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2021 (11) TMI 1153 - SC ORDER
Wilful Disobedience - Area based exemption - exemption in respect of NCCD, EC and SHEC - N/N. 50 of 2003 dated 10.06.2003 - CENVAT credit - penalty u/s 11AC - HC [2018 (1) TMI 770 - UTTARAKHAND HIGH COURT] held that The power to exempt payment of NCCD and the cesses in terms of the Act and the Rules are certainly available in relation to NCCD and the cesses, but they remain levies under the concerned Finance Acts. Since they are part of the basket of levies embraced under Rule 3(1) making up the aggregate of the CENVAT credit, subject to any restriction or limitation, which may be found elsewhere, there can be no doubt that the assessee can make use of the basic excise duty under the Act for payment of the NCCD or the cesses on the final product. And entitlement of credit was denied - HELD THAT:- The impugned show cause notice has still not been withdrawn despite the caution extended on 08.10.2021 - Let contempt notice issue to the officers concerned for willful disobedience of the orders of this Court.
MA 1675/2021 in C.A. No. 1600-1605/2018
This application post dismissal of Review Petition, a gross abuse of process of law. Not only that the review Petition was dismissed on 25.08.2020 both on delay and merits. Despite that in ground ‘M’ in the application a false averment has been made that the review petition was only dismissed on limitation. That is a ground itself apart from anything else for dismissal of this application - Application dismissed.
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2021 (11) TMI 1152 - MADRAS HIGH COURT
Mismatch between the turnover declared in the returns filed in the assessment year 2010-11 and the information captured by the respondent in their website - circular dated 24.02.2021 - HELD THAT:- Since the issue will have to be now revisited in the light of the above circular, the impugned order passed by the first respondent stands quashed and the case is remitted back to the second respondent to pass appropriate orders in the light of the above circular within a period of 30 days from the date of receipt of copy of this order. Needless to state before passing any order by the respondent in accordance with law, the petitioner shall also be heard.
Petition disposed off.
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2021 (11) TMI 1151 - ITAT DELHI
TP Adjustment - Comparable selection for “Mapping Segment” - HELD THAT:- Infosys BPM Ltd. comparable doesn’t meet the FAR profile with the assessee. Hence, we direct it to be deleted from the final list of comparable.
Dun & Bradstreet Technology and Data Services Pvt. Ltd.specializes in providing Predictive Analytics, Decision Management and In formation Management platforms and services to Dun & Bradstreet and its clients globally. Value added services by the company are Predictive analytics, Risk management, Rating and scoring, Business intelligence and SME banking, thus the functional profile of the assessee matches with that of the comparable cannot be affirmed.
Nihilent Analytics Limited has developed and been awarded a patent for Change Management based on MC3 ® framework for Performance Management and Strategy Execution. Nihilent also has a patent for its predictive ‘Customer Loyalty Evaluation’.
We find that the companies primarily rendering software services and doesn’t hold any inventory. We have gone through the record before us and find that the ld. DRP has rightly allowed the inclusion of this comparable subjected to the availability of the accounts and passing of the filters. Hence, we decline to interfere with the order of the ld. DRP on this issue.
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2021 (11) TMI 1150 - ITAT BANGALORE
TP Adjustment - comparable selection - application of turnover filter - HELD THAT:- We hold that companies listed in Sl.No.(a) to (g) in paragraph 7 (i) which the assessee seeks exclusion and whose turnover in the current year is more than Rs.200 Crores should be excluded from the list of comparable companies.
Exclusion of companies as not functionally similar with that of assessee.
Significant presence of intangibles - Merely pointing out that there is a substantial increase in value of intangible assets, the assessee cannot seek to exclude company from the list of comparable companies, unless the assessee is able to show that the presence of intangibles is owing to factors which can affect the functional comparability of this company with the assessee.
No adjustment towards working capital given - As in case of Huawei Technologies India Pvt. Ltd. [2018 (10) TMI 1796 - ITAT BANGALORE] Tribunal held that working capital adjustment has to be given - We are therefore of the view that the issue with regard to the grant of working capital adjustment should be directed to be examined by the TPO/AO afresh in the light of the decision of the tribunal referred to above, after affording the Assessee opportunity of being heard.
