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2023 (5) TMI 1324 - ITAT MUMBAI
TP Adjustment - transaction of corporate guarantee constitute international transaction or not? - HELD THAT:- On perusal of order passed by CIT(A), we find that the CIT(A) has held that transaction of granting corporate/performance guarantee constitutes an international transaction keeping in view Explanation (i)(c) to Section 92B of the Act (inserted with retrospective effect from 01.04.2002 by Finance Act 2012), whereby 'guarantee' has been specifically included in the definition of ‘international transaction’ as defined in Section 92B of the Act. The view taken by the CIT(A) is supported by decision of the Tribunal in Assessee’s own case for the Assessment Year 2012-13 [2020 (9) TMI 1101 - ITAT MUMBAI]. Accordingly, we hold that the transaction of giving guarantee is international transaction requiring determination of ALP and transfer pricing adjustment.
Upward transfer pricing adjustment - Assessee had advanced sum without charging any interest - advance given by the Assessee were akin to loan - HELD THAT:- CIT(A) deleted the addition by placing reliance of the decision of the Tribunal in the case of the Assessee for the Assessment Year 2012-13 [2020 (9) TMI 1101 - ITAT MUMBAI] wherein as held that the advances were towards fulfilment of the assessee’s obligation of being a JV partner as any financial incapacitation of JV would adversely affect the continuation of the project and ultimately jeopardize the interest of the assessee. Therefore, the said advances could not be put in the category of loans as done by the lower authorities. Further, it could not be said that JV entity derived / gained certain benefits out of such advances but rather it was the assessee who would ultimately gain by continuing with the projects and taste the fruits of the success of project. Hence, not convinced with impugned adjustments as confirmed by first appellate authority, we direct Ld. AO to delete the same - Decided against revenue.
TP adjustment pertaining to different Performance Guarantees - HELD THAT:- There is nothing on record to persuade us to take a view different from the view taken by the Co-ordinate Benches of the Tribunal for the preceding assessment years for the same performance guarantees as held performance guarantees were given by the Bank of India, Mumbai Branch in favour of CCWE, a customer of Assessee's AE (i.e. KEC Global FZ LLC), and Bank of India, had charged guarantee commission of 0.93% per annum in respect of the same which was recovered by the Assessee from the AE. For Assessment Year 2010-11, 2011-12 and 2012-13, the Tribunal has accepted the aforesaid rate of 0.93% as arm’s length rate of guarantee fee. Thus, facts and circumstances being identical, we dismiss Ground No.2(i) to (ix) raised by the Revenue.
Arm’s length rate of guarantee fee for corporate guarantees at 2% - HELD THAT:- Perusal of the order passed by TPO shows that the TPO had determined arm’s length guarantee fee at the rate of 2% by way of estimation. During the course of hearing, it was pointed out by the Learned Authorised Representative for Assessee that the corporate guarantee was given for working capital loan facility granted to the AE in which the Assessee was 50% partner, and therefore, there was no default risk. Further, repayment of loan was secured by way of charge against the receivables from Saudi Electric Company, a Government Undertaking and a client of the Assessee’s AE and therefore, the Assessee had only provided secondary security. The aforesaid submission, at best, supports the view taken by the CIT(A) to adopt the lower rate of 0.6% proposed to be charged by the bank of the Assessee as the arm’s length rate for corporate guarantee fee instead of 2% determined by the TPO/Assessing Officer. Given the facts and circumstances of the present case, we are not inclined to interfere with the order passed by the CIT(A) on this issue. Accordingly, Ground No. 3(ii)–(iii) raised by the Revenue are dismissed.
Unrealized foreign exchange loss arising from foreign exchange contracts - HELD THAT:- As relying on the Assessment Year 2009-10 to 2012-13 in assessee own case [2019 (9) TMI 437 - ITAT MUMBAI], [2021 (5) TMI 816 - ITAT MUMBAI], [2020 (9) TMI 1101 - ITAT MUMBAI] held that MTM losses on hedging contracts would be accrued losses and hence, an allowable expenditure.
Deduction for education cess as well as higher & secondary education cess - HELD THAT:- Both sides agreed that this issue stands covered in favour of the Revenue by the judgment passed by Chambal Fertilizers & Chemicals Limited [2022 (12) TMI 1098 - SC ORDER] wherein it has been held that as per Explanation 3 to provision of Section 40(a)(ii) of the Act inserted by Finance Act, 2022 (with retrospective effect from 01.04.2005) surcharge or cess forms a part of 'tax' and therefore, deduction for the same cannot be allowed under Section 37.
Aggregation of Corporate guarantees - HELD THAT:- As we have accepted Assessee’s contention that 0.60% be accepted as arm’s length rate of corporate guarantee fee. Accordingly, given the facts and circumstances of the case, we accept the alternative contention of the Assessee and direct the TPO/Assessing Officer to recomputed the transfer pricing adjustment by taking rate of 0.6% as arm’s length rate for corporate guarantee fee for all corporate guarantee given by the Assessee, (except for the corporate guarantees aggregating to USD 8,03,00,000/- given on behalf of wholly owned subsidiaries KEC Transmission LLC and KEC US LLC, USA in which case arm’s length corporate guarantee fee shall be determined by adopting rate of 0.02%).
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2023 (5) TMI 1323 - ITAT AHMEDABAD
Rectification u/s 254(2) - scope/power of rectifying the mistakes apparent from record - Tribunal has not adjudicated/not considered the orders relied upon by the Ld. AR during the course of hearing as well as holding that non-applicability of the judgement of the Hon’ble Orissa High Court is a mistake apparent from record - HELD THAT:- Tribunal has taken cognisance of the decision of Hon’ble Orissa High Court and has given its view on the aspect of interest on staff loans whether business income or not. The view taken by the Tribunal is independent view after considering the decisions of the Hon’ble Gujarat High Court and the Hon’ble Orissa High Court and the Delhi Tribunal. The Tribunal has categorically noted the distinction on facts that in the said cases the interest earned on staff loan/advances was treated as business income noting the fact that they were given as mandatory incentives.
