It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various Industries, establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity. There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees. The period of Unlock having begun from 01.06.2020 and even prior to that some of the industries were permitted to function by the Government of India by different guidelines, most of the industries and establishments have re-opened or are re-opening, require the full workforce.
All industries/establishments are of different nature and of different capacity, including financial capacity. Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lockdown period to its workers and employees. Some of them may not be able to bear the entire burden - For smooth running of industries with the participation of the workforce, it is essential that a via media be found out. The obligatory orders having been issued on 29.03.2020 which has been withdrawn w.e.f. 18.05.2020, in between there has been only 50 days during which period, the statutory obligation was imposed. Thus, the wages of workers and employees which were required to be paid as per the order dated 29.03.2020 and other consequential notification was during these 50 days.
It cannot be disputed that both Industry and Labourers need each other. No Industry or establishment can survive without employees/labourers and vice versa. It is opined that efforts should be made to sort out the differences and disputes between the workers and the employers regarding payment of wages of above 50 days and if any settlement or negotiation can be entered into between them without regard to the order dated 29.03.2020, the said steps may restore congenial work atmosphere.
The private establishment, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees organization and enter into a settlement with them and if they are unable to settle by themselves submit a request to concerned labour authorities who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the concerned Employees Trade Union/workers Association/ workers to appear on a date for negotiation, conciliation and settlement. In event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the order dated 29.03.2020 issued by the Government of India, Ministry of Home Affairs.
List in last week of July.
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2020 (6) TMI 839
Validity of order passed u/s 153A r.w.s. 143(3) - deductions claimed originally and allowed in order u/s 143(3) of the Act and not related to any incriminating material fouund during action u/s 132 - whether assessment could be framed u/s 153A of the Act, in respect of concluded proceeding without the existence of any incriminating materials found during the course of the search?
HELD THAT:- Once the proceeding u/s 153A of the Act is initiated which are special proceedings, the legislature provides different treatments for abated and unabated assessments. However, in respect of unabated assessments the legislature has not conferred powers on the Ld. AO to disturb the assessments already concluded unless incriminating materials are found in the course of search.
Thus, we hold that the disallowances made for the Assessment years i.e. 2005-05 and 2006-07 which were unabated/concluded assessments as on date of search cannot be made in the absence of any incriminating material found during the the course of search and accordingly all those additions are directed to be deleted. Since the legal issues are addressed, we refrain to give our findings on merits of additions under the provisions of the Act. Accordingly, the grounds raised by the assessee allowed.
Deduction claimed u/s 80-IA (4) with respect to the eligible infrastructure project - In view of the identical issue raised before us in the ground of appeal no. 2 which has already been considered by the ITAT in its own case with respect to all the project, we are taking the same view and accordingly holding that the assessee is in development of the infrastructure facilities eligible for deduction under section 80 IA(4) of the Act. The ground of appeal of the assessee is allowed and ground of appeal of the Revenue is dismissed.
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2020 (6) TMI 838
Maintainability of revenue appeal on low tax effect - HELD THAT:- As per Circular No.17/2019 dated 08.8.2019 issued by the Central Board of Direct Taxes monetary limit for filing or pursuing an appeal before the High Court has been increased to Rs. 1 Crore. It is further submitted that the tax effect in this case is less than the threshold limit.
In the light of the said submissions, the above tax case appeal is dismissed on account of the low tax effect. The substantial questions of law framed are left open.
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2020 (6) TMI 837
Deduction u/s. 80-IE - denial of claim on delay in filing of return - delay of 2 ½ months - HELD THAT:- A bare perusal of section 139 of the Act makes it clear that the Parliament in its wisdom has allowed the assessee to file return of income belatedly subject to fulfillment of conditions as prescribed in the said section 139 of the Act. Therefore, once those conditions are met/fulfilled by the assessee, then return filed by the assessee should be considered being filed u/s. 139(1)
As noted that the AO has accepted the claim of deduction u/s. 80IE for the AY 2013-14 u/s 143(1) of the Act and for the second year for the AY 2014-15 u/s 143(3) of the Act. Since the deduction u/s. 80IE of the Act was otherwise allowable on merits, the assessee should not be denied the deduction merely because the assessee had filed its return of income belatedly.