Incorrect computation of margins of 2 companies viz., Kals Information Systems Pvt. Ltd., and CG Vak Software and Exports Ltd - DRP in coming to the above conclusion has rightly followed the decision of Sap Labs India Pvt.Ltd. [2010 (8) TMI 676 - ITAT, BANGALORE] wherein it has been held that foreign exchange fluctuation to the extent it relates to the business of the Assessee which is subject matter of the TP adjustment should be regarded as operating in nature. We find no grounds to take a different view and refuse to interfere with the order of the DRP.
Not granting risk adjustment - We find that the DRP has primarily rejected the plea of the Assessee in this regard on the ground that quantification of risk adjustment has not been given and in the absence of such quantification, the plea cannot be accepted. Besides the above, the DRP has also placed reliance on judicial pronouncements holding that risk adjustment cannot be allowed in the absence of proper and reliable computation of risk adjustment. We are in agreement with the conclusions of the DRP in this regard and find no grounds to interfere with its conclusions.
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2021 (11) TMI 1149 - RAJASTHAN HIGH COURT
Addition u/s 56(2) (vii) (b) (ii) - DLC rate applied by the AO - plea that the lands were held as business asset was never taken before AO and that the assessee has also shown land/plots as investments and there are no developmental expenses as such debited/claimed in the year - ITAT confirming deletion of the addition by CIT(A) - HELD THAT:- As is well known Section 56 of the Act pertains to income from other sources. As provided under sub-section (1) of Section 56 income of every kind which is not excluded from the total income under the Act would be chargeable to income tax under the head ‘income from other sources’ if it is not chargeable under any of the heads specified in Section 14, items A to E. Sub-section (2) of Section 56 provides that in particular and without prejudice to the generality of the provisions of sub-section (1), the income specified in several sub-clauses contained in this section shall be chargeable to income tax as income from other sources.
Revenue did not argue that the said provisions would be applicable to a stock in trade of an assesse- if it was found that assessee was actually in the business of real estate development and the land in question formed part of the stock in trade of the assessee, Section 56(2) (vii) would have no applicability.
CIT (Appeals) as well as the Tribunal have concurrently come to a finding that the assessee had shown the said property as stock in trade in its business of real estate development and that even otherwise there was sufficient independent evidence for such purpose.
Merely because the assessee did not raise such a contention before the AO, as per settled law would not preclude the assessee from raising such contention before the Appellate Authority. As noted the assessee followed the proper procedure by filing application for taking additional evidence on record which was allowed by the Commissioner of Appeals and taken into consideration after calling the remand report from the Assessing Officer.No question of law arises. The appeal is dismissed.
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2021 (11) TMI 1148 - ITAT DELHI
TP Adjustment - Exclusion of Comparables - HELD THAT:- As the comparable “ Killick” is functionally different from the assessee, hence, we hereby direct the same may be excluded from the list of final comparables.
Inclusion of Comparables - With regard to CPRIL, we find that the company engaged in organizing conferences, tours, demonstration of products, seminars, publicity campaign through various media channel, demonstrations of client products, hotel bookings, conference literature etc.
Having gone through the functions of the assessee which have been duly mentioned in the above paras of this order, we hold that the comparable CPRIL is functionally dissimilar.
With regard to MIL, we find that the comparable Offers Consultancy in the areas asset development, community and experience management, strategic event management and communication & marketing. We find that the functions of this comparable are different from that of the assessee. Hence, we decline to interfere with the order of ld. DRP in this comparable.
Interest on Receivables - AR argued extensively as to how adjustment with regard to interest on receivables cannot be resorted to - HELD THAT:- Primarily, we find that the assessee is a debt free company and has no claim of interest payable. Hence, in the specific financial conditions of the assessee, we hold that no adjustment is required on this ground.
Incorrect Computation of Margins - HELD THAT:- TPO erred in not giving effect to the directions of ld. DRP who directed to verify and take correct margins of the comparables and adopted an inconsistent approach while computing operating margin of the comparable companies used in the determination of the ALP resulting in incorrect margins of the comparable companies. Detailed computation of margins of comparables provided to TPO pursuant to ld. DRP directions. As perused the same in the paper book at page nos. 1709 to 1747. The AO is directed to re-compute the margins.
