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Showing 21 to 40 of 1518 Records

• 2022 (12) TMI 1498 - ITAT RAIPUR
  

  Revision u/s 263 - sustainability of the disallowance of the assessee’s claim for deduction of “VAT” on sale of liquor - CIT holding a conviction that the “VAT” claimed by the assessee which was liable for disallowance u/s.40(a)(iib) was summarily allowed by the A.O, thus, vide his order passed u/s.263 had set-aside the order passed by the A.O u/s.143(3) - HELD THAT:- We find substance in the claim of the Ld. AR that the issue involved in the present appeal is squarely covered by the judgment of Kerala State Beverages Manufacturing & Marketing Corporation Ltd. [2022 (1) TMI 184 - SUPREME COURT]. As stated by the Ld. AR, and, rightly so, the Hon’ble Apex Court had approved the view taken by the Hon’ble High Court of Kerala that [2020 (5) TMI 176 - KERALA HIGH COURT] as “surcharge on sales tax” is a “tax”, and Section 40(a)(iib) does not contemplate “tax”, and surcharge on sales tax is not a “fee” or a “charge”, therefore, no disallowance under the said statutory provision was called for in the hands of the assessee.

  Considering the aforesaid judgment of the Hon’ble Apex Court[surpa], we are of the considered view that the same in fact supports the claim of the assessee that the provisions of Section 40(a)(iib) would not be applicable to the case of the assessee qua the “VAT” paid by the assessee company. We, thus, in terms of our aforesaid observations set18 aside the order passed by the Pr. CIT u/s.263 of the Act, dated 28.03.2021, and restore the order of the A.O passed u/s.143(3), to the extent he had allowed the assessee’s claim for deduction of “VAT”. Assessee appeal allowed.

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• 2022 (12) TMI 1497 - HIMACHAL PRADESH HIGH COURT
  

  Dishonour if Cheque - compounding of offences - Section 147 of Negotiable Instrument Act - HELD THAT:- Keeping in view the provisions of Section 147 of Negotiable Instruments Act coupled with inherent power of the High Court under Section 482 Cr.P.C., in the interest of justice, High Court is not precluded from compounding the case in absence of consent of complainant where complainant is duly compensated as Section 138 of the Negotiable Instrument Act does not provide that it is mandatory for the Court to sentence respondent-accused for imprisonment in all eventualities but there is option to the Court to impose sentence of imprisonment or fine or both.

  In present case, petitioner is 52% handicapped and has deposited in the Court 10% over and above the amount of compensation and therefore, taking into consideration these facts, it is opined that complainant has been compensated adequately and therefore, substantive sentence of imprisonment imposed upon him is not necessary.

  Trial Court is directed to release the amount of Rs.15,000/- deposited by the petitioner in the Trial Court alongwith interest, if any, accrued thereon, to the respondent-complainant Pushpa Devi by remitting the same in her Bank Account without issuing notice to petitioner-accused-Rajinder Kumar, on production of downloaded copy of this order along with details of Bank account.

  Petition disposed off.

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• 2022 (12) TMI 1496 - CALCUTTA HIGH COURT
  

  Interest u/s 50 of the WBGST Act, 2017 - interest levied on the ground that the petitioner has wrongly claimed ITC under the WBGST Act, 2017 and in the same communication it has been recorded that petitioner has made payment voluntarily in DRC 3 for the said amount as per provisions of Section 73(5) of the WBGST Act, 2017 - HELD THAT:- In the present case admittedly it has not been utilized and it has been reversed and as such petitioner is not liable to pay interest in view of the amended provisions of Section 50 sub-section (3) of the said Act substituted by Finance Act, 2022 with retrospective effect from 1st July, 2017.

  Considering the facts and circumstances of this case and legal position and submission of the parties and particularly taking into consideration the substituted provisions of Section 50(3) of the WBGST/CGST Act, 2017, the petitioner is not liable to pay interest as per impugned communication dated 2nd May, 2018 and as per the view taken by this Court, all legal consequences will follow.

  Petition disposed off.

