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2019 (11) TMI 1822 - ITAT JODHPUR
Levy of late fee u/s 234E - scope of amendment w.e.f 01/06/2015 - Levy for respective assessment years prior to 01.06.2015 - HELD THAT:- The issue under consideration pertaining to levy of late fee after the amendment w.e.f 01/06/2015 and this issue has been decided against the assessee vide order in Station Headquarters Jodhpur & Others Vs. ACIT & Others [2019 (9) TMI 607 - ITAT JODHPUR] wherein as held that the amendment [clause (c)] was inserted u/s. 200A of the Act which has been given effect from 01.06.2015 is prospective in nature, and no computation of late fee for the demand or the intimation for the late fee u/s. 234E could be made for the TDS deducted for the respective assessment years prior to 01.06.2015. Therefore, the intimation u/s. 200A of the Act by the AO, TDS for payment of late fee u/s. 234E of the Act for the respective assessment years prior to 01.06.2015 is without any authority of law. Appeals of the assessee are dismissed.
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2019 (11) TMI 1821 - PUNJAB & HARYANA HIGH COURT
Suit for declaration of owner in possession of the suit property - HELD THAT:- Perusal of the order under revision reflects that the aforestated aspect with regard to the jurisdiction of the trial Court was not specifically raised. However, it is well settled that challenge to a Lok Adalat award can only be on limited grounds and such a challenge would lie only before the High Court by way of a writ petition under Article 226 of the Constitution [see STATE OF PUNJAB & ANR. VERSUS JALOUR SINGH & ORS. [2008 (1) TMI 960 - SUPREME COURT] and BHARGAVI CONSTRUCTIONS & ANR. VERSUS KOTHAKAPU MUTHYAM REDDY & ORS. [2017 (9) TMI 1731 - SUPREME COURT]. As lack of jurisdiction would go to the root of the matter, the trial Court ought to have been mindful of this aspect when an application was filed before it seeking rejection of the plaint. The order passed by the trial Court holding to the contrary, unmindful of the aforestated legal position, therefore cannot be countenanced.
The order passed by the trial Court holding to the contrary, unmindful of the aforestated legal position, therefore cannot be countenanced - the civil revision is allowed.
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2019 (11) TMI 1820 - DELHI HIGH COURT
Determination of the value of the property for payment of stamp duty under the Indian Stamp Act, 1899 - main contention advanced is that the documents on which the reliance was placed by the Collector were never supplied to the respondent - HELD THAT:- As the matter is being remanded by the learned Single Judge and as this appeal is dismissed, without going into the details of the judgments, but, suffice it to say that the circle rates are not the only factors to be kept in mind by the Collector. The circle rate can be one of the factors to be kept in mind by the Collector for determination of the value under Section 47A of the Indian Stamp Act, 1899, especially, when the person who has approached for registration of the sale deed is disputing the valuation pointed out by the registering authority. In such an eventuality, detailed procedure ought to have been followed by the Collector as per Section 47-A(2) of the Act, 1899 keeping in mind the aforesaid aspects of the matter as well as the principles propounded by the Hon'ble Supreme Court in RAMESH CHAND BANSAL & ORS. VERSUS DISTRICT MAGISTRATE/COLLECTOR GHAZIABAD & ORS. [1999 (5) TMI 604 - SUPREME COURT] and RAVINDER NARAIN AND ANR. VERSUS UNION OF INDIA [2003 (2) TMI 515 - SUPREME COURT] determination of the value of the property. The mechanical approach of the Collector only to follow the circle rate is hereby deprecated.
It was held in the case of Ramesh Chand Bansal & Ors. vs. District Magistrate/Collector that the impugned circular and the notice to be valid. Notice has already been issued to the appellants and they have an opportunity to contest the valuation prima facie fixed under the said circular and to prove to the contrary in the proceedings before the Collector.
It was held in the case of Ravinder Narain & Anr. vs. UOI that on the basis of the instances pressed into service by the acquiring authority and the land owner-appellants, the average can be fixed @ ₹ 61.50/- for both the notifications in question by adopting the extent of plotted area as done by the High Court which appears to be appropriate in the circumstances of the case. Therefore, the rate per sq. yard can be fixed @Rs.40/-. Though it was contended that there was marked variation in price relating to the instances of sale, vis--vis second notification, it does not appear, on the basis of evidence on record, that the fluctuation was of very high magnitude.