Claim of education cess as an allowable expenditure - Interpretation of provisions of Section 40(a)(ii) - Deduction u/s 37(1) - HELD THAT:- Education Cess is not of the nature described in sections 30 to 36, Education Cess is not in the nature of capital expenditure, Education Cess is not personal expense of the assessee, it is mandatory for it to pay Education Cess and for the purpose of computation of Education Cess, the Income ‘Tax’ is taken as the criteria for computational purpose. Thus, the expense of Education Cess is mandatory expenses to be paid but does not fall under capital expense and personal expenditure and hence may be allowed as deduction.
Also gone through the various judgments of judicial authorities pan India wherein the fresh claim of the assessee is considered and the deduction u/s 37 of Education Cess has been allowed. The Hon’ ble High Court of Bombay [2020 (3) TMI 347 - BOMBAY HIGH COURT] held that the appellate authorities may confirm, reduce, enhance or annul the assessment or remand the case to the AO, because the basic purpose of a tax appeal was to ascertain the correct tax liability in accordance with the law.
Keeping in view the provisions of the Act pertaining to Section 40(a)(ii) and Section 115JB, Circular of the CBDT No. 91/58/66- ITJ(19), the orders of Co-ordinate Benches of ITAT and judicial pronouncements of the Hon’ble High Court of Bombay and Hon’ble High Court of Rajasthan, we hereby hold that the assessee is eligible to claim the deduction of the ‘Education Cess’ as per the provisions of Section 37 - Appeal of the assessee is allowed.
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2021 (11) TMI 1147 - ITAT CHENNAI
TP Adjustment - custom duty adjustment - HELD THAT:- By giving effect to the order of the ITAT the TPO had examined and allowed custom duty adjustment. Thus, respectfully following the above decision of the Coordinate Benches of the Tribunal, for the assessment year under consideration also, we direct the Assessing Officer to give suitable adjustment against the custom duty component while determining the ALP.
Working capital adjustment - Tribunal has considered similar issue in the assessment year 2011-12 [2017 (1) TMI 1690 - ITAT CHENNAI] wherein held, there is necessity for working capital adjustment - thus we direct the Assessing Officer to give suitable adjustment against the working capital component while determining the ALP.
Foreign exchange loss as non-operative expense - TPO held that the forex gain/loss has to be treated as operating in nature, which was confirmed by ld. DRP - HELD THAT:- Similar issue was subject matter in appeal before the Tribunal in assessee’s own case for the assessment year 2012-13 [2017 (8) TMI 1700 - ITAT CHENNAI] wherein held as rightly pointed out by the ld. D.R that earlier year the assessee claimed foreign exchange loss as operating expenditure. This year assessee has shifted its stand and claimed it as non-operating expenditure. There is no consistency in its approach and also no reason has been given for such a change. Being so, in our opinion, foreign exchange loss is to be treated as operating nature only - Respectfully following the above decision in assessee’s own case for the assessment year 2012-13, the ground raised by the assessee stands dismissed for the assessment year 2013-14.
Provision for doubtful debts - With regard to the provision for doubtful debts, recoverability of some receivables may be doubtful although not definitely irrecoverable - HELD THAT:- In consistent with the observations given by the TPO for the assessment year 2014-15 we direct the AO to treat the provision for bad and doubtful debts as non-operating in nature for the assessment year 2013-14 as well. Thus, the ground raised by the assessee is allowed.
Hanon Climate System India Pvt. Ltd. as not a comparable - assessee has excluded the comparable since the RPT was in excess of 25% in respect of Hanon Climate Systems India Pvt. Ltd. - HELD THAT:- We are of the considered opinion that the TPO was not justified for including an incomparable company namely, Hanon Climate Systems India Pvt. Ltd., who’s RPTs exceed 25%. Accordingly, we direct the TPO/AO to exclude the comparable M/s. Hanon Climate Systems India Pvt. Ltd. Thus, the ground raised by the assessee is allowed.
Disallowance of set off of brought forward business losses from the previous years - HELD THAT:- As on perusal of the past assessment records of the assessee, AO noticed that the assessee company was no longer possessing such brought forward losses in view of the additions made as per the assessment orders for those years. Therefore, as it stands, the assessee was not allowed to make any set off of brought forward losses and the whole assessed income has to be fully offered for taxation in the current assessment year 2013-14. AO has taken the brought forward losses adjusted as NIL for the purpose of computation of total income for the assessment year 2013-14. Before us, the assessee has not brought on record any details of possessing such brought forward losses. Thus, the ground raised by the assessee stands dismissed.
