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Showing 21 to 40 of 1596 Records
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2022 (3) TMI 1576 - DELHI HIGH COURT
Validity of ITAT orders - allegation of orders as arbitrary in nature and contrary to the applicable rules and Regulations - Petitioner seeks a direction to the respondent to restore the appeal of the petitioner as was filed initially and to pass a reasoned, lawful and valid order - petitioner states that though the petitioner’s proxy counsel had prayed for an adjournment and even filed an adjournment application, yet the Tribunal in the impugned order had recorded the concession of the appellant’s proxy counsel to the impugned order being set aside with a direction to the CIT(A) to decide the appeal on merits
HELD THAT:- On the last date of hearing respondent had prayed for some time to obtain instructions. Today he states that the Assessing Officer has no objection to the present matter being remanded back to the ITAT for a fresh decision.
Consequently, with the consent of learned counsel for the parties, the impugned orders dated 16th January, 2020 and 18th November, 2021 are set aside and the matters are remanded back to the ITAT to decide the matter afresh. The rights and contentions of all the parties are left open.
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2022 (3) TMI 1575 - DELHI HIGH COURT
Maintainability of petition - Whether the power of Judicial Review, a basic feature of the Constitution of India conferred upon the High Courts under Articles 226 and 227 has been taken away totally in view of the judgment passed by the Supreme Court in UNION OF INDIA & ORS. VERSUS MAJOR GENERAL SHRI KANT SHARMA & ANR. [2015 (11) TMI 1316 - SUPREME COURT] thereby denying litigants the right to approach High Court in writ jurisdiction against the judgment and orders passed by Armed Forces Tribunal?
HELD THAT:- The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved.
The Armed Forces Tribunal Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but not judicial superintendence and certainly not jurisdiction under Article 226 of the Constitution.
In ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. & OTHERS [2019 (11) TMI 716 - SUPREME COURT], a Constitution Bench of the Supreme Court has held that Article 226 of the Constitution does not restrict writ jurisdiction of High Courts over the Armed Forces Tribunal observing the same can neither be tampered with nor diluted. Instead, the Supreme Court has held that High Court’s jurisdiction has to be zealously protected and cannot be circumscribed by the provisions of any enactment.
The preliminary objection raised by Union of India with regard to the maintainability of the present writ petitions is rejected. List the present batch of matters before the roster bench for consideration in accordance with the parameters laid down hereinabove on 21st March, 2022.
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2022 (3) TMI 1574 - TRIPURA HIGH COURT
Violation of principles of natural justice - ex parte assessment order - HELD THAT:- This writ petition came to be filed before this Court on 28.02.2022, i.e. nearly over two and half years after the impugned order was passed. Apart from the above, since alternative remedy is available under the statute, we do not want to interfere in the matter. It would be pertinent to note herein that there is absolutely no explanation provided in the writ petition even attempting to explain the delay in filing of the writ petition.
The writ petition is dismissed.
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2022 (3) TMI 1573 - ITAT RAIPUR
TDS u/s 194A - finance charges paid to NBFCs without deducting TDS - Addition u/s 40(a)(ia) - assessee in default u/s 201(1) - As Certificate of Chartered Accountant filed certifying that the finance charges paid by the appellant had been considered by deductees in Return of Income, have paid the taxes and filed the Return of Income - HELD THAT:- As law laid down in CIT Vs Ansel Landmark Township [2015 (9) TMI 79 - DELHI HIGH COURT] and M/s Hindustan Coca Cola Beverages Pvt Ltd [2007 (8) TMI 12 - SUPREME COURT] and in the context of circular number Circular No. 275/201/95-IT(B) dt 29/1/1997 issued by CBDT the Hon’ble Lordships have observed that, once it is proved on record that, the payee has accounted the amount in question as income and discharged the due taxes thereon then, no recovery of tax demand be enforced against the assessee.