This Letters Patent Appeal is hereby dismissed as there are no reason to interfere with the judgment and order dated 14th March, 2019 passed by the learned Single Judge since no error was committed by the learned Single Judge in appreciating the aforesaid facts of the matter.
The money deposited by the respondent (original petitioner) with this Court as per the order dated 12th April, 2018 passed by the learned Single Judge shall remain deposited with the Registrar General of this Court and will be invested in a nationalised bank, since the matter is being remanded to the Collector for fresh determination of the valuation, and if any additional stamp duty is required to be paid by this respondent (original petitioner), the amount of Rs. 1,06,87,791/- will be adjusted towards the same. If more amount is to be deposited by the original petitioner, the aforesaid amount will be adjusted. If lesser amount is to be paid by the original petitioner, rest of the amount will be returned to the original petitioner.
Appeal dismissed.
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2019 (11) TMI 1819 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Admission of section 9 application - pre-existing disputes or not - it is shown that the amount is payable to the ‘Corporate Debtor’ and there are claims and counter claims, which has not been adjudicated by the Adjudicating Authority - HELD THAT:- Such ground cannot be accepted as the disputed question relating to claims and counter claims cannot be determined by Adjudicating Authority in an application under Section 9 of the I&B Code. In view of the judgment of the Hon’ble Supreme Court in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT], even if amount is disputed or payable and is found to be more than Rs.1,00,000/-, the application under Section 9 is to be admitted. In the present case, there is no pre-existing dispute pending before the parties.
Therefore, the Appellant cannot take any advantage relating to disputed bills, the question of joint inspection of contract etc. does not arise. In absence of any merit, the Appeal is dismissed.
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2019 (11) TMI 1818 - SUPREME COURT
Jural relationship between a chit fund entity and the subscribers, created by a chitty agreement - debt in prasenti or a promise to discharge a contractual obligation? - HELD THAT:- A perusal of the provisions of Chapter V of the 1982 Act makes it clear that if a prized subscriber defaults in making payment of an installment, the chit foreman has the right to recover the amount covering all future subscriptions from the defaulting subscriber as a consolidated amount - Section 32 of the 1982 Act empowers the foreman to recover the consolidated payment of all future subscriptions forthwith in the case of a default.
The object is to empower the foreman to recover the amount in a lump sum from a defaulting subscriber, so as to secure the interest of the other subscribers, and ensure smooth functioning of the Chit Fund. Such a provision would not amount to a penalty.
The relationship between the foreman and the subscribers in a chit fund transaction is of such a nature that there is a necessity and justification for making stringent provisions to safeguard the interest of the other subscribers, and the foreman. If a prized subscriber defaults in payment of his subscriptions, the foreman will be obliged to obtain the equivalent amount from other sources, to meet the obligations for payment of the chit amount to the other members, who prize the chit on subsequent draws. For raising such an amount, the foreman may be required to pay high rates of interest - The stipulation of empowering the foreman to recover the entire balance amount in a lump sum, in the event of default being committed by a prized subscriber, is to ensure punctual payment by each of the individual subscribers of the chit fund.
The relationship between a chit subscriber and the chit foreman is a contractual obligation, which creates a debt on the day of subscription. On default taking place, the foreman is entitled to recover the consolidated amount of future subscriptions from the defaulting subscriber in a lump sum.
The impugned judgment passed by the Division Bench of the High Court in AFA No. 85 of 1994 is set aside - Appeal allowed.
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2019 (11) TMI 1817 - ITAT DELHI
TP adjustment on account of the interest receivables - receivables in relation to ITES services or not? - HELD THAT:- From the perusal of the order passed in the Assessment Year 2014-15, it is seen that the issue involved in the present assessment is identical. Besides, the contentions of the Ld. DR does not sustain as there is no receivables in relation to ITES services as per the records.
Thus, we set aside the finding of the DRP which was complied by the Assessing Officer and delete the adjustment on account of the interest receivables Therefore, Ground of assessee is allowed.
