|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1191 Records
-
2021 (11) TMI 1192 - MADHYA PRADESH HIGH COURT
Non speaking order of ITAT - Disallowance of payment of Income Tax paid on deemed income u/s 11(3) as a deduction or application of the income of the current year - as argued ITAT has stated that they have given thoughtful consideration to the findings of CIT(A), and thereafter without recording reasons as to why the appeal is being dismissed, the ITAT jumped to the conclusion that there is no infirmity in the order impugned before it.
HELD THAT:- Only short and cryptic reason assigned is that the present case is not a case of change of accounting system, which is not sufficient to disclose the mind of the ITAT while deciding the appeal.
Reasons are the bridge between the facts, circumstances on one side and the conclusion on the other, in absence of which, a judicial order becomes a lifeless piece of paper.
As relying on KRANTI ASSOCIATES PVT. LTD. VERSUS MASOOD AHMED KHAN [2010 (9) TMI 886 - SUPREME COURT] and the principles of natural justice, this Court has no hesitation to hold that the impugned order passed by the Income Tax Appellate Tribunal, is non-speaking.
Least that is expected of an appellate judicial authority vested with such wide powers is to record reasons so that it’s mind is disclosed thereby informing the aggrieved person the exact reasons behind the conclusion and thus in the process facilitating availing of remedy before the higher forum. The impugned order passed by ITAT is set aside.
-
2021 (11) TMI 1191 - ITAT JODHPUR
Revision u/s 263 by CIT - As per CIT assessee had claimed exemption of long term capital gains u/s 10(38) on sale of certain shares which according to department was a penny stock and such claim therefore accepted in the assessment without proper enquiry - as per assessee assessment proceedings in the case of the assessee was originally completed u/s 143(3)/153A and had to be confined to material found as a consequence of search, and no material was found to suggest that the long term capital gain was not genuine - HELD THAT:- Every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interests of the Revenue. When AO adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the ITO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the ITO is unsustainable in law.
In the present case, it cannot be said due enquiry was not made. After making enquiry the decision has been taken, which also cannot be said to be erroneous or prejudicial to the interest of revenue. Even in the order of 263, nothing material has been indicated to show that the order was erroneous. Assessment order is not required to give a detailed reason in respect of each and every item of exemption or deduction, etc and that if there was an inquiry, even inadequate that would not by itself give occasion to the CIT to pass orders u/s 263 merely because he has a different opinion in the matter.
In Gabriel India Ltd [1993 (4) TMI 55 - BOMBAY HIGH COURT] as held that a consideration of the CIT as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the CIT acting in a reasonable manner could have come to such a conclusion, the very initiation of proceedings by him will be illegal and without jurisdiction.
To invoke suo motu revisional powers to reopen a concluded assessment under s. 263, the CIT must give reasons; that a bare reiteration by him that the order of the ITO is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the and must irresistibly lead to the conclusion that the order of the ITO was not only erroneous but was prejudicial to the interests of the Revenue. The CIT cannot initiate proceedings with a view to start fishing and roving inquiries in matters or orders which are already concluded.
In the present case, complete details of purchase of shares and sale of shares is verifiable form the bank statement, and also from the borkers note. The shares are held for long period of time, and there is no material to suggest that such gain is not genuine. There is only a suspicion, and on the basis of such facts, the revisional proceedings initiated are not justified. Hence, we quash the proceedings initiated U/s 263 - Decided in favour of assessee.
-
2021 (11) TMI 1190 - BOMBAY HIGH COURT
Addition on account of cash donation collected outside the books of accounts - presumption cast against the assessee u/s 292C r.w.s. 132(4A) to explain plethora of evidence seized during the search from residence of Principal Trustee of assessee society ? - HELD THAT:- Question (i) is framed as under :- Whether in the facts and the circumstances of the case, ITAT was right in deleting the addition as added by the AO relying on documents found during the search at the residence of Principal Trustee of Respondent – Society ?
Registrar (Judicial) / Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the rules. The registry in the first instance must send intimation of admission of this Appeal enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly.
