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Showing 341 to 360 of 1510 Records
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2015 (1) TMI 1174
Waiver of pre deposit - Undervaluation of goods - Imposition of penalty - Whether the Tribunal erred in directing the deposit of a sum of ₹ 5,00,000/- by the HUF as also separately by the appellant - Held that:- Tribunal was not justified in imposing the condition of pre-deposit of the penalty amount. In the facts and circumstances of the case and when the appellants not being attributed any direct role in relation to the under-valuation of goods, the Tribunal should not have imposed a condition which prejudicially affects the right of the appeal conferred on the appellant by law. For all these reasons, we direct that on a deposit of the sum of ₹ 2,50,000/- by the HUF and which sum shall be deposited within a period of four weeks from today, there shall be waiver of pre-deposit and stay of recovery in so far as the amount of penalty directed against the appellant. Meaning thereby the appellant would not be required to deposit the sum of ₹ 1,00,000/- as directed by the Tribunal, in the event, our order passed today is complied by the HUF. If the order is not complied with, then, the direction issued by the Tribunal shall revive and non-compliance therewith to visit all the consequences in law. In the event, our order is complied, the Tribunal to hear the appeal in accordance with law. - Decided conditionally in favour of assessee.
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2015 (1) TMI 1173
Benefit of the Notification 97/2004-Cus., dated 17-9-2004 - Import of catalysts - Ommission of consumable from benefit of Notification - High Court admitted the appeal of Revenue against the decision of tribunal [2013 (10) TMI 1258 - CESTAT MUMBAI] on the following questions of law:-
(i) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the catalyst is different from consumable and therefore denial of benefit to the Respondent is not sustainable?
(ii) Whether in the facts an circumstances of the case and in law the Tribunal is justified in holding that the policy will prevail over the customs notification when the Ministry of Finance, Govt. of India has every authority to regulate the customs duty benefit?
(iii) Whether in the facts and circumstances of the case and in law the Tribunal is justified in holding that the extended period of limitation is not available despite the fact that the benefit of notification was availed by willfully misdeclaring the goods?
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2015 (1) TMI 1172
Surrender of CHA license - Deprivation from right of livelihood - Held that:- petitioner is not a CHA licencee, yet the action of the respondent directing him to surrender the ‘G’ Card has factually deprived him for his livelihood for the past four months. As to whether the respondents ultimately propose to suspend the CHA licence or give a show cause notice is not known. In other words, the petitioner is at mercy of the respondents for an indefinite period. - respondents may grant a hearing to the petitioner and thereafter, pass a speaking order as in terms of the Regulation 19(2). A direction is accordingly issued to the concerned Commissioner to afford a hearing to the petitioner. The petitioner shall appear before the concerned Commissioner under Regulation 19 on 30-5-2014 at 11:00 AM. After granting him the hearing, the said Commissioner shall pass an order either revoking or confirming the direction to surrender the ‘G’ Card, within 15 days, in terms of the said regulation 19(2). - Decided in favour of Appellants.
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2015 (1) TMI 1171
Waiver of pre deposit - Held that:- CESTAT failed to take into consideration the fact that a sum of ₹ 38,30,000/- was paid by the appellant during the course of investigation, has some merit. The CESTAT ought to have considered that the demand of differential duty of ₹ 65,53,233/- in respect of 48 bills of entry and further differential duty demand in respect of two other bills of entry, is thus secured at least substantially. - CESTAT can be modified with a direction that the appellant need not deposit anything over and above the amount already paid to the Department, but to secure the balance sum the appellant shall furnish a bank guarantee of any nationalized bank and which bank guarantee shall be of ₹ 29 lacs - Decided partly in favour of assessee.