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2019 (11) TMI 1816 - MADHYA PRADESH HIGH COURT
Seeking restoration of petition which was dismissed in non compliance of peremptory order - applicant submits that due to inadvertent, default could not be cured within stipulated time as has been granted by this Court - HELD THAT:- Considered the judgment passed by Hon'ble Supreme Court in RAFIQ AND ANOTHER VERSUS MUNSHILAL AND ANOTHER [1981 (4) TMI 255 - SUPREME COURT] wherein, it is categorically held that for the fault of counsel, a party should not be made to suffer. Therefore, this court deems it fit to allow the MCC.
The Misc. Civil Case is allowed subject to payment of cost of Rs.1000/- to be deposited in the Legal Aid Services within seven working days.
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2019 (11) TMI 1815 - PUNJAB AND HARYANA HIGH COURT
Warrants issued by the Magistrate against the petitioner - whether Magistrate had reason or occasion to exercise his discretion to decide whether the petitioner was evading his arrest or not? - authorisation of police custody - HELD THAT:- The provisions of Section 41 of the Cr.P.C. are quite clear that unless a cognizable offence is committed by a person in the presence of such police officer, police officer cannot arrest an accused only on the basis of his whims that he suspects the said person to have committed some offence. If such person has committed some cognizable offence, which is punishable for imprisonment, then before arresting the person, the police officer has to satisfy himself that the arrest of such person is necessary; for the purposes delineated in the Section itself.
This court finds reliance of the counsel for the petitioner on ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT], befitting in the facts of the case. In that judgment, the Hon'ble Supreme Court has unequivocally held that before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section. As a necessary corollary, this would mean that if the conditions mentioned in these provisions are not complied with by the investigating officer, the arrest of the petitioner, from very inception, may be rendered invalid, inviting the adverse legal consequences, even for the concerned police officer.
This court also finds that more often then not, the police use the power of the Magistrate to issue warrant of arrest against an accused, only as a tool to avoid its responsibility to carry out the investigation to the logical end; and only for the purpose of getting such an accused declared as proclaimed offender. This methodology is normally adopted by the police just to get rid of the responsibility of putting a report before the Magistrate qua investigation, which otherwise is a mandate of law cast upon the police, or even to avoid arresting an accused in inconvenient cases or inconvenient circumstances. As a result, lots of persons are got declared as proclaimed offenders; and forgotten altogether by the police thereafter - this court is also of the view that before the Magistrate/court has taken cognizance of any offence, the power of issuance of warrants of arrest under any provision of Cr.P.C, on an application of a police officer, cannot be invoked by the Magistrate as a routine matter.
Undisputedly, the petitioner has not been arrested by the police despite having power to arrest him without warrant. Therefore, there is nothing on record of the present petition; showing whether the investigating officer was ever satisfied qua the requirement of the petitioner to be arrested or not. This court is presented with only an application moved by the police officer before the Magistrate; seeking issuance of warrant against the petitioner. The said application is silent qua any reason, which requires assistance from the court for arresting the petitioner - By perusing the warrants issued by the Magistrate also, it is quite clear that the Magistrate has issued the warrant only to enlarge the effort of the police qua its investigation; as the reason for issuing warrant of arrest. The only other reason mentioned is that there is no stay of arrest qua the petitioner by any other court. Although the Magistrate may not be required to record any detailed reasons as such for issuing warrants, however, this court is of the view that none of these reasons given in this case is germane to the provisions under which the Magistrate is required to exercise his powers to issue warrants of arrest. There is nothing, either in the order passed by the Magistrate, from which it can be discernible that the Magistrate had some reasons or material to justify the discretion exercised by him.
This court finds that impugned warrants issued by the Magistrate cannot be sustained. Hence, the present petition is partly allowed. The impugned warrants of arrest and consequent orders impugned in the present petition are quashed.