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• 2022 (12) TMI 1495 - ITAT AHMEDABAD
  

  Disallowance u/s 14A - claim of interest - HELD THAT:- Both the parties submitted that this issue is squarely covered in assessee’s own case by Co-ordinate Bench of this Tribunal in [2020 (10) TMI 1021 - ITAT AHMEDABAD] wherein the Hon’ble ITAT remanded the matter back to the Assessing Officer for fresh adjudication to examine the facts and figures of the case in the light of our observations made above in order to arrive at a final conclusion as to whether disallowance u/s 14A is to be made and if so, then the amount thereof which in no case should exceed the exempted income earned by assessee during the year under appeal.

  Nature of expenses - Guarantee fees paid to Govt. of Gujarat related to capital work-in-progress which needs to be capitalized - assessee submitted that the certificate of utilization was already furnished before the Ld. CIT(A) stating that the loans on which guarantee fees was paid were utilized for construction of power plant and there was no capital work-in-progress in respect of such loans borrowed - HELD THAT:- As decided in own case in [2020 (10) TMI 1021 - ITAT AHMEDABAD] wherein CIT(A) directed to verify the certificate filed during the appellate proceedings that the loans on which guarantee fees was paid were utilized for construction of power plants at that time and there was no capital work-in-progress in respect of such loans during the Financial Year 2014-15. Both the assessee counsel as well as the Ld. D.R. could not place on record what is the giving effect order passed by the A.O. thereafter, pursuant to the direction of the Ld. CIT(A). Therefore this ground no. 2 is also set aside to the Assessing Officer for proper verification and adjudication.

  Disallowance u/s 14A r.w.r. 8D while determining the income under the provisions of MAT - HELD THAT:- As this case is already remanded back to the Assessing Officer for verification for the earlier two issues under consideration for the Assessment Year 2015-16, this issue is also remanded back to the Assessing Officer for verification of the same and allow the submission of the assessee, if the same is found to be is in order

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• 2022 (12) TMI 1494 - ITAT PUNE
  

  Revision u/s 263 - as per CIT AO erroneously allowed this taxpayer’s section 80P deduction claim representing interest derived from deposits made in cooperative banks - HELD THAT:- We find merit in assessee’s arguments in light of this tribunal’s recent order in Rena Sahakari Sakhar Karkhana Ltd. [2022 (1) TMI 419 - ITAT PUNE] though the co-operative banks pursuant to the insertion of sub-section (4) to Sec. 80P would no more be entitled for claim of deduction under Sec. 80P of the Act, but as a cooperative bank continues to be a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies, therefore, the interest income derived by a co-operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d)

  Thus as the A.O while framing the assessment had taken a possible view, and allowed the assessee’s claim for deduction under Sec. 80P(2)(d) on the interest income earned on its investments/deposits with co-operative banks, therefore, the Pr. CIT was in error in exercising his revisional jurisdiction u/s 263 of the Act for dislodging the same.

  Accordingly, finding no justification on the part of the Pr. CIT, who in exercise of his powers under Sec. 263 of the Act, had dislodged the view that was taken by the A.O as regards the eligibility of the assessee towards claim of deduction under Sec. 80P(2)(d), we set-aside his order and restore the order passed by the A.O under Sec. 143(3).

  Thus PCIT’s revision directions stand reversed. - Decided in favour of assessee.

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• 2022 (12) TMI 1493 - ITAT RAIPUR
  

  Validity of reassessment order passed u/ss.143(3)/147 on the basis of notice u/s.148 issued by non jurisdictional A.O - validity of the jurisdiction that was assumed by the A.O i.e. ITO, Ward-2(1), Bhilai for framing of the impugned assessment u/ss. 143(3)/147 - whether or not the assessment framed by the ITO, Ward-2(1), Bhilai vide order passed u/ss.143(3)/147 on the basis of notice issued u/s.148 by the ITO, Ward1(1), Raipur i.e. a non jurisdictional A.O is sustainable in the eyes of law?