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2021 (11) TMI 1146 - KARNATAKA HIGH COURT
Royalty Income to be treated as Income from business - whether Royalty Income was not derived from business carried by assessee but was only attributable to business of the assessee? - HELD THAT:- Assessee placing reliance on the judgment of the coordinate bench of this Court passed in the case of very same assessee [2018 (11) TMI 1929 - KARNATAKA HIGH COURT] would contend that the very identical substantial questions of law raised by the revenue were considered and answered by this Court as covered by the judgment of this Court in Motorola India Electronics (P) Ltd. [2014 (1) TMI 1235 - KARNATAKA HIGH COURT] was pleased to dismiss the appeal. Hence, the substantial questions of law raised herein, being identical, the appeal deserves to be dismissed answering the substantial questions of law raised, against the revenue and in favour of the assessee.
It is not in dispute that the judgment of this Court [2018 (11) TMI 1929 - KARNATAKA HIGH COURT] has been carried by the revenue in appeal before the Hon’ble Apex Court [2023 (3) TMI 1328 - SC ORDER] in SLP No.21055/2019 which is pending consideration. In view of the aforesaid, we are not inclined to either differ from the judgment of the coordinate bench or venture to sit in judgment over the said decision to adjudicate upon the issues fully covered and decided, referring to the judgments now cited by the revenue. Substantial questions of law raised herein, against the revenue and in favour of the assessee.
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2021 (11) TMI 1145 - ITAT BANGALORE
Revision u/s 263 - deduction u/s 80P has been granted without much inquiry - HELD THAT:-On perusal of the assessment order passed u/s 143(3) of the I.T.Act dated 30.11.2016, it is clear that there is no discussion by the A.O. and deduction u/s 80P of the I.T.Act has been granted without much inquiry. The assessment order completed without making necessary inquiry rendered the assessment erroneous and prejudicial to the interest of revenue. Therefore, the CIT has correctly invoked the provisions of section 263 of the I.T.Act and we uphold the same.
Assessee has also raised grounds that assessment was selected for limited scrutiny in the Computer Aided Scrutiny Selection (CASS). Therefore, the inquiry in the assessment proceedings was restricted only to the issue which forms the basis of selecting the case for scrutiny as per the Instruction of the CBDT. This ground of the assessee is also devoid of any merit. No doubt, in this case, the assessment was selected for limited scrutiny.
When the potential escapement of income was exceeding Rs.10 lakh, the A.O. has power to convert the limited scrutiny to a complete scrutiny assessment. There is no examination of the issue by the A.O. in the assessment order whether the escapement had resulted in excess of Rs.10 lakh. In this context also, the assessment order is erroneous and prejudicial to the interest of the revenue. Therefore, this ground of the assessee is also rejected.
Whether the assessee is entitled to deduction u/s 80P(2)(a)(i) and 80P(2)(d)? - As recent order of the Tribunal in the case of M/s.Vasavamba Co-operative Society Ltd. v. The Pr.CIT[2021 (8) TMI 706 - ITAT BANGALORE] after considering the judicial pronouncements on the issue held that interest income earned out of investments made from surplus funds would be taxable under the head `income from other sources’ and would not be eligible for deduction u/s 80P(2)(a)(i) of the I.T.Act. It was further held by the Tribunal insofar as deduction u/s 80P(2)(d) only those interest received from investments with co-operative societies alone would be entitled to deduction.
Hon’ble Apex Court in the case of Mavilayi Service Co-operative Bank Ltd. & Ors. v. CIT & Anr. (2021 (1) TMI 488 - SUPREME COURT] had settled various issues for claiming deduction u/s 80P(2)(a)(i) - the matter needs to be examined afresh by the A.O. de hors the observations of the CIT. The A.O. is directed to follow the dictum laid down by the Hon’ble Apex Court in framing the fresh assessment.
Appeal filed by the assessee is allowed for statistical purposes.
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2021 (11) TMI 1144 - ITAT BANGALORE
TP Adjustment - selection of comparables - exclusion of two companies Larsen & Toubro Infotech Limited, and Persistent Systems Limited on account of application of upper turnover filter - HELD THAT:- As decided in Pentair Water Private Limited [2016 (5) TMI 137 - BOMBAY HIGH COURT] as directed the AO / TPO to exclude from the list of comparables, the companies having turnover of more than Rs.200 crore
We direct the AO / TPO to exclude L&T Infotech Limited and Persistent Systems Limited from the list of comparables for having high turnover as compared to assessee providing Software Development (SWD) services to its Associate Enterprises (AEs).
