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Showing 161 to 180 of 2844 Records
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2015 (10) TMI 2693 - ITAT DELHI
Jurisdiction u/s 153C - NO satisfaction note prepared by AO - Held that:- Recording of satisfaction by the AO even in respect of the searched person was not fulfilled. - Decided in favour of assessee.
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2015 (10) TMI 2692 - ITAT AHMEDABAD
TPA - selection of comparable - Held that:- Assessee is into marketing support services thus companies functionally comparable with that of assessee need to be deselected from final list of comparability.
Claim of deduction u/s 10B in respect of export incentives - Held that:- The provisions of sub-section(4) of section 10B of the Act mandate that deduction under that section shall be computed by apportioning the profits of the business of the undertaking in the ratio of export turnover by the total turnover. Thus, even though sub-section(l) of section 10B refers to profits and gains as are derived by a 100% EOU, the manner of determining such eligible profits has been statutorily defined in sub-section(4) of that section. Both sub-sections (1) and (4) are to be read together while computing the eligible deduction u/s 10B of the Act. We cannot ignore sub-section (4) of section 10B which provides specific formula for computing the profits derived by the undertaking from export. As per the formula so laid down, the entire profits of the business are to be determined which are further multiplied by the ratio of export turnover to the total turnover of the business. In case of Liberty India [2009 (8) TMI 63 - SUPREME COURT] the Hon. Supreme Court has dealt with the provisions of section 80IA of the Act wherein no formula was laid down for computing the profits derived by the undertaking which has specifically been provided under sub-section (4) of section 10B while computing the profits derived by the undertaking from the export.
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2015 (10) TMI 2691 - SC ORDER
Reward Scheme - evasion and theft of taxes by M/s Cairn Energy Private Limited - the decision in the case of Kishor Gordhnsing Raghuwanshi Versus Secy., Ministry of Peteoleum & Natural Gas [2014 (4) TMI 1196 - BOMBAY HIGH COURT] contested, where it was held that the claim of petitioner for reward being highly disputed, it cannot be allowed - Held that: - the decision in the above case upheld - SLP dismissed.
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2015 (10) TMI 2690 - GUJARAT HIGH COURT
Qualification for tenders - Mode of depositing payment of EMD - disqualification only on account of tendering of EMD through FDR - Held that:- The petitioners never intended to participate in the tender process without payment of EMD. Only the mode of depositing such amount was the cause of some confusion. As noted above, such confusion was possible on account of the inadvertent error on the part of respondent No.2 Municipality. Bona fides of the petitioners can be judged from the fact that they did deposit the entire amount; the mode alone being not to the satisfaction of the Municipality. We do not at all dispute the authority of the Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, the petitioners could not have sought qualification without fulfilling such requirement in the manner insisted by the Municipality. However, when we find that ample confusion was possible that too, due to the conditions prescribed by the Municipality and when we also find that the condition of depositing EMD was satisfied, though the mode of such deposit, due to peculiar facts, varied from that specified in the tender conditions, we do not find that the action of the Municipality disqualifying the petitioners was justified.
We have proceeded on the basis that the petitioners were disqualified only on account of tendering of EMD through FDR.
In the result, respondent No.2 Municipality shall consider the petitioners qualified for being considered in the tenders in question, of course, subject to fulfillment of all other requirements. Their financial bids would be opened and would be considered in competition with other qualified contractors.
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2015 (10) TMI 2689 - GUJARAT HIGH COURT
Scheme of Arrangement in the nature of Demerger - Held that:- Having heard the learned Advocate for the applicant and having perused the record, it appears to the Court that consent of parent holding company being the only shareholder of the applicant Company has been obtained. In view of the above, the meeting of the shareholders of the applicant company is ordered to be dispensed with. It is further ordered that this being the resulting company, meeting of the creditors is ordered not to be held.