Assessment of trust - Violation of Section 13(1)(d) subjected to maximum marginal rate - ITAT holding that violation of conditions under Section 13(1)(d) would not result in denial of exemption on the whole income and denial be restricted to the income in violation of provisions of Section 13(1) - HELD THAT:- We are not inclined to entertain the same inasmuch as by Finance Act, 1984 – Circular No.387 dated 06/07/1984 issued by the Income Tax Department, Government of India, at 28.6, it is mentioned “In other words, where such a trust contravenes the provisions of section 13(1) or (d) of the Act, the maximum marginal rate of income-tax will apply only to that part of the income which has forfeited exemption under the said provisions”. Copy of the said circular that was tendered by the learned Senior Advocate appearing for Respondent is taken on record and marked ‘X’ for identification.
-
2021 (11) TMI 1189 - SC ORDER
Grant of regular bail - Money Laundering - reverse burden of proof on the accused under Section 24 of the PML Act - allegation against this applicant is of very serious nature that the applicant being an IAS officer, misused his position and power and made unlawful gain - it was held by High Court that It would be proper to grant bail to the applicant at this stage - HELD THAT:- There are no reason to interfere with the impugned order passed by the High Court granting bail to the respondent herein.
SLP dismissed.
-
2021 (11) TMI 1188 - SUPREME COURT
Seeking quashing G.O. Ms. No. 50 which granted loan waiver to small and marginal farmers - exercise of powers of judicial review - scheme granting exemption only to 'small farmers' and 'marginal farmers' is arbitrary and violative of Article 14 of the Indian Constitution - scheme is under-inclusive and over-inclusive - High Court held the grant of loan waivers only to small and marginal farmers to be arbitrary and directed the Appellant to grant the same benefit to all farmers irrespective of the extent of landholding - HELD THAT:- The application of the impugned scheme to only the small and the marginal farmers is justified for two reasons: (i) A climate crisis such as drought and flood causes large scale damages to small holdings as compared to the large holdings due to the absence of capital and technology; and (ii) The small and marginal farmers belong to the economically weaker Section of society. Therefore, the loan waiver scheme in effect targets the economically weaker Section of the rural population. The scheme is introduced with an endeavor to bring substantive equality in society by using affirmative action to uplift the socially and economically weaker sections. Due to the distinct degree of harm suffered by the small and marginal farmers as compared to other farmers, it is justifiable that the benefit of the scheme is only provided to a specified class as small and marginal farmers constitute a class in themselves. Therefore, the classification based on the extent of landholding is not arbitrary since owing to the inherent disadvantaged status of the small and marginal farmers, the impact of climate change or other external forces is unequal.
The High Court in the impugned judgment has observed that the scheme is both under-inclusive and over-inclusive since the total extent of land held by a person is calculated based on the information in the landholding register which permits discrepancies. It also held the scheme to be under-inclusive for not extending the benefit to 'other farmers' or the 'large farmers'. The meaning and ambit of under-inclusiveness and over-inclusiveness has been discussed in an erudite exposition by Justice K.K. Mathew, writing for a Constitution Bench in State of Gujarat v. Ambica Mills [1974 (3) TMI 108 - SUPREME COURT] where it was held that Since the classification does not include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreasonable. But the Court has recognised the very real difficulties under which legislatures operate -- difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to re-shape -- and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under consideration.
While non-classification arbitrariness is tested based on the proportionality test, where the means are required to be proportional to the object, classification arbitrariness is tested on the rational nexus test, where it is sufficient if the means share a 'nexus' with the object. The degree of proof under the test would impact the judgment of this Court on whether the law is under-inclusive or over-inclusive. A statute is 'under-inclusive' if it fails to regulate all actors who are part of the problem. It is 'over-inclusive' if it regulates actors who are not a part of the problem that the statute seeks to address. The determination of under-inclusiveness and over-inclusiveness, and degree of deference to it is dependent on the relationship prong ('rational nexus' or 'proportional') of the test.