Tech Mahindra Limited is functionally dissimilar to that of the assessee. Tech Mahindra Limited has got multiple segments and on perusal of the segmental details in the consolidated report, it can be seen that the said company is strictly not into software development services, ITES etc. Moreover Tech Mahindra Limited is having turnover far exceeding Rs.200 crore. Therefore, this company gets excluded by application of upper turnover limit also.
ICRA Techno Analytics is excluded from the final list of comparables on account of functional dissimilarity. The said company is engaged in multifarious activities such as web development and engineering services etc. and the segmental details of the company is not available. Therefore, we hold that the CIT(A) is justified in excluding the above company.
Negative Working Capital - HELD THAT:- Since the assessee in this case does not have working capital loans / borrowings and entails no working capital risks, the ratio decidendi in the case of e4e Business Solutions India Private Limited [2020 (12) TMI 1255 - ITAT BANGALORE] directly applies to the assessee and no working capital adjustment should be made. Therefore, the CIT(A)’s conclusion that no negative working capital adjustment is to be made is correct and no interference is called for.
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2021 (11) TMI 1143 - MADHYA PRADESH HIGH COURT
Appointment of Anganwadi karyakarta/Sahayaka - in the scheme dated 10.7.2007 in clause v&2 ¼v½ 2 it is provided that 10 marks have been prescribed for a woman of a family below poverty line - HELD THAT:- When tested on this legal proposition then there is no iota of doubt that when petitioner herself admits that father-in-law and husband of the private respondent are part of the BPL card holders prior to the date of the advertisement then by inclusion private respondent on account of her marriage to a member of BPL family will become a BPL card holder and, therefore, the Collector and Commissioner have not erred in passing the impugned order calling for any interference.
Therefore there is no error in the impugned order calling for any interference - Petition dismissed.
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2021 (11) TMI 1142 - ITAT MUMBAI
Unexplained Investment - appellant has paid “On-Money" - Discharge of onus - HELD THAT:- On money payment added in the hand of the assessee is not based upon any incriminating material found from the assessee or his premises. It is also not the case that any material in assessee or its staff handwriting has been found. It is also not the case that revenue has gotten the value of said premises independently valued to support the case of value more than that reflected in books. Assessee’s plea of crossexamination has also been rejected. It is settled law that in allegation of on many payment , revenue is required to prove the case with convincing material. This proposition is supported by Hon’ble Supreme Court in the case of K. P. Varghese [981 (9) TMI 1 - SUPREME COURT] and Kalyansundaram [2007 (9) TMI 25 - SUPREME COURT] Here revenue has failed to discharge the onus.
In the present case the addition is not sustainable. Hence, set aside the order of authorities below and decide the issue in favour of the assessee.
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2021 (11) TMI 1141 - BOMBAY HIGH COURT
Seeking grant of bail - criminal conspiracy - murder of Sheena Bora after her abduction - HELD THAT:- Applicant is charged with an act of criminal conspiracy, causing disappearance of evidence, furnishing false information in respect of the offence, committing murder of her own daughter after kidnapping with an intention to murder and forgery. Deceased Sheena was in love with Rahul, who is a star witness in the present case. Rahul, is the son of the first wife of accused No. 4 Peter. Initially, applicant was in live-in relationship with Siddharth Das from whom son Mekhail and daughter Sheena was born. Applicant performed her marriage with Sanjeev Khanna on 29/03/1993 and daughter Vidhi was born out of the said wedlock.
It appears that the prosecution has taken enough precaution and provided best of the medical facilities to the applicant. In the wake of the observations made by the Trial Court in its order, there is hardly any convincing reason which warrants her release on medical grounds. Apart from above, this Court is in complete agreement with the reasons furnished by the Court below while rejecting the bail on merits. The material in the form of circumstantial evidence very much connects the direct involvement of the applicant in the crime.
The trial court while dealing with the claim of the applicant on merits vide order dated 05/08/2020 has in detail dealt with the claim put forth including that of medical condition - Reasons cited in the said order are germane to the cause for rejection of the bail.
