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Showing 61 to 80 of 1381 Records

• 2023 (1) TMI 1321 - ITAT SURAT
  

  Validity of reopening of assessment - Estimation of income - bogus purchases - HELD THAT:- We note that assessee has neither filed cross-objection nor filed any request under the Income Tax Appellate Rules (vide Rule 27) to argue the issue on the validity of reopening of assessment. Since the assessee has not filed the cross-appeal nor any application filed before the Tribunal under the Income Tax Appellate Tribunal Rules to argue the issue on reopening of assessment. That is, the assessee has not filed an application under Rule 27 of the Income Tax Appellate Tribunal Rules, therefore argument of the assessee on the technical issue of validity of reassessment under section 147 of the Act cannot be entertained and it is hereby rejected.

  Estimation of income - Since, the issue is squarely covered by the judgment of the Co-ordinate Bench in the case of Pankaj K. Chaudhary ([2021 (10) TMI 653 - ITAT SURAT] we direct the Assessing Officer to make the addition at the rate of 6% of bogus purchases / unverifiable purchases. Hence, we allow the appeal of Revenue partly.

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• 2023 (1) TMI 1320 - ITAT PUNE
  

  Disallowance of service charges and other reimbursement(s) - Addition restricted to that @ 30% in the CIT(A)'s order - Disallowance of reimbursement of travelling expenses and depreciation on coolers - HELD THAT:- We find in this factual backdrop that all these issues are no more res integra as the tribunal’s coordinate bench’s common order in assessment years 2000-2001 to 2004-2005 involving assessee’s and Revenue’s cross-appeals decided [2022 (4) TMI 1571 - ITAT PUNE] inter alia, has accepted the former’s claim of various expenses restricted to 30% in entirety by following its earlier orders, partly uphold the learned lower authorities action disallowing travelling expenses @ 10% only on estimation basis and rejected the department’s stand on depreciation on coolers provided to bottlers/vendors vis-à-vis their WDV in full, respectively.

  Both the parties are fair enough in not pinpointing any distinction on facts or law in the impugned assessment year as well so far as these three issues are concerned. We thus adopt judicial consistency to decide the first and foremost issue of reimbursement [restricted to 30% in the CIT(A)'s order] to full extent assessee’s favour, uphold only 10% of travelling expenses and accept it’s stand relating to depreciation on coolers in very terms.

  TP Adjustment - We advert to assessee’s pleadings raised during the course of hearing that the department, and more particularly, the TPO took a diametrically opposite view in case of the assessee and its AE regarding the very issue. Faced with the situation and more particularly in light of the fact that the learned “Panel” has not discussed even the most appropriate method [in short “MAM”] before rejecting the assessee’s contentions, we deem it appropriate to restore these remaining grounds back to the learned “DRP” for its fresh adjudication on merits, preferably within three effective opportunities of hearing as much water has flown down the stream since the impugned assessment year 2006-07. Ordered accordingly. The assessee’s 2^nd substantive ground herein is accepted for statistical purposes to the above extent.

  Disallowance of marketing support services - We note that the Assessing Officer has refused to follow the “DRP’s” directions regarding the matter in light of Sec. 144C(13) r.w.s. 144C(5) of the Act. He has not carried-out any verification as per his detailed discussion in page-5 para-2 of the assessment order. Faced with this peculiar situation and in view of the clinching fact that the assessee may not be able to completely verify its detailed evidence of assessment year 2007-08 in the year 2023, we deem it appropriate to restrict the impugned disallowance to that @ 5% only. Ordered accordingly.

  TP Adjustment on AMP expenses - international transaction or not? - HELD THAT:- CIT-DR could hardly dispute that case law Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT] has already held that such “AMP” transactions do not amount to an international transaction u/s. 92B of the Act. Faced with the situation, we reverse learned lower authorities action to this limited extent.

