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Showing 1 to 20 of 1434 Records
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2021 (10) TMI 1435 - SUPREME COURT
Wilful disobedience of the order - levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972 - HELD THAT:- The High Court on the earlier occasion while dealing with the challenge made to Section 21 of the Act, made a categorical assertion that it did not wish to go into the disputed questions of fact. However, in the order under challenge it was done. A finding has been given on the documents produced by the Respondent No. 1 which could at best be pieces of evidence to be appreciated by the committee constituted already. It is the specific case of the Appellants that they did not violate the directives of the court. There is no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other. Vicarious liability as a principle cannot be applied to a case of contempt. The question as to whether the drivers of two members of the Respondent No. 1 showed the order passed by the court and the documents produced are true and genuine being in the realm of adjudication, ought not to have been taken up by the High Court while exercising contempt jurisdiction.
It is noted that it is the Respondent No. 1 who not being satisfied with the order passed by the High Court, filed the special leave petition. Even in the communications sent apart from the Press Note, it is nowhere stated that the order passed by the court could be violated. It is found that the subsequent developments also shall enure to the benefit of the Appellants.
The impugned order is set aside - appeal allowed.
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2021 (10) TMI 1434 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Production of Interlocutory Application after following the COVID-19 protocols - HELD THAT:- List this matter ‘For Admission (After Notice)’ on 18th November, 2021.
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2021 (10) TMI 1433 - SUPREME COURT
Challenge to interim order passed by the National Company Law Appellate Tribunal, Principal Bench, New Delhi - order itself indicates that the matter will be heard in part and the matter is fixed for 22.10.2021 for arguments of counsel for the respondents as also intervenor, before the Tribunal - HELD THAT:- After hearing learned Counsel for the parties, no reason found to interfere in the impugned interim order dated 26.08.2021.
The Civil Appeal is dismissed.
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2021 (10) TMI 1432 - ITAT RAIPUR
Assessment u/s 153A - Addition u/s 68 - receipt of share application/share capital - HELD THAT:- Scope of search assessments u/s 153A in respect of concluded and unabated assessments is narrower in its sweep and restricts the right of the AO to examine the issue emanating from some incriminating material.
In the absence of any connection with the incriminating material unearthed in search proceedings of assessee, additions/disallowances in respect of concluded assessment i.e. AYs. 2006-07 to 2009-10 in instant appeals, are not permissible in law. The burden of proof towards existence of undisclosed income discovered as a result of search is on the Revenue. No evidence has been referred to by AO or brought on record as claimed to be found at search of assessee to suggest existence of undisclosed income as perceived by the AO. Revenue has failed to rebut the factual assertions made on behalf of the assessee towards non-discovery of incriminating material at the time of drastic action of search on assessee and reference thereto in assessment order.
There is nothing on record that information contained in seized documents as per list of inventory, were not recorded or reflected in the books of accounts. Hence, the action of the AO towards making additions in respect of concluded assessments towards undisclosed income is contrary to the judicial dicta.
Accordingly, we are of the view that various additions/disallowances made by the AO are clearly beyond the scope of authority vested u/s 153A without discharging the burden to show presence of any incriminating material or evidence deduced as a result of search in so far as completed assessments are concerned. Additions/disallowances made in assessments framed u/s 153A of the Act in respect of captioned assessee pertaining to AYs. 2006-07 to 2009-10 are thus required to be struck down on this score itself. However, the assessments/re-assessments pending on the date of search i.e. AY 2010-11 to 2012-13 which stood abated by operation of law will continue to be governed by ordinary powers of assessment under s. 153A of the Act in accordance with law.
The legal ground of jurisdiction raised by the Assessee as per the cross objections, is thus allowed in respect of AY 2006-07 to 2009-10. The additions/disallowances made u/s 68 and towards low yields etc. without showing incriminating documents are bad in law and thus requires to be struck down for AY 2006-07 to 2009-10 in question.