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2015 (10) TMI 2688 - GUJARAT HIGH COURT
Scheme of Arrangement in the nature of demerger - Held that:- Upon hearing the learned Advocate and upon perusing the affidavit dated 26.09.2015 filed in support of the judges’ summons for direction, with other relevant annexures attached in support of the contents of the affidavit filed by the deponent and copy of the proposed scheme of arrangement, it is ordered that meeting each of the Equity Shareholders, Secured Creditors and Unsecured Creditors of the applicant Company shall be convened adhered to with provisions of notice, proxy, followed.
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2015 (10) TMI 2687 - SUPREME COURT
Constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 as also, that of the National Judicial Appointments Commission Act, 2014 - whether primacy of judiciary and absence of Executive interference in appointment of judges is part of such basic structure? - Held that:- Once the constitutional validity of Article 124A(1) is held to be unsustainable, the impugned constitutional amendment, as well as, the NJAC Act, would be rendered a nullity. The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived. The matter be listed for consideration of the surviving issue of grievances as to working of pre-existing system.
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2015 (10) TMI 2686 - CESTAT CHENNAI
Rectification of Mistake - Held that: - It is pertinent to state that Tribunal can rectify any mistake apparent on record in the said order. Appellant claiming to reconsider the citations and also to draw findings on their contention amounts to seeking revisit the facts and findings of the Tribunal’s order dated 20-11-2014 which amounts to review of the order and there is no power vested with Tribunal to review its order.
Hon’ble Supreme Court in the case of CCE v. RDC Concrete (India) Pvt. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA] clearly held that re-appreciation of evidence done by CESTAT cannot be considered as rectification of mistake and held that the ROM order is bad in law and quashed the order.
The Hon’ble Supreme Court decision in the case of CCE, Calcutta v. A.S.C.U. Ltd. [2002 (12) TMI 87 - SUPREME COURT OF INDIA], wherein the Apex Court held that any decision on debatable point of law cannot be treated as ‘mistake apparent from record’.
There are no apparent and manifest mistake in the Tribunal’s final order so as to exercise the powers to recall or modify the Final Order No. 40828/2014, dated 20-11-2014.
ROM application rejected.
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2015 (10) TMI 2685 - GUJARAT HIGH COURT
Scheme of Amalgamation - Held that:- The requirements of the provisions of sections 391 to 394 of the Companies Act, 1956 are satisfied. The Scheme is genuine and bonafide and in the interest of the shareholders and creditors. I, therefore, accordingly allow the Company Petitions and approve the Scheme. The Scheme is hereby sanctioned. Prayers made in the respective Company Petitions are hereby granted.
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2015 (10) TMI 2684 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI
Contravention of Sections 7 and 8 of FEMA, 1999 read with Regulations 3, 8, 9 and 13 of Foreign Exchange Management (Export of Goods and Services) Regulations, 2000 involving export value of US $ 8,67,275.20 - unrealised GRI forms the authorized dealer had not contacted the Enforcement Directorate - Held that:- Since a period of almost 15 years has passed since the transactions took place and the RBI permitted authorized dealer to allow write off in respect of the two disputed GRI forms also subject to obtaining no objection however the authorized dealer did not approach the Enforcement Directorate. In our estimation there must have been some degree of satisfaction that is why approval to the authorized dealer to grant write off subject to certain conditions was allowed, the situation remains that the write off in respect of the two transactions through two disputed GRI forms has not been finally allowed.
The contravention of Section 8 of FEMA, 1999 against the appellant company and the appellant G. Rama Raju, Managing Director r/w Section 42(1) of FEMA is made out. Since the amount of penalty imposed against the company as well as against the appellant G. Rama Raju, Managing Director has been imposed without assigning any reason for determination of the amount, therefore considering the long gap of the alleged contravention in our opinion the ends of justice will be met if the penalty of ₹ 40 lakhs imposed against the company M/s. Siris Ltd. is reduced to ₹ 30 lakhs while the penalty of ₹ 5 lakhs imposed against G. Rama Raju is reduced to ₹ 3 lakhs and the order of the Adjudicating Officer regarding imposition of penalty against appellant G. Subha Raju, Executive Director appellant is set aside.