The Scheme in issue was introduced in pursuance of an electoral promise made by the then party in power in Tamil Nadu. The High Court seems to have been of the view that because the scheme was in pursuance of an electoral promise, it is constitutionally suspect. This view was made on an assumption that no study must have been conducted before the electoral promise was made. It is settled law that a scheme cannot be held to be constitutionally suspect merely because it was based on an electoral promise - The scheme propounded by the State of Tamil Nadu passes muster against the constitutional challenge. The High Court has erred in holding otherwise. During the pendency of the proceedings the State has granted a broader coverage, based on its assessment of the situation.
The appeal is allowed and the judgment of the Madras High Court at the Madurai Bench dated 4 April 2017 is set aside.
-
2021 (11) TMI 1187 - SC ORDER
Seeking permission for withdrawal of appeal - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt - Non-performing asset - existence of debt and dispute or not - time limitation - it was held by NCLAT that The Admission of Section 7 Application is set aside.
HELD THAT:- The appeal is dismissed as withdrawn.
-
2021 (11) TMI 1186 - GUJARAT HIGH COURT
Validity of suspension order - even after passage of more than 4 years, the departmental proceedings are not completed - It is submitted that even as per the policy of the State Government, the departmental proceeding is required to be completed within a period of six months - HELD THAT:- The petitioner was issued the charge-sheet on 20.02.2018 and he has been facing the suspension since more than 4 years. It is surprising to note that the Presenting Officer is appointed on 10.06.2021 after a period of more than 4 years from his suspension. Thus, the State authority is directed to complete the departmental proceedings latest by 31.03.2022. It is directed that, if the departmental proceedings are not over or completed, and no final order is passed before 31.03.2022, the suspension of the petitioner shall stand revoked.
Petition disposed off.
-
2021 (11) TMI 1185 - RAJASTHAN HIGH COURT
Second bail application filed u/s 439 CrPC - Offence(s) under Sections 132(1) (b)/(c)/(f) r/w Section 132(1)(i) - HELD THAT:- It is just and proper to enlarge the petitioner on bail for the reasons; firstly, the other co-accused persons have already been released on bail by the Coordinate Bench of this Court; secondly, the maximum sentence for the alleged offence is up-to 5 years only and the petitioner remained in custody for a period of nine months; lastly, out of nine witnesses only the chief examination of one witness has been completed before the learned trial Court as such conclusion of trial likely may take long time.
Accordingly, this second bail application is allowed. Petitioner be admitted to regular bail subject to satisfaction of the trial Court.
-
2021 (11) TMI 1184 - ORISSA HIGH COURT
Condonation of delay in filing the revocation application - requirement to comply with all the requirements of paying the taxes due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.
The writ petition is disposed off.
-
2021 (11) TMI 1183 - CHHATTISGARH HIGH COURT
Application for vacating stay filed by respondent No. 5 herein granted - respondent are allowed to finalize the project of putting up a freight terminal at the risk and cost of respondent No. 5 - opportunity to file counter affidavit not allowed - violation of principles of natural justice - HELD THAT:- In view of the fact that the writ appellant could not have an opportunity to file counter-affidavit to the application for vacating stay filed by private respondent No. 5 which was his valuable right to file counter-affidavit of that application opposing it and to defend the interim order granted after hearing the parties by which he has suffered prejudice, and further taking note of the fact that the writ appellant had promptly served copy of rejoinder to the respondents on 28-9-2021 and findings as noticed above have been recorded on the merits of the matter which has vital bearing on the final adjudication of writ petition as respondents No. 1 to 4 have been allowed to finalise the project of putting up a freight terminal though at the risk and cost of respondent No. 5 and subject to final adjudication of the writ petition, we are of the considered opinion that the order impugned dated 28-9-2021 cannot be termed as a pure and simple interlocutory order within the meaning of proviso to Section 2(1) of the Act of 2006 and as such, the writ appeal cannot be held to be barred in terms of paragraph 45 of the judgment of this Court in AJAY GUPTA VERSUS STATE OF CHHATTISGARH AND ORS [2017 (1) TMI 1827 - CHHATTISGARH HIGH COURT] and consequently, the writ appeal is held to be maintainable and the preliminary objection raised in this behalf qua the maintainability of appeal, is hereby repelled.