Applying the same analogy to the case at hand, the assessee placed on records a certificate from a chartered accountant showcasing the income accounted and due discharge of taxes paid thereon by one of the resident payee. Consequently, for the said amount of certificate the assessee cannot be held as “the assessee-in-default” within the meaning of Section 201(1) and resultantly, such amount shall distant from application of provisions of section 40(a)(ia). Thus, in the light of aforesaid observations, the ground number 1 & 2 are partly allowed in terms of above.
Disallowance in case of travelling & vehicle maintenance - allowable business expenditure u/s 37(1) - HELD THAT:- Neither of the lower tax authorities had pointed any such voucher, the genuineness of the expenditure therein claimed to have been incurred by the assessee wholly and exclusively for the purpose of its business did not inspire any confidence, nor it was the case of the revenue that any part of the expenditure in question was either found to be bogus or fictitious, nor was found to have not been incurred by the assessee wholly and exclusively for the purpose of his business. Indeed, it showcased an exercise of running around the circle by both the lower tax authorities while dealing with the present case.
We neither could come across any provision in the present Income Tax Statute nor it has been brought to our notice by either parties to dispute, which subscribes vis-à-vis authorises the tax authorities to arrive at this logic of subscribing ad-hoc disallowances.
Evidently, there has been no clear findings as to number of vouchers requiring denial of allowances with the amount of expenditure and nature of defects therein or therewith, moreover department could not bring out any deprecative material on record to substantiate its logical conclusion. We couldn’t also see remotely there is any mention of rationale in arriving at the percentile of disallowance in the present case, consequently we find substantial force in the claim of the assessee that devoid of any specific infirmity qua the assessee’s claim for deduction of the aforementioned expenditure by the lower tax authorities, and hence the ad-hoc disallowance carried out in a most arbitrary manner could by no means be held to be justified.
We, do not find favour with the view taken by the lower tax authorities, consequently we set-aside the impugned order of CIT(A) on this score and vacate the ad-hoc disallowance in its entirety and thereby allow the ground number 3 of the appeal
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2022 (3) TMI 1572 - MADRAS HIGH COURT
Prohibition on 1st respondent from proceeding with the consumer complaints - Joinder, mis-joinder and non-joinder of parties - whether the petitioner herein was either a necessary party or the proper party in the consumer complaints filed for the alleged deficiency of service by the respective hotels (the 4th respondent in the respective writ petitions) in the complaints filed by the 3rd respondent in these writ petitions? - HELD THAT:- Undoubtedly, the petitioner is neither necessary nor a proper party in the said proceeding. The 1st respondent Tribunal ought to have entertained the applications filed by the petitioner for deleting their name from the respective consumer complaints. If there was any complaint regarding the extra collection of tax by the hotels, it was open for the complainant (3rd respondent in the respective writ petitions) to file appropriate applications under Section 54 of the TNGST Act for refund of the excess tax, if any, that may have been cancelled. Clearly, the proceedings initiated against the petitioner was unnecessary.
These writ petitions allowed by directing the 1st respondent/District Consumer Forum to delete the name of the petitioner from the respective consumer complaints and pass appropriate orders in the complaints filed by the respective 3rd respondent in the respective consumer petitions before it.
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2022 (3) TMI 1571 - KERALA HIGH COURT
Assessment u/s 153A r.w/s 153C - validity of documents found during search - HELD THAT:- After appreciating the materials, referring to which proceedings under Section 153A r.w.s. 153C have been initiated, we find it difficult to appreciate how the assessee can object to the instant enquiry, mainly initiated by reference to documents recovered in the search. We express our agreement with the view expressed by the CIT (Appeals) and the Tribunal., which are again based on the documents seized, and the connection the said documents establish with the assessee. The questions are answered in favour of the Revenue and against the assessee.
Nature of income - rejecting the claim of agricultural income and treating the income as income from other sources - HELD THAT:- This Court, in the appeals filed by the assessee’s husband [2018 (4) TMI 1969 - ITAT COCHIN] considered the claim of all the assesses subjected to reopening of assessment upon search and seizure. The case of the assessee, for agricultural income, is from two sources of agricultural income. The finding recorded by the Commissioner is that nothing is forthcoming for accepting the agriculture income. Though a general ground is raised, in our considered view , after perusing the findings recorded by all the authorities under the Act on this behalf, we are satisfied that substantial questions do not arise, and we affirm the findings recorded on this behalf. Hence, the questions are answered in favour of the Revenue and against the assessee.
