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Showing 161 to 180 of 1125 Records
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2020 (11) TMI 965
Grant of Bail - Illegal arrest and wrongful detained by the Station House Officer (SHO) at Alibaug Police Station in the district of Raigad in Maharashtra in relation to a First Information Report registered on 5 May 2018 Under Sections 306 and 34 of the Indian Penal Code, 1860 in spite of an earlier closure report which was accepted by the Magistrate - HELD THAT:- While considering an application for the grant of bail Under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:
(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the Accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the Accused at the trial or the likelihood of the Accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the Accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations.
Human liberty is a precious constitutional value, which is undoubtedly subject to Regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure "or prevent abuse of the process of any Court or otherwise to secure the ends of justice". Decisions of this Court require the High Courts, in exercising the jurisdiction entrusted to them Under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the Accused taking recourse to artifices and strategies - The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the Appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the Appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the Appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the Rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.
The remedy of bail is the "solemn expression of the humaneness of the justice system"14. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic Rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
This Court had directed the release of all the three Appellants on bail pending the disposal of the proceedings before the High Court. The following operative directions were issued on 11 November 2020:
The High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Nitesh Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of ₹ 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses - The concerned jail authorities and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith.
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2020 (11) TMI 964
Maintainability of review petition - HELD THAT:- Review Petition is rejected as it is always open to the petitioner to file a review petition before the National Company Law Appellate Tribunal, if it is otherwise permissible in law.
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2020 (11) TMI 963
Deduction u/s 10A - assessee's activity of human resources services are IT enabled services - As per revenue the assessee was only making available the data base of qualified IT personnel - HELD THAT:- The assessee admittedly is involved in providing human resource services and from the perusal of the order passed by the Assessing Officer, it is evident that if the nature of activity of the assessee is maintenance of computerized database with regard to various types of qualified Information Technology personnel available in India and the company provides the customers with information to potential candidates, which would meet the requirements on the customers.
Role of the company is to create an electronic database of qualified personnel and transmit data through electronic means to the client. The Commissioner of Income Tax (Appeals) has also found that the assessee is in the business of supply of manpower from India to its Foreign clients after their recruitment in India. Thus, irrespective of the fact whether or not the assessee provides training to its employees or to the employees who are recruited by its clients, since, the assessee is engaged in providing human resource services, its case is squarely covered by Notification dated 26.09.2000. Therefore, the assessee is entitled to the benefit of deduction under Section 10A - Decided in favour of the assessee
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2020 (11) TMI 962
Denial of exemption u/s 11 - audit report in Form no.10B of the Act was filed belatedly - HELD THAT:- In Circular no.10./2019, the CBDT has clarified that for the assessment year 2016–17 and 2017–18, in all cases where the audit report for the year under consideration has been obtained before filing of the return of income and has been furnished subsequent to filing of return of income, but before the date specified under section 139 such delayed filing should be condoned.
In the facts of the present case, the claim of the assessee that it has obtained the audit report prior to the date of filing of return of income and has filed audit report before the due date of return of income under section 139(1) has not been controverted by DR. Commissioner (Appeals) has also upheld the disallowance of exemption by simply stating that it is not a rectifiable mistake under section 154 of the Act. When the assessee has complied with the statutory provisions in terms of the CBDT Circular, the delay if any, in filing the audit report should have been condoned. We delete the disallowance made and allow assessee’s claim of exemption under section 11 - Grounds raised by the assessee are allowed.
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2020 (11) TMI 961
Applicability of Interim relief in other cases - HELD THAT:- The view expressed in the impugned judgment is kept in abeyance and it cannot be followed in other cases till the issue is finally answered/decided by this Court.
List this matter after two weeks.