-
2021 (11) TMI 1182 - ITAT DELHI
Validity of assessment - No notice u/s 143(2) as issued and served to the appellant - HELD THAT:- As return of income was filed by the assessee on 31.01.2014 declaring loss. The assessment u/s 143(3) of the Act was passed on 30.03.2015.
AO in the remand report itself before the ld. CIT (Appeals) has stated that there is no official record available with him to show issuance of notice. CIT (Appeals) based on this relying on the decisions of several High Courts as per para No. 4 quashed the order of the AO.
We concur with the order of the ld. CIT (Appeals) that where there is no issuance of notice under Section 143(2) of the Act the order passed by the ld. AO deserves to be quashed. Issuance of notice u/s 143 (2) of the act is foundation stone for the assessment order. Even before us, no proof of issuance of any notice under Section 143(2) of the Act was shown. Thus we confirm the order of the ld. CIT (Appeals) in quashing the assessment order. Decided in favour of assessee.
-
2021 (11) TMI 1181 - SUPREME COURT
Empanelment and appointment of Respondent No. 4 as DGP (HoPF) - Whether preparation of the panel for selection of DGP (HoPF) for the State of Punjab was in contravention of a judgment of this Court in Prakash Singh v. Union of India [2006 (9) TMI 613 - SUPREME COURT]? - HELD THAT:- In exercise of its power Under Articles 32 and 142 of the Constitution of India, this Court directed UPSC to constitute an empanelment committee to recommend three senior-most officers with good record of service and range of experience, and meeting other parameters, from whom the DGP shall be selected and appointed by the State Government. The incumbent DGP of the State is a member of the empanelment committee according to the Draft Guidelines issued by the UPSC. These Guidelines issued in compliance with the directions given by this Court Under Article 142 of the Constitution of India, we would accept, are well-known and in public domain. Therefore, the position that Respondent No. 5, being the DGP, would be a member of the Empanelment Committee was within the knowledge of the Appellant. Ignorance of this factum when pretended must be rejected as a mere pretence.
The Article states that as per the information gathered from officials privy to the development, the UPSC meeting will be held in Delhi and would be attended by the Punjab Chief Secretary Mr. Karan Avtar Singh and the incumbent DGP Mr. Suresh Arora, i.e., Respondent No. 5. In the given facts and considering the position and status of the Appellant, we would not accept the plea that participation of Respondent No. 5 in the Empanelment Committee was unknown or a secret for the Appellants.
Whether the Appellants are estopped from challenging the recommendations made by the Empanelment Committee, given the fact that they had taken a calculated chance, and not protested till the selection panel was made public? - HELD THAT:- The judgment in Madanlal [1995 (2) TMI 441 - SUPREME COURT] refers to an earlier decision of this Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. [1986 (3) TMI 329 - SUPREME COURT] wherein the Petitioner who had appeared at an examination without protest was not granted any relief, as he had filed the petition when he could not succeed afterwards in the examination. This principle has been reiterated in Manish Kumar Shahi v. State of Bihar and Ors. [2010 (5) TMI 928 - SUPREME COURT] and Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors. [2013 (4) TMI 896 - SUPREME COURT].
The Court in P.D. Dinakaran [2011 (7) TMI 1358 - SUPREME COURT] had requested the Chairman to nominate another distinguished jurist in place of the person in question, duly noticing that the proceedings initiated had progressed only to the stage of framing of charges and nomination of another jurist would not hamper the proceedings. The reconstituted committee would be entitled to proceed on the charges already framed.
The High Court has not committed any error in setting aside the judgment of the Tribunal and upholding the selection and appointment of Respondent No. 4 as DGP (HoPF), State of Punjab - appeal dismissed.