Keeping in mind the ratio laid down in the case of Fiberfil Engineers [2017 (8) TMI 730 - DELHI HIGH COURT] we do not find any reason to deny the claim of assessee on the ground of filing return of income belatedly. In the light of above facts, we are of the opinion that the assessee’s claim for deduction u/s. 80IE of the Act should be allowed - Assessee appeal allowed.
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2020 (6) TMI 836
Refund claim with interest - failure to hand over possession of constructed premises - HELD THAT:- Under the terms of the subvention scheme, interest was payable by the developer to the bank for a stipulated period. This, however, cannot dilute the responsibility of the developer to refund the entire amount of consideration which has been received for the flat to the flat buyers - the order for refund in the amount of Rs 2,96,89,370 does not warrant any interference. However, in view of the orders which have been passed by this Court in other cases, and having due regard to market conditions we scale down the interest to nine per cent per annum.
The Court has been apprised that in execution of the order of the NCDRC, four bank accounts of the builder have been attached - the direction of the NCDRC restraining the builder from deducting tax at source to be vacated - appeal disposed off.
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2020 (6) TMI 835
Banking frauds - diversion of funds of the corporate loans extended to ESL under the CDR - Section 120B r/w 420/467/468/471 IPC and Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act - HELD THAT:- Looking into the facts and circumstances of this case that on 2 previous occasions and on the basis of similar allegations no action was taken by the CBI or EOW and the contention of the Ld. Sr. Counsel for the petitioner that despite two closures, again on the same facts, the present FIR has been registered within a period of 4 days of the complaint dated 06.02.2020 without conducting any preliminary inquiry and without following the procedure established by law in regard to the alleged bank fraud cases and moreover, in the instant case, the petitioner had joined the company as a director on 13.11.2013 and all the loan facilities as per the FIR were prior to the petitioner joining the ESL as one of the Director and the only facility pursuant to his Directorship are under the CDR in which no fraud is alleged.
In these circumstances, the respondent (CBI) is directed to file a detailed reply/status report mentioning about the outcome of the two previous complaints dated 27.03.2019 and 23.05.2019 and as to whether complicity of any public servant was found during the previous two investigations.
List on 30.07.2020 before the Roster Bench.
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2020 (6) TMI 834
TP Adjustment - comparable selection in ITES Segment - HELD THAT:- Exclusion of companies as functionally dissimilar with that of assessee. We direct the TPO to exclude (i) Infosys BPO Limited (ii) TCS e-serve Ltd. (iii) BNR Udyog Ltd. (iv) Excel Info ways Ltd, from the list of comparables for determination of ALP in ITES Segment. And in the case of (v) Universal Print Systems Ltd, the comparable is restored to the file of TPO for fresh adjudication.
Negative Working Capital Adjustment - TPO not properly computed in ITES segment for determination of ALP - We find the TPO in ITES segment has computed arithmetic mean margin on cost at 28.11% and negative working capital adjustment of -8.70% and worked out adjusted margin for determination of ALP at36..81%. Ar even before the tribunal could not demonstrate that the working capital adjustments based on OECD guidelines are not applicable to financials of the assessee. We have dealt on disputed issue in Software Development Segment (SDS) in Para 7, above relying on the decision of Tecnotree Convergence Pvt. Ltd. Vs. DCIT [2018 (6) TMI 1688 - ITAT BANGALORE] in the case of and dismissed the ground of appeal and the same decision shall equally apply. Accordingly, we dismiss this ground of appeal in ITES segment.
TDS u/s 40(a)(ia) on software expenses - HELD THAT:- Prima facie, the assessee is engaged in software development services and ITES and incurred expenses for purchase of software and AMC charges. Ar emphasized on revenue expenditure but could not support with evidences. Further there is no clarity in respect of deduction of tax at source. Hence, considering the facts and circumstances, we are of the opinion that the assessee has to establish that recipient/payee has paid the tax on income and discharged tax obligation. Accordingly, we restore this issue to the file of Assessing officer for examination and verification of facts and allow the ground of appeal for statistical purpose.
Computation of the book profits u/s 115JB on provision for loyalty bonus - Ar submitted that the loyalty bonus should not be considered for calculation of the book Profit u/sec 115JB and relied on the co-ordinate Bench decision in assessee own case for the Asst. Year 2008- 09 - HELD THAT:- We, considering the decision of co-ordinate bench and to compare the facts of present case, restore this disputed issue for limited purpose to the file of A O for verification and allow the ground of appeal of the assessee for statistical purposes.