  HELD THAT:- The assessment proceedings in the case of the assessee were initiated by the ITO, Ward-1(1), Raipur vide notice u/s.148 dated 23.03.2015. Subsequently, the ITO, Ward- 1(1), Raipur had transferred the case record of the assessee on 12.05.2015 to ITO, Ward-2(1), Bhilai. The ITO, Ward-2(1), Bhilai had, thereafter, on the basis of notice u/s.148 dated 23.03.2015 (supra) proceeded with and framed the assessment vide his order u/ss.143(3)/147 dated 25.03.2016. Ostensibly, the ITO, Ward-2(1), Bhilai, i.e., jurisdictional officer had not issued any notice u/s.148 of the Act but had acted upon that as was issued by the ITO, Ward1(1), Raipur i.e. a non-jurisdictional officer on 23.03.2015.

  It is not the case of the department that the jurisdiction over the case of the assessee was transferred from ITO, Ward-1(1), Raipur to ITO, Ward-2(1), Bhilai vide an order passed by the appropriate authority u/s.127 of the Act. Also, no material had been placed before me by the Ld. DR which would reveal that as the ITO, Ward-1(1), Raipur at the time of issuance of notice u/s.148 dated 23.03.2015 was duly vested with the jurisdiction over the case of the assessee, which, thereafter, had validly been transferred to the ITO, Ward-2(1), Bhilai, therefore, as per Section 129 of the Act the assessment framed by the latter on the basis of notice u/s.148 dated 23.03.2015 issued by the ITO, Ward-1(1), Raipur could not be faulted with.

  On the basis of the aforesaid facts, as stated by Mr. R.B Doshi, the Ld. AR, and, rightly so, the framing of the impugned assessment u/ss.143(3)/147 dated 25.03.2016 by the ITO, Ward-2(1), Bhilai on the basis of notice issued u/s. 148 dated 23.03.2015 by the ITO, Ward-1(1), Raipur i.e. an officer who at the relevant point of time was not vested with jurisdiction over the case of the assessee, was devoid and bereft of any force of law. Appeal of assessee allowed.

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• 2022 (12) TMI 1492 - ITAT RAIPUR
  

  Validity of Re-assessment order framed by non-jurisdictional officer - scope of instruction No.1/2011, dated 31.01.2011 as revising the earlier existing monetary limit for assigning the cases to ITOs/ACs/DCs w.e.f. 01.04.2011 - HELD THAT:- As per the CBDT Instruction No.1/2011, dated 31.01.2011 the jurisdiction over the case of the assessee who is located in a mofussil area i.e. Raipur and had in compliance to the notice u/s. 148, dated 18.06.2013 filed a non-corporate return on 05.07.2013 for the year under consideration, i.e., A.Y.2010-11 declaring an income of Rs. 9,47,500/- was vested with the ITO, Ward 1(3), Raipur [which w.e.f. 15.11.2014 was transferred to ITO-1(2), Raipur].

  Although notice u/s. 148, dated 18.06.2013 was issued within the stipulated time period, however, the same was issued by the DCIT-1(1), Raipur, i.e., an A.O who pursuant to the CBDT Instruction No.1 of 2011, dated 31.01.2011 was not vested with jurisdiction over the case of the assessee for the year under consideration. On the other hand as the ITO, Ward-1(3), Raipur [succeeded by ITO, Ward-1(2), Raipur w.e.f. 15.11.2014] who as per the aforesaid CBDT Instruction (supra) was at the relevant point of time vested with the exclusive pecuniary jurisdiction over the case of the assessee for the year under consideration had not issued any notice u/s. 148 of the Act, and had proceeded with on the basis of the notice u/s. 148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional Officer, therefore, no valid jurisdiction could have been assumed by him for framing the impugned assessment vide order passed u/s. 143(3)(sic), dated 31.03.2015.

  Thus the assessment framed in the case of the present assessee by the ITO-1(2), Raipur vide order u/s. 143(3)(sic) dated 31.03.2015 on the basis of notice u/s. 148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional A.O, is devoid and bereft of any force of law, therefore, the same cannot be sustained and is liable to be struck down on the said count itself. Decided in favour of assessee.

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• 2022 (12) TMI 1491 - ITAT CHENNAI
  

  TDS u/s 195 - Disallowance u/s 40(a)(i) - payment made to non residents - HELD THAT:- Disallowance made u/s 40(a)(i) of the Act, vide order [2015 (2) TMI 1400 - ITAT CHENNAI] the Tribunal has noted that neither the Assessing nor the ld. CIT(A) discussed the factual aspects of the issue and therefore, the issue has been remitted back to the file of the Assessing Officer to examine all the facts and decide the issue afresh in accordance with law. It appears according to the submissions made by both the parties that the AO has already passed the order for the assessment year 2009-10 and the appeal is pending before the ld. CIT(A).

