|
Advanced Search Options
Case Laws
Showing 41 to 60 of 2019 Records
-
2019 (7) TMI 1980
Reopening of assessment u/s 147 - assessment made on protective basis - Substantial question of law - HELD THAT:- Undoubtedly, the court has to consider as to whether a substantial question of law arises in the context of reasoning of the ITAT in holding the deletion of protective assessment. What is apparent is that the AO in this case proceeded, without furnishing any reasoning and added amounts to assessee’s account imposing tax on it purely on protective basis after the substantive additions in respect of each amount which were made at third parties’ end.
CIT(A) in our opinion, was correct in his analysis noticing that as against documentary evidence available, only some additions could be sustained even in respect of such third parties. Consequently, in the absence of any reason to involve the present assessee, which had sold the lands to the third party and against whom there was no allegation of withholding material or suppression of facts, nor was anything incriminating recorded, no protective assessment could have been made. No substantial question of law arises.
-
2019 (7) TMI 1979
Seeking release of Bank Guarantee - petitioner’s claims that the release of the bank guarantees is being withheld contrary to the terms of the contract between the parties, in order to pressurise the petitioner in respect of certain disputes in relation to other contracts, which are pending adjudication before the Arbitral Tribunal.
HELD THAT:- Let a counter affidavit be filed within a period of two weeks. Rejoinder, if any, be filed within a period of two weeks, thereafter - List on 04.11.2019.
-
2019 (7) TMI 1978
TDS u/s 195 - payments made to non-resident professionals - Payments being FTS/FIS - HELD THAT:- As the payment in question were for FTS/FIS and this is not disputed by the assessee. This is also a finding given by CIT(A) in this para that assessee has not disputed that these services make available the technical knowledge to assessee in India.
Now as per the additional evidence filed before us, it is seen that these invoices are in respect of rendering of services to the assessee in respect of certain legal cases filed against the assessee in USA. If that is so then how it can be said that by rendering these services, the concerned parties had made available technical knowledge to assessee in India.
As per the invoices of M/s. Angeli Law Group LLC, the invoice is for professional charges for the month of March to October 2012, April 2013 and May 2013 in addition to that, there is commission payment. Thus additional evidence should be admitted and hence, we are admitting the same and restore the entire matter back in both years to the file of ld. CIT(A) for fresh decision. Appeals filed by the assessee are allowed for statistical purposes.
-
2019 (7) TMI 1977
Classification of goods - Mixed Fuel Oil manufactured by the appellant - classifiable under 2710 1119 as claimed by the department or under 2710 1990 as claimed by the appellant? - HELD THAT:- The issue that whether the Mixed fuel oil manufactured by the appellant M/s Gail India Ltd. is classifiable under 2710 1119 or 2710 1990 has been settled by this Tribunal in the appellant’s own case GAIL (INDIA) LTD. VERSUS C.C.E, & S.T. - VADODARA-II [2019 (5) TMI 574 - CESTAT AHMEDABAD] where reliance was placed in in the case of M/S GAIL (INDIA) LTD. VERSUS C.C.E & S.T. VADODARA-II (VICE-VERSA) [2019 (1) TMI 174 - CESTAT AHMEDABAD] where it was held that Revenue has not produced the necessary evidence to classify the product as motor spirit falling under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005).
The impugned order is set aside, appeal is allowed.
-
2019 (7) TMI 1976
Disallowance of depreciation on the cost of know-how and intangibles acquired from ORG of their division of Adex Business purchased along with all assets and liabilities the compendious heading of Goodwill - HELD THAT:- As gone through the order of the Tribunal and noticed that this issue was not adjudicated. Assessee stated that he is only interested in recalling of the ground.
We are of the view that the issue raised by assessee has not been adjudicated. Hence, the same requires adjudication. Hence, qua ground No. 3 only, the appeal of assessee is recalled.