Addition u/s 68 - CIT(A) found that primary onus placed upon the assessee u/s 68 was satisfactorily discharged by the assessee. CIT(A) has examined the factual matrix in relation to each and every subscriber individually, as extracted in para 9 of this order, and found that the subscribers were duly assessed and payments have come through banking channels. It was further found that the tangible net worth of the subscribers company is sufficiently enough to meet the criteria of creditworthiness envisaged in law. The bank statements, audited financial statement and confirmations were analyzed. The source of the investment was thus found to be explained satisfactorily in the facts of the case.
The assessments of the subscriber companies carried out u/s 143(3)/143(3) r.w.s. 147 were noted. It was further noted the same AO in the case of other group concern accepted the creditworthiness of these cos. for subscription of Pref. share capital. The adverse inference drawn by the AO was found to be unsubstantiated and in the realm of suspicion, surmises and conjectures. On legal position, the CIT(A) has referred to large number of judicial pronouncements. Without reiterating the different facets analyzed by the CIT(A), We find complete force in his view. After detailed examination, the CIT(A) eventually set aside the additions made by the AO under s. 68 in the unabated search assessment without any iota of incriminating material to support the allegation of accommodation entries. We completely endorse his action on merits without demur. - Decided in favour of assessee.
Additions on low yield - different amounts of suppression of yield and unaccounted productions/sales - CIT(A) observed that assessee has furnished explanation on all the documents seized during the course of search and the explanation of the assessee were test checked with reference to seized material, books of accounts, bills/invoices and other evidences and found to be satisfactory - HELD THAT:- CIT(A), in our mind, has analysed the factual matrix threadbare and passed a very speaking order. Without repeating all the observations of the CIT(A), we find ourselves in complete agreement with the conclusion drawn by the CIT(A). The CIT(A) has objectively analyzed the factual situation and found complete absence of any adverse material against the assessee which can support the allegation of the AO towards unaccounted production presumed on the basis of alleged low yield declared by the assessee. On facts, the CIT(A) has found that the yield declared by the assessee is neither low nor the book results could be impeached by some tangible material to indulge in rejection of books of accounts. We are unable to discern any error whatsoever in the process of reasoning adopted by the CIT(A) while reversing the totally untenable action of the AO. We, thus, decline to interfere with the order of the CIT(A) on this score.
In the result, grounds raised by the Revenue challenging the action of the CIT(A) for reversal of additions on the grounds of suppression of yield and unaccounted production and sales are dismissed for AYs. 2006-07 to A.Y. 2009-10 in appeal. Decided in favour of assessee.
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2021 (10) TMI 1431 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH
Approval of Resolution Plan - pivotal stand of the Appellant is that if the Appellant’s interest is brushed aside in the Resolution Plan, it will affect the interests of Operational Creditors - Section 60(5) of IBC - HELD THAT:- Although on behalf of the Appellant a plea is raised that the Appellant was discriminated as an Operational creditor and that the Equality Concept was not adhered to by the Adjudicating Authority while approving the Resolution Plan (especially in the teeth of the Resolution Plan 100% payment to the Operational Creditors with claim upto Rs. 3 Lakhs were admitted), this Tribunal, is of the considered opinion that the Operational Creditors were paid as per Section 30(2) (b) of the I&B Code, 2016, and coupled with Regulation 38 of the CIRP Regulations the Operational Creditors are entitled to receive only such money that are payable to them as per Section 53 of Code.
In reality, there is no embargo for the classification of Operational creditor(s) into separate/different classes for deciding the way in which the money is to be distributed to them by the Committee of Creditors because of the fact, undoubtedly, they do have the subjective final discretion of Collective Commercial Wisdom in relation to (1) The amount to be paid (2) The quantum of money to be paid, to a certain category or the incidental category of creditors, of course, nicely balancing the interests of the Stakeholders and the Operational Creditors, as the case may be.