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2020 (11) TMI 960
Application for Replacement of Resolution Professional - HELD THAT:- Mr. Nikhil, Learned Counsel for the Ex-Directors mentions and confirms that the Resolution Professional is not following the procedure of law and in the appeal filed by the Ex-Management which is pending before the Hon'ble National Company Law Appellate Tribunal, the issue of behaviour of Resolution Professional is also being agitated. The minutes though not in the form of Resolution but records at various places about the disapproval of RP's behaviour & actions by the CoC and dire-need to replace RP is placed on record. The e-mail sent by the majority CoC Member i.e. Power Department, Government of Sikkim has already intimated about this removal and lack of authority to RP. Considering the documents placed and submissions made before us, we allow the application, thereby Mr. Diwan Chand Arya present Resolutiion Professional is be and hereby replaced by Mr. Debrath Rana. Consent Form 'AA' is also annexed with the application.
List on 16-12-2020.
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2020 (11) TMI 959
Non granting registration u/s 12AA - CIT-A denied the registration primarily on the ground that the object of the trust prima-facie appears to be religious in nature and there was no dissolution clause in the instrument creating the trust - HELD THAT:- The reasoning of the ld. Commissioner of Income Tax (Exemptions) that in the absence of dissolution clause the appellant trust does not entitle for registration u/s 12AA of the Act is also required to be adjudged in view of the decision in the cases of (i) DCIT vs. Vanchhara Thirthadhipati Chintamani Paraswaprwabhu [2015 (5) TMI 5 - GUJARAT HIGH COURT] AND TAPAGACHHA SANGH MOTA [2015 (5) TMI 87 - GUJARAT HIGH COURT]
Provisions of section 13(1)(b) of the Act had carved out exception to the exemption available u/s 11 and 12 of the Act. One of those exception is that the exemption u/s 11 and 12 would not be available in case any income of trust or institution is created or established for the benefit of any particular religious, community or caste.
Hon’ble Supreme Court in the case of CIT vs. Dawoodi Bohra Jamat [2014 (3) TMI 652 - SUPREME COURT] after exhaustively referring to the earlier precedent, held that where the objects of a trust are both charitable and religious, the trust shall be eligible for registration u/s 12AA.
The section only requires to be established that such charitable purpose is not for the benefit of a particular religious community or caste. That is to say, it needs to be examined whether such religious-charitable activity carried on by the trust only benefits a certain particular religious community or class or serves across the communities and for society at large. In the present case, ld. Commissioner of Income Tax (Exemptions) had obviously not embarked upon enquiry into this aspect. Appeal of the assessee stands allowed for statistical purposes.
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2020 (11) TMI 958
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in the business of development and technical maintenance work in certain intellectual property and knowhow related to certain products and systems thus companies functionally dissimilar with that of assessee need to be deselected .
Secondary and higher education cess is deductible as business expenditure under section 37 (1) -Additional ground raised by assessee - HELD THAT:- Nothing is discernible from the record to establish that assessee has raised the claim by way of revised return before Ld.AO. However we are of considered opinion that this is an allowable expenditure and has of assessee’s. Accordingly we remand this issue back to Ld.AO to consider the claim of assessee in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee. Accordingly this ground raised by assessee stands allowed for statistical purposes.
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2020 (11) TMI 957
Seeking payment of his fee by IRP and staying of his replacement - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the instant case, the sole Financial Creditor (Indian Bank) has voted to replace the Resolution Professional under Section 22 of the ‘I&B Code’ which means the replacement is sought with 100% voting shares while the requisite vote is 66%. It is well settled that the commercial wisdom of the Committee of Creditors which covers matters including the replacement of the Resolution Professional does not fall within the limited scope of judicial review and is not justiciable.
Fees of IRP - HELD THAT:- The Adjudicating Authority has rightly observed that under Regulation 33(3) of the IBBI, fee has been fixed by the Committee of Creditors at ₹ 50,000/- which does not brook interference - In view of the same, we are not inclined to interfere with the impugned order which does not suffer from any legal infirmity.
Appeal dismissed.