This fact being not demonstrated in the present case, therefore, all these decisions were held to be not applicable in the present case. This cannot be termed as mistake apparent from record as the decisions cited by the Ld. AR were adjudicated and considered while expressing the view by the Tribunal in order and applicability of the decision of the Hon’ble Orissa High Court has also been taken into account after expressing our view - Miscellaneous Applications do not survive and hence are dismissed.
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2023 (5) TMI 1322 - ITAT KOLKATA
Late deposit of employee’s contribution to PF/ESI etc. - assessment carried out u/s 143(1) - reliance on information in the return of income/audit report - interpretation of law which was prevailing as on the date of filing of subject Income tax Return (ITR) and any subsequent pronouncement of law or retrospective amendment on the concerned issue - HELD THAT:- In the present case as observed there is no change of law. the statutory provisions have not been amended retrospectively, rather, it was a question only of interpretation of statutory provisions. Moreover, as noted above, provision in the decision of the Hon’ble Calcutta High Court in the case of ‘CIT vs. Vijay shree Ltd.’ [2011 (9) TMI 30 - CALCUTTA HIGH COURT] the sole issue raised before the Hon’ble Calcutta High Court was as to whether the provisions of section 43B will have to be applied retrospectively or prospectively without any discussion on the issue whether the employer’s contribution mentioned in section 43 would also include employees’ contribution. It was not the case that the assessee was not aware that the decision of the hon’ble High Court was subject to appeal before the hon’ble Supreme Court and that the decision of the Hon’ble High Court could be reversed by the Hon’ble Supreme Court. Similarly, the case law cited by the ld. counsel in the case of Modern Fibotex India Ltd. [1994 (3) TMI 17 - CALCUTTA HIGH COURT] the other case laws of different High Courts relied by the ld. counsel, are not applicable in view of the settled proposition of law by the Hon’ble Supreme Court in the various case laws as discussed above.
AO power or jurisdiction to disallow the aforesaid amount while processing the return u/s 143(1)(a) - as argued Despite Hon'ble Supreme Court judgement in Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT] prima facie adjustment u/s. 143(1)(a) of the Act cannot be made to disallow u/s. 36(1)(va) the employees' contribution to PF/ESI deposited belatedly after due date prescribed under relevant statute if deposited within due date of filing ITR - In view of the above facts, “as indicated in the audit report”, in my humble view, would mean that where the information in the audit report is suggestive of some disallowance but not taken into account by the assessee in computing the total income in the return, the AO/CPC would give intimation to the assessee of such proposed adjustments and whereupon the assessee has the right to file response/objection to such adjustment and the AO/CPC is required to consider such response/objection before making the adjustments. Therefore, the word ‘indicate’ does not mean that the auditor is required to specifically mention that such and such disallowance is required to be made in the case of the assessee, rather, correct view would be that the auditor is required to furnish the information and that information can be compared and considered by the Assessing Officer/CPC in the light of the relevant statutory provisions as well as relevant laws and if such information is suggestive of any adjustment of disallowance, the Assessing Officer will make such disallowance after giving opportunity to the assessee to rebut the same.
The views of the Coordinate bench of the Tribunal in ‘Kalpesh Synthetics Pvt. Ltd. [2022 (5) TMI 461 - ITAT MUMBAI] in no manner is suggestive that the djustment u/s 36(1)(va) cannot be made while processing the return u/s 143(1) of the Act, rather, the above view is limited to the proposition that if the law laid down by the High Court/Supreme Court is otherwise as compared to the factual information given in the audit report, then the law laid down by the Hon’ble High Court/Supreme Court would prevail over the tax audit report. Therefore, the Coordinate Mumbai Bench in the said case of “Kalpesh Synthetics Pvt. Ltd. vs. DCIT” (supra) has also mentioned time and again that in the audit report factual information is given, whereupon the Assessing Officer has to apply the prevailing law. As observed above, the law has been settled by the Hon’ble Supreme Court on the issue in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT]. The law declared by the Hon’ble Supreme Court is to be treated as if the same was the right interpretation since the date of the inception of the relevant provision and, therefore, even as per the decision of the Coordinate Bench of the Tribunal in ‘Kalpesh Synthetics Pvt. Ltd. vs. DCIT’ (supra), the issue is required to be decided in favour of the Revenue and against the assessee.
Interpretation of the existing old provisions - Whether law prior to amendment should be taken in favour of the assessee by taking the due date as mentioned u/s 43B ? - The law prior to amendment should be taken in favour of the assessee by taking the due date as mentioned u/s 43B of the Act - we are not convinced with the above submission of assessee. As discussed above, there is no mention in 43B of the Income Tax Act regarding the due date of filing of return as due date of deposit of employees’ contribution to PF/ESI etc. Even the law as prevailing prior to amendment brought by Finance Act 2021 on this issue has been settled by the Hon’ble Supreme Court and it has been held by the Hon’ble Supreme Court that as per the statutory provision of section 43B of the Income Tax Act as prevailing prior to the amendment brought vide Finance Act 2021, non-obstante clause u/s 43B could not apply in case of amounts which were held in trust as was case of employee’s contribution which were deducted from their income and was held in trust by assessee-employer as per section 2(24)(x), thus, the said clause would not absolve assessee-employer from its liability to deposit employee’s contribution on or before due date as prescribed u/s 36(1)(va) as a condition for deduction.