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2015 (1) TMI 1170
Foreign exchange allocated against the license having not been utilized - Waiver of pre deposit - Imposition of penalty - Held that:- Under the statutory scheme the appellants are under an obligation to file appeal simultaneously along with penalty amount unless and until dispensation is granted under Second proviso to Section 52 (2) on the application of the appellants after getting satisfied about the prima facie good case and undue hardship of the appellants. In the instant case, the appellate has not taken care to comply the judicial order despite sufficient indulgence shown by this Tribunal by granting 50% dispensation in favour of the appellant which shows lack of bonafide on the part of the appellant. The order was passed long back on 12.02.04 where the appellant has shown total defiance towards judicial order where equity does not lie in his favour. Looking towards this situation this appeal is liable to be dismissed.
Written submissions stated to be filed by the Petitioner on 15th September, 2009 are not on record of the Tribunal. However, in view of the endorsement even if it is accepted that the written submissions in para-7 submitted that without prejudice to the submissions the Petitioner herein prayed for time of two months to comply with the order dated 12th February, 2004, the same would not enure to the benefit of the Petitioner in as much as this alternate submission of depositing the amount was not taken when the application for withdrawal of the direction of pre-deposit was being considered. - Decided against Assessee.
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2015 (1) TMI 1169
Failure to discharge liability - Non payment of goods delivered - Goods delivered with Consignee Copies - According to the respondent, all the relevant documents including the CONSIGNEE COPIES of the consignment notes were duly communicated by the respondent through its banker to the Islami Bank Bangladesh Ltd. It is specifically averred in the complaint that the said transaction was originally covered by letter of credit opened by the said Islami Bank but the said letter of credit had expired. Therefore, the documents mentioned above were sent to the said banker on collection basis. - Islami Bank Bangladesh, though received all the documents sent by the respondent, did not honour the same and made no payment for a long time - Upon the return of the original documents by the Islami Bank, the respondent herein, by its letter, dated 12th July, 1993, called upon the appellant to “rebook all the five consignments : for transportation to New Delhi and deliver the same to the complainant at New Delhi”. (Para 10 of the Complaint)) In response to the said letter, the appellant herein, by its letter, dated 22nd July, 1993, assured the respondent that all the five consignments would be rebooked for delivery at New Delhi. The appellant further called upon the respondent “to surrender the original consignee copies alongwith the invoice copies and pay one side freight and octroi at its Ahmedabad office for rebooking”. - National Commission held in favour of Respondent.
Held that:- The appellant did not plead as to what is the procedure prescribed under the law of Bangladesh for the unloading of the imported goods at its Customs Stations? Nor does the appellant give the details of the dates of the actual delivery of each of the 4 consignments at Bengapole - However, the appellant placed heavy reliance on a letter, dated 11-4-2002 allegedly written by some officer of the Customs Department of the Republic of Bangladesh at Beanpole addressed to the Joint Commissioner, Customs Department, Benapole - Jessore (Bangladesh). It refers to four bills of entry, dated 9-1-1993, 13-12-1992, 20-12-1992 and 11-2-1993. It is rather difficult to understand the content of this document, apart from the other problems with the document which shall be discussed later. It speaks about three bills of entry having had been “accepted” through three different shipping agents of M/s. Azim Garments Ltd., Dhaka. Of the 4th bill of entry having not being accepted, the goods were auctioned. It is difficult to understand what exactly is meant by ‘accepting a bill of entry’. At least, insofar as the Indian law is concerned, a bill of entry is a document, under Section 46 of the Customs Act, which is required to be presented by the importer. Section 47 stipulates that on receipt of a bill of entry, the proper officer, on being satisfied about the legality of the import and the factum of payment of the appropriate duty on the import of such goods, is required to clear the goods. Assuming that the law of Bangladesh is similar to the law of Customs in India, it is therefore, difficult to understand the content of the said letter. It speaks about acceptance of three bills of entry on different dates by three different shipping agents of M/s. Azim Garments Ltd. No explanation in the pleading as to what exactly is the implication of the statement extracted above is available.
The document purports to be the internal correspondence between the two officers of the Customs department of Bangladesh, no doubt purportedly with a copy marked to the appellant herein. There is no pleading explaining the occasion for such a correspondence. The proof of public documents is required to be made in the manner specified under Section 78 of the Evidence Act. Sub-section (6) stipulates the mode of proof of public documents other than those mentioned in sub-section (4) of a foreign country. - defence of the appellant based on the letter, dated 10-4-2002 (supra) that the appellant had delivered four consignments entrusted to it by the respondent at the Benapole Customs Station, Bangladesh cannot be accepted.