-
2021 (11) TMI 1180 - SC ORDER
Maintainability of SLP - the impugned issue was whether the instant case can be termed as an appropriate case and the further proceedings against the petitioner to be an abuse of process of court, warranting interference under Section 482, despite the bar under Section 397(3) - it was held by High Court that The substantial contentions urged by the learned Senior Counsel having been answered as above, there is no special circumstance in this case which compels this Court to entertain a second revision and grant relief, in exercise of the inherent power under Section 482 Cr.P.C. - HELD THAT:- It is not required to entertain the Special Leave Petition under Article 136 of the Constitution - SLP dismissed.
-
2021 (11) TMI 1179 - ITAT DELHI
Computing the presumptive income for the purposes of Section 44BB - service tax includable in the gross revenue for computing profits under presumptive provisions of section 44BB or not? - HELD THAT:- It is seen that the issue of excludability of service tax in the gross receipts is squarely covered by the judgment of Mitchell Drilling International Pty Limited [2015 (10) TMI 259 - DELHI HIGH COURT] as held that service tax being statutory levy should not form part of gross receipts as per provisions of section 44BB.
Further in the case of DIT International Taxation Vs M/s Schlumberger Asia Services Ltd [2019 (4) TMI 1177 - UTTARAKHAND HIGH COURT] held that the amount reimbursed to the assessee (service provider) by the ONGC (service recipient), representing the service tax paid earlier by the assessee to the Government of India, would not form part of the aggregate amount referred to in clauses (a) and (b) of sub-section(2) of Section 44BB. As spelt that even otherwise, it is not every amount paid on account of provision of services and facilities which must be deemed to be the income of the assessee under Section 44BB. It is only such amounts, which are paid to the assessee on account of the services and facilities provided by them, in the prospecting for or extraction or production of mineral oils, which alone must be deemed to be the income of the assessee.
Thus service tax receipts donot form part of receipts for computation of income in the section 44BB - Decided against revenue.
-
2021 (11) TMI 1178 - ITAT BANGALORE
TP Adjustment - “Provision for estimated loss on construction contracts” debited by the assessee in its profit & loss account and reversal of such provision credited to the Profit and Loss account should be treated as Non-operating in nature - HELD THAT:- We notice that the assessee is raising this plea for the first time before us. The assessee has taken the plea before us on the reasoning that the provision for estimated loss from construction contracts and reversal of said provision was treated as non-operating in nature in assessment year 2015-16 and hence the same treatment should be given in this year also.
First of all, it is not clear as to whether the treatment given by Ld DRP in AY 2015-16 has been accepted by the assessee or not, since such kind of provisions was made as per the mandate of Accounting Standards year after year. Hence it is required to be examined as to whether it is appropriate to treat the provision for expected loss as “non-operating” in nature when such provisions are created as per accounting principles and in compliance of accounting standards. Secondly, it is not clear as to whether such kind of provision made by the comparable companies was also considered as non-operating in nature in AY 2015-16 in their hands, since it is quite possible that the comparable companies would also be debiting the profit and loss account with such kind of provisions as mandated by the Accounting standards.
There should not be any dispute that identical treatment for an item of expenditure should be given both in the hands of the assessee as well as in the hands of the comparable companies. Accordingly, this claim of the assessee requires examination. In any case, this claim has been raised first time before us, meaning thereby, there was no occasion for the authorities below to examine this claim of the assessee in the year under consideration. Accordingly, we restore this claim of the assessee to the file of AO/TPO for examining it in accordance with law.
Manufacturing segment is regarding consideration of leverage of 5% - AO/TPO shall examine this claim of the assessee in accordance with law.
Manufacturing segment relates to computation of margin in the case of comparable company named M/s. Gansons Ltd - It is the contention of Ld. A.R. that the TPO has computed margin of this comparable company erroneously - HELD THAT:- Since the claim of the assessee requires examination, we restore this issue also to the file of the AO/TPO.
TP Adjustment of trading segment - TPO has adopted operating profit/operating cost as PLI in the case of trading segment - It is the contention of the assessee that the correct PLI should be taken as “Operating profit/Operating revenue” - HELD THAT: - We direct the AO/TPO to adopt “operating profit/operating revenue” as PLI and determine the ALP of trading segment accordingly.