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• 2023 (1) TMI 1319 - ITAT MUMBAI
  

  Addition u/s 2(22)(e) - accumulative profits as on 31.03.2011 was minus/loss - HELD THAT:- Ahmedabad bench of Tribunal in the case of M/s M.B. Stock Holdings (P) Ltd Vs ACIT [2001 (12) TMI 190 - ITAT AHMEDABAD-B] took note of the Hon’ble Supreme Court decision in the case of CIT Vs. Asokbhai Chimanbhai [1964 (10) TMI 11 - SUPREME COURT] wherein it was held that the profits do not accrue from day to day or even from month to month and have to be ascertained by a comparison of assets at two stated points. Also unless the right to profits comes into existence there is no accrual of profits and the destination of profits must be determined by the title thereto on the day on which they arise.

  AO not to include the current year profit to be part of accumulated profit while determining the amount of deemed dividend u/s 2(22)(e) after considering Explanation-2 to Section (2(22)(e) (which defines the accumulated profit). And the Hon’ble High Court specifically observed that while determining the amount of deemed dividend under Explanation 2 to Section 2(22)(e) of the Act, the current profit was not required to be included to be part of accumulated profit.

  And their Lordship also took note that the issue was already settled by the Hon’ble Supreme Court against the revenue in the case of Associated Banking Corporation of India Ltd. [1964 (10) TMI 7 - SUPREME COURT] wherein the view was taken that the profit accrues when the books of account are closed. In the light of the judicial precedent laid by Hon’ble Gujarat High Court in CIT Vs. M. B. Stockholding (P) Ltd [2015 (5) TMI 232 - GUJARAT HIGH COURT] and since no decision of jurisdictional High Court was cited in support of impugned action of Ld CIT(A), we are of the considered opinion that in the present case, while determining the deemed dividend, the AO/Ld. CIT(A) ought to have taken into consideration the accumulated profit as on 31.03.2011 i.e loss/(-) of Rs. 74,80,633/- and not accumulated profit adopted as on 31.03.2012 ( Rs. 3.46 crores). Therefore, no addition was possible u/s 2(22)(e) of the Act in the facts of the case and thus the assessee succeeds. And consequently, we direct the deletion of Rs. 3,41,96,270/.

  It is noted that the Revenue’s reliance on the judgment of P.K. Badiani Vs. CIT [1976 (9) TMI 3 - SUPREME COURT] was misplaced because the Hon’ble Apex Court was answering the question as to whether the development rebate reserve created by the company by duly charging the amount in profit & loss account, although liable as a deduction under the Income Tax Act, 1922, constituted accumulated profit of the company within the meaning of Section 2(6A)(e) of the Act, 1922.

  In this judgment, we couldn’t even find an obiter-dicta which could support the contention of the revenue. So the same cannot be of any help to the revenue. Therefore, by applying the ratio in CIT Vs. Damodran as well as CIT Vs. Ashokbhai Chamanbhai [1964 (10) TMI 11 - SUPREME COURT] and Associated Banking Corporation [1964 (10) TMI 7 - SUPREME COURT] and as held by the Hon’ble Gujarat High Court in CIT Vs. M. B. Stockholding [2015 (5) TMI 232 - GUJARAT HIGH COURT] we uphold the contention of the Ld AR of the assessee as discussed supra and allow the appeal.

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• 2023 (1) TMI 1318 - CESTAT AHMEDABAD
  

  Exemption from Customs Duty - import of Boron Ore - exemption under serial No. 113 of Customs Notification No. 12/2012-Cus dated 17.03.2012 for the period 01.04.2015 to 30.06.2017 and under serial No. 130 of Customs Notification No. 50/2017 dated 30.06.2017 - period after 01.07.2017 - test reports available on record but not perused - violation of principles of natural justice.

  Denial of exemption on the ground that the Boron Ore imported by the appellant is not naturally mined Boron Ore but the impurities have been removed from the product therefore, the same is concentrated Boron Ore which is not eligible for exemption notification.

  HELD THAT:- The exemption under the aforesaid notification is provided to goods viz. ‘Boron Ore’. From the perusal of the finding of the adjudicating authority, the test report of the product shows that the goods is ‘Boron Ore’ however, the same obtained after removal of impurities. The adjudicating authority has relied upon Wikipedia and Website for the meaning of ‘Ore’.