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2019 (11) TMI 1814 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Abuse of dominant position by an enterprise - HELD THAT:- Nothing has been placed on record to establish that in the relevant market i.e. the segment of passenger cars, BMW India enjoyed a dominant position. The material available in public domain which has been considered by the CCI unmistakably demonstrates that BMW India had insignificant presence in the relevant market and BMW passenger cars did not occupy a significant market share. Merely because, the act of refusal on the part of OP-1 to renew dealership of Informant beyond 31st December, 2017 may have caused pecuniary loss to the Informant does not raise any competition concern, even if, the consequence of such termination of dealership has proved advantageous to the dealers of OP-1 in neighbouring states of Gujarat to sell BMW cars to customers hailing from Gujarat. As regards, fiscal loss to the State of Gujarat in the form of Taxes leviable on sale of cars suffice it to say that apart from the Informant having no locus to raise such issue the revenue resources available to the State would depend on the profitability of business and it lies within the domain of the manufacturer, whether setting up of dealership in a particular State would promote its business and generate profit.
There are no ground to interfere with the well reasoned order impugned in this appeal, we take note of the fact that the Informant is said to have obtained financing facilities from OP-2 for running its business and default of debt advanced by OP-2 to the Informant is stated to be staggering amount exceeding Rs.54 Crores, in respect whereof OP-2 is stated to have filed application under Section 7 of the Insolvency and Bankruptcy Code, 2016 being C.P.(IB)No.161/2017 pending consideration before the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench.
There are no merit in this appeal. The appeal is accordingly dismissed.
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2019 (11) TMI 1813 - MADRAS HIGH COURT
Disqualification of Petitioner to hold the Office of the Directorship of a Company under Section 164 (2) (a) of the Companies Act 2013 - HELD THAT:- As the Petitioner in this case is similarly placed to the Petitioners in W.P. No. 25455 of 2017 [2018 (8) TMI 436 - MADRAS HIGH COURT] relating to the same impugned lists published in the website by the Respondents, he is entitled to identical relief that has been granted to them.
Petition allowed.
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2019 (11) TMI 1812 - ITAT DELHI
Deduction u/s 80IC - claim denied as work of printing was not carried out at the premises of the assessee in the notified area for the purpose of Section 80IC - HELD THAT:- As decided in own case [2019 (7) TMI 535 - ITAT DELHI] Once the deduction u/s 80IC of the Act is allowed in the ‘initial assessment year’ i.e. in the AY 2010-11 after due verification of the prescribed conditions and there is no change in the facts, then the deduction cannot be disallowed in subsequent years on the ground of non-fulfillment of conditions laid down in section 80-IC of the Act. This view has been fortified by the decision of the Hon’ble Delhi High Court in the case of CIT vs. Tata Communication Internet Servicse Ltd. [2011 (8) TMI 633 - DELHI HIGH COURT] - Decided in favour of assessee
TDS u/s 194H - Disallowance of Trade discount u/s 40(a)(ia) - not deducting the tax at source on the commission payment made under the guise of “Trade Discount” - ‘trade discount’ OR ‘commission' - HELD THAT:- In the case of Skol Breweries [2013 (10) TMI 416 - ITAT MUMBAI] as held that when a purchase / sales is made at discounted price, it is called discount but when an incentive is given for undertaking task / job/ services provided or on sale of goods by one person on behalf of other, then it is commission. Since the benefit given by the assessee to M/s S. Chand Co. Ltd. was in the nature of ‘trade discount’ and not ‘commission’, therefore, the assessee was not required to deduct income tax at source u/s. 194H of the Act, thus, no disallowance can be made u/s. 40(a)(ia) - Decided in favour of the assessee.
Disallowance for delay in deposit of Employees Contribution to PF - due date of filing of return of income - HELD THAT:- The employees contribution to EPF was deposited well before the due date of filing of return of income. The assessee has explained the circumstances in which such delay has been occurred. Thus, relying on the judgment of CIT vs. Vinay Cement Ltd. [2007 (3) TMI 346 - SC ORDER] and CIT vs. AIMIL Ltd. [2009 (12) TMI 38 - DELHI HIGH COURT] the addition was rightly deleted by the Ld. CIT(A), which does not need any interference on our part, therefore, we uphold the action of the Ld. CIT(A) on the issue in dispute and reject the ground raised by the Revenue.