-
2019 (7) TMI 1975
Exemption to SEZ unit - authorised operations in a SEZ - Validity of conditions imposed - Board of approval refused to issue of Forms A1 and A2 on the ground that these forms cannot be issued with retrospective effect - it was held by High Court that the fifth respondent does not dispute the fact that the petitioners have fulfilled the terms and conditions stipulated in rule 22 of the SEZ Rules, 2006 and that if those Rules are considered on a stand alone basis, the petitioners would be entitled to the exemptions.
HELD THAT:- There are no reason to interfere with the impugned judgment and order of the High Court.
SLP dismissed.
-
2019 (7) TMI 1974
Jurisdiction - power of DRAT to pass an order of complete waiver - whether it is mandatory either to ask for deposit 50% of the debts due or it may be reduced to 25% after recording reasons? - whether the appeal having been filed before the commencement of the amendment and the order has been passed after the amendment has come then in such circumstances whether the appellate authority was obliged to look into the amended provision of law?
HELD THAT:- Whenever amendment has come in Section 21 during the pendency of the application which was decided after the amendment then the amended provision of the Act would apply because unamended provision would go in oblivion and would not be applicable. In view thereof, there was hardly any power vested with the DRAT to have passed an order ignoring the amended provisions for the purpose of giving a complete waiver to the petitioner in the first petition which has been challenged by the petitioner in the second petition.
Once it is held that the DRAT had no jurisdiction at all to have waived the amount of pre-deposit of 50% or at the most even 25%, therefore, the order dated 26.12.2016 to entertain the appeal, filed by the petitioner in the first petition is bad in law. Even otherwise, the DRAT had no jurisdiction to observe that since the auction purchaser has already deposited the aforesaid entire auction money, therefore, in that circumstances, the guarantor was not liable to pay the pre-deposit amount. This finding is patently erroneous and illegal and therefore, the second petition is allowed, order dated 26.12.2016 is hereby set aside and the first petition is hereby dismissed as having been rendered infructuous as the order dated 13.04.2017 has become meaningless.
Petition dismissed.
-
2019 (7) TMI 1973
Deduction u/s 36(1)(viia) for provision of standard assets as per the circular of RBI - whether this provision being as per law may be allowed? - HELD THAT:- As decided in case of Nawanshahr Central Co-op. Bank Ltd. [2018 (1) TMI 1683 - ITAT AMRITSAR] though section 36(1) (vii) states that deduction for provision is allowable in respect of provision for bad and doubtful debts, the computation of such deduction is made with reference to total income of the specified Banks based upon quantum of average advances. The deduction of the provisions is neither limited to the quantum of bad debts in the books nor is computed with reference to the quantum of standard assets. The deduction in this clause refers to allowable provisions of anticipated default on the loans and advances made in respect of total assets including standard assets and the claim of the assessee does not fall into the proviso to section 36(1) (viia) as the proviso deals with further deduction for provisions on bad and doubtful debts. The claim of the assessee is covered in the main provisions of section 36(1)(viia) .
In Vellore District Central Co-operative Bank Ltd. [2016 (2) TMI 158 - ITAT CHENNAI] held by the Tribunal that doubtful debts may be under different nomenclature and this will not disentitle the assessee for claiming deduction under the provisions of section 36(1)(viia) - thus delete the disallowance made by the AO. Decided in favour of assessee.
-
2019 (7) TMI 1972
Disallowance of proportionate interest on borrowed funds @ 12% - assessee has not been able to establish that the funds were transferred to its sister company for the purpose of business - as per AO assessee is taking two different stands i.e. initially it was stated that the advance was given for the purpose of construction of a hospital and subsequently, it was stated that the advance was given with an intention to acquire shares in demerged company - HELD THAT:- On perusal of MoU between the assessee and USAIPL, we find that there is a clause that the assessee shall acquire the shares of the demerged company.