  We are of the considered opinion that similar issue raised in the appeals for the assessment year 2014-15 and 2011-12 should also go back to the ld. CIT(A) to a decision on facts and also on law. In view of the above, we set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh in accordance with law.

  Disallowance u/s 14A - CIT(A) is directed to decide the issue afresh after obtaining remand report on the fresh evidences produced by the assessee during the course of appellate proceedings.

  Both the grounds raised by the assessee are also remitted back to the file of the ld. CIT(A) for fresh adjudication.

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• 2022 (12) TMI 1490 - SUPREME COURT
  

  Illegal gratification - Culpability/guilt of public servant - relevant evidences - proof of demand - Presumption of law - scope of expressions "may presume", "shall presume" and "presumptions of mixed law and fact" - Circumstantial Evidence - hostile witness - Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?

  HELD THAT:- The cases in which secondary evidence relating to documents may be given are stated in Section 65 of the Evidence Act read with Section 66, Section 67(2), Section 78. Proof of documents, whether public or private, including execution of such documents etc.

  Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression “shall be presumed” in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification.

  In STATE OF MADRAS VERSUS A. VAIDYANATHA IYER [1957 (9) TMI 63 - SUPREME COURT], it was observed that the presumption under Section 4(1) of the 1947 Act which is similar to Section 20 of the Act under consideration would arise where illegal gratification has been accepted, then the presumption introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The legislature has used the words “shall presume” and not “may presume” which means that the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise this presumption. Further, the presumptions of law constitute a branch of jurisprudence unlike a case of presumption of fact which is discretionary.

  The conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combat that effect. When a statute makes certain facts final and conclusive, evidence to disprove such facts is not to be allowed.

  Circumstantial Evidence - hostile witness - HELD THAT:- This Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

  Thus, there is no conflict in the three judge Bench decisions of this Court in B. JAYARAJ VERSUS STATE OF A.P. [2014 (3) TMI 1104 - SUPREME COURT] and P. SATYANARAYANA MURTHY VERSUS THE DIST. INSPECTOR OF POLICE AND ORS. [2015 (9) TMI 1666 - SUPREME COURT] with the three judge Bench decision in N. NARSINGA RAO VERSUS STATE OF ANDHRA PRADESH [2000 (12) TMI 892 - SUPREME COURT], with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.

  The question referred for consideration of this Constitution Bench is answered as:- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

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• 2022 (12) TMI 1489 - CESTAT MUMBAI
  

  Rejection of Refund claim - appellant acted as intermediary or not - providing sales promotion and other sales support services to its associated company, located outside India - entire output services provided by the appellant were exported to its associated company - HELD THAT:- It cannot be said that the appellant has acted as an intermediary in the dealings between the overseas entity and their customers in India. To qualify as an intermediary, service as per the statutory provision, the essential element for consideration is that the parties to the contract should act as principal-agent and that the agent shall be in a position to represent and bind the principal. On reading of the clauses in the agreement vis-à-vis the statutory provisions, it is abundantly clear that the services provided by the appellant to the overseas entity qualify as export in terms of Rule 6A of the Service Tax Rules, 1994 read with Rule 3 of the Place of Provision of Services Rules, 2012.

  By reading the contents of the said agreement dated 14.09.2009 entered into between the appellant herein and the self same overseas entity, this Tribunal in the case of the appellant itself, M/S CHEVRON PHILLIPS CHEMICALS INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, MUMBAI EAST [2019 (12) TMI 1066 - CESTAT MUMBAI] has held that the appellant cannot be termed as an intermediary.

  There are no merits in the impugned order passed by the adjudicating authority in confirming the adjudged demands on the appellant - appeal allowed.

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• 2022 (12) TMI 1488 - DELHI HIGH COURT
  

  Territorial Jurisdiction - transfer of the case - respondent has stated that because no cause of action or incident was related to any place in Delhi, therefore, the case was transferred to UP Police for further investigation where the jurisdiction lies - HELD THAT:- A reading of section 156 (3) shows that the Magistrate enjoys all the power to order the investigation and ensure that the same is conducted in a fair manner and may also direct the police to perform its duties.