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2020 (6) TMI 833
Illegality in entertaining the joint revision filed against the vacancy order as well as the final order - HELD THAT:- The High Court has patently erred in holding, that the revision entertained by the District Judge against the vacancy order dated 4.6.2003 along with the final order of release dated 31.5.2007 was not tenable. The learned judge has totally erred in observing, that the order of the High Court dated 23.8.2006 dismissing the writ petition had attained finality since it was not challenged before this Court. The learned judge ought to have taken into consideration, that though the vacancy order was challenged in a writ petition, the High Court vide order dated 23.8.2006, while dismissing the writ petition had reserved the right of the Petitioners (Appellant and proforma Respondent No. 3 herein) before it to challenge the vacancy order along with the final order passed Under Section 16. The observation of the learned judge, that the High Court in its earlier order dated 23.8.2006, could not have granted liberty to challenge the vacancy order along with the final order is also contrary to the settled principles of judicial propriety.
This Court in the case of Sarla Ahuja v. United India Insurance Co. Ltd. [1998 (10) TMI 555 - SUPREME COURT] had an occasion to consider the scope of proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958. This Court found, that though the word 'revision' was not employed in the said proviso, from the language used therein, the legislative intent was clear that the power conferred was revisional power - It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.
The revisional powers conferred upon the District Judge under the U.P. Act, 1972 are almost analogous with the revisional powers of the High Court that have been interpreted by this Court in the aforesaid judgments. It is found, that the said principles can be aptly made applicable to the revisional powers of the District Judge under the U.P. Act, 1972. If the said principles are applied to the facts of the present case, it could be seen, that the learned District Judge was fully justified in interfering with the order passed by the Rent Controller and Eviction Officer.
In the present case, the approach of the High Court in exercising the jurisdiction Under Article 227 of the Constitution of India was totally erroneous - the exercise of jurisdiction by the High Court Under Article 227 in the present case was patently unwarranted and unjustified.
The order of the High Court dated 26.10.2017 is quashed and set aside - appeal allowed.
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2020 (6) TMI 832
Enhancement of age of superannuation of General Duty Medical Officers and specialists working in the Central Government and its allied institutions to sixty-five years - HELD THAT:- The appellant moved an application for recall of the order, on which, as we have noted earlier, the High Court directed that the first respondent should be paid salary for the period for which she was working. The fundamental objection of the appellant to the direction of the High Court is that though the first respondent has failed before the Tribunal, the High Court has, at the interim stage, virtually allowed the writ petition. There are merit in the submission.
The High Court was not justified in issuing the first interim direction that it did on 12 September 2018, which was followed by the subsequent interim order dated 23 January 2020 effectively granting the final relief at the interim stage. The correctness of the order of the Tribunal declining relief is yet to be determined by the High Court. Since the proceedings are pending before the High Court, we have not embarked upon the merits of the case which is set up by the first respondent before the High Court. We, however, find that the interim orders of the High Court virtually amount to the grant of final relief and ought not to have been passed.
The impugned interim orders dated 12 September 2018 and 23 January 2020 is set aside - appeal allowed.
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2020 (6) TMI 831
Disallowance of Interest Expenses u/s 36(1)(iii) - interest free advances to the Appellant's sister concern - AO has alleged that the said advances have been made for non-business purposes and consequently, interest incurred thereon cannot be claimed as deduction - HELD THAT:- CIT(A), in first appeal, has confirmed the aforesaid action of disallowance by AO placing reliance on the order of the CIT(A) on similar facts concerning AY 2011-12 but the disallowance made by the Revenue authorities on similar facts has been reversed by the ITAT for the same assessee.
Similar reversal of disallowance was stated to have been done by the co-ordinate bench [2019 (5) TMI 2000 - ITAT AHMEDABAD] concerning AY 2013-14.
Also as pointed out on behalf of the assessee that interest free funds in the form of capital/reserves etc. is substantially in excess of the interest free advances given by the assessee. The interest free capital and reserves are stated to be in the vicinity of Rs.26 Crores as against the interest free advance of Rs.31 Lakhs in question. It was thus claimed that in the instant case, interest free funds available at the disposal of assessee are sufficient to meet the interest free advances and thus a presumption would arise that interest free advances were lent from interest free funds and not borrowed funds.