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2020 (11) TMI 956
Classification of services - Online Information and Database Retrieval Services - Type-3 test administrative solution offered by the Respondent Company to its clients in India - minimum human intervention - levy of integrated tax on the supply of said services to non-taxable online recipients in India - lower Authority had held that the Type-3 test does not qualify for classification as OIDAR service - HELD THAT:- There is no dispute on the fact that there is an element of human intervention involved in the process of scoring the essay responses in the Type-3 test. What needs to be decided is whether the extent of human intervention is ‘minimum’ or not. Since there are no guidelines in Indian laws regarding the concept of minimum human intervention in electronically provided services, we refer to the European Commission VAT Committee Working Paper No 896 wherein the notion of ‘minimal human intervention’ was discussed in the context of determining whether or not a service can be said to fall within the definition of electronically supplied services. The European VAT Committee had agreed that for the assessment of the notion of ‘minimal human intervention’, it is the involvement on the side of the supplier which is relevant and not that on the side of the customer.
We have already detailed the entire process involved in conducting the Type-3 test and it is seen that scoring by a human scorer is just one of the processes involved in a computer-based test. One of the major benefits of a computer based test is the facility of obtaining immediate grading. While grading of multiple-choice questions is done instantaneously using an algorithm, grading of essays involves the use of AES (Automated Essay Scoring) which is a specialized computer program to assign grades to essays. The Respondent has an entity in the United States which has developed an AES for reliable scoring of essay responses in a computer-based test. How does one know that the automatic scoring system works well enough to give scores consistent with consensus scores from human scorers? Any method of assessment must be judged on validity, fairness and reliability. An AES would be considered valid if it measures the trait that it purports to measure and it would be considered reliable if its outcome is repeatable. Before computers entered the picture, essays were typically given scores by two trained human raters. If the scores differed by more than one point, a more experienced third rater would settle the disagreement. In this system, reliability was measured by the degree of agreement among the human raters. The same principle applies to measuring a computer program’s performance in scoring essays.
The focus here is on a computer-based test where the intent is to also assess the performance of the candidate using an automated system. The reliability of the AES is validated by the near agreement to the score given by the human scorer. For this reason, we hold that the involvement of the human element in the assessment of essay responses is well within the realm of ‘minimum human intervention’. Further, even from the perspective of the candidate, the human involvement is minimum in the entire process of the Type-3 computer-based test starting from the manner of registering for the test, the actual test-process and the outcome of the test, as all stages are automated.
The Respondent accepts the electronic request for a rescore of the essay and returns the result to the candidate electronically. The candidate who is the service receiver has received a fully digitally provided service. When the Type-3 computer-based test is viewed as a whole, the scoring done by the human scorer is to be regarded as being within the realm of minimum human intervention. As such the ingredient of ‘minimum human intervention’ required to classify the service as OIDAR is also satisfied.
The decision of the lower Authority that the Type-3 test is not an OIDAR service, cannot be accepted - service provided for the Type-3 test is classifiable as an OIDAR service.
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2020 (11) TMI 955
Profiteering - Respondent had not passed on the benefit of rate reduction to the Applicant as well as other Customers as per the provisions of Section 171 (1) of the CGST Act, 2017 - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of rate reduction to the above Applicant as well as other Customers for the period from 15.11.2017 to 31.10.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act - Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.10.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 08.05.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (11) TMI 954
Profiteering - Respondent had not passed on the benefit of rate reduction to the Applicant as well as other Customers as per the provisions of Section 171 (1) of the CGST Act, 2017 - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of rate reduction to the above Applicant as well as other Customers for the period from 15.11.2017 to 31.10.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act - Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.10.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 08.05.2019 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (11) TMI 953
Assessment u/s 153A - principles of natural justice has been violated by the respondent, while passing the impugned assessment orders - as per assessee no fair hearing was given to him by the Assessing Officer - whether the respondent has afforded a fair hearing to the petitioner in the assessment proceedings and whether the objections raised by the petitioner were considered by the respondent? - HELD THAT:- As seen from the impugned assessment orders, adequate opportunity of hearing was provided to the petitioner by the respondent and only thereafter, the impugned assessment orders for the seven assessment years have been passed. As seen from the impugned assessment orders, each and every objection raised by the petitioner has been considered by the respondent.