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2022 (3) TMI 1570 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - HELD THAT:- When the last payment was made on 31st July, 2018, the Application filed on 28th August, 2020 was well within three years from the last payment. The submission of the Appellant that Application was barred by time cannot be accepted. The payment details regarding the payment was already the part of the Application which has been brought on record along with the Application and from such details regarding the payment when the Adjudicating Authority has noticed the submissions that last payment was made on 31st July, 2018, the Application cannot be said to be barred by time. The default and debt were proved, on that basis the Application was admitted.
In the present case, Part-IV of the Section 7 Application of the IBC, ‘Date of Default’ is dated 25th August, 2017 there is no dispute regarding that but along with the Application the relevant documents including ledger account of the payment were also brought on record where the last payment made by the Corporate Debtor has been mentioned on 31.07.2018 and the same has been noticed by the Adjudicating Authority. In view of the last payment made on 31.07.2018 as noted above, the Application was well within time and the Financial Creditor entitled for taking benefit of 3 years period of limitation from the date of last payment.
The Judgment relied on by the Learned Counsel for the Appellant in Babulal Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr. [2020 (8) TMI 345 - SUPREME COURT] does not come to any aid to the Appellant in the present case, as in that case, Hon’ble Apex Court has held that the date of default has to be ascertained on the basis of pleadings in Section 7 Application of the IBC.
There are no merit in the appeal - appeal dismissed.
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2022 (3) TMI 1569 - SC ORDER
Initiation of CIRP - NCLT admitted the application - Operational creditors - it was held by NCLAT that this ‘Tribunal’ taking note of the fact that under the ‘Contract’ the amount was due and payable on 25.04.2020, comes to a consequent conclusion that as per provision of Section 10A, the application filed by the ‘Operational Creditor’/petitioner under Section 9 of the Code is not maintainable.
HELD THAT:- There are no cogent reason to entertain the appeal. The judgment impugned does not warrant any interference.
Appeal dismissed.
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2022 (3) TMI 1568 - ITAT RAIPUR
Disallowance of interest expenditure u/s 14A - expenditure incurred on earning exempt income - as argued when the assessee had sufficient interest free funds available with it, therefore, disallowance made by AO of the interest expenditure u/s.14A r.w Rule 8D(2)(ii) could not be sustained - HELD THAT:- We are of the considered view, that as stated by the AR, and rightly so, now when the assessee society had sufficient interest-free own funds available with it which would sufficiently justify the investment made in the exempt income yielding assets, therefore, no part of the interest expenditure could have validly been disallowed u/s.14A r.w Rule 8D(2)(ii).
Our foresaid view is fortified by the judgment of South Indian Bank Ltd. Vs. CIT (2021 (9) TMI 566 - SUPREME COURT) as observed where interest-free own funds available with the assessee exceeded their investment in tax free securities, then, it would be presumed that investments were made by the assessee out of its own funds and no disallowance would be warranted u/s.14A r.w Rule 8D(2)(ii) of the Income Tax Rules, 1962 on the ground that separate accounts were not maintained by the assessee for investments and other expenditure incurred for earning of tax free income.
Thus we are unable to persuade ourselves to sustain the disallowance of interest expenditure of Rs.3,99,790/- made by the Assessing Officer u/s.14A r.w Rule 8D(2)(ii) of the Income Tax Rules, 1962 which is accordingly vacated.
TDS credit denied - As the said fact would require necessary verification, therefore, we direct the Assessing Officer to look into the aforesaid issue. In case, credit of the aforesaid amount of tax deducted at source had not been given while processing/assessing the return of income of the assessee then, the needful be done. Thus, the Ground of appeal raised in appeal by the assessee is allowed for statistical purposes.