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2015 (10) TMI 2683 - MADRAS HIGH COURT
Scheme of amalgamation - Held that:- As perused the scheme filed in the company petitions and find it beneficial to the working of the transferee company and is in the interests of the transferor company. There is no objectionable feature in the scheme of amalgamation detrimental either to the employees of the transferor company or to the transferee company. The said scheme is not violative of any statutory provisions. The scheme is fair, just, sound and is not against any public policy or pubic interest. No proceedings are pending under the Companies Act, 1956 or 2013. All the statutory provisions are complied with.
Consequently, there shall be an order approving the scheme of amalgamation of the transferor company M/s.Polaris Banyan Holding Private Limited, petitioner with the transferee company M/s.AAUM Holding (India) Private Limited, petitioner as provided in Annexure - 8 in these Company Petitions, with effect from 01.04.2014, as the procedure laid down under Sections 391 to 394 of the Companies Act are duly complied with. The petitions are allowed.
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2015 (10) TMI 2682 - ITAT CHANDIGARH
Addition on account of unexplained credit - treating the sum as unexplained money of the assessee partnership firm - non commencement of business - AY 2006-07 - Held that:- In the cases of 35 persons, loans have been returned after TDS and in some cases, Form 15H was filed where no tax have been deducted. Since no business activity has commenced in the year under consideration and the commercial production started on April 11, 2006 would clearly prove on record that the assessee was at pre-operative stage, i.e., for installing the plant for the purpose of manufacturing. Therefore, both the decisions in the cases of CIT v. Bharat Engineering and Construction Co. [1971 (9) TMI 14 - SUPREME Court] and Roshan Di Hatti v. CIT [1977 (3) TMI 3 - SUPREME Court] would squarely apply in favour of the assessee and would prove that the assessee has not earned any undisclosed income so as to make addition under section 68 of the Income-tax Act.
As regards the addition on account of 11 creditors it is clear that no addition on account of unexplained credit could be made against the assessee of the aforesaid sum because the assessee was in the process of installing the plant and has not commenced any business activities. Therefore, there is no need to discuss all the evidences in detail on record for the purpose of examining the creditworthiness of the creditors and genuineness of the transaction in the matter in the light of the case law relied upon by learned counsel for the assessee.
No justification to sustain the addition under section 68 of the Income-tax Act as is made by the Assessing Officer and confirmed by CIT(Appeals). We, accordingly, set aside the orders of the authorities below and delete the additions of ₹ 1,00,10,664 and ₹ 19,55,000. - Decided in favour of assessee.
For assessment year 2007-08 held that the issue is same as have been considered in preceding assessment year 2006-07, except that in the year under consideration, the assessee started commercial production of the unit and has therefore, started business activities on April 11, 2006. The assessee has taken loans from April, 2006 to October, 2006 as per the summary of the loan filed by learned counsel for the assessee and reproduced above. The same is supported by the complete details of loans received date-wise in the year under consideration. It is, therefore, clear that the assessee has raised the above loans during six months from the date of commencement of the production and business, i.e., from May, 2006 to October, 2006. In the case of CIT v. Bharat Engineering and Construction Co. [1971 (9) TMI 14 - SUPREME Court] the loans/cash credits were taken after commencement of the business in May, 1943 up to March 15, 1944, i.e., 11 months and additions have been deleted. - Decided in favour of assessee.
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2015 (10) TMI 2681 - GUJARAT HIGH COURT
Scheme of Amalgamation in the nature of merger - dispensation of meetings - Held that:- The meetings of Secured Creditors and Unsecured Creditors of the applicant company shall be convened and held at the Registered Office of the Company, on 10.12.2015 at 11.00 a.m. and 12:00 noon respectively for the purpose of considering, and if thought fit, approving, with or without modifications, the Compromise or Arrangement proposed to be made between the said Companies.
That at least 21 clear days before the day appointed for the meetings, an advertisement convening the same and stating that copies of the said arrangement and of the statement required to be furnished pursuant to Section 393 and forms of proxy can be obtained free of charge at the registered office of the company or at the office of their advocate, be inserted once in each dailies viz. Gujarati Daily ‘Sandesh’ and English Daily ‘Times of India”, both Baroda Editions.