  When the test reports are available on record, there is no need to go to the website and Wikipedia. Whether the goods will remain as Ore after removal of impurities has been considered in various judgments cited by the appellants. However, the adjudicating authority has not properly considered various defence submission made by the appellants and the judgments relied upon by the appellants.

  The matter needs to be reconsidered in the light of the test reports and judgments relied upon by the appellant - appeal allowed by way of remand.

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• 2023 (1) TMI 1317 - TELANGANA HIGH COURT
  

  Stay of demand - petitioner has been directed to pay 20% of the outstanding demand - HELD THAT:- From a perusal of the impugned order it is seen that 1st respondent had followed instructions of the Central Board of Direct Taxes (‘CBDT’) to the effect that where outstanding demand is disputed before the appellate authority, the assessee has to pay 20% of the disputed demand. Accordingly, petitioner has been directed to pay 20% of the outstanding demand.

  We are afraid 1st respondent did not apply his mind while passing the order dated 16.01.2023. It appears to be a mechanical exercise of power. When the Income Tax authority exercises jurisdiction u/s 220(6) he exercises quasi-judicial powers. While exercising quasi-judicial powers, the authority is not bound or confined by departmental instructions.

  This position has been well settled in Principal Commissioner of Income Tax v. LG Electronics India Pvt. Ltd [2018 (7) TMI 1905 - SC ORDER]

  That being the position, we set aside the order and remand the matter back to the 1st respondent for passing a fresh order in accordance with law after giving due opportunity of hearing to the petitioner. This shall be done within a period of six (06) weeks from the date of receipt of a copy of this order. Till the aforesaid period of six (06) weeks, respondents are directed not to take coercive steps for realizing the outstanding demand for the assessment year 2017-18.

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• 2023 (1) TMI 1316 - DELHI HIGH COURT
  

  Applicability of time period to claim refund of Special Additional Duty of Customs (SAD) on goods imported in terms of the Notification No. 102/2007-CUS. - HELD THAT:- This Court has, in a number of matters, dismissed the appeals filed by the Customs Authorities in view of the decision in Sony India Pvt. Ltd. v. Commissioner of Customs [2014 (4) TMI 870 - DELHI HIGH COURT].

  In Commissioner of Customs v. S.R. Traders [2022 (4) TMI 1167 - DELHI HIGH COURT] , a Coordinate Bench of this Court has observed that decision in Sony India Pvt. Ltd. v. Commissioner of Customs would be binding on other benches of this Court. In COMMISSIONER OF CUSTOMS VERSUS PANVI TRADING CO. [2022 (12) TMI 1473 - DELHI HIGH COURT], this Court had taken note of the aforementioned decision and found no reason to differ with the aforesaid view.

  The present appeal is required to meet a similar fate - Appeal dismissed.

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• 2023 (1) TMI 1315 - DELHI HIGH COURT
  

  Applicability of time period to claim refund of Special Additional Duty of Customs (SAD) on goods imported in terms of the Notification No. 102/2007-CUS. - HELD THAT:- This Court has, in a number of matters, dismissed the appeals filed by the Customs Authorities in view of the decision in Sony India Pvt. Ltd. v. Commissioner of Customs [2014 (4) TMI 870 - DELHI HIGH COURT].

  In Commissioner of Customs v. S.R. Traders [2022 (4) TMI 1167 - DELHI HIGH COURT], a Coordinate Bench of this Court has observed that decision in Sony India Pvt. Ltd. v. Commissioner of Customs would be binding on other benches of this Court - In COMMISSIONER OF CUSTOMS VERSUS PANVI TRADING CO. [2022 (12) TMI 1473 - DELHI HIGH COURT], this Court had taken note of the aforementioned decision and found no reason to differ with the aforesaid view.

  The present appeal is required to meet a similar fate - Appeal dismissed.