As seen from the impugned assessment orders, each and every objection raised by the petitioner in his written representation has been considered by the respondent, who has rejected the same by giving reasons. Whether the reasons for rejection given by the respondent is correct or not cannot be held to be violations of principles of natural justice. If the petitioner is aggrieved, his only remedy is to file the statutory appeal. The respondent has adhered to the principles of natural justice by providing a fair hearing and by giving the petitioner sufficient opportunity to raise all the contentions and the respondent has also given reasons for rejecting the objections raised by the petitioner under the impugned assessment orders.
New plea raised by the petitioner before this Court that the assessment orders have been passed without authority under Law, since the operation conducted at the premises of the asseesee on 10.08.2017, according to him, is only a survey under Section 133A of the Income Tax Act and not a search under Section 132(4) - Said plea taken before this Court is absolutely baseless. Nowhere in the written representation submitted by the petitioner on 08.11.2019 before the respondent, the said plea was taken. In all the representations made during the course of impugned assessment proceedings, the petitioner has admitted that the operation conducted by the respondent on 10.08.2017 is only a search proceeding under Section 132(4) of the Income Tax Act.
Contention of the petitioner that all the statements recorded by the respondent from his father are in typed format and have been prepared by the respondent to their whims and fancies - It cannot be a ground for filing these Writ Petitions, as the said objections were not raised by the petitioner during the course of the assessment proceedings. Even if such a plea is taken, this Court under Article 226 of Constitution of India, cannot decide the said plea and it is only the statutory appellate authority concerned to decide the same based on the material and evidence available on record. The appellate authority is also a fact finding authority and therefore, the petitioner can get redressal from the statutory appellate authority and this Court under Article 226 of Constitution of India, is not the correct forum.
If the statements of copies were provided to the petitioner's father before his demise, he could have retracted his statements is concerned, the said contention will have to be necessarily rejected, in view of the fact that under Section 132(A) a request will have to be made by the person from whose custody any books of account or other documents were seized. In the case on hand, as seen from the documents filed along with the typed set of papers, this Court does not find any such request made by the petitioner's father during his life time seeking for copies of sworn statements given by him at the time of search under Section 132(A) of the Income Tax Act.
Evidentiary value of loose sheets - Loose sheets picked up during search under Section 132 of the Income Tax Act, falls within the definition of “document”, mentioned in Section 132(4) of the Income Tax Act and therefore, it has got evidentiary value. Therefore, the contention raised by the learned Counsel for the petitioner that loose sheets seized during the search under Section 132 of the Income Tax Act does not have any evidentiary value, is rejected by this Court.
Impugned assessment orders for the year 2018-19 passed without any authority under law - As seen from Section 153(A)(1)(b) of the Income Tax Act, it is clear that the Assessing Officer shall pass order of assessment for six assessment years, immediately preceding the assessment years relevant to the previous year, in which search is conducted and of the relevant assessment year.
In the case on hand, the search was conducted on 10.08.2017 and the relevant six assessment years immediately preceding the assessment year relevant to the previous year, in which search was conducted, are 2012-13, 2013-14, 2014-15, 2015-16, 2016-17, 2017-18 and relevant assessment year for the date of the search is 2018-19. Therefore, the contention of the learned Counsel for the petitioner that the assessment orders have been passed by the respondent for the year 2018-19 without authority under Law under Section 153A of the Income Tax Act, is rejected by this Court.