In view of the decision of Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and similar approach adopted by the co-ordinate bench in earlier years, we find sufficient reasons to admit the claim of the assessee for reversal of disallowance favourably. Decided in favour of assessee.
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2020 (6) TMI 830
Penalty u/s 271FA - not filing the AIR for the relevant AY - main contention of AR before the Tribunal was that there is reasonable cause as mandated u/s 273B for not filing the AIR for the relevant AY - A.R. submitted that the assessee is a co-operative bank and the co-operative banks were specifically included in rule 114E only w.e.f. 1.4.2016 only, there was an ambiguity as to whether the co-operative banks are required to comply with the provisions of rule 114E of the rules or not. Hence, there was delay in filing the annual information return - HELD THAT:- We notice that an identical issue has been considered by this bench in the case of The Mandya Dist. Co-op. Central Bank Ltd [2020 (3) TMI 1455 - ITAT BANGALORE] as held as original provisions of Rule 114E of Income tax Rules did not include “co-operative bank” and it was inserted only in the amended provisions of Rule 114E, which came into effect from 1.4.2016. Accordingly, in our view, there is merit in the submission of the ld A.R that there existed an ambiguity as to whether the co- operative banks are required to comply with the provisions of Rule 114E of the Act, meaning thereby, the bonafide belief of the assessee shall constitute reasonable cause in terms of sec.273B of the Act for the failure in furnishing the AIR for the year under consideration.
In this view of the matter, the impugned penalty is liable to be deleted. Appeals of the assessee are allowed.
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2020 (6) TMI 829
Inaction on the part of the respondents so far as return of additional tax to be paid by the petitioner in the light of the introduction of the new tax regime under the GST Law - HELD THAT:- The writ petition stands disposed of with a direction to the respondent No.2 to take a decision on the representation that the petitioner has made for the refund of the additional tax burden suffered by the petitioner.
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2020 (6) TMI 828
Seeking to appoint an Arbitrator for resolution of disputes between the parties - construction of ADM-cum- Tech Accommodation (13) rooms at Hakimpet, Hyderabad - accord and final satisfaction as pleaded by the respondents through the Final Bill, as pleaded by the respondents in terms of Condition No.65 of IAFW 2249 (GCC) - applicant prima facie established coercion and undue influence in signing the Final Bill or not.
HELD THAT:- It is pertinent to note that the applicant failed to offer any plausible explanation for not raising the issue of coercion and undue influence immediately after payment under Final Bill. The applicant, after receiving the payments under Final Bill, had signed ‘no further claim’ certificate. Since the full and final payment is made in the Final Bill and the applicant signed ‘no further claim’ certificate, as the arbitration application is liable to be dismissed on that ground alone, since the applicant signed the same without any protest/objection. A party who comes to the court, must come with clean hands. When fraud, undue influence and coercion is pleaded, at least some factual foundation must be laid in the pleadings, which is lacking - In the present application, by way of passing reference made allegations of undue influence and coercion, as such, this application is liable to be dismissed on that ground alone. When once there is full and final satisfaction, there exists no arbitral dispute, as rightly contended by the learned counsel for the respondents.
Since invocation of arbitration is prior to Amendment Act, 2015, the provisions of said Act, 2015 are not applicable to such arbitral proceedings which have commenced in terms of the provisions of Section 21 of the Principal Act, unless otherwise agreed by the parties - When once one of the parties adopts a path of full understanding and executes a document in furtherance of the same, it is not open to him to take recourse of arbitration thereafter.
In the decision relied upon by the learned counsel for the respondents in PK. RAMAIAH VERSUS C& MD NATIONAL THERMAL POWER CORPORATION NTPC [1993 (10) TMI 346 - SUPREME COURT], the Hon’ble Apex Court held that if accord and satisfaction is established, no arbitral dispute exists for referring the matter to arbitration.
There is no merit in the Arbitration Application. Accordingly, the same is dismissed.
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2020 (6) TMI 827
Disallowance u/s 14A - AO has made the above disallowance by holding that disallowance under section 14A is to be made mandatorily irrespective of the fact whether assessee has received any exempt income during the year or not - DRP has deleted the disallowance and held that in the absence of any exempt income during the year, no disallowance can be made - DRP also has held that the interest free funds are sufficient to meet that investment made by the assessee - HELD THAT:- The issue is covered in favour of the assessee by various judgments of the Jurisdictional High Court including the above judgment of Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] - we uphold the Order of the DRP deleting the above said disallowance and Ground of Revenue’s appeal are dismissed.