Due to new statute/amendment brought by new statute, there is some conflict with the other existing older provisions either in the same statute or any other Act - As there is no conflict between a prevailing old law or new law in this case, rather, the amendment has been brought to the relevant provisions with prospective effect and there is no conflict between any existing/unamended old provisions and the new provisions. Further even under the amended provisions, the application of section 43B to the provisions of section 36(1)(va) of the Income Tax Act has been done away with. Even if the contention of the ld. counsel is to be accepted, the new law is against the assessee even in respect of employer’s contribution to ESI/PF what to say of, the employees’ contribution. If the new law has to prevail then the provisions of section 43B will not have any application and therefore, this contention raised by the counsel for the assessee is of no help to assessee but to Revenue. Therefore, there is no force in the above arguments of the ld. counsel. However, it is made clear that my above discussion in any manner does not hold that the amendment provisions will prevail over the old provisions to section 36(1)(va), rather, there is no conflict in the prevailing law with any of the existing provisions in the Income Tax Act after amendment brought by Finance Act, 2021 relating to the issue under consideration. The above contention of the ld. counsel is totally misconceived.
Appeal of the assessee stands dismissed.
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2023 (5) TMI 1321 - NATIONAL FINANCIAL REPORTING AUTHORITY
Professional misconduct by CA - Continuation of Audit engagement disregarding Independence requirements - Failure to understand nature or business of Giri Vidhyuth (India) Limited (GVIL) - Lapses in audit relating to fraudulent diversion of funds worth Rs. 520 crores, understatement of related party loan by Rs. 350 crores and evergreening of loans - Lapses in evaluation of going concern assumption - Lapses In audit relating to Statement of Cash Flows - Failure to ensure compliance with section 134(1) of the Act - Failure to comply with SA 700-Forming an Opinion and Reporting on Financial Statements - Failure to comply with SA 230-Audit Documentations, SA 260, Communication with Those Charged With Governance & SA 265-Communicating deficiencies in Internal Control to Those Charged With Governance and Management - Failure to comply with SA 300-Planning an audit of Financial Statements - Failure to comply with SA 720-The Auditor's Responsibilities Relating to Other Information - sanctions and penalties.
HELD THAT:- The Auditors have committed Professional Misconduct as defined under Section 132(4) of the Companies Act 2013 in terms of section 22 of the Chartered Accountants Act 1949 (CA Act) as amended from time to time, and as detailed below:
a) The Auditors committed professional misconduct as defined by clause 5 of Part 1 of the Second Schedule of the CA Act, which states that an auditor is guilty of professional misconduct when he "fails to disclose a material fact known to him which is not disclosed in a financial statement, but disclosure of which is necessary in making such financial statement where he is concerned with that financial statement in a professional capacity",
b) The Auditors committed professional misconduct as defined by clause 6 of Part 1 of the Second Schedule of the CA Act, which states that an auditor is guilty of professional misconduct when he "fails to report a material misstatement known to him to appear in a financial statement with which he is concerned in a professional capacity".
c) The Auditors committed professional misconduct as defined by clause 7 of Part 1 of the Second Schedule of the CA Act, which states that an auditor is guilty of professional misconduct when he "does not exercise due diligence or is grossly negligent in the conduct of his professional duties".
d) The Auditors committed professional misconduct as defined by clause 8 of Part 1 of the Second Schedule of the CA Act, which states that an auditor is guilty of professional misconduct when he "fails to obtain sufficient information which is necessary for expression of an opinion or its exceptions are sufficiently material to negate the expression of an opinion".
e) The Auditors committed professional misconduct as defined by clause 9 of Part 1 of the Second Schedule of the CA Act, which stales that an auditor is guilty of professional misconduct when he "fails to invite attention to any material departure from the generally accepted procedure of audit applicable to the circumstances".
In addition to above, the Audit Firm has committed Professional Misconduct as defined Section 132(4) of the Act as failure to exercise due diligence and being grossly negligent in the conduct of professional duties, as the Audit Firm failed to exercise due diligence and was grossly negligent in the conduct of professional duties, thus, violated SQC 1.
Thus, all the charges of professional misconduct in the SCN (Except charges relating to noncompliance with SA 320, which has been dropped) stand proved based on the evidence in the Audit File, the Audit Report dated 21.11.2020 issued on behalf of the Firm, the submissions made by the Auditor and the Financial Statements of GVIL for the FY 2019-20.
Penalties and sanctions - HELD THAT:- Considering the proved professional misconduct and keeping in mind the nature of violations, principles of proportionality and deterrence against future professional misconduct, in exercise of powers under Section 132(4)(c) of the Companies Act, 2013, it is hereby ordered:
a) Imposition of a monetary penalty of Rs. One Crore upon M/s. Sundaresha & Associates. In addition, M/s. Sundaresha & Associates is debarred for a period of Two years from being appointed as an auditor or internal auditor or from undertaking any audit in respect of financial statements or internal audit of the functions and activities of any company or body corporate. This debarment period will start after completion of two years debarment period imposed in case of Tanglin Development Limited for FY 2018-19 vide NFRA order dated 26.04.2023.
b) Imposition of a monetary penalty of Rs. Five Lakhs upon CA C. Ramesh-In addition, CA C. Ramesh is debarred for a period of Five years from being appointed as an auditor or internal auditor or from undertaking any audit in respect of financial statements or internal audit of the functions and activities of any company or body corporate.
c) Imposition of a monetary penalty of Rs. Five Lakhs upon CA Chaitanya G. Deshpande. In addition, CA Chaitanya G. Deshpande is debarred for a period of Five years from being appointed as an auditor or internal auditor or from undertaking any audit in respect of financial statements or internal audit of the functions and activities of any company or body corporate.
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2023 (5) TMI 1320 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI
Rejection of application seeking Condonation of Delay of 49 days in filing of the Claim under Form - C together with the delay in filing the Application before the Adjudicating Authority - sufficient cause for delay or not - HELD THAT:- The actual time period of delay in submitting the 'Claim Form' is 125 days. It is also significant to mention that the 'Appellant' approached the 'Adjudicating Authority', vide I.A.1589/22 with a further delay of 100 days, and the only reason that was given is that they were seeking 'legal advise', which the 'Adjudicating Authority' has rightly held is only a bald explanation and does not construe a 'sufficient cause for the delay'.