That in addition, at least 21 clear days before the meetings to be held as aforesaid, a notice convening the said meetings at the place and time aforesaid, together with a copy of the said compromise or arrangement, a copy of the statement required to be sent under Section 393 and the prescribed form of proxy, shall be sent by prepaid letter post addressed to Secured Creditors and Unsecured Creditors at the registered or last known addresses.
Voting by proxy to be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the company at the above address not later than 48 hours before the meetings.
That the value of debt of each of the secured and unsecured creditors shall be in accordance with the books of the company and, where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meetings.
And it is further ordered that the Chairman reports to this Court result of the said meetings within 21 days of the conclusion of the meetings, and the said reports shall be verified by his affidavit.
The publication of the notice in the official gazette is ordered to be dispensed with. In view of the fact that the consent of all the equity shareholders are obtained and produced on record, the meeting of the equity shareholders is ordered to be dispensed with.
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2015 (10) TMI 2680 - GUJARAT HIGH COURT
Scheme of Amalgamation - appropriate orders for convening and holding meetings of Secured Creditors and Unsecured Creditors of the applicant company of approving the Scheme - Held that:- The meetings of Secured Creditors and Unsecured Creditors of the applicant company shall be convened and held at the Registered Office of the Company, on 10.12.2015 at 1.00 p.m. and 2:00 p.m. respectively for the purpose of considering, and if thought fit, approving, with or without modifications, the Compromise or Arrangement proposed to be made between the said Companies.
That at least 21 clear days before the day appointed for the meetings, an advertisement convening the same and stating that copies of the said arrangement and of the statement required to be furnished pursuant to Section 393 and forms of proxy can be obtained free of charge at the registered office of the company or at the office of their advocate, be inserted once in each dailies viz. Gujarati Daily ‘Sandesh’ and English Daily ‘Times of India”, both Baroda Editions.
That the quorum for the meetings of the Secured Creditors and Unsecured Creditors shall be 2 and 5 respectively.
That voting by proxy to be permitted, provided that a proxy in the prescribed form duly signed by the person entitled to attend and vote at the meetings, is filed with the company at the above address not later than 48 hours before the meetings.
That the value of debt of each of the secured and unsecured creditors shall be in accordance with the books of the company and, where the entries in the books are disputed, the Chairman shall determine the value for purposes of the meetings.
And it is further ordered that the Chairman reports to this Court result of the said meetings within 21 days of the conclusion of the meetings, and the said reports shall be verified by his affidavit.
In view of the fact that the consent of all the equity shareholders are obtained and produced on record, the meeting of the equity shareholders is ordered to be dispensed with.
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2015 (10) TMI 2679 - MADHYA PRADESH HIGH COURT
Proceeding and investigation initiated under Prevention of Money Laundering Act - is the offence under PMLA is cognizable offence or it is non-cognizable offence? - Held that:- The offence under PMLA is cognizable.
In the present case the offence is registered under PMLA. Under the provisions of PMLA, the investigating officers are not the police officers but since for investigation of offence Provisions of Criminal Procedure Code are held to be applicable, therefore, they are required to follow the same. Keeping in view the provisions of section 65 of PMLA and also the fact that there is no procedure prescribed in PMLA for investigation of the offence, it is of the opinion that the procedure which has been prescribed under the Criminal Procedure Code is required to be followed while investigating the offence under PMLA.
Whether the Court of Additional Sessions Judge is the Special Court within the meaning of section 43 of PMLA? - Held that:- Section 43 of PMLA empowers Central Government to designate one or more Courts of Sessions as Special Court or Special Courts for notified areas and places for trial of the offences punishable under section 4. The Central Government vide Notification dated 1-6-2006 issued under section 43(1) of the PMLA has designated the Courts of Sessions at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Courts for trial of offences punishable under section 4 of the Act. Exercising the power under section 43 of PMLA, Central Government vide Notification dated 1-6-2006 has designated the Sessions Court at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Court, therefore, the Additional Sessions Judge who in terms of section 9 of Criminal Procedure Code is covered within the meaning of Court of Session, is empowered to try the offences under section 4 of PMLA being the designated Court. The Central Government has not confined the designation of the Special Court to "Sessions Judge" only but it has notified Sessions Court as designated Court, therefore, the contention of the petitioner that the Additional Sessions Judge is not the designated Court, cannot be accepted.