The subject of drawback is dealt under Chapter X of the Customs Act 1962. The expression ‘drawback’ is not defined under the Act. Sections 74 and 75 create a right to claim a ‘drawback’. Section 74 entitles an exporter to claim the repayment/return (drawback) of 98% of any duty paid on material imported into India when again exported out of India subject to the various conditions specified under the Section and the Rules made thereunder. - it is not clear from the pleadings of the appellant whether the respondent herein claimed a drawback either under Section 74 or under Section 75. Be that as it may. In either case, the right to a drawback accrues to the exporter once the exporter makes an entry for export of the goods under Section 50 of the Act and on the making of an order by the proper officer under Section 51 permitting clearance and loading of the goods.
Rules are made by the Government of India from time to time in this regard. The Rules currently in vogue are known as the “Customs, Central Excise, Duty and Service Tax Drawback Rules, 1995”, which are made in exercise of the rule making authority conferred under the various enactments including the Customs Act. However, these rules are subsequent to the export transaction in question. Neither the relevant rules governing the situation on the date when the respondent claimed the drawback are placed before us nor is there any clear pleading by either party as to the relevant date on which such a claim for drawback could be made. We are not sure whether under the rules applicable to the transaction in question, whether it is the date of the actual delivery of the goods in the foreign country which entitles the exporter to file an application claiming drawback or is it the date of the entry of the goods for export from India. In the absence of any material on record such as the one indicated above, the mere fact that the respondent did claim (the respondent admitted that they did claim a duty drawback as alleged by the appellant) a duty drawback does not necessarily lead to the inference that the appellant had duly delivered the goods in question at Benapole Customs station.
Under the 1995 Drawback Rules, which are in force today, Rule 13 stipulates that the claim for a drawback can be filed on the date when the proper officer makes an order permitting clearance and loading of the goods under Section 51 of the Act. We refer to Rule 13 not because it is applicable to the facts of the case, but only to demonstrate that the law clearly provides for the date and event, the happening of which, entitles the exporter for seeking the drawback. - In view of the fact that the appellant admitted the entrustment of goods by the respondent to the appellant for transportation to Benapole (Bangladesh), the burden to prove that the appellant satisfactorily discharged his legal obligation to deliver the goods at Benapole (Bangladesh) in accordance with law is on the appellant which burden the appellant failed to discharge. In our opinion, therefore, the National Commission rightly allowed the claim of the respondent. - Decided against appellant.
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2015 (1) TMI 1168
Interest liability under Section 234B - non-payment of advance tax - non deduction of tds -assessee was manufacturing equipment relating to oil and gas, energy, transportation and aviation, for supply to customers in India - assessees had a permanent establishment (“PE”) in India - Held that:- The primary liability of deducting tax (for the period concerned, since the law has undergone a change after the Finance Act, 2012) is that of the payer. The payer will be an assessee in default, on failure to discharge the obligation to deduct tax, under Section 201 of the Act.
For the above reasons, this Court finds that no interest is leviable on the respondent assessees under Section 234B, even though they filed returns declaring NIL income at the stage of reassessment. The payers were obliged to determine whether the assessees were liable to tax under Section 195(1), and to what extent, by taking recourse to the mechanism provided in Section 195(2) of the Act. The failure of the payers to do so does not leave the Revenue without remedy; the payer may be regarded an assessee-in-default under Section 201, and the consequences delineated in that provision will visit the payer. The appeal of the Revenue is accordingly dismissed - Decided against revenue.