TP adjustment made in respect of payments of Global Sales & Marketing activity fee and Management fee - assessee did not benchmark these payments made to its AE separately, since it adopted TNM method at entity level. However, the TPO bench marked the same separately and accordingly proposed TP adjustment - HELD THAT:- Following the decision rendered in the assessee’s own case in AY 2010-11[2017 (6) TMI 1392 - ITAT BANGALORE] wherein held that the assessee is having multiple and diversified international transactions involving receipt as well as payment, we are of the considered view that the payment in respect of management fees as well as Global Sale and Marketing Activity Fees shall be considered as operating cost and has to allocated in the ratio of turnover of the other international transactions and then the ALP of the other international transactions has to be determined under TNMM analysis. Hence we set aside the entire issue of determination of ALP and TP Adjustment to the record of the TPO/A.O. for carrying out fresh exercise of determination of ALP in respect of international transactions by considering the payment in respect of management fees and Global Sale and Marketing Activity Fees as part of the operating cost and allocating the same in the ratio of the turnover of the other international transactions.
Disallowance u/s 14A r.w.r. 8D - A.R. submitted that the A.O. has not recorded dis-satisfaction on the disallowance made by the assessee. Hence, the A.O. could not be resorted to provisions of Rule 8D - HELD THAT:- We noticed earlier that the assessee has made investments during the course of the year and has sold the same before the end of the year. Accordingly, the value of investments as on beginning of the year and as on end of the year were Nil. In this fact situation, the provisions of Rule 8D cannot be applied since computations prescribed in those rules are not possible in the absence of opening and closing value of investments, i.e., computational provisions of rule 8D would fail in this case.
We noticed earlier that against exempted dividend income of Rs.24,86,000/-, the assessee has disallowed a sum of Rs.48,573/- only u/s 14A of the Act. The said disallowance does not appear to be correct when compared with the peak value of investments of Rs.72.09 crores - Thus disallowance may be estimated to meet the requirements of section 14A of the Act. Accordingly, we are of the view that an estimated disallowance of 10% of the dividend income would meet the requirements of provisions of Section 14A of the Act and the same will put this issue at rest. Accordingly, we direct the A.O. to restrict the disallowance u/s 14A of the Act to 10% of exempt dividend income. He may work out the addition accordingly.
Non-granting of proper TDS credit - Since this issue requires examination at the end of the A.O., we restore to his file with the direction to allow credit for correct amount of TDS.
Deduction of education cess and secondary & higher education cess paid during the year as expenditure - A.R. took support of the decision of Sesagoa Ltd [2020 (3) TMI 347 - BOMBAY HIGH COURT] and certain other decisions to contend that the education cess does not fall under the category of Income tax and hence the same should be allowed as deduction against the profits of the assessee - HELD THAT:- Since the claim of the assessee gets support from the decision rendered by Hon’ble Bombay High Court in the case of Sesagoa Ltd. (supra) and since this issue is urged for the first time before us, we restore this issue to the file of AO for examining the claim of the assessee.
Dividend distribution tax rate - to be confined to the rate as per DTAA for the dividend distributed to non-resident assessees - AR submitted that the assessee has raised the above said ground on the basis of decision rendered by Delhi bench of Tribunal and this issue has been referred to a special bench and accordingly pleaded that this claim of the assessee may be restored to the file of the A.O - HELD THAT:- Having regard to the submissions made by the Ld. AR., we restore this issue to the file of the A.O. with the direction to follow the decision that may be rendered by special bench of Tribunal on this issue in due course.
-
2021 (11) TMI 1177 - ANDHRA PRADESH HIGH COURT
Levy of GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for custom milling of the paddy - HELD THAT:- It is common ground at the Bar that the issue stands covered by the decision of a Co-ordinate Bench in M/S. VASAVI AGR FOOD INDUSTRIES VERSUS THE ASSISTANT COMMISSIONER, THE A.P. STATE CIVIL SUPPLIES CORPORATION, THE DISTRICT MANAGER, STATE OF ANDHRA PRADESH, THE UNION OF INDIA [2021 (2) TMI 1369 - ANDHRA PRADESH HIGH COURT].