Suffice it for this Tribunal to pertinently make a significant mention that it cannot be lost sight of that the Appellant’s claim is not relatable to the supply of goods or services so as to keep the Corporate Debtor as a Going Concern. It is to be remembered that the Appellant had commenced Arbitration proceedings in regard to its claim emanating from the Gas Sale Agreement. In fact, the Appellant’s claim pertains to supposed obligation to pay for goods, even where, these were not made use of as take or pay obligation.
The impugned order does not suffer from any material irregularity or patent illegality in the eye of Law - Resultantly the instant Appeal sans merits - Appeal dismissed.
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2021 (10) TMI 1430 - SUPREME COURT
Terrorist organisation or not - commission of terrorists act or not - offence of committing unlawful activities - HELD THAT:- It is essentially an offence of committing unlawful activities as defined under Clause (o) of Section 2. The said offence has been alleged on the ground that two banners were found in the house of the Accused No. 2 which according to the prosecution invite public support to freedom movement of Jammu and Kashmir. Section 13 does not form a part of Chapter IV or VI. Hence, for consideration of grant of bail to a person Accused of an offence Under Section 13, stringent provisions of Sub-section (5) of Section 43D will not apply.
The stringent conditions for grant of bail in Sub-section (5) of Section 43D will apply only to the offences punishable only under Chapters IV and VI of the 1967 Act. The offence punishable Under Section 13 being a part of Chapter III will not be covered by Sub-section (5) of Section 43D and therefore, it will be governed by the normal provisions for grant of bail under the Code of Criminal Procedure, 1973. The proviso imposes embargo on grant of bail to the Accused against whom any of the offences under Chapter IV and VI have been alleged. The embargo will apply when after perusing charge sheet, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, if after perusing the charge sheet, if the Court is unable to draw such a prima facie conclusion, the embargo created by the proviso will not apply.
The Court while examining the issue of prima facie case as required by Sub-section (5) of Section 43D is not expected to hold a mini trial. The Court is not supposed to examine the merits and demerits of the evidence. If a charge sheet is already filed, the Court has to examine the material forming a part of charge sheet for deciding the issue whether there are reasonable grounds for believing that the accusation against such a person is prima facie true. While doing so, the Court has to take the material in the charge sheet as it is.
The act of raising funds for the terrorist organisation has been alleged in charge sheet against both the Accused. This is a separate offence Under Section 40 of the 1967 Act of raising funds for a terrorist organisation which again contains intention to further the activity of terrorist organisation as its necessary ingredient. The offence punishable Under Section 40 has not been alleged in this case.
The impugned Judgment and Order of the High Court to the extent to which it sets aside the order granting bail to him is quashed and set aside and the Order dated 9th September 2020 of the Special Court For the Trial of NIA Cases at Ernakulam in Crl. Misc. Petitions Nos. 55-56/20 in SC No. 1/2020/NIA granting bail to him is hereby restored - Appeal allowed.
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2021 (10) TMI 1429 - RAJASTHAN HIGH COURT
Application for grant of bail u/s 439 CrPC - Offence punishable u/s 132(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- From Persual of facts and looking to the custody period as also the fact that conclusion of the proceedings is likely to take some time and without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioner u/s 439 CrPC. Accordingly, this bail application is allowed and it is directed that petitioner Laxman Chaudhary S/o Shri Saadhuram Chaudhary shall be released on bail in connection with case Case No. DGGI/INT/COMP/GEN/20/2021-Gr-A-O-O ADG-DGGI-ZU-Jaipur .