The Appellant placed reliance on PUNEET KAUR VERSUS KV DEVELOPERS PRIVATE LIMITED, MR. PANKAJ NARANG, COMMITTEE OF CREDITORS, CONSORTIUM OF SUMIT KUMAR KHANNA AND M/S. BRIJ KISHORE TRADING PVT. LTD. [2022 (6) TMI 108 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], in support of his case that the NCLAT Principal Bench condoned the delay of the Homebuyers in filing their Claims. The facts in that matter are distinguishable as the case relates to Homebuyers where there were Builder Buyer Agreements ('BBA') and it was held that rightfully some provisions in the Plan/submission of Claims are to be made for the genuine Homebuyers.
The fact of the matter is that the Appellant has given no substantial grounds to condone the delay. IBC is a time bound process, which has been repeatedly held by the Hon'ble Supreme Court in a catena of Judgements and at the cost of repetition, the explanation given by the Appellant herein is neither substantial nor can be construed as a sufficient cause.
Appeal dismissed.
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2023 (5) TMI 1319 - SUPREME COURT
Restoration of Arbitral Award - patent illegality apparent on the face of the award or not - Section 34 of Arbitration and Conciliation Act, 1996 - HELD THAT:- The High Court could only be said to have misdirected itself on the major issues concerning merits of the award. However, before concluding, it may be observed that it had not been as if the Commercial Court did not examine the material issues arising for determination while dealing with the case in terms of Section 34 of the Act of 1996.
It is noticed that after taking note of the submissions of parties, the Commercial Court precisely framed the points for determination and then, dealt with every point on the anvil of Section 34 of the Act of 1996. With respect, it is not found the High Court justified in making a comment about framing of points for determination by Commercial Court and then observing that the Commercial Court merely reproduced the findings of the award. The Commercial Court dealing with Section 34 application was not acting as a Court of Appeal. Yet, looking to the long-drawn arguments, the Commercial Court enumerated the issues raised and then returned the findings after examining the record and while rejecting the submissions made on behalf of the State. There had been no such flaw in the judgment and order passed by the Commercial Court which called for interference by the High Court on the parameters and within the periphery of Sections 34/37 of the Act of 1996.
The narrow scope of "patent illegality" cannot be breached by mere use of different expressions which nevertheless refer only to "error" and not to "patent illegality". It is reiterated that what has been stated and underscored by this Court in DELHI AIRPORT METRO EXPRESS PVT. LTD. VERSUS DELHI METRO RAIL CORPORATION LTD. [2021 (9) TMI 1479 - SUPREME COURT] that restraint is required to be shown while examining the validity of arbitral award by the Courts, else interference with the award after reassessing the factual aspects would be defeating the object of the Act of 1996. This is apart from the fact that such an approach would render several judicial pronouncements of this Court redundant if the arbitral awards are set aside by categorizing them as "perverse" or "patently illegal" without appreciating the contours of these expressions.
In the impugned judgment, the High Court though referred to the principles laid down by this Court in SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD. VERSUS NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI) [2019 (5) TMI 1879 - SUPREME COURT] but then, reproduced an analysis by a learned Single Judge of the High Court and proceeded to decide the matter with reference to the passages so extracted. The enunciation of this Court ought to have been examined by the Division Bench of the High Court while dealing with the matter at hand, rather than relying on the analysis by a learned Single Judge of the High Court. Nothing more is said in this regard, essentially because the latter decisions of this Court like those in Delhi Airport Metro Express and Haryana Tourism Limited were not available before the High Court at the time of passing of the impugned judgment and order dated 08.03.2021. Nevertheless, the principles expounded by this Court in Associate Builders and Ssangyong Engineering were available and the matter was required to be dealt with in reference to those principles. Leaving this aspect at that, suffice it would be to observe for the present purpose that the impugned judgment and order dated 08.03.2021, insofar it interferes with the findings and the conclusions of the award in question, cannot be sustained and is required to be set aside.
Fact of the matter remains that nothing of a patent illegality apparent on the face of the award has been pointed out. The submissions essentially are of indicating some alleged errors on the merits of the case which, as noticed, do not fall within the parameters of Section 34 of the Act of 1996.
That part of the impugned judgment and order dated 08.03.2021 as passed by the High Court, which modifies the award dated 16.02.2018 and the order of the Commercial Court dated 12.09.2019, is set aside and consequently, the award in question is restored in its entirety.
Appeal of claimant allowed.
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2023 (5) TMI 1318 - GUJARAT HIGH COURT
Assessment u/s 153A - incriminating material found during search or not? - Addition u/s 68 - bogus LTCG - addition u/s. 69C of expenses on bogus LTCG - HELD THAT:- As in ABHISAR BUILDWELL P. LTD. [2023 (4) TMI 1056 - SUPREME COURT] confirmed the view taken by the Delhi High court in Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and of this Court in Saumya Construction [2016 (7) TMI 911 - GUJARAT HIGH COURT] laying down the law that no addition can be made in respect of completed assessment in absence of any incriminating material will not permit making of addition by the AO and that the AO has no jurisdiction to reopen the completed assessment. Decided in favour of assessee.
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2023 (5) TMI 1317 - ITAT MUMBAI
Reopening of assessment u/s 147 - AO has noted that assessee transferred one of its division and offered LTCG but did not file the Audit Report u/s 50B(3) which was mandatorily to be filed by the assessee, therefore, there is a failure on the part of the assessee in true and full disclosure of the material facts - HELD THAT:- We find that Ld. CIT(A) has invalidated the reassessment proceedings mainly on the ground that there was a “full and true disclosure” on the part of the assessee and the AO has reopened the assessment merely on the basis of change of opinion.