In view thereof, the present Writ Petition also stands allowed in similar terms to the aforesaid order and accordingly the assessment order dated 30.08.2019 passed by the 1st respondent, levying GST on the value of by-products i.e., broken rice, bran and husk treating them as part of the consideration paid to the petitioner for custom milling of the paddy, is set aside. However, it is made clear that the petitioner is liable to pay tax on sale of by-products, if they are statutorily taxable.
Petition disposed off.
-
2021 (11) TMI 1176 - SC ORDER
Penalty u/s 15HA of the SEBI Act - Special Court at Calcutta jurisdiction to entertain the said complaint and to proceed against the petitioner - HELD THAT:- During the pendency of the proceedings before this Court and pursuant to order of this Court [2021 (3) TMI 1437 - SC ORDER] petitioner has deposited the penalty amount of Rs.1 Crore. In view of such payment, what remained, is only with regard to interest on the said amount of Rs.1 Crore penalty imposed by the Adjudicating Authority. It is the case of the petitioner that the petitioner, an innocent young entrepreneur, entered into security market immediately after completing her MBA Course.
It is stated that with great difficulty, the petitioner could mobilize the penalty amount and paid the same.
As much as, Adjudicatory Order was passed as early as on 30.04.2012 and further, the petitioner has already paid the entire penalty amount of Rs.100 lakhs during the pendency of this Petition, and to put quietus to the litigation, we deem it appropriate to dispose of the Special Leave Petition by directing the petitioner to deposit a further sum of Rs.10 lakhs towards interest, within a period of eight weeks from today.
Upon such deposit, the criminal proceedings initiated against the petitioner on the file of the 5th Special Court, Calcutta stand quashed. It is made clear that this order is passed having regard to peculiar facts and circumstances of the case and the same shall not be treated as precedent for any other case.
-
2021 (11) TMI 1175 - CESTAT ALLAHABAD
Permission to re-export of the goods of the appellant - appellant already submitted the Bank Guarantee but the Respondent failed to allow export of the goods even after five months have passed - HELD THAT:- There are no reason with the Customs Authority to defy both the Final Order dated 12 September 2019 and Miscellaneous Order dated 21 June 2021 granting permission to appellant to re-export the impugned gold. The final order as well as miscellaneous order of this Tribunal, as mentioned above, have not been complied with by the department despite the time bound directions and despite that their interest has duly been taken care of. This act of department is highly unacceptable and unreasonable/ unjustified too - Clearly, it is a case of the officers illegally holding on to the goods of the appellant for over two years after the Final Order of 12.09.2019 as there is no provision in the Customs Act or Rules or Regulations under which the officers could have held on to the goods of the appellant which were not confiscated at all.
The Respondent Principal Commissioner of Customs, NOIDA and Commissioner Customs (Exports), IGI Airport, New Delhi are directed to strictly comply with the orders passed and to allow re-export of the goods of the appellant within 10 days and report compliance in writing on 29 November 2021 - application disposed off.
-
2021 (11) TMI 1174 - PUNJAB AND HARYANA HIGH COURT
Seeking appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 - Clause-25A of the contract (Annexure P-1) having been executed between the parties provides for the same - invocation of bank guarantee - time limitation - HELD THAT:- In TRF Limited [2017 (7) TMI 1288 - SUPREME COURT] the dispute was qua purchase order inter se the parties and the encashment of the bank guarantee. The High Court had upheld the appointment of the sole arbitrator which had been done by the Managing Director, who was a Former Judge of the Supreme Court. The challenge as such that the Managing Director could not nominate had been rejected. While referring to the provisions of Section 12, 6th Schedule and 7th Schedule and referring to various judgments, the Apex Court reversed the order of the High Court.