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2021 (10) TMI 1428 - ITAT DELHI
Correct head of income - LTCG - Treating the capital asset as stock in trade - assessee is a real estate company and no addition in WIP was made during the yea - DR submitted that the Assessing Officer has rightly worked out the business profit on this transaction treating the same as stock in trade - CIT(A) deleted the addition - HELD THAT:- As continuous stand of the revenue was these are work in progress treated to be as capital asset and not as stock-in- trade. The transfer of the hotel on sale cannot be termed as short term capital gain or even business income and thus, the assessee has rightly computed the same as long term capital gain on sale which was reflected in profit and loss account and was subsequently also done. Thus, the deletion of the addition by the CIT(A) was right and there is no need to interfere with the findings of the CIT(A). Hence, Ground No. 1 of Revenue’s appeal is dismissed.
Accrual of income - addition of interest amount in the income of the assessee as share of the disputed parties in the interest will arise only - CIT(A) deleted the addition - HELD THAT:- The interest income on fixed deposit in respect of arbitration proceeding and the same cannot be taxable during the year under consideration as the year of taxability of the same was contingent upon the final decision of the arbitrary Tribunal. During the course of hearing, the Ld. AR submitted that in subsequent year the interest was offered to tax by the assessee. Therefore, the CIT(A) has rightly deleted the said addition and there is no need to interfere with the findings of the CIT(A). Hence, Ground No. 2 of the Revenue’s appeal is dismissed.
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2021 (10) TMI 1427 - MADRAS HIGH COURT
Validity of reassessment proceedings - infraction of NJP (Nature Justice Principle) - writ petitioner had barely 2 hours and 3 minutes to respond to said SCN - HELD THAT:- As reasonable time has not been given to the writ petitioner/Assessee to respond to said SCN much less ample or adequate time. Another facet of the matter is, the writ petitioner managed to respond (partially though) and sought for two weeks time to send the other documents, considering the nature of variation, this Court is of the considered view that it is only appropriate that the respondent should have waited for a fortnight for the writ petitioner to send in other documents which has been described as 'balance documents' under cover of letter of writ petitioner dated 27.09.2021.
This Court has not expressed any opinion or view at this juncture on the request for reason for reopening made by writ petitioner which is GKN Driveshafts principle/route [2002 (11) TMI 7 - SUPREME COURT] This is left to the wisdom and discretion of the respondent at this juncture.
This Court is of the considered view that this is a appropriate and a fit case for sending the matter back to respondent for redoing/doing de novo assessment from said SCN stage.
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2021 (10) TMI 1426 - JAMMU & KASHMIR AND LADAKH HIGH COURT
Condonation of delay - HELD THAT:- The copy of the application seeking modification of the judgment delivered by the Supreme Court in the case of M/s SRD Nutrients Private Limited v. Commissioner of Central Excise [2017 (11) TMI 655 - SUPREME COURT] is permitted to be taken on record - The request of the counsel for the appellant to adjourn the hearing of the delay condonation applications till the matter is considered by the Supreme Court is not found to be tenable and is accordingly rejected.
Application disposed off.
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2021 (10) TMI 1425 - SUPREME COURT
Principles of parity and equality - Direction to Respondents to treat all those 318 ex-employees at par with 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost and to allot them accordingly.
Whether the remaining 318 ex-employees of the Respondent No. 4 Mills (erstwhile) can claim the parity and equality vis-à-vis other similarly situated 134 ex-employees of the Respondent No. 4 Mills (erstwhile) and can claim 200 Sq. Yards of plots free of cost?
HELD THAT:- The concept of equality before the law and equal protection of the laws emerges from the fundamental right expressed in Article 14 of the Constitution. Equality is a definite concept - The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is therefore to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear in just and rational relation to the object sought to be achieved.
In a given case Article 14 of the Constitution may permit a valid classification. However, a classification to be followed must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective and secondly, the choice of differentiating one set of persons from another must have a reasonable nexus to the objects sought to be achieved.
In the present case allotment of 200 Sq.Yards free of cost to 134 employees was to avoid undue hardship to the ex-employees and as a welfare measure. As observed, those 318 ex-employees who are denied the benefit of allotment of 200 Sq.Yards of plots free of cost are similarly placed persons with that of 134 employees who are allotted 200 Sq.Yards plots free of cost. There is no rationale justification in providing differential treatment to one class of ex-employees similarly placed with another class of ex-employees who are allotted the plots.