  In the present case, the metropolitan magistrate while exercising his powers under section 156(3) directed investigation into the complaint. It was open to the respondent to raise objections with regard to territorial jurisdiction at the time when directions were issued by the learned MM directing investigation. Once the order has been passed by the magistrate directing investigation, it is not open to the police to raise objection regarding territorial jurisdiction. In fact, in the present case, the Addl. Commissioner of Police has transferred investigation from Delhi to Greater Noida, U.P. This is tantamount to reviewing the order of MM which only a superior court has the authority to do.

  A bare perusal of the complaint clearly shows that the complainant is a resident of Model town, Delhi. He carried Rs. 50,00,000 in cash and his chequebook to Noida from Delhi. Subsequently, the complainant reached Greater Noida wherein the said cash and cheques were forcibly taken away from him. The petitioner has made a complaint dated 05.12.2018 to PS Model Town and also on 01.01.2019 to ACP, DCP and Commissioner of Police. Hence, a part of cause of action has arisen in Delhi. The court of the learned MM, Delhi will have jurisdiction to take cognizance of the offence and direct investigation to PS Model Town. When the learned MM directed the registration of FIR, no such objection was taken by the respondent.

  The order of Addl. Commissioner of Police (Crime) of transferring the investigation from PS Model Town, Delhi to PS Surajpur, Noida is bad in law and is liable to be set aside.

  Petition allowed.

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• 2022 (12) TMI 1487 - ITAT DELHI
  

  Accrual of income in India - Alleged Permanent Establishment ('PE’) in India of the Appellant under the Article 5(1) and 5(2)(i) of the India - UAE Tax Treaty (‘Tax Treaty’) - HELD THAT:-. We have carefully considered the orders of the authorities below. We find force in the contention of the Counsel the coordinate Bench in A.Y. 2014-15 [2021 (3) TMI 1440 - ITAT DELHI] has followed the findings of the Tribunal given in earlier assessment years while dismissing the ground find that the assessee has met the twin criterion of existence of a fixed place of business and carrying out of business from such fixed place of business as enunciated of the judgment of Hon'ble Supreme Court in the case of Morgan Stanley & Co. [2007 (7) TMI 201 - SUPREME COURT] - The claim of the assessee that they did not have a place at their disposal cannot be accepted in view of the judgment of Hon'ble Supreme Court in the case of Formula One World Championships Ltd. [2017 (4) TMI 1109 - SUPREME COURT], in the case of Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME COURT] and also E-funds IT Solutions [2017 (10) TMI 1011 - SUPREME COURT] - The facts on record undisputedly prove that the premises AHL are at the disposal of the assessee for conduct of their business. While coming to the issue of "at the disposal" in the premises is available for the assessee for running of their business even for a limited time it constitutes a PE - Decided against the assessee.

  Attribution of profits to alleged PE of the Appellant in India inspite of entity level operating losses - alternative taxation of India source income as ‘Royalty’ under Section 9(l)(vi) of the Income Tax Act, 1961 (‘the Act’) and Article 12 of the Tax Treaty - We find that the identical issue raised in the present appeal, has already been adjudicated in [2021 (7) TMI 1440 - ITAT DELHI] to hold that the revenue's earned by the assessee are taxable under Article 12 of the DTAA. Regarding the determination of the profit, taken up at ground No. 4 by the assessee, we hereby hold that the taxable profits may be computed in accordance with the provisions of Section 44DA of Indian Income Tax Act and Article 12 of Indo-UAE, DTAA.

  During the arguments, it was also submitted that the assessee has incurred losses in the assessment year 2008-09. The assessee be given an opportunity of submitting the working of apportionment of revenue, losses etc. on financial year basis with respect to the work done in entirety by furnishing the global profits earned by the assesse, so that the profits attributable to the work done by the PE can be determined judiciously. The same may be considered while determining the taxable profits in India in accordance with the provisions of Section 90(2).