No case for bail is made out - Application dismissed.
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2021 (11) TMI 1140 - ITAT DELHI
Validity of assesment u/s 153A - validity of approval of the draft assessment order u/s 153D - HELD THAT:- Since, the Assessing Officer has sought approval u/s 153D of the Act in the case of assessee from Assessment Years 2005-06 to 2011-12, therefore, in view of our order [2022 (3) TMI 643 - ITAT DELHI] in assessee’s own case for Assessment Year 2009-10 reproduced above, we hold that the assessment orders are vitiated for want of valid approval u/s 153D of the Act and as such no addition could be made against the assessee. We, therefore, quash the assessment orders passed u/s 153A of the Act for both the years, resultantly, all additions are deleted - Decided in favour of assessee.
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2021 (11) TMI 1139 - PUNJAB AND HARYANA HIGH COURT
Tax to be paid by owner at industrial rate or commercial rate? - exigibility of the petitioner to pay property tax - industrial property - property owner has leased out the property - lessee is using the property as an industrial property - Refusal to register the lease deed/s executed by the petitioner - HELD THAT:- Originally the Corporation had assessed the petitioner on commercial rate, against which the petitioner had filed an appeal which was allowed by the Appellate Authority by passing a detailed order. However the impugned order which was passed on a revision filed by the respondent is extremely cryptic and the only reasons which have weighed with the Revisional authority seem to be the facts, that firstly in the opinion of the Revisional authority the Appellate authority had set aside the notification (which we find is not correct since only the notices were set aside by the appellate authority), and secondly that other similarly situated units are paying the property tax at commercial rate without any demur.
Counsel for the petitioner further pray that, as an interim measure, the respondents be directed to register the lease deeds executed by the petitioner with its intending lessees because as per it, it had already paid an amount more than 13 times what it is actually liable to pay and on the other hand it is the stand of the counsel for the respondents that in case any such interim relief is granted to the petitioner it would have a cascading effect and consequently they want that the matter should be heard on merits.
A better way of sorting out this dispute is that the order of the Revisional authority is set aside and the Revisional authority is directed to pass a fresh order dealing with all the contentions of both the parties in accordance with law after affording an opportunity of hearing to them - Petition disposed off.
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2021 (11) TMI 1138 - ITAT BANGALORE
TP Adjustment - Comparable selection - Turnover filter - HELD THAT:- Companies listed whose turnover in the current year is more than ₹ 200 Crores should be excluded from the list of comparable companies.
Also companies dissimilar with assessee captive service provider providing services only to its associated enterprise need to be deselected.
Negative working capital adjustment - HELD THAT:- We find that in the case of Software AG Bangalore Technologies (P.) Ltd.[2016 (3) TMI 1384 - ITAT BANGALORE] passed by this Tribunal, it has been held that negative working capital adjustment shall not be made in case of a captive service provider as there is no risk and it is compensated on a total cost plus basis. Since the issue has not been dealt with by the TPO in proper perspective and since the issue has not been raised before the DRP, we deem it fit and proper to remand this issue to the TPO/AO for fresh consideration in the light of the law on the issue as laid down in judicial decision.
Levy of education cess - HELD THAT:- education cess and secondary and higher education cess is not in the nature of tax which is not deductible expenditure. Following the decisions APTEAN INDIA PVT. LTD. [2020 (11) TMI 958 - ITAT BANGALORE], SESA GOA LIMITED, [2020 (3) TMI 347 - BOMBAY HIGH COURT], RECKITT BENCKISER (I) PVT. LTD. [2020 (6) TMI 474 - ITAT KOLKATA] we allow the additional ground of appeal.
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2021 (11) TMI 1137 - ITAT MUMBAI
Income deemed to accrue or arise in India - Taxability of income generated in India - appellant has received revenue from cinema halls/theatres in India - PE in India under the India-USA Tax Treaty - AO concluding that the income has directly accrued and arisen in India - AO royalty received by the appellant from Warner Bros. Pictures (India) Pvt. Ltd. as business income u/s 9(1)(i) - HELD THAT:- We find the Hon’ble Tribunal in assessee’s own case for the earlier years has allowed the claim in favour of the assessee.