Addition of expenditure incurred on Club Membership for its employees - AO disallowed it same has not been incurred wholly and exclusively for the purpose of the business - DRP has directed to delete the disallowance holding that this Club Membership expenditure incurred by the assessee for its employees has been considered as perquisite in the hands of the employees as salary income and tax has been paid thereon - HELD THAT:- The finding of the Ld. DRP is correct. We are further of the view that any expenditure incurred on employees by the employer, whether by way of salary or by way of perquisites, is business expenditure as the employees are working for the business. What the employer provides to employees is a consideration for the services rendered by such employees. Such consideration can be in cash by way of salary or allowances or in kind by way of various perquisites. The Club Membership fee is one such perquisite which is extended by the employer to its employees. So long the fee is paid for the employees who are working with the employer for the business being carried on by such employer, the fee so paid is an expenditure incurred wholly and exclusively for the purpose of business. Decided against revenue.
Addition on account of the Service Fees - As per AO this expenditure has not been incurred wholly and exclusively for the purpose of business as the assessee has not furnished any details regarding the actual service being provided and the nature of services offered - HELD THAT:- As regards the issue of allow ability of expenditure under section 37(1), from the facts, it is evident that assessee has submitted all the details and evidences in support thereof. Thus, the contention of the AO that the assessee has not furnished any details and evidences is factually incorrect.
DRP has examined these details and after examination it has held that the payments are in consideration of the services rendered by the AEs by giving reference to page 37 & 38 of the Paper Book. Thus, the issue that these expenditures have been actually incurred for availing the services cannot be doubted. As regards the value for such services, the issue has been the subject matter before TPO and he has not drawn any adverse inference. Thus, the AO cannot draw any adverse inference on the basis that there is no justification for payment of such amount to AE. The contention of the Ld. AR on this issue that it is not permissible for the Revenue to step in the shoes of the assessee/ businessman and take the business decisions is correct. In view of the above analysis, we uphold the order of the DRP and ground of the Revenue’s appeal is dismissed.
Addition on account of Staff Welfare expenses - AO made an ad-hoc disallowance of 50% out of the above expenditure on the ground that the onus is on the assessee to justify the claim of the expenditure and that the assessee has failed to discharge this onus by not producing the complete details and by not producing the supporting bills/vouchers - HELD THAT:- Merely not mentioning the name of the employees cannot be a ground to disallow the same considering the fact that it is a case of a company. In the case of a firm or a proprietorship concern, there could have been a doubt whether such expenditures have been incurred on the employees or on the Partners/Proprietors. Ad-hoc disallowance is otherwise not sustainable. However, the AO, in the Assessment Order, has stated that the assessee has failed to discharge its onus by producing details and complete evidences in support thereof. Though, the assessee has filed the details before the Ld. DRP along with the supporting evidences, apparently the same has not been examined by the Ld. DRP. Considering this fact, we deem it fit to set aside this issue to the file of the AO with the direction to restrict the disallowance only to such expenditure which assessee is not able to support with evidence.
TDS u/s 195 - non-deduction of tax on purchases made from Mitsui & Co. Ltd. Japan - existence of the PE in India - HELD THAT:- From the facts explained by the Ld. AR, it is clear that a coordinate Bench of the ITAT in the case of Mitsui & Co. Ltd. Japan [2016 (4) TMI 1447 - ITAT DELHI] has held that Mitsui & Co. Ltd. Japan does not have a PE in India. In the absence of any PE, there is no obligation to deduct tax. Further, it is also a fact that these purchases are off-shore supplies which cannot be subjected to tax in India and if that be so, there is no requirement to deduct tax at source.DRP has also examined this issue and has held that off-shore supplies were not related to the activities by the PE of such an AE in India - Decided against revenue.
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2020 (6) TMI 826
Relevant date for calculation of interest - date from which, the simple interest at the rate of 8% per annum, in terms of Section 33(2) of the Goa Value Added Tax Act, 2005 (the said Act ) becomes payable, on the amount refundable under the provisions of the said Act - it was held by Bombay High Court that upon obtaining necessary sanction under Rule 30 of the said Rules beyond the period of 90 days from the date of the order of refund, or from the date of application for refund under Section 10(3) of the said Act, the Authorities cannot avoid payment of interest upon expiry of this period, on the specious plea that actual refund cannot be made without sanction under Rule 30 of the said Rules.