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2022 (3) TMI 1567 - ITAT DELHI
TP Adjustment - comparable selection - exclusion of the comparable namely Acropetal Technologies Ltd., inclusion of C.G. Vak Software and Export Ltd. And R. System International Ltd. - HELD THAT:- Acropetal Technologies Limited (Segmental) cannot be held as comparable on account of different functionality, significant expenditure on Research and Development and Advertising and Marketing and Sales Promotion Expenses and significant Outsourcing of Work. We, therefore, set aside the order of the Ld. CIT(A) on this issue and direct the A.O./TPO to exclude Acropetal Technologies Limited (Segmental) from the list of comparables.
R System International Limited - TPO rejected the inclusion of the above comparable on account of different financial year - Hon’ble Delhi High Court in the case of CIT vs., Mckinsey Knowledge Centre India Ltd. [2015 (3) TMI 1226 - DELHI HIGH COURT] has held that if the comparable is functionally same as that of the tested party, then the same cannot be rejected merely on the ground that data for entire financial year is not available. It is held that if from the available data on record the results for financial year can reasonably be extrapolated then the comparable cannot be excluded solely on the ground that the comparable has different financial year ending. We, therefore, set aside the order of the Ld. CIT(A) and restore the issue to the file of A.O./TPO with a direction to extrapolate the result for the F.Y. 2009-10 from the available data and accordingly consider the same as comparable. A.O./ TPO should give due opportunity of being heard to the assessee while extrapolating the data for the F.Y. 2009-10.
Incorrect computation of profit margin of the comparable in the case of Cosmic Global - We find from the various details furnished by the assessee that while the TPO considered the miscellaneous income as operating income while computing the profit margin of Cosmic Global, however, for the computation of profit margin of the assessee, the miscellaneous income was not considered as operating income. We, therefore, direct the A.O./TPO to consider the miscellaneous income of the assessee as operative income and accordingly compute the profit margin.
CG-VAK Software and Export Limited - TPO and the Ld. CIT(A) held that this company is not a suitable comparable on account of very low turnover - Merely on account of low turnover, Company cannot be rejected. We, therefore, set aside the order of the Ld. CIT(A) and direct the A.O./TPO to include CG-VAK Software and Exports Ltd., (Segmental) as comparable.
Accentia Technologies Ltd. has diversified business operation, significant intangible assets, abnormal high profits, occurring of extraordinary events, functional dissimilarity and absence of segmental details and, therefore, cannot be considered as a good comparable.
Fortune Infotech Limited company has different revenue recognition model and functionally dissimilar since it has diversified business operations. Since the Ld. CIT(A) while excluding this company from the list of comparables has relied on the decision of M/s. Vertex customer Services India Private Limited, Gurgaon [2017 (12) TMI 992 - ITAT DELHI] therefore, in absence of any distinguishable features brought before us by the Ld. D.R, we do not find any infirmity in the order of the Ld. CIT(A) in excluding Fortune Infotech Limited from the list of comparables.
Igate Global Solutions Limited company is functionally different and insufficient segmental information respect of IT and ITES services are available. Further this is an exceptional year of operation on account of amalgamation. Apart from M/s. Vertex Customer Services India Private Limited [2017 (12) TMI 992 - ITAT DELHI] relied on by the Ld. CIT(A), we find the Coordinate Bench of the Tribunal in various decisions has also directed to exclude Igate Global Solutions Limited from the list of comparables on account of exceptional year of operation on account of amalgamation. In absence of any contrary material or distinguishable feature brought to our notice by the Ld. D.R, we do not find any infirmity in the order of the Ld. CIT(A) in directing the A.O./TPO to exclude Igate Global Solutions Limited from the final set of comparables.
ICRA Techno Analytics Limited (Segmental) - We find no segmental details are available in respect of this comparable and this company is functionally dissimilar since it is engaged in business intelligence and ideologies - We, therefore, uphold the order of the Ld. CIT(A) on this issue and the grounds raised by the Revenue challenging the exclusion of ICRA Techno Analytics Limited (Segmental) is dismissed.