Assessee stated that the assessee could not acquire the equity shares initially because at that point of time the demerger of the said company has not yet taken place and on demerger, assessee had acquired the shares of the company, for which, he filed copies of the documents showing shareholding of the Kamineni Health Services Pvt. Ltd.
We find that the documents filed before us by the assessee, as additional evidence, go to the root of the matter and in the interest of justice, we admit the same and remit the issue to the file of the AO for de-novo consideration. Needless to say that the assessee shall be given fair opportunity of hearing in the matter. Appeal of the assessee is treated as allowed for statistical purposes.
-
2019 (7) TMI 1971
Income deemed to accrue or arise in India - Treating salary and other related costs reimbursed to the appellant as Fees for Technical Services - taxing the amount received as reimbursement of the salary and other related costs as 'fees for technical services' in terms of section 9(1)(vii) of the Income-tax Act, 1961 as well as under Article 12 of India-Canada DTAA") - HELD THAT:- We find substance in the submissions made by Ld. Sr. Counsel since the perusal of documents on record reveal that the assessee has entered into employee secondment agreement with the Indian entity. Pursuant to Clause (6) of the agreement, the assessee was to be reimbursed with direct wages and benefit costs. The role and responsibilities of Mr. Anindya Ghosh, has been remunerated in the submissions dated 29/03/2016. The perusal of Form 16 & 12BA, as placed on record, would reveal that the Indian Entity has deducted due taxes against the aforesaid payments.
The matter would go back to Ld. AO for re-appreciation of correct facts and re-adjudication of the matter in the light of submissions made by Ld. Sr. Counsel. Needless to add hat adequate opportunity of being heard shall be granted to the assessee to substantiate its stand. Appeal stands allowed for statistical purposes.
-
2019 (7) TMI 1970
Valuation of imported goods - Aluminum foil scrap - enhancement of value - rejection of transaction value of relying on guidelines and LME prices - HELD THAT:- It is seen that the value declared by the appellant is to the range of 30% to the value of the contemporaneous import. It is seen that sub-rule 2 of rule 4 clearly prescribes the exception when the sale involves any abnormal discount or revision from ordinary competitive price. In the instant case it is seen that the sale involves almost 70% discount from the ordinary competitive price of contemporaneous imports. In view of above, there was a jurisdiction in rejection of the declared invoice value.
It is however found that the original assessment in the case of bill of entry no. 105345 dated 15.05.2006 was done at USD 1500 PMT but after issuance of SCN the same was revised upwards to USD 1780 PMT. Both these orders were passed by the Deputy Commissioner of Customs, it is not found permissible.
The value in bill of entry No. 105345 dated 15.05.2006 is fixed at 1500 USD PMT as was done in the original assessment - Revenue has produced contemporaneous import data. Revenue has chosen to rely on value of the contemporaneous import and thus fixing of the assessable value at 1780 PMT in respect of bill of entry no. 105750 and 105752. Revision of value in these cases is upheld.
Appeal allowed in part.
-
2019 (7) TMI 1969
Suo motu proceedings for revision - time limitation - interpretation of statute - Section 23(4)(a) of O.S.T.Act read with Rule 80 of the O.S.T.Rules - HELD THAT:- The case of the petitioner will be governed by the decision of this Court in the case of M/S. SAGARMAL AGARWALLA VERSUS COMMISSIONER OF SALES TAX, ORISSA, CUTTACK AND 2 OTHERS [2018 (1) TMI 868 - ORISSA HIGH COURT] where it was held that we are of the opinion that passing of the order dated 05.09.1996 in Annexure-3 which was beyond the period of three years from the date of the order sought to be revised, is liable to be quashed as also the order of the Commissioner dated 05.06.1999 in Annexure-4.
Petition allowed.
-
2019 (7) TMI 1968
Unsecured loan - CIT(A) also confirmed the action of the AO as the assessee failed to comply with the direction of the Tribunal to produce all the loan creditor - HELD THAT:- At the time of hearing, when asked by the Bench, why the direction of the Tribunal was not complied with by the assessee, assessee did not give any satisfactory reply.