Issue of grant of bail - Held that:- In the present case nothing has been pointed out to show that the respondents have acted in contravention of the aforesaid provision relating to arrest as contained in section 19 or the bail has been rejected in violation of section 45 of the Act. Hence, it cannot be held that the petitioner is in illegal custody. The Special Court, which has been found to be the competent Court, has already rejected the application for bail, hence no ground is made out for issuing the writ of Habeas Corpus. No case is made out for quashing the offence which has been registered against the petitioner under PMLA and so far as the issue of investigation is concerned, the parties are required to take appropriate steps in terms of Paragraphs 22 and 23 of the judgment.
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2015 (10) TMI 2678 - GUJARAT HIGH COURT
Composite Scheme of Arrangement in the nature of amalgamation - Held that:- The written consents from all its secured creditors as on date has been obtained and placed on record alongwith a certificate from the Chartered Accountant as Annexure:L. Hence, the present petition is moved for obtaining the sanction of this Court.
The petitioner being a listed public limited company, has placed on record all other requisite approvals from stock exchanges.
ADMIT. To be heard on 15.10.2015. Notice of hearing of petition, to be advertised in ‘The Times of India’, English daily, and ‘Sandesh’, Gujarati daily, Ahmedabad Editions. Publication in government gazette is dispensed with.
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2015 (10) TMI 2677 - ITAT JAIPUR
Denying deduction u/s 80P(2)(a)(i) - whether the assessee bank neither fulfills the condition of Primary Agricultural Credit Society or Primary Cooperative Agricultural & Rural Development Bank nor does it functions as a Primary Agricultural Credit Society or Primary Cooperative Agricultural & Rural Development Bank but engaged in the activity as defined in Explanation 2 to Sub-section (4) of Section 80P? - Held that:- The department itself has allowed deduction U/s 80P(2)(a)(i) of the Act in A.Y. 2007-08, which has not been reopened U/s 148 and no order U/s 263 was passed by the department. The ld Dr had not brought on record any evidence that in preceding year, the Assessing Officer’s order in A.Y. 2007-08 had not been accepted by the department. By respectfully following the decision of Hon’ble Gujarat High Court in the case of CIT Vs. Jafari Momin Vikas Cooperative Credit Society Ltd.(2014 (2) TMI 28 - GUJARAT HIGH COURT ) on identical issue, we hold that the assessee is a cooperative society not a cooperative bank and is entitled for deduction U/s 80P(2)(a)(i) of the Act. Assessee’s appeal is allowed
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2015 (10) TMI 2676 - ITAT JAIPUR
Allowing the depreciation when the income was computed by the A.O. by applying net profit rate of 25% - Held that:- AO had not allowed the separate deduction on account of depreciation separately. IN A.Y. 2009-10, the ld Assessing Officer allowed the depreciation separately from the estimated income U/s 43(3) of the Act. The case law relied upon by the assessee i.e. CIT Vs. Jain Construction (1999 (9) TMI 26 - RAJASTHAN High Court) is squarely applicable wherein it has been held that in case of rejection of books of account of the firm and income estimated, the depreciation is allowable separately by considering the CBDT circular No. 29D(XIX) of 1965 dated 31/8/1965 wherein it has been provided that net profit rate is subject to allowance of depreciation and the depreciation allowance should be deducted therefrom. Therefore, we uphold the order of the ld CIT(A).