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2015 (1) TMI 1167
Rectification of mistake - Scope of Section 154 - Whether power of CCIT u/s 154 can only be exercised for rectification of a mistakes which are apparent on record and not when an elaborate reasoning is to be provided to arrive at the finding that there appears to be a mistake apparent on record? - petitioner is substantially financed by the State of Sikkim and entitled to an exemption under Section 10 (23C) (iiiab) of the Act - Held that:- The assessment order, passed on the return file in pursuance of the notice under Section 148 of the Act, was based on the fact that the petitioner is not entitled to an exemption under the said Section. The Appellate Tribunal reversed the said order with categorical finding that the petitioner is substantially financed by the Government of Sikkim and is, therefore, entitled to an exemption under Section 10 (23C) (iiiab) of the said Act. The CCIT is bound by the decision of the Appellate Tribunal which is admittedly a superior forum. The hierarchical system of dispensation of justice, which exists in our country, requires a strict adherence and respect to avoid any abuse or misuse of the power and conflict in views. The authority of the Court standing on a lower pedestal is bound by the decision of the higher authority or the Court and it is not open to disregard the decision.
It does not require any debate on the proposition of law that the principle of res judicata cannot be applied in a matter of taxation because each year’s assessment is final in that year and does not have any bearing at the time of determination of the tax for a subsequent period or other period as held in Installment Supply (P) Ltd. & Another (1961 (5) TMI 53 - SUPREME COURT OF INDIA). It is not a case of the petitioner that the principle of res judicata is applicable in the present case. The CCIT has wrongfully invoked the jurisdiction under Section 154 of the Act by recording an elaborate reasoning in the garb of the mistake apparent from the record and has, in fact, percolate the sense of change of opinion. Furthermore, the CCIT cannot sit as an Appellate Authority over the decision of the Appellate Tribunal. The CCIT is bound by the decision of the Appellate Tribunal which is a higher forum and cannot take a contrary view to what has been taken therein. This Court, therefore, finds that the order impugned suffers from illegality and/or infirmity and cannot be allowed to stand. Accordingly, the order dated 17th January, 2013 is hereby quashed and set aside. - Decided in favour of assessee.
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2015 (1) TMI 1166
Registration under section 10(23AAA) rejected - Held that:- It is clear that the very object of the trust is to see that the employees may not have to lend their hands before any person for money at a higher rate of interest from outsider, and for that, the trust is created. If we go through the clauses no. 7 and 10, they are in consonance with the guidelines issued by the CBDT. On close scrutiny of word "contribution", it presupposes the contribution of employee is mandatory and other contribution by the employer in any form is acceptable. The finding of Commissioner is bad in law and against the provision. In that view of the matter, in our view, the Commissioner has wrongly interpreted Rule 16(C) of the Income Tax Rules. In that view of the matter, the interpretation put forward by the Commissioner is required to be rejected.
The apprehension which has been emphasized by Mr. Desai learned advocate for the respondent that the fund, on dissolution of Trust, will go to Kandla Port Trust, in our view, till the last beneficiary of the Trust remain in existence. However, only with the order Central Government, the Trust can be dissolved and the amount remained with the Trust will go back to the Statutory Authority i.e. Kandla Port Trust. Therefore, in the facts and circumstances of the case, the clauses are not objectionable. Thus petition is allowed. The Commissioner of Income-Tax, Rajkot-1, Rajkot is directed to grant approval to the petitioner-Trust on or before 31.1.2015, from the date on which they made application. - Decided in favour of assessee.
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2015 (1) TMI 1165
Deemed dividend under Section 2 (22)(e) - loan received by the Respondent-Assesee from M/s. NS Fincon Pvt. Ltd. - Held that:- On strict interpretation of Section 2(22)(e) of the Act, unless the Respondent-Assessee is the shareholder of the company lending him money, no occasion to apply it can arise.
In the present facts, it is an admitted position that Respondent-Assessee is not a shareholder of M/s. NS Fincon Pvt. Ltd. from whom he has received loan. Therefore, no fault can be found with the decision of the Tribunal in having followed the decision of the High Court in Universal Medicare (2010 (3) TMI 323 - BOMBAY HIGH COURT). This view has been further reiterated by another Division Bench of this Court in Impact Containers (2014 (9) TMI 88 - BOMBAY HIGH COURT) rendered on 4th July, 2014. - Decided against revenue.