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• 2023 (1) TMI 1314 - ITAT RAIPUR
  

  Condonation of delay of 1563 days - Sufficient cause of delay - lapse on the part of his regular counsel, CA who had failed to provide the requisite details and properly guide him as regards filing of the appeal before the Tribunal - HELD THAT:- In the present case, the delay of 1563 days cannot be simply condoned on the basis of the unsubstantiated claim of the assessee that the same had occasioned on account of failure on the part of his regular chartered accountant in properly guiding him as regards filing of the appeals before the Tribunal. In fact, the conduct of the assessee before the lower appellate authority and the AO clearly evidences his disregard for the process of law, which, as find, he had carried forward before me by preferring the appeal beyond a period of 1563 days after the lapse of the stipulated time period.

  Also, as observed in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeals the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the substantial delay involved in preferring of the captioned appeals, therefore, we decline to condone the delay of 1563 days and, thus, without adverting to the merits of the case dismiss all the captioned appeals of the assessee as barred by limitation.

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• 2023 (1) TMI 1313 - ITAT RAJKOT
  

  Revision u/s 263 - Inadequate v/s lack of enquiry - CIT held that the assessment framed u/s 143(3)/147 is erroneous insofar prejudicial to the interest of Revenue - Unexplained cash deposits in bank account as joint holder with his son - HELD THAT:- An inquiry made by the AO, considered inadequate by the CIT, cannot make the order of the AO erroneous. In our view, the order can be erroneous if the Assessing Officer fails to apply the law rightly on the facts of the case.

  As far as adequacy of inquiry is considered, there is no law which provides the extent of inquiries to be made by the AO. It is AO’s prerogative to make inquiry to the extent he feels proper. CIT by invoking revisionary powers under section 263 of the Act cannot impose his own understanding of the extent of inquiry. There were a number of judgments by various Hon’ble High Courts in this regard.

  Delhi High Court in the case of CIT Vs. Sunbeam Auto [2009 (9) TMI 633 - DELHI HIGH COURT] made a distinction between lack of inquiry and inadequate inquiry. The Hon’ble court held that where the AO has made inquiry prior to the completion of assessment, the same cannot be set aside u/s 263 of the Act on the ground of inadequate inquiry.

  As decided in Shree Gayatri Associates [2019 (6) TMI 888 - SC ORDER] Tribunal has in the impugned judgment referred to the detailed correspondence between Assessing Officer and the assessee during the course of assessment proceedings to come to a conclusion that the Assessing Officer had carried out detailed inquiries which includes assessee's on-money transactions. It was on account of these findings that the Tribunal was prompted to reverse the order of revision. No question of law arises.

  Principle which emerges is that the phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the revenue.

  In the present case it is not the case that the AO has not made any enquiry. Indeed, the ld. Pr. CIT initiated proceedings under section 263 of the Act on the ground that the AO has not made enquiries or verification which should have been made in respect of cash deposited during the year under consideration. It is not the case of the ld. Pr. CIT that the Ld. AO did not apply his mind to the issue on hand or he had omitted to make enquiries altogether. In the instant set of facts, the AO had made enquiries and after consideration of materials placed on record accepted the genuineness of the claim of the assessee. Thus, we hold that there is no error in the assessment framed by the AO under section 143(3)/147 of the Act causing prejudice to the interest of revenue. Decided in favour of assessee.

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• 2023 (1) TMI 1312 - ITAT PUNE
  

  Chargeability of redemption premium on FCCBs borrowed from outside India and utilized for the purpose of making investments or loans to overseas subsidiaries in the hands of the recipient of such premium - TDS u/s 196C r.w.s. 115 AC on the interest payable on FCCBs - assessee had remitted ‘FCCBs’ without deduction of tax at source, thus should be treated as “an assessee in default” u/s 201(1) - as per CIT(A) no interest income had accrued to the non-recipient in terms of provisions of section 5(2) r.w.s. 9(1)(v) - whether both sections 5(2) and 9(1)(v) of the Act, are applicable to determine the situs of interest income in case of non-resident? - HELD THAT:- As per scope of the provisions of section 9(1)(v) explained by the CBDT Circular dated 05.07.1976 it would be cleared that the interest paid by the resident in respect of loan that was incurred or money borrowed utilized for the purpose of making or earning any income from outside India is not taxable in India.

  In the present case, it is not disputed that FCCBs were utilized for the purpose of making investments in share of overseas subsidiaries or on the loans given to overseas subsidiaries.