Infosys BPO Limited has high brand value and intangibles (goodwill) whereas the assessee has no such goodwill. Infosys BPO Limited derives benefits being part of Infosys group whereas the assessee does not belong to any reputed group. We further find Infosys BPO Limited has incurred substantial selling and marketing expenses. It has incurred significant expenditure on account of employee salary and advertising expenses, whereas the assessee has no such expenditure. It has also made certain acquisitions during the year, for which, this is an exceptional year for Infosys BPO Limited, whereas the assessee company has not made any acquisitions. Thus we uphold the order of the Ld. CIT(A) on this issue and the ground raised by the Revenue challenging the order of the Ld. CIT(A) in excluding the Infosys BPO Limited is dismissed.
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2022 (3) TMI 1566 - CHHATTISGARH HIGH COURT
Assessment u/s 153C - As argued jurisdictional AO issued notice u/s 153C based on the information received from other AO, who searched other person - After receipt of notice, when petitioner submitted an application for supply of satisfaction recorded by the other Assessing Officer who searched third person, jurisdictional AO has forwarded reason / satisfaction recorded by him before issuing notice u/s 153C but grievance of petitioner is that jurisdictional AO has not supplied him satisfaction recorded by AO, who searched third person.
HELD THAT:- When this Court put pin-pointed question to petitioner that under which provision, satisfaction recorded by AO who searched third person is to be supplied to Assessee, he submits that under the scheme of Act, Assessee is required to know the basis and reasons, on which, notice has been issued. Undisputedly, when Assessee has submitted an application before Assessing Officer, he supplied reasons recorded by him before issuance of notice u/s 153C.
At this stage, Petitioner would submit that as per his information, Assessing Officer who searched third person has not recorded the satisfaction.
In the opinion of this Court, this appears to be a factual dispute raised by learned counsel for petitioner, which can be very well considered and decided by Appellate Authority.
The case laws, petitioner placed reliance are arising of order passed by Appellate Authority in an appeal challenging order of assessment, hence, we are not inclined to entertain this writ petition, particularly when during pendency of this petition, assessment order is already passed by Authority as the petitioner is having efficacious alternate statutory remedy of filing appeal under Section 246A.
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2022 (3) TMI 1565 - CALCUTTA HIGH COURT
Assessment u/s 153A - effect of ceasure of ITSC - Scope of challenge to the amendment to the Act - writ petitions were dismissed at the admission stage holding that the order passed by the Settlement Commission rejecting the applications was legal and valid - appellants challenged the circular issued by CBDT dated 28.09.2021 which permitted the assessees to file applications before the Settlement Commission not later than 30.09.2021 as being discriminatory and violative of Article 14 of the Constitution of India and also the amendment to Income Tax Act by which the Settlement Commission was abolished with effect from 01.02.2021
Commission opined that in the assessees’ case notice u/s 153(A) of the Act was issued on 02.02.2021 and as such the relevant assessment proceedings were not pending as on 31.01.2021 and, therefore, the assessee were directed to show cause as to why the applications filed on 08.03.2021 should not be rejected as no relevant assessment proceedings were pending as on 31.01.2021 (that is before 01.02.2021).
HELD THAT:- In our view, all legal issues can be considered only after the respondents file their affidavit-in-opposition. Thus, we are of the view that the writ petitions should not have been dismissed at the admission stage and should have been heard after calling for affidavits as pure questions of law are needed to be first answered before proceeding into factual matrix.
We are inclined to entertain these appeals and, accordingly, these appeals are admitted. The assessing officer has already issued notices u/s 153(A) of the Act on 02.02.2021 and thereafter also issued fresh notices. Since, we have admitted the appeals; the notices issued by the assessing officer under Section 153(A) of the Act shall remain stayed till the disposal of the appeals.