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2015 (1) TMI 1164
Claim of refund of additional amount charged by DDA - Additional Floor Area Ratio (FAR) charges for institutional plots - clarificatory Notification dated 17.07.2012, whereby para 6(g) of the earlier Notifications dated 10.10.2008 and 23.12.2008 was modified to the extent that educational societies/healthcare and social welfare societies having income tax exemption were exempted from levy of additional FAR charges - Held that:- Admittedly, the petitioner is registered as a Trust and enjoying a tax exemption under Section 80-G of the Income Tax Act, 1961. Therefore, applying the doctrine of parity, the petitioner herein being similarly situated of the petitioners whose cases have been allowed by this Court, the petitioner is also entitled for the same relief.
At the cost of repetition, it is again opined that the subsequent Notification dated 17.07.2012, which is clarificatory in nature, has retrospective effect in its operation.Accordingly, the respondent No.2/SDMC is directed to refund a sum of ₹ 13,17,32,564/- to the petitioner within a period of two months from today, failing which the petitioner shall be entitled for the interest at the rate of 9% per annum on delayed payment. Decided in favour of assessee.
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2015 (1) TMI 1163
Levy of penalty u/s 263 for failure to deposit advance tax - incorrect estimation of advance tax - Held that:- In the case on hand, there is no material to show that that the assessee has consciously concealed certain particulars pertaining to his income or has supplied inaccurate particulars, deliberately. Further, it is the case of the Revenue that the explanation given by the assessee in connection with his income is not acceptable and it is not the case that the assessee has offered no explanation or false explanation, at all. Instead the case of the revenue is that the explanation given by the assessee cannot be accepted.
Decision of the Apex Court in CIT VS. KHODAY ESWARSA & SONS (1971 (9) TMI 19 - SUPREME Court) and AMRUT TUBEWELL COMPANY VS. ASST. CIT (2015 (1) TMI 1149 - GUJARAT HIGH COURT), penalty being proceedings being penal in character, the department must establish that the receipt of the amount in dispute constitutes income of assessee. Apart from falsity of explanation given by the assessee department must have before it before levying penalty cogent material or evidence from which it could be inferred that assessee has consciously concealed particulars of his income or had deliberately furnished inaccurate particulars in respect of the same and that the disputed amount is a revenue receipt. No doubt the original assessment proceedings, for computing the tax may be a good item of evidence in the penalty proceeding s but the penalty cannot be levied solely on the basis of the reasons given in the original order of assessment question of law raised in this appeal is answered in favour of the appellant-assessee
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2015 (1) TMI 1162
Reopening of assessment - proceedings are sought to be initiated after the period of four years from the end of relevant Assessment Year - As the provisions of 195 of the IT Act is very clear the amount of ₹ 1064281/- required to be disallowed and added back to the total income of U/s 40(A) failure to do so has resulted into u/a of income of ₹ 1064281/- - Held that:- The reasons supplied to the Petitioner do not disclose that there was any failure on the part of the Petitioner to provide all the material facts. That being the position, this ground could not have been taken up against the Petitioner at the time of disposing of the objections. Once this was not the basis for issuance of notice for Reassessment, it cannot be held against the Petitioner that the Petitioner had failed to make a true and full disclosure. It will have to be held that the Petitioner did not fail to make full and true disclosure of all material facts. The jurisdictional requirement for carrying out the reassessment, after the expiry of period of four years, is not fulfilled in the present case. - Decided in favour of assessee.
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2015 (1) TMI 1161
Penalty proceedings under Section 271(1)(c) - revised income showing a total income of ₹ 10,86,060/-, which includes NRE gift received by the assessee - proceedings initiated under Section 147 - Appellate Tribunal held that the provisions of Clause B to Explanation 1 to Sec.271(1)(c) are attracted thereby reversing the order of first appellate authority cancelling the penalty - Held that:- When the concealment of the income was with reference to the original return and there was no explanation at all as regards the non-disclosure, the mere claim that the income was offered in the revised return, as a matter of purchasing peace, by itself, would not exonerate the assessee from the culpability. Having regard to the fact that the assessee had not disclosed any reason for the omission in the original return and that the revised return was filed only after the search, this Court held that penalty was leviable.