The Respondents more particularly Respondent Nos. 2 and 3 are hereby directed to treat and consider the remaining 318 ex-employees of the erstwhile Respondent No. 4 - Azam Jahi Mills at par with other 134 ex-employees who were allotted 200 Sq. Yards of plots free of cost as per the Government Order No. 463 dated 27.06.2007.
The impugned judgement set aside - appeal allowed.
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2021 (10) TMI 1424 - SUPREME COURT
Issuance of duly validated certificate to the auction purchaser - HELD THAT:- The direction has already been passed on 05.01.2021 for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act.
It is noted that the effect of filing of the copies under the said Section 89 has the same effect as registration and obviates the requirement of any further action. The compliance of our direction already made on 05.01.2021 will not be impeded by any High Court judgment.
Application disposed off.
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2021 (10) TMI 1423 - SUPREME COURT
Alleged sale of flats in excess of the share agreed between the parties - breach of contract or constitutes an offence of cheating - necessary ingredients of offences punishable under Sections 406, 419 and 420 are prima facie made out or not - civil nature dispute or otherwise.
Whether the necessary ingredients of offences punishable under Sections 406, 419 and 420 are prima facie made out? - HELD THAT:- Upon a careful assessment of such facts, by no stretch can it be concluded that the Appellants herein have deceptively or intentionally tried to sell excess flats if any, as contended by Respondent No. 2. Here, it must also be borne in mind that subsequent to the revocation of GPA, it was the Appellants herein who had first resorted to arbitration proceedings on 02.03.16 for redressal of dispute between the parties, to which Respondent No 2 had accordingly filed his statement of objections dated 09.03.16. It was only on 29.03.16 that Respondent No. 2 had filed the FIR in question bearing Crime No. 185/2016 against the Appellants. Moreover, it was Respondent No. 2 who had withdrawn his prayer with respect to selling of four excess flats by the Appellants, only to pursue the same in civil proceedings.
In the instant case, the actual question which requires consideration is not whether a criminal case could be pursued in the presence of a civil suit, but whether the relevant ingredients for a criminal case are even prima facie made out. Relying on the facts, clearly no cogent case regarding a criminal breach of trust or cheating is made out - The dispute between the parties, could at best be termed as one involving a mere breach of contract.
Whether sale of excess flats, even if made, amounts to a mere breach of contract or constitutes an offence of cheating? - HELD THAT:- This Court in the case of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. [2000 (3) TMI 1105 - SUPREME COURT OF INDIA] has observed Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.
Thus, where the key ingredient of having a dishonest or fraudulent intent under sections 405, 419 and 420 is not made out, the case at hand, in our considered opinion is a suitable case necessitating intervention of this Court.
Whether the dispute is one of entirely civil nature and therefore liable to be quashed? - HELD THAT:- Existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour.
The High Court has erred in dismissing the petition filed by the Appellants under section 482 CrPC - the impugned order passed by the High Court of Karnataka is set aside - Appeal allowed.
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2021 (10) TMI 1422 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of imported goods - data projector (Optoma X400LVe) - to be classified under CTH 85286200 or under CTH 85286900? - applicability of Sr' No' 17 of Notification No. 24/2005-customs. dated 01.03.2005, as amended - HELD THAT:- A projector is an optical device that projects an image/video onto a surface, commonly a projection screen. The idea of a projector is to convert a small image into a much larger one so that a greater number of people can see it. A projector accepts a video/image as an input, processes it with the assistance of its inbuilt optical projection system consisting of a lens and optical source and projects the enhanced output on the projection screen' Therefore, the compatibility of a projector with input devices, such as a computer, a DVD player, etc' feeding images/videos to it and its ability to project these inputs accurately on the screen forms the most important attribute for the classification of a projector.