For the foregoing reasons, there is no merit in these Writ Petitions, as principles of natural justice has not been violated by respondent, while passing the impugned assessment orders and the consequential demand notices. Therefore, the only remedy available to the petitioner is to file the statutory appeal under Section 264A of the Income Tax Act, which he has failed to exercise till date. The decision relied upon by the learned Standing Counsel for the respondent in the case of Commissioner of Income Tax and others vs Chhabil Das Agarwal [2013 (8) TMI 458 - SUPREME COURT], while dealing with the alternate statutory remedy, is squarely applicable for the facts of the instant case. Writ Petitions are dismissed.
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2020 (11) TMI 952
Levy and quantification of penalty and compounding fee - Addition of expenditure incurred as fee for minor deviation from the initially sanctioned plan and to bring the actually constructed structure in conformity with the modified plan as per building bye laws of the assessee on the ground that such payment amounted to penalty not falling under Section 37(1) - HELD THAT:- Admittedly, the first substantial question of law has been answered against the assessee by a Bench of this Court vide order [2013 (10) TMI 1545 - KARNATAKA HIGH COURT] It is also not in dispute that against the aforesaid order, an appeal has been filed which is pending before the Supreme Court. Therefore, in the facts and circumstances of the case, we deem it appropriate to direct the Assessing Officer to give effect to his order with regard to the issue involved in the first substantial question of law
Disallowance u/s 14A invoking the provisions of Rule 8D(2)(iii) - HELD THAT:- We we find from the order passed by the Tribunal that the submissions made by the Assessing Officer, particularly in the light of the decision of this Court in the case of CANARA BANK [2014 (1) TMI 1586 - KARNATAKA HIGH COURT] and the decision of the Supreme Court in GODREJ & BOYCE MANUFACTURING CO. LTD. [2017 (5) TMI 403 - SUPREME COURT] have not been considered by the Tribunal. The order passed by the Tribunal as well as the Commissioner of Income Tax (Appeals) insofar as it pertains to the issue involved in the second substantial question of law, is hereby set aside and the matter is remitted to the Assessing Officer to decide the issue involved in the second substantial question of law in the light of the decision above.
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2020 (11) TMI 951
Nature of expenditure - Revenue expenditure u/s 37(1) or capital expenditure - royalty payment for user of technical know-how and intellectual property rights along with the right to manufacture for a temporary period - HELD THAT:- Distinction between capital and revenue expenditure with reference to acquisition of technical information and know-how has been spelled out in various cases and the primary test to ascertain whether a expenditure is a capital expenditure or revenue expenditure is the same viz., enduring nature test, which means where the expenditure is incurred which gives enduring benefit, it will be treated as capital expenditure.See HONDA SIEL CARS INDIA LTD. [2017 (6) TMI 524 - SUPREME COURT].
In the present case from perusal of the relevant clauses of the agreement, it is clear that the assessee is a joint venture company and under the agreement has been granted non transferable licence to manufacture / assemble the Hitachi licence products within the territory using technical know-how furnished by Hitachi and to sell otherwise dispose of the Hitachi licence products. The products shall be sold only under the trade / brand name of Tata Hitachi - even expiry of the 11 years from the date of commercial production, the assessee is entitled to continue the manufacture and sale of Hitachi licence products for the aforesaid term of the agreement.
Under the agreement, the assessee has incurred an expenditure which gives him enduring benefit, therefore, the same has to be treated as capital expenditure. AO as well as the tribunal rightly held that payment of royalty made by the assessee is a capital expenditure and is not a permissible deduction under Section 37(1) - Decided against the assessee.
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2020 (11) TMI 950
Rectification u/s 254 - Addition u/s 68 - non-consideration of certain facts in Order of the Tribunal - HELD THAT:- Rectification of the earlier order dated 16.3.2016 passed by the Tribunal falls within the four corners of Section 254 and when once the learned Tribunal, particularly, the same Member of the Tribunal admitted that the record or Paper Book before the Tribunal already contained relevant material which was lost sight of and ignored by the learned Tribunal, there was a justifiable cause for recall and rectification of the earlier order and considering the materials which was already on record of the learned Tribunal and the learned Tribunal, therefore, rectified the order and granted the requisite relief by deleting the additions under Section 68 of the Act with respect to the said two Dealers.