HELD THAT:- There are no ground to interfere with the impugned order(s) passed by the High Court. The special leave petition is, accordingly, dismissed.
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2020 (6) TMI 825
Addition on account of balance commission - assessee had shown commission receipt of amount less that as per TDS certificates total commission receipt - assessee’s second round of appeal before this Tribunal - HELD THAT:- Form 26AS is maintained by the Income-tax Department. In such a scenario, in the interest of justice and since it is second round of assessee’s appeal, and keeping in mind that there should be finality of the issue as deciding as infra.
First of all, Form 16A is generated by M/s. Unipay Marketing Pvt. Ltd, which is payer and the assessee who is the payee has no control over it. Even if the amount is paid it should have been accounted for in assessee’s bank account, which is not the case of the AO. Simply because there is difference in the claim of assessee in respect of TDS credit and the corresponding income, the AO has made the addition which cannot be accepted when the Form 26AS gives a different picture, which also assessee has no control; and 26AS Forms are generated by the Income-tax department and the figures come close to the assessee’s contention.
Therefore, assessee’s income should be taken as Rs. 3,95,030/-, which is shown in Form 26AS (downloaded from the Income tax Department website) and she should be given TDS credit of only Rs. 39,569/- as reflected in the Form 26AS - direct the AO to adopt these figures and compute the taxable income of assessee accordingly as per law.
Unexplained cash credit - As submitted money was deposited by four persons on four (4) different occasions into two different bank accounts of the assessee and that it was not her money, but, only she has collected their money from those four (4) different parties named in the assessment order for on-ward transferring to M/s UniPay - HELD THAT:- As noted that though she filed notarized Affidavits of the two parties who claimed that they had deposited amount in assessee’s bank account, but the ld. AR failed to show by means of any evidence to suggest that the money deposited in assessee’s bank account was used only as pass through entry through her bank account and thereafter this money has flown out of the assessee’s bank account to M/s. Unipay 2u Marketing P.Ltd.
AR failed to do so by adducing any evidence. Therefore, addition of Rs. 5,92,100/- cannot be faulted as such. However, taking into consideration the fact that this is second round of appeal and since we have already held that the assessee has received an amount of Rs. 3,95,030/- as her income while deciding the ground no. 2, therefore, this amount should be telescoped with the amount deposited in the bank account of assessee. This ground of assessee is partly allowed.
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2020 (6) TMI 824
Exemption u/s 11 - denying the benefits of Section 11 and 12 by invoking proviso to Section 2(15) r.w.s. 13(8) - accumulation of 15% - AO opined that the receipt describes above represent the activities carried out are in the nature of advancement of any other object of general public utility therefore same is covered by the proviso to section 2 (15) - assessee contended that it does have any business undertaking and the proceeds collected against services were utilized for the furtherance of it charitable objective - HELD THAT:- The issue involved in the case on hand has already been decided by this tribunal in the own case of the assessee [2019 (10) TMI 973 - ITAT AHMEDABAD] in its favour.
As the issue involved has already been decided by this tribunal in the own case of the assessee in its favour. Accordingly we set aside the finding of the learned CIT(A) and direct the AO to allow the benefit of the exemption to the assessee under section 11 and 12 of the Act. Hence the ground of appeal of the assessee is allowed.
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2020 (6) TMI 823
Rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 - plaint came to be rejected by the trial Court under Order VII Rule 11(d) of the CPC on the ground that it was barred by law of limitation, as it was filed beyond the period of three years prescribed in Article 113 of the Limitation Act, 1963.
HELD THAT:- It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order VII Rule 11 of the CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the Regional Office and the Regional Office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8.5.2002 followed by another letter dated 19.9.2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent-Bank could trigger the right of the appellant to sue the respondent-Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005 and then filed the suit on 23.2.2005, is also invoked as giving rise to cause of action.