  Thus the issue of attribution of profit to the Permanent Established (PE) is accordingly restored to the file of Assessing officer for deciding in the light of the direction of the Tribunal in AY 2013-14, as reproduced above. Appeal of the assessee is allowed partly for statistical purposes.

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• 2022 (12) TMI 1486 - DELHI HIGH COURT
  

  Rejection of bid with respect to a Request for Proposal (RFP) issued by the Respondent for Development of a Six-Lane Access Controlled Highway - whether the decision taken by the Respondent while rejecting the bid of the Petitioner on the ground that the Net Worth of the Petitioner is less than Rs.42.98 crores is correct or not? - whether it warrants interference by this Court while exercising its jurisdiction under Article 226 of the Constitution of India?

  HELD THAT:- The law regarding interference with the decision taken by the tendering authority has been well settled by the Apex Court. In AFCONS INFRASTRUCTURE LTD. VERSUS NAGPUR METRO RAIL CORPORATION LTD. & ANR. [2016 (9) TMI 1292 - SUPREME COURT], the Supreme Court has observed that constitutional courts must defer to the understanding and appreciation of the author of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions.

  In THE SILPPI CONSTRUCTIONS CONTRACTORS VERSUS UNION OF INDIA (UOI) AND ORS [2019 (6) TMI 1715 - SUPREME COURT], the Supreme Court, while discussing the aspect of judicial intervention in matters of contract involving state instrumentalities had held that the authority which floats the contract or tender, and has authored the tender documents is the best judge regarding interpretation of the same. Any interference by the Court has to be for the purposes of preventing arbitrariness, irrationality, bias, mala fides or perversity.

  A perusal of the reasoning contained in the Final Evaluation Report indicates proper application of mind by the Financial Consultant. It cannot be said that the opinion of the Financial Consultant is so arbitrary that it would warrant interference by this Court under Article 226 of the Constitution of India. The contention of the learned Counsel for the Appellant, that restricting the reserves only to reserves arising out of revenue profit will have a disastrous effect on the Appellant company inasmuch as it cannot apply for the tenders floated by the NHAI and that this will go against the spirit of the orders passed by the NCLT reviving the company, cannot be accepted - In the present tender, the Respondent has fixed a minimum net worth (financial capacity) of Rs.42.98 Crores. It is always open for the Appellant herein to apply for projects floated by the NHAI in which the minimum net worth prescribed is less than Rs.42.98 Crores.

  The present case deals with a very important infrastructure activity under the Bharatmala Pariyojana which is a prestigious project of the Government of India. The financial capacity of the bidder is an important factor which has to be kept in mind by the tendering authority in order to decide as to whom the tender should be awarded, and therefore, the decision of the tendering authority to restrict the reserves only to reserves arising out of revenue profits cannot be found fault with and the same cannot be held to be so arbitrary and unreasonable that this Court should exercise its jurisdiction under Article 226 of the Constitution of India and interfere in the award of tender.

  This Court does not find any merit in the petition - Petition dismissed.

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• 2022 (12) TMI 1485 - ITAT AHMEDABAD
  

  Income taxable in India - Investment made in Mutual Fund as assessable to tax in India - HELD THAT:- It is clear the source of the fund is from outside India and not taxable in India. The assessee could not produce these documents during time barring period of reassessment, when the same were more than six years old documents to be obtained from the bankers.

  CIT(A) directed the AO to obtain from the assessee, the certified True Copies of the above documents from Standard Chartered Bank and the assessee shall bound to furnish the same, before the AO while giving effect to the appellate order. The ld. CIT(A) further directed the A.O. having satisfied himself that the source of such investment is from outside India shall delete the addition made by him. We do not find any infirmity in the direction issued by the CIT(A)

  CIT(A) having satisfied with the copies of the documents submitted by the assessee, has taken a conscious decision to delete the additions, since the funds are NRI Repatriation funds came outside India and is not taxable in India. Assessee also produced before us a copy of giving effect order dated 04.11.2020 passed by the AO deleting the addition made by him. Grounds raised by the Revenue does not have any merits and the same are hereby rejected.