We find that in the first round of proceedings, Tribunal has directed the assessee to produce all the creditors before the AO to confirm with the evidences that the amount has been repaid. Assessee has failed to produce all the creditors before the AO, therefore, the addition was again confirmed and was upheld by the CIT(A). We see no reason to interfere with the order of the CIT(A) and dismiss the ground of appeal of the assessee.
-
2019 (7) TMI 1967
Validity of notification dated 13th December 2018 issued by the Commissioner of Value Added Tax (CVAT) under Rule 5 (13) of the Central Sales Tax (Delhi) Rules, 2005 - “C‟ Form issued by M/s. Mahaveer Traders in favour of the present Petitioner, declared obsolete and invalid for all purposes, with effect from the date of issuance of such forms.
Whether there was any justification for the CVAT in New Delhi to retrospectively declare the “C‟ Form which had already been acted upon by the authority in Jammu and Kashmir as “obsolete”?
HELD THAT:- A collective reading of sub-rules 5 (13) and 5 (14) of the CST Delhi Rules makes it clear that once the form that has been issued is utilized, the question of subsequently declaring such used forms as obsolete would not arise. Rule 5 (14) makes the requirement of surrender of the “unused forms‟ of the series design or colour that have been rendered obsolete clear and provides that only for such unused forms would new forms be issued. It is, therefore, plain that the rules do not permit the CVAT to declare forms that have already been issued and acted upon as obsolete.
The impugned notification 13th December, 2018 issued by the CVAT is hereby quashed - Petition allowed.
-
2019 (7) TMI 1966
Absolute Confiscation - Seeking immediate release of seized Diamonds - levy of penalty under Section 112(b) of Customs Act - HELD THAT:- A Co-ordinate Bench of this Court, vide order dated 8.5.2019 [2019 (5) TMI 984 - GUJARAT HIGH COURT], disposed of the Civil Application preferred by the Commissioner of Customs with directions.
Pursuant to the order passed by this Court referred to above, the bank guarantee, as well as 10% redemption fine has also been deposited along with 1% penalty. The applicant has discharged all the obligations as imposed by this Court in the order. However, till this date the seized diamonds have not been returned to the applicant. Prima facie, the concerned authority is in contempt.
Let Notice be issued to the respondent, returnable on 1.8.2019.
-
2019 (7) TMI 1965
TP Adjustment - comparable selection - Accentia Technologies Ltd inclusion/inclusion - HELD THAT:- Regarding the business model, while the assessee company is in HMT model, the comparable in question depends mostly on outsourcing of business processes. The audit report clearly mentions that no segmental data has been prepared and company has only one segment of activity which is HRCM segment. Hence, keeping in view the factors viz. dissimilar business model, non-comparable turnover, extraordinary events of merger and acquisitions leading to higher profits and non-availability of the segmental data and considering the order of the Tribunal in the assessee’s own case for the assessment year 2009-10, we hereby hold that the ld. CIT(A) has rightly excluded the company “Accentia Technologies Ltd.” from the final list of comparables.
Consider foreign exchange gain/loss as non-operative while calculating the operating profit margin of the Assessee and the comparable companies - HELD THAT:- The foreign exchange emanating from international transaction is a part of business receipt and hence any loss or gain on foreign exchange fluctuation invariably is a part of operational income. Further, owing to the judgments of FISERV India Pvt. Ltd. [2016 (1) TMI 1276 - DELHI HIGH COURT] and in the case of PCIT Vs BC Management Services Pvt. Ltd. [2017 (12) TMI 255 - DELHI HIGH COURT] wherein it was held that even the Safe Harbor Rules come into force from 2013 and hence is not applicable to the instant year, we hereby direct the Revenue to treat the foreign exchange gains or losses under operating revenues.