In 'Bharat Broadband Network Limited Vs. United Telecoms Limited', [2019 (4) TMI 983 - SUPREME COURT] , dispute had arisen with the appellant, who had nominated the sole arbitrator. Keeping in view the judgment passed in TRF Limited, the appellant itself challenged the appointment by filing an application before the arbitration for withdrawal, which was rejected. The petition filed before the High Court of Delhi was rejected on the ground that the person who had appointed the arbitrator was estopped from raising the plea. The matter was taken to the Apex Court, which had allowed the appeal and set aside the judgment of the High Court and held that arbitrator was unable to perform his function as an arbitrator and left it open for the High Court to appoint a substitute arbitrator with the consent of both the parties.
Thus, it would be clear that the jurisdiction as such with the respondent-Nigam to appoint an nominated arbitrator has been taken away, in view of the said judgments and, therefore, the petitioner is well justified to approach this Court for the said purpose.
Whether the claim would be held to be barred by limitation and whether the clause providing for pre-deposit is liable to be sustained or not? - HELD THAT:- It is to be noticed that in the present case the rejection to appoint an arbitrator was only on 08.04.2019 (Annexure P-7) on the ground of limitation and the present petition was filed on 24.04.2019 and therefore, there is no such inordinate delay and the objection raised by the respondent is without any basis.
The issue of pre-deposit was subject matter of consideration before two Division Benches. Firstly in the case of 'National Building Construction Corporation Ltd. and another Vs. State of Haryana and another' [ [2007 (1) TMI 649 - PUNJAB AND HARYANA HIGH COURT] , challenge had been raised to the clause of deposit of the 10% of the amount claimed as per Clause 25(viii) of the contract before arbitration proceedings could be invoked. The same was rejected on the ground that it was a laudable object that no one can file frivolous claims before the arbitrator and there is no irrationality in imposing the said condition. Even otherwise the clause was found not unreasonable or unconscionable and there being no unequal bargaining power of the party to the contract.
Even otherwise it is settled principle that this Court is bound by the view of the Larger Bench of the Apex Court which is S.K. Jain's case [2009 (2) TMI 926 - SUPREME COURT] which is a Three Judges Bench and, therefore, the claim as such for striking down of 3% deposit clause would not arise - the Arbitration Board had not been constituted by the Corporation and neither the arbitrator could be appointed by the High Court. Resultantly, it was directed that the Corporation shall constitute an Arbitration Board on furnishing of the security of the sum to be determined by the Corporation and the Arbitration Board would proceed from the stage the earlier arbitrator was appointed by the High Court. It was held that the arbitrator could not be appointed inconsistently with the arbitration agreement. Resultantly, the interest of the respondent-Nigam can be protected to the extent that the arbitrator shall only enter into reference provided the requisite security is furnished to the tune of 3% of the amount claimed.
The Chief Justice A.K. Mittal (retd.) is appointed as an Arbitrator - The learned Arbitrator is requested to enter into reference only on furnishing of proof of the 3% deposit in terms of the condition imposed by the respondent-Nigam - application allowed.
-
2021 (11) TMI 1173 - ITAT DELHI
TP Adjustment - MAM selection - CUP method or TNMM - HELD THAT:- We respectfully following case of Sumitomo Corporation India (P.) Ltd. [2018 (10) TMI 1785 - ITAT DELHI] has held as under:-hold that the CUP method cannot be applied in the case of the assessee for making an adjustment to the commission income of the assessee. The co- ordinate bench has also held that TNMM is the only method, which can be applied. Accordingly, the addition made on substantive basis adopting the CUP method is deleted. Accordingly, ground of the appeal are allowed.
Benchmarking of the commission income from associated enterprises other than Japan - AO/TPO is directed to not to adopt CUP method for computation of the arm’s-length price of the indent in business from non-Japan associated enterprises. Also is directed to adopt transactional net margin method adopting the berry ratio for computing the arm’s-length price of the indent in business income from known the associated enterprises and not to consider the free on-board value of goods imported/exported while working out the arm’s-length price from either operating income or operating expenditure of the assessee.
The assessee is directed to submit fresh set of comparables. TPO is directed to examine the same, he may reject or include fresh comparables. Thus, the fresh comparability analysis is required to be conducted.
........
|