  No doubt, the redemption premium partakes interest as defined u/s 2(28A) of the Act, however, by virtue of exclusive clause of the provisions of section 9(1)(v), the interest income in the hands of recipient cannot be said to have accrued or arisen in India.

  When the income has not arisen in India in the hands of recipient/non-resident, there is no obligation on the part of the respondent-assessee to deduct tax at source on payment of interest as held by GE India Technology Cen. (P.) Ltd [2010 (9) TMI 7 - SUPREME COURT] followed by Karnataka Power Transmission Corporation Ltd [2016 (2) TMI 412 - KARNATAKA HIGH COURT] We find that the order of the ld. CIT(A) is in consonance with the legal position discussed above. Therefore, the order of the ld. CIT(A) is just, proper and reasoned order. Thus, we do not find any reason to interfere with order of the ld. CIT(A).

  Penalty u/s 271C - failure on the part of the assessee to deduct tax at source on the redemption premium - HELD THAT:- As Tribunal sustained the findings of the ld. CIT(A) in quashing of the order u/s 201(1) of the Act. Since the basis on which the penalty was levied, no longer survive, therefore, the penalty order cannot be sustained in the eyes of law. Therefore, the ld. CIT(A) rightly deleted the penalty levied u/s 271C.

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• 2023 (1) TMI 1311 - COMMISSIONER OF GST (APPEALS), AHMEDABAD
  

  Penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 - E-way bill not generated at the time of dispatch - huge difference in the value of goods declared in the Delivery Challans issued by the appellant - Stock transfer or goods removed to another person - HELD THAT:- The penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 for violation of provisions made under the Central Goods and Services Tax Act, 2017, and rules made thereunder. The appellant is a registered company and has a good reputation in the market of windmill. Further, events made for not following the provisions of GST Law are inadvertently and there is no mala fide intention of the appellant to evade payment of GST. Therefore, the various plea made by the appellant in respect of imposing a minor penalty for this bona fide mistake is genuine and proper.

  The penalty imposed under clause (a) of Section 129(1) of the Central Goods and Services Tax Act, 2017 by the adjudicating authority and calculating 200% of tax amount. The transaction in question is not attracting any tax liability as the same is stock transfer and goods removed under Delivery Challans. This action of the appellant is not attracting any tax liability under GST Law only procedures are prescribed for such transactions such as the issuance of a Delivery Challan for the movement of such goods and the issue of an e-way bill. As per the definition provided under section 2(47) of the said act prescribed such type of non-taxable supply also considered as 'exempt supply'. Therefore, the stock transfer of goods by the appellant is considered as exempted goods.

  Any contravention of provisions made under the Central Goods and Service Tax Act, 2017, and rules made thereunder during the transit of goods, the same should be penalized under section 129 ibid. In present case it is undisputed facts that the E-way is not tendered by the transporter. The contention of the appellant in this regard is that there was glitch in GST E-way Portal hence E-way was not generated - the goods in question is non-taxable and as per Section 2(47) ibid , the goods which are non-taxable also considered as exempted supply hence penalty provision provided under section 129(1) ibid related to exempted goods, is applicable in the present case. Therefore, the Order for penalty under section 129(1)(a) of the Central Goods and Services Tax Act, 2017 is amended and the penalty Rs. 25,000/- under the Central Goods and Services Tax Act, 2017 and Rs. 25,000/- under of the Gujarat Goods and Services Tax Act, 2017 is imposed instead of Penalty of Rs. 42,22,604/- each under imposed under the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017.

  Appeal allowed in part.