Respondent authorities pointed out that the assessment will get time barred by 31.03.2022 and, therefore, the assessing officer should be permitted to proceed further in the matter. The said objection is not sustainable because the explanation under Section 153(B) of the Act states that the period during which the assessment proceedings is stayed by an order or an injunction of any court stands excluded while computing period of limitation under Section 153(B) of the Act. Therefore, the Revenue’s interest is sufficiently safeguarded. That apart, we also take note of the fact that the assessees by filing applications before the Settlement Commission has admitted additional income and also remitted tax and interest on the additional income so admitted. This also would go to safeguard the interest of the Revenue. Hence, the notices issued by the assessing officer remain stayed.
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2022 (3) TMI 1564 - ITAT AHMEDABAD
On-money receive on unit/flat sold - money receipts reflected in seized material found from the premises of the third party - difference between document price and the actual price received by the firm was not accounted for in the regular books of accounts - as per appellant if addition on on-money is required to be made it should be restricted to net profit on alleged on-money mentioned in the loose paper pertaining to few units sold by the Appellant Firm - HELD THAT:- AO has extrapolated on-money receipts of 41% of entire turnover which according to us is not sustainable on assumption and presumption basis particularly when the cheque receipts for two schemes is Rs. 3.24. crores as reflects from the loose papers as against gross receipts shown in the books of account from A.Y. 2010-11 to 2015- 16 for Rs. 53.32 croes. According to the Ld. AO similar material related to Pushkar Infrastructure was also found during the course of search at third party which proves that the appellant is taking on-money on all the units but such contention cannot be accepted as Pushkar Infrastructure is altogether a different entity and have no relevance on the appellant’s case.
AO is only empowered to confine himself on the incriminating material found during the course of search and material is to be treated as true and correct. In our considered opinion, when the Revenue is in possession of the incriminating material wherein certain sales instances were found recorded in respect of specific amount of on money alleged to have been charged by the assessee on the sale of flats the AO should have made addition only in respect of those sales instances and not extrapolate the said amount of on-money merely on presumption on the entire sale.
We find extrapolation of the entire income of appellant in all the assessment years based upon on-money receipts reflected in the loose paper pertaining to few units sold by the appellant is found to be unjustified and on that basis addition is required to be restricted only to the undisclosed income of the assessee to the tune of Rs. 1,81,72,500/- for Pushkar-III and 1,69,49,500/- for Pushkar-IV. Remaining addition deserves to be deleted - Appeal preferred by the Revenue is dismissed
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2022 (3) TMI 1563 - ITAT BANGALORE
Rectification of mistake - validity of final assessment order as not conforming binding directions of ld. DRP - Tribunal has remanded the issue back of the Ld.AO/TPO with a direction to pass final assessment order in consonance with the DRP directions - reply by the Ld.AO expressing his inability to follow the DRP direction - HELD THAT:- We note that the above reproduced letter by the Ld.AO revels the intention very clearly. While passing the order [2021 (4) TMI 151 - ITAT BANGALORE] the above letter was missed to be considered.
Therefore henceforth, para 11 of the impugned order shall be substituted saying assessment order to be bad in law and the same is quashed and setaside.
Miscellaneous Petition filed by assessee stands allowed.
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2022 (3) TMI 1562 - ITAT CUTTACK
Rectification u/s 154 - revenue seeks to recall the order of the ITAT [2019 (9) TMI 1714 - ITAT CUTTACK] questioning Applicability of monetary limits fixed for filing further appeals on the assesses claiming bogus LTCG/STCL through alleged transaction in penny stocks - scope of CBDT Circular dated 6.9.2019, special circular dated 16.9.2019 - Tribunal has not dealt the matter on merits but dismissed on the ground of monetary limits. Therefore, the order be recalled and decided on merits - HELD THAT:- In this case, we find that the order has been passed by the Tribunal on 26.9.2019 and the CBDT issued special circular on 6.9.2019, special circular dated 16.9.2019 i.e. before passing the order of the Tribunal. Therefore, it cannot be alleged that special circular has not been considered by the Tribunal, which is not a mistake apparent on record to recall the order for fresh consideration. In view of above, we dismiss the M.A. application filed by the revenue.