Contention of Revenue that the said material was never before the original Assessing Authority or before the first Appellate Authority and therefore, the Tribunal has erred in taking the same into account, is rather misconceived.
Powers of assessment vested with all the three Authorities including the Appellate Authorities are co-extensive in law and there is no prohibition in law in producing the relevant materials before the permission of the second Appellate Authority viz., the Tribunal. There is no dispute or question raised about the manner in which the said documents were placed before the learned Tribunal. It is only the question whether the learned Tribunal failed to take note of the said relevant evidence while passing the original Appellate Order.
Since Tribunal found that the said material was already on the record of the learned Tribunal, when it passed the order on 16.3.2016, we cannot doubt that the material was produced before the learned Tribunal in a doubtful manner. No such objection was raised by the Revenue before the learned Tribunal itself. Therefore, the question of material being on record of the learned Tribunal is beyond the pale of doubt and the finding of the learned Tribunal binds us.
Additions under Section 68 - Tribunal, after considering the materials which were already on the record of the Tribunal, like TIN Number, PAN Number, Invoices, etc., of these two Trade Creditors/Sellers and it has granted the requisite relief to the Assessee, we do not find any question of law to be arising on this issue - with regard to the scope of Section 254 we find that ignoring the material already on record on the part of the learned Tribunal was a mistake apparent on the face of record u/s 254 and Tribunal has, in our opinion, rightly recalled its order and rectified the mistake and it has rightly set aside the additions under Section 68 of the Act and they are only findings of facts based on relevant material. - Decided in favour of assessee.
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2020 (11) TMI 949
Reopening of assessment u/s 147 - assessee has not disclosed the fact regarding handing over of possession of the property to the developer pursuant to JVA - tribunal holding that disclosure of JVA and advance receipt from JVA amounts to disclosure - whether handing over of possession which would amount to transfer under Section 2(47) liable for capital gains was not disclosed by the assessee? - HELD THAT:- From perusal of the reasons recorded by the Assessing Officer while re opening the assessment, it is evident that Assessing Officer has recorded a finding that due to non disclosure of transaction of joint development agreement entered into by the assessee with M/s Godrej Properties Ltd. on 22.01.2004, towards transfer of land, the income has escaped assessment.
AO has recorded reasons for arriving at the conclusion that income has escaped assessment. Once the Assessing Officer records the reasons that he has reason to believe that income has escaped assessment, it confers jurisdiction to re open the assessment. However, the tribunal in a cryptic and cavalier manner without adverting to the reasons assigned by the Assessing Officer held that AO has not mentioned therein anywhere that the assessee has failed to disclose truly and fully all material facts necessary for computing its income due to which the income has escaped tax.
Thus, from the perusal of the order passed by the tribunal, it is evident that the order passed by the tribunal suffers from the vice of non application of mind and the finding recorded by it referred to supra is perverse. Decided in favour of the revenue.
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2020 (11) TMI 948
Entitled to deduction u/s 10B - Tribunal held that the Appellant's Unit 1 was not entitled to deduction for the assessment year 2008-09, on the basis that the ten consecutive assessment years for the purposes of the said provision would begin from the assessment year 1997-98, when the Appellant commenced manufacture, and not from the assessment year 1999-00 when the Appellant actually started claiming the relief under Section 10B - HELD THAT:- Section 10B of the Act prior to amendment by Income Tax (second Amendment) Act, 1998 with effect from 01.04.1999 granted tax holiday for a period of five years falling within a period of eight years beginning with the Assessment Year in which the manufacture / production of article or things has begun. Once an assessee began manufacture, it could choose the year from which it would start claiming deduction and from that year, it would be entitled for deduction for five consecutive years within a period of eight years.