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• 2023 (1) TMI 1310 - ITAT MUMBAI
  

  TP Adjustment of management fee paid by the assessee to its AE - unilateral estimation - prescribed method - HELD THAT:- The Co-ordinate Bench in assessee’s appeal [2022 (11) TMI 1417 - ITAT MUMBAI] decided the issue in favour of assessee by placing reliance on the decision of the Tribunal in assessee’s own case in [2019 (12) TMI 1238 - ITAT MUMBAI] and on the decision rendered in the case of CLSA vs. DCIT [2019 (1) TMI 1351 - ITAT MUMBAI] held that TPO made an adhoc unilateral estimation by assuming that around 750 hours would have been spent for providing the aforesaid services for which remuneration of INR 3,000/- per hour was appropriate. The Tribunal deleted the addition holding that the TPO had resorted to an adhoc unilateral pricing of the Management Fee without applying any of the prescribed methods and disregarding the facts of the case by placing reliance upon the decision of the co-ordinate Bench of the Tribunal in the case of Kellogg India Pvt. Ltd. v. DCIT [2019 (8) TMI 698 - ITAT MUMBAI] TPO has determined the ALP of the transaction without following any of the prescribed methods - Appeal of assessee allowed

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• 2023 (1) TMI 1309 - BOMBAY HIGH COURT
  

  Grant of Interim Bail - Money Laundering - proceeds of crime - violation of Sections 41, 41-A and 60-A Cr.P.C. - whether the arrest of the petitioners was illegal i.e. contrary to the constitutional mandate and statutory provisions and consequently, whether the petitioners are entitled to be released on interim bail? - HELD THAT:- The Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT], has issued certain directions to investigating agencies and the courts; has discussed arrest in cognizable offences, the mandate of Section 41, effect of its non-compliance while considering the bail application; has issued directions to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically; has held that Sections 41 and 41-A are facets of Article 21 of the Constitution; and has issued certain guidelines for avoiding unwarranted arrest, amongst other directions/observations.

  From various judgments, it is evident that arrest is not mandatory; that the notice issued under Section 41-A is to ensure that the persons upon whom notice is served, is required to attend for 'answering certain queries' relating to the case; that if an officer is satisfied that a person has committed a cognizable offence punishable with imprisonment for a term, which may be less than 7 years or which may extend to the said period, with or without fine, an arrest can follow only when there is a reason to believe or suspect that the said person has committed an offence, and there is a necessity for an arrest.

  Section 41 Cr.P.C. mandates the concerned officer to record his reasons in writing while making the arrest. Thus, a statutory duty is cast on the officer not only to record the reasons for arrest in writing, but also, if the officer chooses not to arrest - The Apex Court in its judgments in ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT] and SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT], has clearly interpreted Sections 41(1)(b)(i) and (ii) Cr.P.C. It is evident from the said judgments that both the elements, "reason to believe" and "satisfaction for an arrest" as mandated in Section 41(1)(b)(i) and Section 41(1)(b) (ii) have to be read together and as such recorded by the concerned officer whilst arresting an accused. The object being to ensure that officers do not arrest the accused unnecessarily and the Magistrates do not authorise detention casually and mechanically.

  Thus, it is clearly evident from the mandate of Section 41 Cr.P.C., that for a cognizable offence, an arrest is not mandatory and the onus lies with the officer who seeks to arrest. For effecting arrest, the officer must be satisfied that a person has committed a cognizable offence, punishable with imprisonment for a term which may be less than seven years or which may extend to the said period with or without fine, and that there is a necessity for an arrest - In the facts, it is evident that the officer, in the arrest memo, in the column, 'Grounds of arrest' has merely stated that 'The accused is an FIR named. She has been not cooperating and disclosing true and full facts of the Case.', which prima-facie appears to be contrary to the facts on record. Nothing specific has been noted/set-out therein, as mandated by Section 41(1)(b) (ii) (a) to (e). The only reason mentioned is that the petitioners have not co-operated and not given true and correct disclosure. The same cannot be a ground for arrest.

  Courts have time and again re-iterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.

  In the present case, the reasons recorded by the Officer in the ground of arrest, does not satisfy the tests laid down in Section 41(1)(b)(ii) (a) to (e) of Cr.P.C. It does not disclose as to whether the arrest was necessary for one or more purpose(s) as envisaged in the said provision - the petitioners' arrest is not in accordance with law. Thus, non-compliance of the mandate of Section 41(1)(b)(ii), Section 41-A and Section 60-A of Cr.P.C. will enure to the benefit of the petitioners, warranting their release on bail.

  The petitioners are entitled to be released on bail, pending the hearing and final disposal of the aforesaid petitions on the conditions imposed - petition allowed.