Addition made U/s 40(a)(ia) and 40A(3) - Held that:- It is found that the various Hon'ble High Courts as well as ITAT has decided this issue against and in favour of the assessee. The Hon'ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd. (1973 (1) TMI 1 - SUPREME Court) has held that when two opinions has been formed by the Hon'ble High Court, the assessee's favourable opinion is to be applied. Therefore, we uphold the order of the ld CIT(A) as Assessing Officer had rejected the books of accounts and had applied net profit rate for purpose of computing income no disallowance could have been made u/s 40A(3). In view of the above judicial pronouncements, no disallowance could be made U/s 40(a)(ia) and 40A(3) of the Act when assessment is made computing income by application of NP rate
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2015 (10) TMI 2675 - ITAT DELHI
Adjustment for AMP expenses - AR has submitted that gross profit margin earned by the assessee being higher than gross profit margin by internal as well as external comparables, no adjustment for AMP expenses was required in the case of the assessee - whether we can compute the arms length price of the international transaction of AMP expenses in the given circumstances or we need to remit the matter back to the AO as submitted by the learned SR DR - Held that:- Authorised Representative has submitted that gross profits margin earned by the assessee being higher than gross profit margins earned by comparables companies, no adjustment is required for the purpose of computing arms length price of international transaction of AMP expenses. If the argument of the learned AR is accepted, it will lead us to a result where the AMP transaction will be rendered as non international transaction, as against the findings of the Hon’ble High Court in the case of Sony Erricsson (supra). The Hon’ble High Court has directed to find out AMP functions of comparables and compare the same with the AMP functions performed by the assessee and then after making adjustments if any compute the arms length price of the international transaction in bundled manner for distribution as well as AMP expenses and if not possible to compute in bundled manner, then only in separate manner. But in the case in hand the AMP functions performed by the external comparable are neither submitted by assessee before the AO/TPO nor examined by the TPO. The learned Authorised Representative has also failed to exhibit us the AMP functions carried out by the assessee and compare those functions with the AMP functions of the comparables and without that analysis the arms length price of the AMP functions cannot be determined at our level. We are also in agreement with the submission of the learned Senior Departmental Representative that the figures given in the tables by the learned Authorised Representative are not verifiable from the orders of the AO/TPO. In view of the above facts and circumstances, we are unable to determine the ALP of AMP expenses at our own either in the bundled or a separate approach.
We remit the matter back to the file of AO/TPO for determination of ALP on international transaction on AMP expenses, in accordance with the direction laid down by the Hon’ble High Court in the case of the assessee led by Sony Ericson Mobile Communication P Ltd (2015 (3) TMI 580 - DELHI HIGH COURT ). Needless to say that the assessee shall be afforded a reasonable opportunity of being heard.
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2015 (10) TMI 2674 - ITAT DELHI
Penalty u/s 271(1)(c) - disallowance of foreign traveling expenses - Held that:- Penalty u/s 271(1)(c) of the Act can be imposed only when the assessee has concealed income or furnished inaccurate particulars of income. Where a deduction is claimed after making a proper disclosure, the mere fact that the disallowance has been made for a part of such deduction, it cannot be construed as a case covered u/s 271(1)(c) of the Act. CIT Vs. Reliance Petroproducts Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT) has held that no penalty can be imposed where a proper disclosure is made but the disallowance has been made by the Assessing Officer. In considered opinion, the learned CIT(A) was justified in not upholding penalty on this amount of disallowance.
Disallowance u/s 14A r.w.r 8D - Held that:- There cannot be any disallowance u/s 14A if there is no exempt income. As confronted with a situation in which the assessee has not earned any exempt income but the disallowance has been made to the extent of ₹ 13.64 lakh by applying Rule 8D. Despite there being no challenge to or sustenance of the disallowance u/s 14A, it is of considered opinion that under no circumstance, such ill founded disallowance, not having any authority of law to stand on, can be considered for the purposes of imposition of penalty u/s 271(1)(c) of the Act. Therefore, approve the view taken by the learned CIT(A) on this score.
Disallowance of credit card expenses - Held that:- This disallowance was made by the Assessing Officer on ad-hoc basis which fact is borne out from the assessment order itself. There is hardly any need to highlight that no penalty can be imposed where the disallowance of expenses has been made on an ad-hoc basis. Therefore, hold that the learned CIT(A) was justified in deleting the penalty on this account as well.
Decided against revenue.
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