But the facts of the present case, we find that in case of the slump sale u/s 50B(3) of the Act, it is prescribed for mandatory filing of Audit Report in Form 3CEA.
During the course of hearing before us, assessee was given opportunity to produce copy of any such Audit Report required u/s 50B(3) which was filed before the AO in original assessment proceedings and the case was adjourned from 04.05.2023 to 16.05.2023 as ‘part heard’. Despite providing sufficient opportunity, the assessee could not support with documentary evidence that such Audit Report was filed by the assessee before the AO in original assessment proceedings. In these circumstances, we are of the opinion that disclosure of this material fact/requirement of law was not fulfilled by the assessee in the original assessment proceedings.
Since in the case, it is evident that the facts of Audit Report required u/s 50B(3) of the Act being material to the assessment and which was not filed before the AO , therefore, the assessee is responsible for not disclosing the material facts fully and truly. Hence, we set aside the findings of Ld.CIT(A) on the issue in dispute and hold that re-assessment has been validly reopened by the AO.
LTCG computation of the assessee arising from slump sale of the food service division - HELD THAT:- We find that computation of LTCG on the transfer of undertaking as the slump sale consists of two components. First component is sale consideration and the second component is the net worth or cost of acquisition. When the net worth of division is subtracted from the sale consideration, which results into LTCG on the slump sale. In the case of the assessee, the AO has taken FMV at Rs. 7,20,32,509/- which was worked out by the valuer following the PECV method, whereas the assessee has followed average value of PECV method as well as NAV method to justify the sale consideration actually received.
We are of the opinion that AO has not carried out valuation by an independent valuer and merely chosen a part of the valuation report submitted by the assessee. Therefore, we restore back the issue to the AO for referring the matter to a valuation expert by way of the issue of commission and thereafter, determining the FMV of the undertaking of the food division of the assessee.
As far as the net worth of food division worked out by the Assessing officer and the assessee is concerned, we have already reproduced same above. Net worth of the undertaking worked out by the assessee is as per the provision of the Act whereas the AO has not taken into consideration the written down value in terms of Explanation-2 to section 50B(3) of the Act.
Accordingly, we direct the AO while computing the LTCG on the transfer of the slump sale of the undertaking to adopt net worth as per section 50B(3) read with Explanation -2 below that section, which has been worked out by the assessee - Ground No.3 raised by the Revenue is accordingly allowed for statistical purposes.
Disallowance of employee’s contribution to PF/ESI paid after due date prescribed under the relevant Act - HELD THAT:- In view of the decision of Hon’ble Supreme Court in the case of M/s. Checkmate Services Pvt. Ltd.[2022 (10) TMI 617 - SUPREME COURT] the employee’s contribution to PF/ESI deposited after due date prescribed under the relevant Act, is not eligible for deduction u/s 36(1)(v) - we set aside the finding of Ld.CIT(A) on the issue in dispute and reject the claim of the assessee of deduction u/s 36(1)(va) relevant to the employees contribution to PF/ESI deposited after due date under the relevant Act. Decided against assessee.
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2023 (5) TMI 1316 - ORISSA HIGH COURT
Seeking to quash the revisional order - Seeking restraint on opposite parties from collecting the penalty as involved in the revisional order - HELD THAT:- The Additional Commissioner of Sales Tax (Appeal) has made a suo motu revision against the order passed by the Sales Tax Officer, Sambalpur II Circle, Sambalpur, but on perusal of the provisions of law, it appears that he has no authority to do so. This question had come up before this Court for consideration in the case of M/s. Maharana Supply and Co. [2022 (12) TMI 1138 - ORISSA HIGH COURT], wherein at paragraph-14, this Court observed Admittedly, in the present case, it is the STO who has passed the assessment order under section 42 of the OVAT Act which was sought to be revised by the Addl. CST. Therefore, even in terms of the notification dated 5th June, 2018 the Addl. CST lacked the jurisdiction to revise the order of the STO.
The order passed by the Additional Commissioner of Sales Tax (Appeal) dated 22-6-2017 under Annexure-3 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed - petition disposed off.
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2023 (5) TMI 1315 - SUPREME COURT
Murder - the only allegation against the present appellant (accused no.2) is that while 6 other accused entered the house of PW3, the appellant was standing near the gate of the gallery with katta (countrymade handgun) in his hand - HELD THAT:- The only circumstance brought on record against the present appellant is in the evidence of PW5, who stated that the appellant was standing outside near the gate of the gallery with a katta in his hand. No overt act was attributed to him. There is a long statement of the appellant under Section 313 of CrPC in which as many as 42 questions were put to the appellant. Question no.13 is about what PW5 deposed. Admittedly, it was not put to the appellant that it is brought on record that he was standing outside near the gate of the gallery with a katta in his hand. It is true that the answer given by him to every question is “I don’t know”. If all the circumstances put to the appellant in his statement under Section 313 CrPC are carefully perused, any person of ordinary intelligence will get the impression that none of the prosecution witnesses has stated anything against him. That is why one cannot find fault with the appellant when he gave standard answers to every question as nothing adverse against him was put to him.
This is a case where there is only a solitary circumstance appearing in the evidence against the appellant. The prosecution examined 37 witnesses. The material against the appellant is in the form of one sentence in the evidence of PW5. As mentioned earlier, on reading 42 questions put to the appellant in his statement under Section 313 of CrPC, any accused having ordinary intelligence will carry an impression that there is absolutely no material against him. The appellant was not confronted during his examination under section 313 of CrPC with the only allegation of the prosecution against him.
When the Trial Judge prepares questions to be put to the accused under Section 313, before putting the questions to the accused, the Judge can always provide copies of the said questions to the learned Public Prosecutor as well as the learned defence Counsel and seek their assistance for ensuring that every relevant material circumstance appearing against the accused is put to him. When the Judge seeks the assistance of the prosecutor and the defence lawyer, the lawyers must act as the officers of the Court and not as mouthpieces of their respective clients. While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers will be well advised to take benefit of subsection (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.