We considered the decision of the Coordinate Bench of this Honble Tribunal for the A.Y 2014-15 [2019 (10) TMI 1543 - ITAT MUMBAI] as rightly held by the CIT (A) even if income arises to the Non-Resident due to the business connection in India, the income accruing or arising out of such business connection can only be taxed to the extent of the activities attributed to permanent establishment. In this case, the assessee does not have any permanent establishment in India. Since the Indian company who obtained the rights is acting independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industries Ltd [2007 (1) TMI 91 - SUPREME COURT] that incomes arising to a Non-Resident cannot be taxed as business income in India, without a PE. As the assessee does not have any permanent establishment in India, the incomes arising outside Indian Territories cannot be brought to tax. Therefore, there is no need to differ from the findings of the CIT (A) and accordingly the Revenue Appeal is dismissed.
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2021 (11) TMI 1136 - SC ORDER
Recovery of statutory dues - priority of charges - argument of the petitioner is that the charge is not in respect of the property as such, but is the consequence of the statutory dues - HELD THAT:- The fact remains that there is first charge of the State on the property in respect of the statutory dues.
Having agreed to the terms referred to above, it is not open for the petitioner to resile from the liability to discharge the same in connection with the first charge of the State on the property in question - the writ petition is dismissed.
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2021 (11) TMI 1135 - HIMACHAL PRADESH HIGH COURT
Validity of assessment order - denial of principles of natural justice and fair play - no opportunity of being heard in the matter given - HELD THAT:- A narration of the facts, would clearly go to indicate that the impugned assessment order has been made in contravention to the basic principles of natural justice and fair play, inasmuch as the petitioner was not granted an opportunity to file its reply on the proposed additions and a further opportunity of being heard in the matter.
Once that be so, obviously, impugned order cannot be sustained. In taking this view, we are duly supported by the judgments rendered in case Deep Gard versus Union of India[2021 (6) TMI 589 - DELHI HIGH COURT] and Zeus Housing Company versus Union of India [2021 (9) TMI 1461 - BOMBAY HIGH COURT]
We find merit in this petition and the same is accordingly allowed and the impugned assessment order alongwith consequential notice of demand and notice for initiating penalty is set aside.
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2021 (11) TMI 1134 - ITAT DELHI
Disallowance u/s 14A - AO held that the suo moto disallowance offered by the assessee is not properly explained - HELD THAT:- Disallowance offered by assessee was considered by learned assessing officer. In addition, the same was rejected giving proper reasoning. Therefore it is apparent that the learned assessing officer has recorded proper satisfaction for invoking the provisions of rule 8D of the income tax rules 1962 for working of the disallowance u/s 14 A of the act.
Disallowance u/r 8D (2)(i) - The total investment made by the assessee in which tax-free income could have been earned is ₹ 1343 crores as on that date. Further, that investment from which exempt income has been actually earned during the year is only ₹ 605 crores. Furthermore, the investment made by the assessee is out of the mixed funds, as it did not maintain the books of account of the earning exempt income as well as taxable income separately - we hold that there cannot be any interest disallowance in the case of the assessee. Accordingly, the interest disallowance made under rule 8D (2) (i) of the act of ₹ 24,657,534/– deserves to be deleted, hence, we direct the learned assessing officer to delete the same.
Disallowance under rule 8D (2) (iii) the amount equal to ½% of the average value of the investment Income from which does not or shall not farm part of the total income as appearing in the balance sheet of the assessee on the first day and the last day of the previous year - The claim of the assessee is that the opening balance and closing balance of the investments on which exempt income is received during the year is Rs Nil. The assessee has submitted the various accounts of such investments before us. In case if the opening balance and the closing balance of such investments from which exempt income is received during the year is rupees nil, naturally the average of such investment would also be Nil and therefore the consequent disallowance would also be Nil.
We hold that there cannot be any disallowance under rule 8D (2) (iii) of the act is also Nil. Accordingly, we direct the learned assessing officer to delete the disallowance under rule 8D (2)(iii) of the act. Accordingly we direct the learned assessing officer to delete the disallowance under that sub rule amounting to Rs 1 71,87,853/–.
Accordingly we direct the learned assessing officer to delete the disallowances confirmed by the learned CIT – A being the interest expenses stated by the learned assessing officer to be directly attributable to the earning of the exempt income as well as a sum being 0.5% of the average value of investment on the opening and closing day of the previous year. Appeal of the assessee is allowed.
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