Reverting to the argument that exchange of letters or correspondence between the parties cannot be the basis to extend the period of limitation, for the view taken hitherto, the same need not be dilated further. Inasmuch as, having noticed from the averments in the plaint that the right to sue accrued to the appellant on receiving letter from the Senior Manager, dated 8.5.2002, and in particular letter dated 19.9.2002, and again on firm refusal by the respondents vide Advocate’s letter dated 23.12.2003 in response to the legal notice sent by the appellant on 28.11.2003; and once again on the follow up legal notice on 7.1.2005, the plaint filed in February, 2005 would be well within limitation. Considering the former events of firm response by the respondents on 8.5.2002 and in particular, 19.9.2002, the correspondence ensued thereafter including the two legal notices sent by the appellant, even if disregarded, the plaint/suit filed on 23.2.2005 would be within limitation in terms of Article 113.
In the fact situation of the present case, rejecting the plaint in question under Order VII Rule 11(d) of the CPC, cannot be sustained - this appeal succeeds and the plaint stands restored to the file of the trial Court to its original number for being proceeded in accordance with law.
Appeal allowed.
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2020 (6) TMI 822
Reopening of assessment u/s 147 - reason to believe - link between the tangible material and the formation of the reasons to believe that income had escaped assessment - cash found to be deposited in the Savings Bank Account - HELD THAT:- As in the proforma for recording reasons for initiating proceedings u/s 148 of the Act under Item No. 8A, the question is “Whether any voluntary return had been filed” and the answer is mentioned as “No”. Whereas Exhibit Nos. 6 and 7 show that the return of income was field with Ward 2(1), Ghaziabad on 30.03.2010 and notice u/s 148 is dated 03.02.2016.
This clearly shows that the AO issued notice mechanically without applying his mind. Such action of the Assessing Officer did not find any favour with the Hon'ble High Court of Delhi in the case of RMG Polyvinyl [2017 (7) TMI 371 - DELHI HIGH COURT]
Assessing Officer has wrongly assumed jurisdiction and accordingly, notice u/s 148 of the Act is hereby quashed thereby quashing the assessment order.- Decided in favour of assessee.
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2020 (6) TMI 821
Seeking writ of habeas corpus (to produce the body before the court) for production of his sister - petitioner submits that despite Gulfisha Fatima being granted bail, she was illegally continued to be kept in custody - Learned ASJ extended the judicial remand custody of Gulfisha Fatima upto 25.06.2020, between the date of filing of this petition, and the date of return of the notice/ hearing of the petition - whether the said order has been passed by the learned ASJ-02 without jurisdiction?
HELD THAT:- The submission of Mr. Pracha that the learned ASJ-02, Shri Dharmender Rana was not competent, and did not have the jurisdiction to direct extension of judicial remand of Gulfisha Fatima vide his order dated 28.05.2020 upto 25.06.2020 is completely misplaced and we reject the same.
The NIA Act primarily is an Act to constitute the National Investigation Agency, and to provide for trial of cases entrusted to and investigated by the NIA in respect of scheduled offences, by a Special Court. In the present case, it is not even the petitioner’s submission that the Central Government has entrusted the investigation of the case registered against the detenue Gulfisha Fatima under UAPA to the NIA. The UAPA does not state that all cases under the said act necessarily have to be investigated by the NIA. Section 43 of the UAPA prescribes the ranks of Police Officers competent to investigate offences under Chapters IV and VI of the said Act by different Police Organisations.
Thus, it is clear that apart from NIA, the other police establishments are equally competent to investigate cases under the UAPA. This position is also clear from Section 6(7) of NIA Act, which clears doubts, if any, by declaring that till the NIA takes over the investigation of the case, it shall be the duty of the officer-in-charge of the police station where the case is registered, to continue to investigate.
Section 45 only lays down the restriction of grant of prior sanction by the Central Government, or the State Government, as the case may be. It does not state that only a Special Court constituted under the NIA Act would have jurisdiction to try offences under the UAPA. Just because UAPA is one of the enlisted enactments in the Schedule to the NIA Act, it does not follow that every offence under the UAPA has necessarily to be investigated by the NIA, and that the trial of such case necessarily has to proceed before the Special Court - thus, it is clear to us that Shri Dharmender Rana, ASJ-02 was competent to deal with bail application, as well as the aspect of remand of Ms. Gulfisha Fatima when he passed the orders on the application moved by the State to seek extension of judicial remand of Gulfisha Fatima, and remanded her to judicial custody till 25.06.2020 vide his order dated 28.05.2020.
The present writ petition is not maintainable since the detenue Gulfisha Fatima is in judicial custody under orders passed by the learned ASJ-02, Shri Dharmender Rana who was competent to do so - Petition dismissed.
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