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2022 (3) TMI 1561 - ITAT DELHI
Income taxable in india - TDS u/s 195 not deducted on payment made for connectivity services - use equipment or process of equipment - payment made by the assessee is a royalty for use of equipment of BT as concluded by AO - HELD THAT:- As decided in New Skies Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] wherein as relied upon the decision of Asia Satellite [2011 (1) TMI 47 - DELHI HIGH COURT] as held that where the customer does not use equipment or process of equipment itself payment cannot be termed as royalty for use of a process or equipment.
As in the case in hand, no equipment is given by FTO to the assessee. The assessee merely delivers the calls using its own network through international connection with FTO which picks up the calls and further transmits at the desired destination by using its own network.
We are of the consdiered opinion that the payment made for connectivity services are not taxable as royalty in terms of Article 13 of the India –UK DTAA. No doubt, that service is being provided with the help of scientific equipment and technology.
That by way itself could not qualify the payment as royalty. We accordingly, direct the Assessing Officer to delete the impugned addition. no deduction of TDS required - Assessee appeal allowed.
Deduction u/s 80IA @ 30% of eligible profit - determination of initial assessment year - HELD THAT:- In our considered view, unless the operation of the decision of the co-ordinate bench is stayed by the Hon'ble High Court, the same needs to be followed. We find that in [2018 (9) TMI 2131 - ITAT MUMBAI] conclude that as the assessee had opted A.Y 2007-08 as the initial assessment year for claim of deduction under Sec. 80IA(2), therefore, it would be entitled for 100% deduction from A.Y 2007-08 to A.Y 2011-12 and thereafter 30% from A.Y 2012-13 to A.Y 2016-17, subject to satisfaction of all other conditions.”
Disallowance of license fee paid - HELD THAT:- The addition has been made only in the year under consideration for the reason that Department has filed SLP in the case of Bharti Hexacom Ltd. [2023 (10) TMI 786 - SUPREME COURT] & Vodafone Mobile Services Ltd. [2016 (11) TMI 1702 - DELHI HIGH COURT] Hon’ble Bombay High Court in the case of CIT vs. Forest Development of Maharashtra Ltd [2017 (8) TMI 384 - BOMBAY HIGH COURT] has observed that even if the principle of res judicata does not apply in tax matters yet consistency and certainty of law would require the State to take uniform position and not change their stand in the absence of change in facts and /or law. In the present case, admittedly there is no change in the facts and/or law. In such a situation, merely because on SLP has been filed by 6 Revenue in some other case on identical facts, cannot be justification for the disallowance of expenditure. We thus find no justification in the order of AO for disallowing the expenditure. Decided in favour of assessee.
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2022 (3) TMI 1560 - DELHI HIGH COURT
Validity of assessment u/s 144B - Assessee, on instructions, says that no personal hearing was granted - HELD THAT:- As revenue, says that he will revert with instructions as to whether the proceedings held by the Assessing Officer on 16.04.2021 were recorded. In case, the proceedings were recorded, Mr Singh will place either a transcript of the same or the record of the proceedings in digital mode before us, on the next date of hearing.
A copy of the transcript/digital recording will be provided to the counsel for the petitioner/assessee as well. At the request of the counsel for the parties, list the matter on 30.03.2022.
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2022 (3) TMI 1559 - SC ORDER
Permission for withdrawal of appeal - Learned Additional Solicitor General seeks liberty to withdraw the present appeals due to low tax effect - HELD THAT:- The appeals are dismissed as withdrawn without commenting and expressing any opinion on the questions of law raised.
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2022 (3) TMI 1558 - ITAT CHENNAI
Disallowances u/s.14A r.w.r 8D - suo-motto disallowance of expenditure relatable to exempt income - HELD THAT:- An identical issue has been considered by Tribunal in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] directed the AO to restrict disallowances u/s.14A of the Act, to the extent of exempt income earned for the impugned assessment year. Thus we direct the AO to restrict disallowance u/s.14A to the extent of exempt income earned for the impugned assessment year.