CTH 85286900 is a residual entry' CTH 8471 covers automatic data processing machines and units thereof; magnetic or optical readers' machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included. Chapter Note 5 (E) to Chapter 84 states that machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions' Therefore, projectors working in conjunction with devices under 8471 will be classified under heading 8528. The product data sheet lists computer graphics compatibility standards of the product, namely, WUXGA, UXGA, WXGA, SXGA+, SXGA, XGA, SVGA, VGA resized, !ESA, PC and Mac. Further, the VGA port facilitates the connection between the said projector and a laptop/ computer. Therefore it is evident that the projector in question is designed for use with an automatic data processing machine'.
The projector under consideration has got certain additional ports such HDMI S-Video' audio-video, which make it capable of being a video projector and consequently classifiable under CTH 85286900 also. GI Rule 3 states that “the heading which provides the most specific description shall be preferred to headings providing a more general description” - The projector imported by the appellant has got additional features such as an S-Video port, HDMI port etc' The additional ports give additional utility in the form of an audio-video display. The differentiating features of data projectors compared to that of video projectors are discussed in table 1, which substantiates that the principal use of impugned goods, based on functions and features, is with automatic data processing machines. The presence of additional features cannot dis-entitle the impugned goods from classification under sub-heading 85286200.
Sr. No. 17 of Notification No. 2412005-Customs, dated 01.03.2005, as amended, exempts all goods under heading 852862. As the impugned goods are held as classifiable under sub-heading 85286200, they are entitled to the exemption.
The Optoma X400LVe projectors are classifiable under sub-heading 85286200 of the first schedule to the Customs Tariff Act, 1975 and would be eligible to avail benefit of Sr. No. 17 of Notification No. 2412005-Customs, dated 01.03.2005, as amended.
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2021 (10) TMI 1421 - GUJARAT HIGH COURT
Time limitation for filing returns - Constitutional Validity of order passed by the Gujarat Tax on Entry of Specified Goods into Local Areas Act, 2001 - violation of of Article 304(A) of the Constitution of India - HELD THAT:- Since direct decisions under the Entry Tax Act clearly provide for the filing of the return with a reasonable time period and in absence thereof, the contention has been raised that the initiation of any proceedings is barred by the law of limitation. The notice, in the matter on hand, has been issued in the matter on hand, as can be noticed from the chronology of events, after 13 years of the entry of the concerned vehicles into the State of Gujarat. Purchase had been made in the year 2006-07 when the trucks were taxable at the rate of 12.5 % under the Rajasthan VAT Act. All seven trucks were bought in the year 20007-08 and one truck was bought in the year 2008-09.
Although no time has been sought for adducing the evidence, according to learned advocate Mr. Uchit Sheth, such a request was made to the authority concerned and it would take a while for the petitioner to produce an old record of the tax paid at Rajasthan, which was at the rate of 12.5% and, therefore also, there is no substantive reason to pay the tax so far as the petitioner is concerned.
Without entering into the merits and without quashing the notice on the ground of limitation in wake of the decision of MH KHANUSIYA VERSUS STATE OF GUJARAT & 1 [2018 (8) TMI 70 - GUJARAT HIGH COURT], the matter is being remanded back to the Assessing Officer. Learned AGP has no input from the department on the factum of payment of tax at the rate of 12.5% at the relevant point of time in the State of Rajasthan. However, the tax liability under the VAT Act is at par with Gujarat, as non-filing of the return would permit the respondent authority to initiate proceedings of issuance of notice, payment of tax at Rajasthan shall need consideration at the end of respondent.
Petition disposed off by way of remand.
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2021 (10) TMI 1420 - ITAT DELHI
TP Adjustment - Foreign Exchange Fluctuation - international transaction or not? - HELD THAT:- Since the forex difference arises out of an international transaction, it is pertinent for the assessee to pass on the forex fluctuation to its AE. Hence, we hold that the assessee has correctly treated it under the operating income.