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• 2023 (1) TMI 1308 - SC ORDER
  

  CENVAT Credit - common inputs used of providing both taxable and exempted service - failure to maintain separate account as required under Rule 6(2) of the Cenvat Credit Rules - HELD THAT:- Application for exemption from filing certified copy of the impugned judgment is allowed.

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• 2023 (1) TMI 1307 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
  

  Classification of goods proposed to be imported - Optoma Creative Touch 3-series Interactive Flat Panel (IFP) - to be classified under sub-heading 84714190 or not - HELD THAT:- In order to merit classification under heading 8471, it is clear that subject goods need to satisfy the requirements of note 6(A) to chapter 84. Therefore, there is a need to examine whether the features and specifications of the subject goods under consideration meet the criteria as laid down in the relevant chapter note.

  From the product details submitted, it appears that these goods come configurable with off-the-shelf, end-user applications allowing the programming of the various functions in accordance with the needs of the user. As per the product details available on the website, these devices have pre-installed apps including Office Suite, which allows users to open and edit all Microsoft Office documents. Applications available include GoToMeeting, Firefox, Evernote, and many more. Therefore, the goods satisfy condition as per 6(A)(2). Creative Touch 3-Series Interactive Flat Panels, perform the arithmetical computations specified by the user which satisfy condition 6(A)(3) of the chapter notes.

  As the machines under consideration do not have a keyboard, they appear to be classifiable as other ADP machines under 2nd one-dash sub-heading. Sub-heading 847141 covers other ADP machines; comprising in the same housing at least a central processing unit and an input and output unit, whether or not combined. For the machines under consideration, the LED screen satisfies the requirement for output and the touchscreen satisfies the requirement for input apart from the CPU inbuilt into the device. Therefore, the subject goods appear to be classifiable under sub-heading 847141 and more specifically under sub-heading 84714190 as "Other automatic data processing machines: Comprising in the same housing at least a central processing unit and an input and output unit, whether or not combined: Other".

  Optoma Creative Touch 3-series Interactive Flat Panel (IFP) (Model - 3652RK, 3752RK, 3862RK) merit classification under Heading 8471 and more specifically under sub-heading 8471 41 90 of the first schedule to the Customs Tariff Act, 1975.

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• 2023 (1) TMI 1306 - SUPREME COURT
  

  Act of a person of unsound mind - doctrine of burden of proof - Rebuttal of presumption - mental illness caused by Schizophrenia - attacking the deceased - HELD THAT:- Before the Court of Sessions, an application Under Section 329 of Code of Criminal Procedure was filed on behalf of the Appellant. Even while considering the application for bail, the Court noticed the inability of the Appellant to understand the ongoing proceedings. Two doctors were examined as AWs 1 and 2, for the fact that he was indeed suffering from schizophrenia. AW2 was examined to show that he was taking the treatment earlier at GMC Hospital at Bhiwani. AW1 is the doctor who examined him after the occurrence on the orders of the trial court. She had deposed that he was indeed suffering from chronic schizophrenia - The fact that he was unable to understand the act committed, and his subsequent incarceration was taken note of. While issuing the first certificate, this Government doctor in clear terms had stated that the Appellant was not fit enough to stand the trial. However, she gave another certificate after treating him as an in-patient to the effect that he could stand trial thereafter.

  The Court of Sessions and the High Court rendered the conviction on merits. The plea of insanity was also taken. It was accordingly rejected on the ground that PW6, the brother of the grandfather of the Appellant, did not find any abnormality and that his mother has not been examined. Further, PW10 being the doctor who physically examined the Accused after the incident, stated that the Accused was mentally well.

  The mere fact that the Appellant subsequently became fit to face the trial is sufficient enough to render an order of acquittal as it is indicative of his prior insanity - both the Trial Court and the High Court were influenced by the nature of the act while ignoring the condition of the Appellant and the fact that the burden on the Accused is one of preponderance of probability.

  The order dated 25.07.2006 of the trial court of conviction and sentence of the Appellant punishable Under Section 302 of the Indian Penal Code and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside - The Appellant is acquitted of all the charges charged with. The bail bonds of the Accused shall stand discharged.