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2019 (11) TMI 1811 - ITAT HYDERABAD
Credit for advance tax and TDS credit of both the companies prior to the amalgamation - amalgamation between assessee company and its wholly owned subsidiary - A.O. had considered the income arising to the amalgamated company, but while granting credit of TDS and Advance Tax, he did not allow the same in toto - CIT(A) also dismissed the same holding that the assessee did not submit any TDS Certificate or Advance Tax payment details before the AO/CIT(A) - HELD THAT:- We agree with the contention of the assessee that when the amalgamated results or income of the amalgamating company has been taken into consideration, then the credit for advance tax paid and TDS made by amalgamating company should be given to amalgamated company, i.e. the assessee before us.
We deem it fit and proper to remand the issue to the file of A.O. with a direction to verify the claim of TDS credit and advance tax paid by amalgamating company and allow the same to the assessee in accordance with law. Appeal of the assessee is allowed for statistical purposes.
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2019 (11) TMI 1810 - ITAT BANGALORE
TP Adjustment - years covered under APA - comparable analysis - Applicability of roll Back provisions - AR submitted that assessee has entered into advanced pricing agreement [APA] for assessment years 2014-15 to 2018-19 covering all international transactions undertaken by assessee during the said period and that years under consideration are not covered by said APA - AR also submitted that FAR analysis of trading segment for year under consideration is identical to years covered under APA and thus prayed for rollback same margin to be applied to the year under consideration as agreed in APA - HELD THAT:- Roll Back provisions are dealt with as per Rule 10MA of Income tax Rules 1962. We have perused APA dated 31/07/2018 for assessment years 2014-15 to 2018-19, between assessee and CBDT in respect of AE's most particularly mentioned in Appendix 1(a). In APA signed by assessee, there is no roll back provision for years under consideration. However, circumstances which provides for applying the rule, needs to be analysed. The transaction must be identical in terms of functions, risks assumed regarding international transaction must be same.
Having regards to above discussion, we find it necessary to set aside the issue to Ld. TPO/AO to verify FAR of assessment years for which APA was entered and assessment years under consideration. Ld. AO/TPO shall compare international transaction for years under consideration and terms of APA and to compute ALP of transaction in accordance with law. Under such circumstances, additional ground raised by assessee becomes academic and therefore, we are not adjudicating the same. Appeals allowed for statistical purposes.
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2019 (11) TMI 1809 - ITAT DELHI
Monetary limit to appeal before the Tribunal - Dismissal of appeal on low tax effect - HELD THAT:- CBDT vide Circular No. 17/2019 dated 08.08.2019, has enhanced the monetary limit for filing of appeals by the Department before the Income Tax Appellate Tribunal from Rs.20 lakhs to Rs.50 lakhs. The said circular also makes reference to the earlier Circular No. 3/2018, dated 11.7.2018 and, especially states that as a step towards further management of litigation, the Board has decided to enhance the monetary limit for filing of the appeals. This circular is not in supersession of the earlier circular but only amends the monetary limits as well as gives clarification with regard to paragraph 5 of the earlier circular. This, inter alia, means that all the other conditions mentioned in the earlier Circular No. 3 of 2018 dated 11.7.2018 will apply mutatis mutandis including that, it will apply to all the pending appeals.
CBDT vide Circular dated 20th August, 2019 (F. No. 279/19-93/2018-ITJ), has clarified that it will apply to all pending appeals. Thus, in view of the aforesaid circular, the appeal of the Revenue is dismissed as non-maintainable as the tax effect involved in the appeal is below Rs.50 lakhs. However, it is made clear that the Department is at liberty to file Miscellaneous Application for recalling of the order, if the tax effect is found to be more than the prescribed limit of Rs.50,00,000/- or any of the conditions etc., as available in the amendment carried out in para 10 of Circular No. 3/2018, dated 20.08.2018, is made out. Revenue appeal dismissed.
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2019 (11) TMI 1808 - SUPREME COURT
Maintainability of appeal - monetary limit involved - Imposition of oil cess and National Calamity Contingent Duty (NCCD), education cess(EC), secondary and higher secondary education cess(SHE) - “Condensate” which emerges out during the processing of natural gas in their gas plant - HELD THAT:- The Civil Appeals are dismissed on the ground of low tax effect.