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• 2022 (12) TMI 1484 - ITAT AHMEDABAD
  

  Disallowance of expenses u/s 14A - addition to the book profits of the assessee u/s115JB of the Act the amount of total disallowance computed u/s 14A - HELD THAT:- We hold that the disallowance u/s 14A of the Act of expenses incurred for the purposes of earning exempt income be restricted to the extent of exempt income earned by the assessee during the year in accordance with the decision of the Hon’ble jurisdictional High Court in the case of the assessee itself as cited before us. [2019 (7) TMI 541 - GUJARAT HIGH COURT]

  Further, we direct that no adjustment be made to the book profits of the assessee under Section 115JB of the Act of the expenses disallowed under Section 14A of the Act again following the decision of the jurisdictional High Court in the case of the assessee itself and the Special Bench of the ITAT in the case of Vireet Investment Private Limited [2017 (6) TMI 1124 - ITAT DELHI]

  Deduction u/s 80IA - Captive Power Generation Plants - Hon’ble jurisdictional High Court in own case in Tax Appeal Nos. 11 & 28 of 2019 vide order dated 17.06.2019.[2019 (7) TMI 541 - GUJARAT HIGH COURT] held that it was the selling price of electricity which was to be considered for determining the Revenue generated from sale to CPP for the purposes of computing profits eligible to deduction u/s 80-IA(4) of the Act, applying the ratio laid down by it in the case of Gujarat Alkalies [2016 (10) TMI 1111 - GUJARAT HIGH COURT]

  DR was unable to point out any distinguishing facts nor was any contrary decision of the Hon’ble jurisdictional High Court or the Hon’ble Apex Court brought to our notice. Thus since the issue already stands decided in favour of the assessee in its own case by the Hon’ble jurisdictional High Court, the disallowance made by the Assessing Officer and confirmed by the learned CIT(A) of deduction claimed under Section 80IA of the Act.

  Characterization of receipt - revenue from Carbon credit - revenue or capital receipt - HELD THAT:- The issue being covered by the decision of the Hon’ble jurisdictional High Court in favour of the assessee in its own case, we hold that the profit earned by the assessee for Carbon Credits is capital in nature; and, the addition made by the Revenue by treating them as revenue in nature is directed to be deleted.

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• 2022 (12) TMI 1483 - ITAT PUNE
  

  Denial of exemption u/s 11 - non-submission of audit report in Form 10B alongwith or before filing the ITR - non-compliance with communication u/s 143(1)(a) of the Act due to IT Website technical glitches - HELD THAT:- We note that, the ITR for the impugned AY was filed on 13/07/2018 and notice calling the audit report u/s 143(1)(a) was served on 28/02/2019 according thereby 30 days to remove deficiency by filing audit report in Form No 10B, however in the absence of any such compliance from the appellant, ITR was finally processed on 26/06/2019 denying the exemption, which the Ld. FAA upheld quoting equi-reasons.

  We also note that, the assessee could not attend the communication due to IT-Website technical glitches, however has eventually filed the audit report in Form No 10B on 29/02/2020 and complied with the condition laid in section 12A(1)(b) so as to entitle for a claim of exemption envisaged u/s 11 & 12 of the Act.

  In the evince of details filed at clause M2 of ITR filed on 13/07/2018, it undisputedly establishes that the appellant got its books audited u/s 12A(1)(b) of the Act from M/s S. D. Pednekar & Co which issued & furnished the said audit report on 05/07/2017 i.e. prior to filing of ITR for the impugned AY, however the copy thereof remained to be filed alongwith ITR as well in response to communication u/s 143(1)(a) of the Act on account of technical glitches beyond the control of the assessee and the deficiency came to light only upon service of demand u/s 156 of the Act.

  Thus, the non-compliance with communication u/s 143(1)(a) of the Act due to IT Website technical glitches was unintentional and beyond the control of the appellant is sufficient to form a reasonable cause for non-compliance and since the procedural compliance has been duly made good by fling the audit report on record, we see no reason to deny the exemption in the present facts and circumstance, ergo we set-aside the order of both the tax authorities below and direct the Ld. AO to grant the claim of exemption in the evince of Form No 10B. Decided in favour of assessee.