When there is no satisfactory explanation as regards its non-disclosure of the income in the original return and that the undisclosed income came to be shown only in the revised return, rightly the Tribunal reversed the order of first appellate authority cancelling the penalty. - Decided against assessee.
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2015 (1) TMI 1160
Addition u/s 68 - unaccounted share capital and unsecured loans - ITAT deleted the addition - Held that:- It is evident that the ITAT went into the record and held that there was a satisfactory explanation and consequently addition under Section 68 was unwarranted. Counsel for the revenue submitted that besides furnishing affidavit of the parties - so far as the inclusion of capital to the tune of ₹ 35 lakhs is concerned, there was nothing on the record to warrant deletion of the said amount. This Court notices that besides the affidavits, the particulars of the bank, the cheque numbers, the ledger account was furnished to the AO. Though this was in the course of remand proceedings, having regard to the bank accounts of the subscribers - who are concededly family members, and whose identities were ascertainable, the AO, failed to probe further. In these circumstances, this Court is of the opinion that considering the law declared in CIT V. Lovely Exports (P) Ltd. [2008 (1) TMI 575 - SUPREME COURT OF INDIA], the inference drawn by the AO, in the circumstances of the case to add back a sum of ₹ 35 lakhs under Section 68 was clearly not warranted. The question of law sought to be urged therefore does not arise. - Decided in favor of assessee.
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2015 (1) TMI 1159
Interest under Section 244A and 244(1A) - revision u/s 263 - Held that:- CIT had no jurisdiction to pass revision order u/s.263 on 12.03.03. On that day, the order of this court dt.30.07.01 did exist. On the contrary, this order has become final. As regards grant of interest on refund, we find that Tribunal was justified in holding that refund should be granted with interest. Accordingly, we hold that the Tribunal was right in law in directing the Assessing Officer to allow interest under Section 244A and 244(1A) of the I.T Act. - Decided in favour of assessee.
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2015 (1) TMI 1158
Deduction under section 80HHC - Appellate Tribunal held that the amount of Sales Tax and Excise duties do not form a part of total turnover for the purpose of calculating deduction - Held that:- Issues squarely covered by the decision of Commissioner of Income Tax v. Lakshmi Machine Works [2007 (4) TMI 202 - SUPREME Court] wherein while deciding the issue in favour of the assessee the Honourable Supreme Court has observed that Section 80HHC of the Income-Tax Act, 1961 is a beneficial section: it was intended to provide incentive to promote exports. The intention was to exempt profits relatable to exports. Just as commission received by the assessee is relatable to exports and yet it cannot form part of "turnover" for the purposes of section 80HHC, excise duty and sales tax also cannot form part of "turnover". Just as interest, commission, etc. do not emanate from such turnover. Since excise duty and sales tax did not involve any such turnover such taxes are however to be excluded. Commission, interest, rent, etc. do yield profits, but they do not partake of the character of turnover and therefore they are not includible in the "total turnover". If so, excise duty and sales tax also cannot form part of the "total turnover" under section 80HHC(3). - Decided in favour of the Assessee
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2015 (1) TMI 1157
Investment allowance - entitlement to claim on all the items viz. Molasses storage tank, molasses pump, weigh bridge and diesel generating sets without appreciating the facts that items are not 'Plant and Machinery' on which investment allowance is allowable - Held that:- In the light of the well settled legal position in the case of Tribeni Tissues Ltd. Vs. CIT (1991 (1) TMI 98 - CALCUTTA High Court) and CIT Vs. Mahant Oil Industries Pvt. Ltd. (1991 (3) TMI 72 - KARNATAKA High Court) we are of the opinion that the Tribunal has rightly observed that the assessee was entitled for investment allowance storage tank, molasses pump, weigh bridge and diesel generating sets, which were exclusively used in the factory. - Decided in favour of assessee.