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2019 (11) TMI 1807 - SC ORDER
Offence of cheating - Applicability of Section 220 of the Cr.P.C. - case of inducement, allurement and cheating of a large number of investors/ depositors in a criminal conspiracy - HELD THAT:- Issue notice returnable within four weeks - In the meanwhile, there will be stay of operation of the order impugned.
The Registry is directed to supply relevant papers to the amicus curaie.
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2019 (11) TMI 1806 - ITAT HYDERABAD
Nature of expenditure - lease rentals - capital or revenue expenses - DRP held that the repayment of the principal amount is in the capital a/c and would not be eligible for deduction as revenue expenditure - HELD THAT:- As per the terms of the agreement L&T Finance Ltd, is the lessor and the assessee is the lessee. Sub clause 1.10 of clause (i) defines “lease rental” as the amount of periodical payments made for the use of the assets by the lessee to the lessor as specified under schedule together with taxes applicable from time to time.
Sub clause 12.3 of clause 12 specifies that on expiration of the agreement or termination of the lease, the assets can be repossessed by the lessor and if the repossessed assets do not fetch a sale value more than or equal to all moneys due under the agreement including the future payments payable, lessee shall make good the loss by paying the difference between the total of the receivable by the lessor and the sale price.
Assessee is required to select the asset and pay the insurance for the asset and has to pay the lease rentals and other charges in accordance with the schedules. In case of failure by the assessee to pay the rentals, the said asset can be taken over by the lessor. It is also stipulated that the vehicles shall be registered in the name of the lessor.
In the case of Rajshree Roadway vs. Union of India [2003 (3) TMI 50 - RAJASTHAN HIGH COURT] considered similar case wherein the assessee, who was carrying on transport business, had entered into a lease agreement for taking on lease certain trucks and in terms of the agreement, both the parties had agreed that during the lease period, the lessor would be the owner of the trucks and would get the benefit of depreciation and lessee would have no right to transfer or alienate such trucks to other parties in any form and therefore, the lease rent paid by the assessee should be allowed as revenue expenditure.
In the case of ICDS also [2013 (1) TMI 344 - SUPREME COURT] SC has held that the lessor is the owner of the property and is eligible for depreciation on the vehicles leased out.
We find that it is the assessee, who has stated before the DRP that the lease rentals paid by the assessee included the principal amount and finance charges - It is also stated that in the books of account of the company, the assets were capitalized and the depreciation was claimed, but, while computing the taxable income, the assessee had added back the depreciation claimed in the books of account and only claimed it as revenue expenditure. As rightly pointed out by the learned DR, depreciation can be allowed only in the hands of one party i.e. the owner of the property. As held by the Hon'ble Supreme Court in the case cited Supra, the lessor continues to be the owner of the property of the assets till the entire payment including the finance charges are paid to the lessor.
Admittedly, the assessee had not claimed depreciation on the said assets, and even as per the definition of the lease rentals in the agreement, it is the payment made for the use of the asset. Therefore, we hold that the assessee is eligible to claim the lease rentals as revenue expenditure.
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2019 (11) TMI 1805 - ITAT KOLKATA
TP Adjustment - selection of MAM - CUP or TNMM - HELD THAT:- Both the parties agreed that the Tribunal need not adjudicate the issue whether CUP or TNMM is the MAM for determination of ALP for the assessee company’s international transactions in this appeal and that the issue may be let open for adjudication in an appropriate year.
Comparable selection - Functional dissimilarity - HELD THAT:- Lucid Software Ltd's main stream of revenue was out of sale of software products in addition as to software development, thus we direct the TPO to exclude this company from the list of comparable companies.
Sagarsoft (India) Limited company be excluded from the list of comparable companies for determining ALP, as it is engaged in full software development cycle and has the RPT 56.49% of the operating revenue, when the filter applied by the TPO was 20% of the operating revenue in the case of the assessee.
Prelude Sys India Limited be excluded company provides multiple services like custom software development in addition to cloud computing, application services and mobile technology, enterprise application services, QA and testing, BPO and strategic sourcing. The RPT is 87% of the operating revenue as compared to the filter of 20% applied in the case of the assessee company by the TPO.