The conviction of the appellant stands vitiated. In the facts of the case, the option of remand will be unjust - the conviction and sentence of the appellant set aside - appeal allowed.
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2023 (5) TMI 1314 - HIMACHAL PRADESH HIGH COURT
Recovery of dues - different department of State including Excise & Revenue will have priority over the secure creditor’s debt or not - HELD THAT:- Red entries/lien entered in the revenue documents qua secured assets of all the petitioners are ordered to be removed. All orders/directions passed to the contrary by the authorities shall stand quashed. All legal consequences shall follow.
All these petitions are allowed.
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2023 (5) TMI 1313 - DELHI HIGH COURT
Taxability of centralized services fee earned by assessee - Tribunal held it not taxable as fee concerns various aspects, such as sales and marketing, loyalty programs, reservation service, technological service, operational service and training programs/human resources - HELD THAT:- Tribunal has noted, that the issue stands covered by the judgment of the coordinate bench in the case of Sheraton International Inc [2023 (4) TMI 1310 - DELHI HIGH COURT]
As in the assessee’s case for other AYs, the coordinate bench has followed the same approach i.e., accepted the ratio of the judgment in Sheraton International Inc. No substantial question of law arises for our consideration.
The appellant/revenue has preferred an appeal qua the judgment rendered by the Division Bench of this Court in Sheraton International Inc., it is made clear, that if the appellant/revenue were to succeed in the said matter, parties will abide by the final decision rendered by the Supreme Court.
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2023 (5) TMI 1312 - GUJARAT HIGH COURT
Assessment u/s 153A - Addition u/s 68 and 69C - Bogus LTCG and expenses on it - incriminating material was found at the premises of the assessee during search or not? - HELD THAT:- The supreme court in Abhisar Buildwell P. Ltd. [2023 (4) TMI 1056 - SUPREME COURT] answered the question confirming the view taken by this court in Saumya Construction [2016 (7) TMI 911 - GUJARAT HIGH COURT] as well as Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] which were in favour of the assessee to held that no addition can be made in respect of completed/ unabated assessment in absence of any incriminating material. Decided in favour of assessee.
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2023 (5) TMI 1311 - CESTAT MUMBAI
Absolute Confiscation of imported goods - body massager - consideration of the goods as ‘adult sex toy’ - direction for destroying the seized goods - prohibition on import by notification no. 1/1964-Cus dated 18th January 1964 - imposition of penalties of varying amounts under section 112 and section 114AA of Customs Act, 1962 - HELD THAT:- The law frowns, doubtlessly, on the ‘obscene’ as abundantly clear from section 292 of Indian Penal Code. It is also the law that has stipulated ‘obscenity’ by deeming provision and has, besides, carved out exceptions in 1925 to give effect to concerns articulated in the International Convention for the Suppression of or Traffic in Obscene Publications under the auspices of the League of Nations. That, however, is the law for domestic enforcement by penalizing offenders engaged in sale of obscene book, pamphlet, paper, drawing, painting, representation, figure or article within the country or across the border in either direction; the criminalizing intent of the law must find reflection in action against book, pamphlet, paper, drawing, painting, representation, figure or article.
To limit the remit of notification no. 1/64Cus (NT) dated 18th January 1964 to executive action on imports upon determination of ‘obscene’ in accordance with the laws penalizing ‘obscenity’. The sale of ‘body massagers’ within the national boundaries have not been subject to prohibition and in discarding the submission to that effect, the adjudicating authority did not appear to have found cause to pause for ascertainment of his authority to determine goods as ‘obscene’ solely in international transactions while no such restriction is placed on domestic transactions of the same goods. The appellant had made a specific plea of electronic platforms making allowance for sale of these very goods to domestic consumers - To approve of the detriment brought to bear on the impugned goods would amount to subordinating tariff, and trade prohibition, policy of the Central Government to non-tariff interdiction by subordinate officialdom.
The adjudicating authority has placed erroneous construction on the words of the statute to draw powers that traverse the moral domain and private concern of persons. To begin with, customs law is enacted to give effect to empowering officials in collection of duties envisaged in Seventh Schedule of the Constitution and the inherent ‘commodity policing’ at the frontiers, or point of entry, convenienced the legislature to confer power of withholding clearance of prohibited goods; prohibition has to be unambiguously spelt out in the law and, in ‘obscenity’ law, use is not likely to be a criteria for proscribing and, more so, in circumstances admitting more than one singular and unique use - The apprehension of ‘misuse’ suggested by shape and features as justification to interdict ‘body massagers’ that, unlike ‘adult sex toys’, are amenable to classification in First Schedule to Customs Tariff Act, 1975, and which the show cause notice does not contest, evokes nightmares of an over-intrusive customs administration which may find potential for ‘forbidden delights’ in several commonplace articles of commerce. After all, if shape and features were to be the characteristic of ‘obscenity’, we would end up living in world bereft of material comforts afforded by inventive genius for most goods in the tariff would be vulnerable to absolute confiscation. In any case, pleasure, and indulgence thereof, which may be anathema to those initiated into life, or term, of celibacy, is of no concern to a customs law and detriment to crossborder transactions on assumption of that concern veers dangerously close to pursuit of moral crusade.
It is quite possible the impugned goods may, as suggested by two of the ‘experts’ on record, well find use as ‘surrogate sex’ partner or as ‘sex aid' but then, what would not; we do not know and, as it appears, neither does the adjudicating authority for he preferred to refer to the unmentionable as ‘adult sex toy’ for ‘stimulation and erotic pleasure’ which, to us, appears to be delightfully vague with overtones of decadence stimulated more by moral, than legal, stipulation. Adults may toy with people and may play with toys but whether toys – symbolic of the joy of innocent childhood – should go hand in hand with the context – even if not under public gaze - that the adjudicating authority adumbrates as ‘obscene’ may not be without controversy.