Interest on Receivables - TPO reclassified the outstanding receivables beyond the credit period of 30 days as deemed loans to the AE and treated them as separate international transaction - TPO by applying a markup of 400 basis points on LIBOR on the receivables made an addition - HELD THAT:- It is settled principle that there is no need to benchmark the interest on receivables wherein the interest has not been charged from either of the parties i.e. payables and receivables. In the instant case, period of 90 days has been allowed and the amounts have been received within the range of 90 to 95 days. In the absence of any fact to prove that the assessee is liable to payment of interest, no adjustment is warranted. There cannot be one straight jacketed formula to allege that the assessee has received interest or the delay was allowed to confer an undue advantage to the other party.
There can be a delay in the collection of monies for the supplies made, even beyond the agreed limit, due to various factors which would be investigated on a case to case basis and also the case of Gillette India Limited [2017 (7) TMI 1188 - RAJASTHAN HIGH COURT] wherein as affirmed the order of the Tribunal wherein it was held that the transaction of allowing credit period to the AE for realization of its sale proceeds is not an independent international transaction but is closely linked with the sale transactions of the AE. Decided in favour of assessee.
Deduction of Education Cess - Reading the provisions of Section 40(a)(ii), the assessee argued that education cess paid on Income Tax doesn’t come under the purview of the definition as it is levied on the amount of Income Tax but not on profits of business - HELD THAT:- keeping in view the provisions of the Act pertaining to Section 40(a)(ii) and Section 115JB, Circular of the CBDT No. 91/58/66ITJ(19), the orders of Co-ordinate Benches of ITAT and judicial pronouncements of the Hon’ble High Court of Bombay [2020 (3) TMI 347 - BOMBAY HIGH COURT] and Hon’ble High Court of Rajasthan [2018 (10) TMI 589 - RAJASTHAN HIGH COURT], we hereby hold that the assessee is eligible to claim the deduction of the ‘Education Cess’ as per the provisions of Section 37 of the Income Tax Act.
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2021 (10) TMI 1419 - ITAT MUMBAI
Taxability of profits of life insurance business - transfer from Share Holders Account to Policy Holder’s Account and shown as part of ‘surplus’ in the actuarial valuation’ - Whether was only transfer asset and not taxable u/s 44 of the act read with Rule 2 of the First Schedule? - HELD THAT:- Said position qua the issue in question as decided by co-ordinate bench of Tribunal vide order [2017 (3) TMI 1696 - ITAT MUMBAI] has not been controverted by DR, we are of the considered view that when undisputedly, the assessee is carrying on life insurance business, its income is to be determined u/s 44 of the Act by taking into account total surplus as arrived at by actuarial valuation and further income from share holder account was also to be taxed as part of the life insurance business. So finding no illegality or perversity in the impugned findings returned by CIT(A), grounds 1 & 2 raised by the Revenue are dismissed.
Addition u/s 10(23AAB) - Loss from Pension Fund - HELD THAT:- As we are of the considered view that Ld.CIT(A) has rightly deleted the addition made by the Assessing Officer on account of loss from Pension Fund being exemption under section 10(23AAB) of the Act. So we find no scope to interfere into the finding by Ld.CIT(A).
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2021 (10) TMI 1418 - MADRAS HIGH COURT
Validity of impugned revised assessment under Section 27 of the TNVAT Act - barred by time limitation or not - HELD THAT:- Here in the case in hand, admittedly, return has been filed by the petitioner/dealer on and before 31st October 2013, since it is a succeeding year for the assessment year 2012-2013. Since, no notice has been issued on the alleged reason that the return has not been filed in the prescribed form by the petitioner/dealer and 31st day of October 2013, also passed, on such date, the deeming provision has to be given effect to and accordingly, the petitioner has to be treated as deemed assessee for the year 2012-2013.