E-infochips Bangalore Ltd be excluded from the list of comparable companies for the reason that this company provides software development and IT enabled services like hardware designing, complete product lifecycle development, application development, enterprise IT consulting. RPT is 37.96% of the operating revenue as compared to the filter of 20% applied by the TPO in the case of the assessee company.
Acropetal Technologies Limited company to be excluded from the list of comparable companies for the reason that this company has Employee cost percentage of 11.51% and whereas the filter applied by the TPO was 25% of Employee cost in the case of the assessee company.
Axis IT & T Ltd. be excluded from the list of comparable companies for the reason that this company provides software services. The RPT is 43.18% of the operating revenue while a filter of 20% has been applied by the TPO. The TPO wrongly applied the entire revenue of ₹37.16 crores as from software services whereas the fact is that only ₹3.01 crores was from software services and the balance is ₹34.15 crores from engineering design charges.
Zylog Systems (India) Ltd company provides broadband services and wireless internet-based communication services as well as enterprise computing, mobile computing. Employee cost filter of 25% is not met as the assessee’s employee cost percentage is only 20.14%, thus be excluded.
8K Miles Software Services Limited company has purchased the entire business of M/s. Mentor Minds Solutions & Services Inc., a US based company and its subsidiary M/s. Mentor Minds Solutions & Services, Canada. This aspect was not considered and adjudicated upon by the DRP. Hence we direct the AO to exclude this company from the list of comparable companies for the purpose of computation of ALP.
Akshay Software Technologies Limited company has a positive net worth. It is not a loss making enterprise and has reported profits in two of the previous three years i.e. 2008-09, 2009-10 and 2010-11. This Bench of the Tribunal in the case of Nomura Research Institute Financial Technologies India (P) Ltd. [2018 (10) TMI 1816 - ITAT KOLKATA] has directed the inclusion of this company as a comparable company. Consistent with the view taken therein we direct the AO to include this company as a comparable company.
Maveric Systems Limited company is engaged in software development and testing services and it is the only reportable segment. 99% of the operating revenue for the period ending 31.03.2011 was received from software development. Thus we direct the AO to include this company as a comparable company.
Thinksoft Global Services Limited company is a software service provider primarily delivering software validation and verification services to the banking and financial services industry worldwide, thus be included.
Working capital adjustment - DRP has directed the AO/TPO to provide the benefit of WCA to the assessee -HELD THAT:- It is well settled that such directions are binding on the TPO. Hence we direct the TPO to implement the DRP directions in this regard. The assessee shall provide the necessary data to the TPO in this regard. In the result this ground of the assessee is allowed for statistical purposes.
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2019 (11) TMI 1804 - ITAT KOLKATA
Maintainability of appeal before ITAT on low tax effect - monetary limits as revised vide circular F. No. 279/Misc./M-93/2018-ITJ, dt. 20/08/2019 - HELD THAT:- As per the circulars all the revenue appeals filed before the ITAT, having tax effect of less than Rs. 50,00,000/- have to treated as withdrawn.
As relying on case of ITO vs. Dinesh Madhavlal Patel [2019 (8) TMI 752 - ITAT AHMEDABAD] we dismiss this appeal of the revenue as withdrawn.
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2019 (11) TMI 1803 - SUPREME COURT
Extent to which a victim’s counsel can participate in the prosecution of a case - HELD THAT:- In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the Court and his primary duty is to assist the Court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution.
A Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. That this is a crucial role is evident from conditions such as in Section 24(7), which stipulates a minimum legal experience of seven years for a person to be eligible to be a Public Prosecutor. It is further clear from a joint reading of Section 301 and the proviso to Section 24(8) that the two provisions are mutually complementary. There is no bar on the victim engaging a private counsel to assist the prosecution, subject to the permission of the Court.
There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 23 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victimcentric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps - the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.
The High Court was correct in dismissing the application made by the Appellant seeking permission for her counsel to crossexamine witnesses after the Public Prosecutor. However, in future, if the Sessions Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it - Appeal disposed off.
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