Disallowed of market fee - Held that:- As decided in Commissioner of Income Tax Vs. Moti Lal Padampat Udyog Ltd. (2013 (3) TMI 394 - ALLAHABAD HIGH COURT) observed that payment of market fee to purchase the sugar cane and sugar is allowable deduction. Also in the case of CIT Vs. Macdowell & Company Ltd, (2009 (5) TMI 28 - SUPREME COURT ) had held that "bottling fee" realized under the Rules framed under the Excise Act is neither tax nor duty as such Section 43B of the Act is not applicable on it.- Decided in favour of assessee.
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2015 (1) TMI 1156
Transfer pricing adjustment - attribution of profits to the Permanent Establishment - India-USA DTAA - Held that:- Ld.CIT(A)’s order on the proposition of PE deserves to be upheld. The employees of the assessee frequently visited the premises of CIS to provide supervision, direction and control over the operations of CIS and such employees had a fixed palce of business at their disposal. CIS was practically the projection of assessee’s business in India and carried out its business under the control and guidance of the assessee and without assuming any significant risk in relation to such functions. Besides assessee has also provided certain hardware and software assets on free of cost basis to CIS. Thus, the findings of the CIT(A) that assessee has a fixed place PE in India under Article 5(1) of the DTAA is upheld. Assessee has a fixed base Permanent Establishment in India.
Addition on account of IPCL/link charges - Held that:- no transfer of the right to use, either to the assessee or to CIS. The assessee has merely procured a service and provided the same to CIS, no part of equipment was leased out to CIS. Even otherwise, the payment is in the nature of reimbursement of expenses and accordingly not taxable in the hands of the assessee. Therefore, it is held. that the said payments do not constitute Royalty under the provisions of Article 12 of the tax treaty - Decided in favour of assessee.
Interest under Section 234 B - Held that:- The charging of interest is automatic under the Act if the assessee has defaulted in payment of advance tax. The income of the assessee was not liable for withholding tax under section 195 of the Act. In this case we have no option but to hold. that the assessee is liable to interest u/s 234B, as the income being assessed now cannot be held. to be income liable to TDS under Indian provisions. The same is being assessed in the hands of PEs who had not filed their return on the ground that this income was not attributed to Indian Business Connection. Provisions of section 234B are mechanical in nature. - Decided against assessee.
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2015 (1) TMI 1155
Upward adjustment to the prices charged - international transactions namely rendering of IT enabled design engineering services to its associated enterprises - Held that:- the assessee has placed reliance on the decision of ITAT, Pune in the case of Amdocs Business Services Private Limited [2012 (12) TMI 482 - ITAT PUNE ] wherein identical issue raised by the learned TPO that margins of comparable parties are to be adjusted and not of the tested party. The Tribunal in such a situation has upheld the validity of such an adjustment to the profits of the assessee. It was also claimed that the DRP has not adjudicated this issue. Nothing contrary has been brought to our knowledge on behalf of the Revenue. So, in the interest of justice, we restore this issue to the DRP with a direction to decide the same as per fact and law after providing an opportunity of being heard to the assessee.
Selection of comparable - Held that:- AO/TPO is directed to omit these three companies chosen, i.e. Rolta India, KLG and Powersoft by the TPO from the set of comparables for the year under consideration as Rolta India Ltd has huge turnover difference, Powersoft Global Solutions Ltd has financial year of the company differs by six months and KLG Systel Ltd is functionally not comparable, thus the matter is restored back to the TPO/AO who shall carry the search of comparables afresh in terms of criteria laid down in Rule 10B(2) of Income Tax Rules 1962 after giving an opportunity of being heard to the assessee.
One of the comparables Caliber Point Business Solutions has related party transactions of 30% of Revenue and going by the threshold filter of 25% of the related party transactions the said comparable cannot be said to be uncontrolled comparable and ought to be excluded from the list of comparables. We direct the TPO/AO to exclude the said comparable from the list of comparables taken for the purpose of benchmarking for the said A.Y. 2008-09. - Decided in favor of assessee.
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9911796707