-
2019 (7) TMI 1964
Deduction u/s 80P(2)(i) - AO disallowed deduction as held that (i) the assessee is a Co-operative Bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank, (ii) the assessee fulfils the condition laid down in section 56(c)(ccv) of Part V of the Banking Regulation Act, 1949 for being a Co-operative Bank - HELD THAT:- As decided in assessee own case [2014 (10) TMI 1063 - ITAT MUMBAI] as held we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’
Similar view is taken by the Tribunal’s Mumbai Bench in the case of M/s. Mumbai Teleworkers Co-op. Credit Society Ltd. [2014 (7) TMI 1057 - ITAT MUMBAI] and in the case of M/s. Kulswami Co-op. Credit Society Ltd. [2014 (4) TMI 355 - ITAT MUMBAI] - Decided against revenue.
-
2019 (7) TMI 1963
TP Adjustment - International transactions/activities in respect of one of the services rendered to its associated enterprises i.e. (AE) - Assessee was engaged in knowledge management systems - Whether ITAT erred in concluding that for the AYs in question, the Assessee had rendered Knowledge Process Outsourcing (KPO) services to its Associated Enterprises which according to the Assessee was contrary to the documents on record? - Revenue on the other hand points out that for these very AYs, on the question of exclusion of comparables, the Revenue's appeals against the impugned order of the ITAT have been dismissed by this Court - HELD THAT:- In view of the above submission, it is considered appropriate to direct that the impugned order of the ITAT returning the above finding qua the activity of the Assessee for the AYs in question will not constitute a precedent if such issue were to arise in future in the Assessee's cases.
In other words, the question framed by the Court for consideration in these appeals is left open for decision in an appropriate case.
-
2019 (7) TMI 1962
Directing the petitioner to vacate the premises - statutory license expired - HELD THAT:- In this case, it is to be seen that the relationship between the petitioner and the 1st respondent is purely licensee and licensor and the obligations are arise under the agreement entered between the petitioner and the 1st respondent and admittedly the said agreement provides for arbitration and the reasons cited for the non-renewal is due to extension of activity of the 1st respondent, they are not in a position to grant renewal.
This Court is of the opinion that it is not a fit case to grant interim orders when the petitioner's license fee admittedly expired In view of the same I have not find any reason to grant any interim order - Application dismissed.
-
2019 (7) TMI 1961
Capital gain - valuation of FMV as on 01.04.1981 - CIT rejecting Government Approved Valuer report for computing fair market value as on 01.04.1981 @ 250 per sq. meter for the land situated at Village Karadva and @ 200 for the land situated at Sania Kande Surat by adopting rim Reverse Index Method and by adopting against the same the fair market value @ 30 per sq. meter for both lands - HELD THAT:- We find that the Government Registered Valuer has considered the rate of land at village Karadva @250 per sq. meter and for land at village Sania Kande @200 per sq. meter as against which the DVO has adopted the rate @ 14.18 and 5.59 per sq. meter respectively. Whereas Ld. CIT (A) has considered the rate for both land @ 30 per sq. meter.
Considering, the variation in three authorities, and considering the facts of the case, we are of the considered opinion that it would be fair, reasonable and logic if the average rate of adopted by the Government Registered Valuer of the assessee and DVO and Ld. CIT (A) is considered for average valuation of FMV as on 01.04.1981 considering the ratio laid down in the case of the case Vijay Kumar M Shah [2009 (2) TMI 501 - ITAT MUMBAI] as cited both Ld. CIT (A) as well as the learned counsel for the assessee. Accordingly, the arriving rate comes to Rs.99.95 rounded to Rs. 100 per sq. meter i.e. [250+200+30] for both land under consideration. Accordingly, the AO is directed to worked out long-term capital gain by taking arrive rate @ 100 as FMV as on 01.04.1981 for both impugned the land under consideration. In view of this matter, Ground No. 1 to 4 of the appeal are therefore, partly allowed.
........
|