Nature of subsidy Receipt - Depreciation on capital subsidy - HELD THAT:- As decided in assessee own case [2021 (9) TMI 1070 - ITAT CHENNAI] subsidiary received from SIPCOT is capital receipt not liable for tax. Thus after considering nature of subsidy has allowed claim of the assessee by observing that for earlier years, the CIT(A) has allowed claim of the assessee and the AO has accepted decision of the CIT(A) and deleted additions, while passing order giving effect to the order of the CIT(A). Therefore, consistent with the view taken by the coordinate Bench, we direct the AO to delete addition made towards disallowance of depreciation on capital subsidy received from SIPCOT.
Disallowance u/s.43B(c) - performance incentive paid to employees - HELD THAT:- As in assessee’s own case for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] under identical circumstances, the Tribunal has held that payment made to an employee which is in the nature of bonus or commission for services rendered is covered u/s. 36(1)(ii) of the Act, and thus, if such payment is not made on or before due date of filing of return of income u/s.139(1) of the Act, then same cannot be allowed as deduction, as per section 43B(c) - we are inclined to uphold the order of the AO as well as the directions of ld.DRP and reject ground taken by the assessee.
Fresh claim made by the assessee - Nature of receipts - VAT incentive received from Government of Tamil Nadu - Assessee has treated above incentive as revenue receipt both for its books of account and its tax returns. However, during the course of assessment proceedings, the assessee has raised a fresh claim to treat incentive as capital receipts not chargeable to tax - HELD THAT:- we find that the Tribunal had considered an identical issue for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] where the issue has been remanded back to the file of AO to consider the issue denovo on merits in accordance with law, has set aside issue to the file of AO.
Disallowance of investment allowance u/s.32AC - amount invested before specified period - HELD THAT:- In order to eligible for benefit of investment allowance u/s.32AC(1) of the Act, the assessee must satisfy two conditions as per which new asset should be acquired and installed between 01.04.2013 and 31.03.2015. Unless the assessee satisfies two conditions, it cannot claim benefit of additional investment allowance. In this case, there is no dispute with regard to fact that the assessee has acquired plant and machinery worth of Rs.1041.32 crores prior to 01.04.2013 and kept in capital work in progress. Therefore, to the extent of amount invested before specified period, the assessee cannot claim investment allowance u/s.32AC(1) of the Income Tax Act, 1961.
We are of the considered view that there is no error in the reasons given by the AO as well as learned DRP to sustain additions made towards disallowance of investment allowance @ 15% u/s.32AC on plant and machinery acquired and kept in capital work in progress before 01.04.2013, beyond the specified period as per the provisions of section 32AC - Hence, we are inclined to uphold findings of the learned DRP and reject ground taken by the assessee.
TP adjustment made towards brand development services - HELD THAT:- As relying in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] TPO as well as learned DRP were erred in making transfer pricing adjustments towards brand services by adopting Spearman’s Rank Correlation method and concluded that there is positive accretion between brand value and market capitalization of HMC Korea and hence, directed the AO/TPO to delete transfer pricing adjustment made towards brand development services. Therefore, consistent with the view taken by the coordinate Bench, we direct the AO to delete addition made towards brand fee adjustment.
Nature of receipt - amount received from Focus Market Scheme - Whether to be treated as capital in nature and exclude from total income? - HELD THAT:- As in assessee’s own case for the assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] held that duty credit scrips received from Govt. of India under Focus Market Scheme is revenue in nature.
Deduction towards education and secondary education cess u/s.37(1) - HELD THAT:- We find that the Tribunal had considered an identical issue for assessment year 2015-16 [2021 (9) TMI 1070 - ITAT CHENNAI] where the issue has been remanded back to the file of AO to consider the issue denovo on merits in accordance with law, has set aside issue to the file of Assessing Officer.
Appeal filed by the assessee is treated as partly allowed for statistical purposes.
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2022 (3) TMI 1557 - SC ORDER
Seeking adjournment on the ground of personal difficulty - HELD THAT:- In view of the letter circulated by the learned counsel for the respondent seeking adjournment on the ground of personal difficulty, list the matter after two weeks. Rejoinder filed by the petitioner is taken on record.
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