Once the dealer is assessed under the deeming provision and under Sub Section 2 of Section 22 of the TNVAT Act, then, whether there can be any scope for the Assessing Authority to once again reassess it by invoking the Sub Section 4 of Section 22 of the TNVAT Act itself is a question - Once the deeming assessment is made, that can be treated as an assessment, but before the deeming assessment is made or accepted, Section 22(4) of the TNVAT Act can very well be invoked and in that case the dealer can be assessed to the best of its judgment by the Assessing Officer and if anything is done under Section 22(4) of the TNVAT Act before 31st October of the succeeding year of the concerned assessment year, then the re-assessment order or the assessment order made under Section 22(4) of the TNVAT Act can be treated as assessment within the meaning of Section 2 (4-A) of the TNVAT Act and the limitation of six years under Section 27 (1) (a) of the TNVAT Act can also start from that assessment.
Once a deeming provision comes into effect, for every assessment year, 31st October of the succeeding year is to be taken as a date where deeming provision comes into effect and every such return filed by the assessee within the time should be treated as a deemed assessment - before the expiry of the deeming assessment period, the revenue wanted to invoke the best judgment theory by invoking Section 22(4) of the TNVAT Act that would be possible for the revenue. However, once the deeming assessment is completed at the end of 31st October of the succeeding year, then that date shall be construed as an assessment date for the purpose of taking the limitation of six years for invoking the proceedings of revised assessment under Section 27 (1) (a) of the TNVAT Act.
This Court has no hesitation to hold that the impugned assessment order is unsustainable and accordingly it is liable to be interfered with - Petition allowed.
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2021 (10) TMI 1417 - ITAT BANGALORE
Penalty levied u/s 271FA - non-filing of Annual Information Return as required u/r 114E of the I.T. Rules - Proof of reasonable cause in terms of sec.273B assessee is a co-operative bank - HELD THAT:- As decided in case of The Mandya Dist. Co-op. Central Bank Ltd. [2020 (3) TMI 1455 - ITAT BANGALORE] notice that the 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, 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. Accordingly we set aside the order passed by Ld CIT(A) and direct the AO to delete the impugned penalty levied u/s 271FA - Decided in favour of assessee.
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2021 (10) TMI 1416 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of goods sought to be imported - data centre switch router models - applicability of Sr. No. 13N of Notification No. 24/2005- Customs, dated 01.03.2005 and Sr. No. 20 of Notification No. 57/2017-Customs, dated 30.06.2017 - HELD THAT:- Switching fabric and the routing component together make up the composite platform/system. Section Note 3 to Section XVI provides guidance for the classification of 'composite machines/multifunction machines; the said Section Note 3 states, "Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function". The said products are principally used as a noncarrier ethernet switch as evident from the product catalogue. Therefore, the said products are classifiable as switches - It is a settled position of law that notification should be read and construed strictly. It is apparent that notification benefit is only available to routers.
The services and standards of carrier ethernet have been defined by the Metro Ethernet Forum (MEF). From the product catalogue, it is clear that the instant products lack some essential features such as MPLS-TP, E-LAN services, MEF certification, etc. Carrier-class ethernet switches are generally used in telecommunication networks while non-carrier ethernet switches are used at homes/enterprises. From the product catalogue, it appears that the impugned devices lack most of these essential features - As per the Department of Telecommunication, classification of ethernet switches into carrier ethernet switch and enterprise ethernet switch would be difficult as there may be overlapping features and that they may be classified based on the ultimate user. Therefore, if the impugned products are intended to be used as enterprise switches, then they are eligible for benefit under Sr. No. 20 of Notification No. 57/2021-Customs.
The imported goods are classifiable under sub-heading 85176290 of the first schedule to the Customs Tariff Act, 1975 and would be eligible to avail benefit of Sr. No. 20 of Notification No. 57/2021-Customs, dated 30.06.2017, however, benefit under Sr. No. 13N of Notification No. 24/2005-Customs, dated 01.03.2005 is not available.
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