The finding of the adjudicating authority that the impugned goods merit confiscation is, thus, too wide off the mark, as far as the law invoked therein is concerned, on several counts - Whether that be casuistry or not, it can safely be said that this distinguishment of this human function as an intensely private activity that is not even to be hinted at in polite, cultured society vests public performance, or even representation of it, as ‘obscene’, at least for sexual content. It is not for agents of the State to go beyond ‘community standards’ of morality to determine ‘obscenity’ and ‘community standards’ – either by cavil of representative of community or in notifications prohibiting import of the impugned goods - have been not accorded due weightage in the impugned order.
The deeming definition of ‘obscene’, in so far as objects are concerned, alludes to reading, seeing and hearing as the triggers. There is nothing on record, too, to warrant any surmise that the presentation of ‘body massagers’ in the market place would direct thinking of ‘susceptible minds’ or of those ‘vulnerable to improper suggestions’ to conjugal relations that profane nature or calculated to cause offence in others - The impugned proceedings set out to do that which the law did not intend and attempted to justify that adventure without reference to any settled law. That the impugned notification lacked definition of ‘obscene’ was not unknown to the adjudicating authority is not in doubt as seen from the attempt to fill that gap by reference to deeming provision in the Indian Penal Code, 1860.
The appeal of the Commissioner of Customs is dismissed as infructuous.
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2023 (5) TMI 1310 - ITAT CHENNAI
Revision u/s 263 - Determination of sale consideration of plot - estimating selling price of plots - search assessment framed u/s 153A - extrapolation of sale price of one plot from one document and using it as basis and estimating the selling rate for other plots - as per CIT(A) AO ignoring the mandatory directions of the PCIT estimated selling price on the basis of one document, which is not correct - HELD THAT:- As in the present case, there was an incriminating material found and seized during the course of search in the form of sale agreement which clearly establishs difference in selling price considered by the assessee for various plots sold during three assessment years. Therefore, we are of the considered view that there is no merit in the legal arguments taken by the assessee, and thus, the same is rejected for all AYs 2011-12 & 2012-13.
Arguments of the assessee that in search assessment framed u/s.153A there cannot be any extrapolation based on documents found during the course of search for one assessment year and estimating income for other assessment years - We find that although, the AO was in possession of one sale agreement which pertains to assessment year 2011-12, but fact remains that said document pertains to business activity of the assessee of developing real estate residential layout and also in one particular project. Further, the said document clearly envisages higher selling price of plots in the same layout, whereas, the assessee has accounted very less sale consideration on the basis of registered document. Therefore, in our considered view, there is no error in the method followed by the AO and extrapolating information gathered during the course of search for estimating income for other two years, and thus, we reject arguments of the assessee on this aspect for all three assessment years
Estimation of selling price of various plots sold in three assessment years based on sale agreement found and impounded during the course of search - Only possible way to settle the dispute between the assessee and the AO is to estimate selling price of plots based on evidences available on record, including purported sale agreement found during the course of search. The assessee has started selling plots right from AY 2010-11 onwards. The lowest selling price claimed to have been received by the assessee for sale of one plot on 06.04.2010 was at Rs.50.48 per sq.ft. The highest selling price that was received by the assessee for AY 2013-14 for selling number of plots was at Rs.406.51 per sq.ft. From the above, it is very clear that there is a huge difference between lowest selling price claimed to have been received by the assessee and higher selling price derived from selling of plots. Therefore, considering the fact that both the parties failed to justify their case, we deem it appropriate to adopt higher selling price received by the assessee during these three assessment years as basis for estimation of sale price for plots sold during AYs 2010-11, 2011-12 & 2012-13. Since, the assessee has received highest selling price of Rs.406.51/- per sq.ft., we direct the AO to adopt Rs.400/- per sq.ft. and extrapolate said rate to all plots sold during three assessment years and compute additions towards difference between selling price considered by the assessee in their books of accounts and actual selling price to be considered. Accordingly, we direct the AO to re-work additions towards income received on sale of plots for AYs 2010-11, 2011-12 & 2012-13.
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2023 (5) TMI 1309 - DELHI HIGH COURT
Grant of bail - involved in irregularities in framing and implementation of excise policy of GNCTD of Delhi for the Year 2021-22 - HELD THAT:- The law regarding grant of bail is very well settled. The liberty of an individual is sacrosanct and is relatable to Article 21 of the Constitution of India. It is no more res integra that the rule is bail and not jail. It is also a settled proposition that at the stage of bail, the court is not required to enter into the meticulous examination of facts nor it can examine the probative value of the witnesses. The court has merely to see the prima facie case.
On the basis of law as has crystallised is that at time of considering an application for bail, the courts is required to take into account certain factors such as existence of prima facie case against the accused, the gravity of the allegations, the position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the court in administration of justice as well as the criminal antecedents of the accused. It is also well settled that the court ought not to go deep into the merits of the matter while considering an application for bail. However, all that needs to be established from the record is the existence of the prima facie case against the accused.
The present case revolves around the formation of a New Excise Policy replacing the Old Excise Policy. The purported reason for changing the policy was to bring transparency and to enhance the state excise duty revenue. Besides this, the object was to simplify liquor policy pricing mechanism and checking malpractices. The purpose was also to transform the nature of liquor trade commensurating with the changing structure in the national capital. The applicant was admittedly holding a very high influential position of Deputy Chief Minister having 18 portfolios including the Excise department. The applicant was also undisputedly a prominent leader of Aam Aadmi Party which is having the present government in Government of NCT of Delhi. Thus, the role of the applicant in any policy decision including a formation of new excise policy replacing the old one has to be extremely relevant.