The assessee started manufacture in the Assessment Year 1997-98 but did not claim deduction under Section 10B of the Act, for that year as well as subsequent Assessment Year viz., 1998-99. For the first time, the claim for deduction under Section 10B of the Act was made for the Assessment Year 1999-2000. Ten year period would begin from the year in which assessee first claimed the deduction.
Substantial question of law framed by a bench of this court is answered in favor of the assessee and against the revenue in the result, the order of the tribunal insofar as it holds that unit No.1 of the assessee is not entitled to deduction under Section 10B of the Act is hereby quashed.
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2020 (11) TMI 947
Disallowance u/s.14A - Tribunal setting aside and remitting the issue to the file of the AO to reconsider in accordance with the guidelines laid down by the Bombay High Court in the case of M/s. Godrej & Boyce Manufacturing Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT] - HELD THAT:- Singular contention that the Tribunal while passing the impugned order has directed the Assessing Officer to decide the issue in view of the law laid down by the Bombay High Court in the case of ‘M/S. GODREJ & BOYCE MANUFACTURING CO. LTD.’, [2010 (8) TMI 77 - BOMBAY HIGH COURT] and there are several other judgments on the issue, which have been remitted for consideration before the Assessing Officer and the order of the Tribunal be modified and the Assessing Officer be directed to decide the issue remitted to him as per the extant position of law. The aforesaid submission has not been fairly opposed by learned counsel for the assessee.
It is not necessary for us to deal with the substantial questions of law framed by this Court. As agreed to by learned counsel for the parties, the order dated 18.07.2012 passed by the Tribunal is modified and the Assessing Officer is directed to decide the issue remitted to it in accordance with the extant legal position
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2020 (11) TMI 946
Entitlement for prior period expenses and expenditure on excise transport fees - not claimed in original return and assessing authority has not made any addition in this regard or otherwise - whether the Tribunal is right in law in not remitting back the matter back to assessing authority to consider the issue as same was not adjudicated earlier? - HELD THAT:- It is well settled in law that Tribunal is the final fact finding authority and this Court in exercise of powers under Section 260A of the Act can interfere with the findings of fact only when the same are shown to be perverse - See ‘SUDARSHAN SILKS & SAREES VS. CIT’ [2008 (4) TMI 5 - SUPREME COURT]
Rule 46A(3) of the Income Tax Rules, 1962 applies to the appellate authority namely Commissioner of Income Tax (Appeals) and not the Income Tax Appellate Tribunal. It is not in dispute that the assessee had produced the material which it had produced before the Tribunal, even before the Commissioner of Income Tax (Appeals). Commissioner of Income Tax (Appeals) failed to take note of the material produced by the assessee and did not call for the remand report. The Supreme Court, in NATIONAL THERMAL POWER [1996 (12) TMI 7 - SUPREME COURT] while dealing with the power of the Tribunal, held that Tribunal may pass such orders as it thinks fit after giving both the parties an opportunity of being heard and there is no reason to restrict the power of the Tribunal only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals).
Tribunal recorded the finding that the expenses were incurred during the relevant Assessment Year and therefore, the claim was allowable, by placing reliance on the decision of Supreme Court in 'KEDARNATH JUTE MFG. COMPANY LIMITED Vs. CIT' [1971 (8) TMI 10 - SUPREME COURT] The aforesaid finding is a finding of fact which is based on meticulous appreciation of evidence on record. The Tribunal, by placing reliance on the decision of the Supreme Court in BHARAT EARTH MOVERS, [2000 (8) TMI 4 - SUPREME COURT] has held that a business liability should arise in the accounting year and it should be capable of estimated with reasonable certainty and if these requirements are satisfied, the liability cannot be said to be contingent one - The only ground which has been taken is that the matter ought have been remitted by the Tribunal to the Assessing Officer. Since the Commissioner of Income Tax (Appeals) has dealt with the claims of the assessee on merits, therefore, the Tribunal has rightly dealt with the claims of the assessee on merits and there is no need of remand in the fact situation of the case. - Decided in favour of assessee.
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