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• 2022 (12) TMI 1482 - SUPREME COURT
  

  Rejection of application filed by the appellant herein under Section 482 of the Code of Criminal Procedure (CrPC) - criminal conspiracy - signature on the alleged sale deed is forged - dispute is of civil nature or criminal nature - HELD THAT:- It appears prima facie that the purchaser (Vendee) might have obtained finance from AXIS Bank Ltd. for the purpose of purchasing the plot in question. The police should have investigated whether the amount of Rs. 24,08,000/- (Rupees Twenty Four Lakhs Eight Thousand Only) was paid by AXIS Bank Ltd. directly to the original complainant (respondent No. 2 herein). There is no clarity even in this regard. This aspect shall also be looked into while deciding the civil suit between the parties.

  While exercising its jurisdiction under Section 482 of the CrPC, the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. Whether the essential ingredients of a criminal offence are present or not, has to be judged by the High Court. A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence.

  The impugned order of the High Court is set aside - application disposed off.

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• 2022 (12) TMI 1481 - ITAT DELHI
  

  Carry forward accumulated business losses of the earlier years - correct year for consideration of the issue of eligibility of set off brought forward business loss against business income - HELD THAT:- The undisputed fact is that while concluding assessment the AO declared that the loss computed is not allowed to be carried forward. In our considered opinion all that the AO is required is to notify the assessee the amount of loss as computed by him. Whether the loss in any year may be carried forward to the following year and set off against the profits has to be determined by the AO who deals with the assessment of the subsequent year. It is for the ITO dealing with the assessment in the subsequent year to determine whether the loss of the previous year may be set off against the profits of that year.

  As relying on the case of Manmohan Das [1965 (11) TMI 33 - SUPREME COURT] no hesitation in directing the AO to expunge the concluding remark “brought forward loss is not allowed to be carry forward”. Appeal of the assessee is allowed.

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• 2022 (12) TMI 1480 - ITAT DELHI
  

  Set off of excess application of income for the subsequent years - Carry forward of the deficit/loss for trust - assessment of trust - HELD THAT:- As during the year under consideration the assessee had applied income more than 85% of its total income however, it claimed accumulation of income u/s 11(1)(a) to the extent of 15% of total income that came to a sum of Rs. 38,05,443/- however, the AO restricted the accumulation to the extent of surplus available of Rs. 20,34,215/-.

  A bare reading of the section 11(1)(a) of the Act goes to prove that any income accumulated or set apart should not exceed 15% of total income. In the present case, the assessee had applied more than 85% of the income that does not mean that in excess of 85% of income, the assessee has accumulated or set apart for charitable purpose.

  Reliance is placed upon the judgment of Matriseva Trust [1999 (3) TMI 34 - MADRAS HIGH COURT] wherein as followed the judgment in the case of CIT vs Maharana of Mewar Charitable Foundation[1986 (7) TMI 56 - RAJASTHAN HIGH COURT] and in the case of CIT vs Shri Plot Swetamber Murti Pujak Jain Mandal (1993 (11) TMI 17 - GUJARAT HIGH COURT] wherein as answered the questions in favour of the assessee and against the Revenue.

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• 2022 (12) TMI 1479 - KERALA HIGH COURT
  

  CENVAT Credit - input service or not - service availed by the assessee from Deposit Insurance & Credit Guarantee Corporation (DICGC) - HELD THAT:- The realm in which the controversy operates is after receiving the deposits from public, the assessee is under statutory obligation to insure the deposits received for conducting the bank business and extends under law services on which service tax is paid. The services provided by the assessee are not falling within the negative list. Therefore, there is relatability on a hostile consideration of business in banking between the services availed and services rendered.

  The suggestion of revenue would compartmentalise the activities in an odd way only to deny the claim of CENVAT credit and we are not persuaded, firstly, by the argument now canvassed before us and secondly, upon taking note of are the applicable sections in this behalf. The payment of premium on insurance together with service tax for valid and correct reasons has been held by the larger bench in M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE] holding that The insurance service provided by the Deposit Insurance Corporation to the banks is an “input service“ and CENVAT Credit of service tax paid for this service received by the banks from the Deposit Insurance Corporation can be availed by the banks for rendering output services“.

  The substantial questions raised are not tenable, and the findings recorded by the larger bench have already considered these issues - the questions raised in the appeals are answered against the revenue and in favour of the assessee - appeal dismissed.

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