The case of the CBI is that the applicant was the pivot of the entire conspiracy and everything was being done under his instructions and supervision. The margin of profit from 5% to 12% was increased in order to recoup the kickbacks which had already been received through Vijay Nair. in this regard reliance has been placed upon the statement of approver Mr. Dinesh Arora. The parameter for grant of the bail has already been stated hereinabove and therefore need not to be repeated again. The court at this stage has only to see the prima facie case. The CBI has brought the material on record in the form of the document and the statements of the witnesses to show that initially Ravi Dhawan Expert Committee Report was presented which was later on not followed by the Government in material aspects and certain provisions were inserted which indicate towards malafide.
In the present case, the allegation is that the New Excise Policy has been brought in and certain provisions have been added to render undue advantage to a particular group against the illegal gratification having been received from them. The allegations if found to be correct are very serious in nature and goes to the very foundation of the case. The court at this stage is not to meticulously examine the material and evidence on the record nor should it make any comment beyond the same as it may prejudice the parties during the trial.
The applicant at this stage, cannot be seen saying that he had no role to play. He being the deputy Chief minister and Minister of Excise, was at the helm of affairs. The witnesses in the present case are mostly public servants. Presently also, the party of the applicant is in power. Therefore, it cannot be disputed that the applicant is a high profile person and has potential to influence the witnesses. Therefore, the apprehension of the CBI that the applicant might tamper with or otherwise adversely influence the witnesses cannot be ignored. The applicant is also not entitled to parity in view of his unparalleled position.
Thus, the allegations are very serious in nature that excise policy was formed at the instance of the "South Group" with malafide intention to give undue advantage to them. Such an act points towards the misconduct of the applicant, who was admittedly a public servant and holding highest position. The statement of the concerned excise officers has been relied upon by the CBI. This court is restraining itself to make any comments and minute examination of the material on record so as to no prejudice is caused to the applicant or the prosecution during the trial. The gravity and the allegations do not entitle the accused to be admitted to bail - the petitioner fails the triple test in the view of the seriousness of the allegations and his position.
The petitioner is not entitled to bail - Petition dismissed.
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2023 (5) TMI 1308 - CALCUTTA HIGH COURT
Grant of Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involved require affidavits from the respondents for final adjudication.
Let the respondents file affidavit in opposition within four weeks; reply thereto, if any, to be filed by the petitioner within two weeks thereafter - List the matter for final hearing in the monthly list of August, 2023.
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2023 (5) TMI 1307 - DELHI HIGH COURT
Seeking permanent injunction restraining infringement of trademark and passing off along with other ancillary reliefs - plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit - Order XXXIX Rules 1 and 2 of the CPC - HELD THAT:- In CHANDRA KISHORE CHAURASIA VERSUS RA PERFUMERY WORKS PRIVATE LTD. [2022 (10) TMI 1233 - DELHI HIGH COURT], a Division Bench of this Court interpreted the expression, ‘contemplate any urgent interim relief’ used in Section 12A of the Commercial Courts Act. In the case before the Division Bench, the Commercial Court did not accept the contention of the defendant that the plaint should be rejected under Order VII Rule 11 of the CPC on the ground that the suit had been filed without complying with the mandatory provisions of Section 12A of the Commercial Courts Act.
The facts of the present case are very similar to those before the Coordinate Bench in BOLT TECHNOLOGY OU VERSUS UJOY TECHNOLOGY PRIVATE LIMITED AND ORS. [2022 (8) TMI 1495 - DELHI HIGH COURT]. Like in the present case, the plaintiff in Bolt Technology, had issued a cease and desist notice dated 6th November, 2020 to the petitioner/defendant to which no response was received. In respect of the notice of opposition filed by the plaintiff therein against the trademark application of the defendant, the defendant filed a counter-statement stating that the opposition was frivolous - the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit.
The plaintiff has also filed along with the plaint an application for grant of ex parte interim injunction under Order XXXIX Rules 1 and 2 of the CPC against the defendant from using the impugned mark. In the said application also, it has been pleaded that the plaintiff shall ‘suffer an irreparable loss and injury, which cannot be compensated in monetary terms unless an immediate order of injunction is passed’. The plaintiff also filed an application seeking exemption from complying with the provisions of Section 12A of the Commercial Courts Act on the ground that the plaintiff is seeking ex parte ad interim injunction against the defendant.
The Commercial Court correctly came to the conclusion that the suit filed by the plaintiff contemplated grant of urgent interim reliefs against the defendant and therefore, the plaintiff was not required to exhaust the remedy of pre-institution mediation as contemplated under Section 12A(1) of the Commercial Courts Act.
There is no merit in the present petition and the same is dismissed.
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2023 (5) TMI 1306 - SC ORDER
Rejection of bail application (second bail application) - HELD THAT:- The impugned order shows that what has weighed with the Court is the fact that the co-accused who was released on bail has not surrendered. It is this factor alone which can be discerned to be the reason to not entertain the bail application.
The fact that the co-accused who was released on bail has not surrendered cannot be a germane factor to decline bail to the co-accused, namely, the appellant - impugned order is set aside - Appeal allowed.
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2023 (5) TMI 1305 - DELHI HIGH COURT
Seeking grant of Default bail - arrest on 18.07.2019 and the chargesheet in the present case was filed on 18.01.2020 without a report from the FSL - indefeasible right to default bail under Section 167(2) of the Cr.P.C. - HELD THAT:- A coordinate bench of this Court in SULEMAN VERSUS THE STATE (NCT OF DELHI) [2022 (8) TMI 1491 - DELHI HIGH COURT], in the background of the similar factual matrix, after discussing various judgments of this Court held At present, the settled law persists in the view that non filing of FSL report with the charge-sheet does not fall within the realms of Section 173(2)CrPC so as to consider it as “incomplete report”. In the present case although FSL report has not been filed, however, the charge-sheet was already filed on 3-3-2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act.
In view of the judgment rendered by a coordinate bench of this Court in Suleman, this Court is of the opinion that the chargesheet filed in the present case is not incomplete - Application dismissed.
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