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• 2023 (1) TMI 1305 - KARNATAKA HIGH COURT
  

  Transfer of the capital asset - year of assessment - appellants [widow of deceased assessee] and her three children are joint owners of property entered into a JDA - transfer of capital asset u/s 2(47) - According to the Revenue, the liability to pay capital gains tax stems out of the JDA - HELD THAT:- As combined reading of Clauses 6.2, 14.1 to 14.3 and 21 makes it clear that the delivery of possession to the developer is only for the performance of development/construction. Therefore, the view taken by the A.O and the ITAT that transfer was effected in the A.Y.2009-10 and making the assessees liable for payment of capital gains tax is perverse and untenable. Appeal allowed.

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• 2023 (1) TMI 1304 - ITAT PUNE
  

  Income taxable in India - receipts on account of support and maintenance services to its customers in India - Fees for Technical Services (‘FTS’) under the Act and also India-Singapore DTAA - DRP has arrived at the conclusion of taxability of IT Support service charges as FTS by distinguishing the earlier years’ tribunal orders - HELD THAT:- As decided in own case[2022 (7) TMI 744 - ITAT PUNE] DRP in the earlier orders did not draw any such distinction and held the entire amount as chargeable to tax as royalty in the light of the decision in Samsung [2011 (10) TMI 195 - KARNATAKA HIGH COURT] When the matter came up before the Tribunal, the decision in Engineering Analysis [2021 (3) TMI 138 - SUPREME COURT] had been delivered by then, based on which the decision of the AO, treating the composite amount as royalty, was reversed.

  When neither the AO nor the DRP had treated the two streams of income as separate from each other, having different connotation in terms of the DTAA, there could have been no question of the Tribunal setting up a new case. Be that as it may, we have eloquently discussed the issue above and reached the conclusion that the income from IT Support services, even if viewed independent of software license income, is not chargeable to tax. Decided in favour of assessee.

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• 2023 (1) TMI 1303 - PUNJAB AND HARYANA HIGH COURT
  

  Reopening of assessment - notice in the name of the firm as it did not exist - Period of limitation - HELD THAT:- As the firm ceased to exist on 31.03.2006 and after the assessment of the year 2006-07, since there was no transfer of any surety in favour of any members, the proceedings u/s 149 have to be set aside on the ground that they are issued after a gap of six years.

  Further, the order imposing a penalty was set aside and the explanation given by the petitioner was accepted for the assessment year 2006-2007- Till date, no appeal has been filed against order dated 12.03.2013 and thus it attained finality. The department had thus accepted the dissolution of the firm. The department is now bound by the licence issued to the petitioner (P-3). It was Raja Ram HUF who became owner and HUF being separate identity had to file separate return. The word Management has been used in the partnership deed. After dissolution of the firm, there was no transfer of any asset to the partners of the firm.

  Present petition is allowed and notice issued are set aside.

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• 2023 (1) TMI 1302 - DELHI HIGH COURT
  

  Condonation of delay of 1471 days in filing the appeal - only explanation provided for the inordinate delay in approaching this Court is that after the implementation of the GST Regime, the Indirect Taxes Department has undergone a major reshuffling in terms of the Commissionerates and their respective jurisdiction - HELD THAT:- It is relevant to note that the GST Regime was rolled out with effect from 01.07.2017 and the impugned order dated 25.01.2018 was passed thereafter. The department was duly represented before the learned CESTAT. The proceedings had emanated from the order in original passed on 31.03.2010, which was carried in appeal by the respondent that was disposed of by an order dated 31.10.2012 passed by the Commissioner (Appeals) and there could be no ground for confusion as to the transfer of jurisdiction of the officer that has passed the order in original.

  Thus, it is difficult to accept that the appellant was handicapped in any manner in ascertaining the jurisdiction of the relevant Commissionerate. In any view of the matter, this Court is unable to accept that it would be apposite to condone the delay of more than four years on the aforesaid ground. The contention that confusion had persisted for such a long period cannot be countenanced.

  Application dismissed.

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