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Showing 141 to 160 of 22820 Records
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2019 (12) TMI 1543 - ITAT CHENNAI
Deduction u/s 54F - claim denied on reinvestment in multiple properties located in different addresses - scope of amendment - HELD THAT:- As decided in the recent decision in the case of Tilokchand & Sons v ITO [2019 (4) TMI 713 - MADRAS HIGH COURT] has held that profit on sale of property used for purchasing more than one residential houses within stipulated time limit, the assessee would be entitled to the benefit of exemption under section 54 of the Act
If the word 'a' as employed under Section 54 prior to its amendment and substitution by the words 'one' with effect from 01.04.2015 could not include plural units of residential houses, there was no need to amend the said provisions by Finance Act No.2 of 2014 with effect from 01.04.2015 which the Legislature specifically made it clear to operate only prospectively from A.Y.2015- 2016. Once we can hold that the word 'a' employed can include plural residential houses also in Section 54 prior to its amendment such interpretations will not change merely because the purchase of new assets in the form of residential houses is at different addresses which would depend upon the facts and circumstances of each case.
So long as the same Assessee (HUF) purchased one or more residential houses out of the sale consideration for which the capital gain tax liability is in question in its own name, the same Assessee should be held entitled to the benefit of deduction under Section 54 of the Act, subject to the purchase or construction being within the stipulated time limit in respect of the plural number of residential houses also. The said provision also envisages an investment in the prescribed securities which to some extent the present Assessee also made and even that was held entitled to deduction from Capital Gains tax liability by the authorities below. If that be so, the Assessee-HUF in the present case, in our opinion, complied with the conditions of Section 54 of the Act in its true letter and spirit - Decided in favour of assessee.
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2019 (12) TMI 1542 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - rejecting the objections filed by the petitioners against the reasons recorded as well as the assessment orders passed under subsection (3) of section 143 read with section 147 - Petitioner invited the attention of the court to the reasons recorded to point out that though the assessment has already been made in the hands of the association of persons, the Assessing Officer sought to reopen the assessment to make protective addition in the hands of the petitioners - as submitted impugned orders are passed in violation of the principles of natural justice and that the proceedings under section 148 of the Act were wholly without jurisdiction, therefore, these petitions under Article 226 of the Constitution of India against the assessment orders are maintainable - HELD THAT:- Having regard to the submissions advanced by the learned advocate for the petitioners, issue Notice, returnable on 13.01.2020.
By way of adinterim relief, the operation of the assessment orders passed under section 143(3) read with section 147 as well as the impugned notices of demand issued under section 156 of the Act is hereby stayed.
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2019 (12) TMI 1541 - NATIONAL CONTANY LAW TRIBUNAL, CHENNAI
Permission for withdrawal of application - HELD THAT:- Since the Applicant counsel submitted that the said application has already been withdrawn, this application is hereby dismissed as withdrawn.
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2019 (12) TMI 1540 - ITAT MUMBAI
Levy of late fee u/s 234E by way of processing TDS statement u/s 200A - assessee has argued that according to Section 200A of the Act which unable the AO to charge fee u/s 234E of the Act was prospectively made effective w.e.f. 01.06.2015, therefore, no fee u/s 234E could have been levied for the assessment years prior to 01.06.2015 - HELD THAT:- It is not in dispute that the assessee has filed the statement of tax deducted at source in ‘Form No.26Q’ for the F.Y.2014-15 delayed. AO has levied the late fees u/s 234E and interest in sum on the basis of an intimation u/s 200A - As in the case of Fatehraj Singhavi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] had observed that the notice u/s 200A of the Act computing fee u/s 234E of the Act would be effective in respect of the period of tax deduction subsequent to 01.06.2015.
Since levy of fees u/s 234E of the Act was made available in Section 200A therefore, we are of the considered view that no fees u/s 234E could have been charged in the course of processing of the statement of tax deducted at source u/s 200A for the period prior to 01.06.2015, therefore, in the said circumstances, the finding of the CIT(A) is not justifiable, hence, we set aside the finding of the CIT(A) on these issues and delete the fees levied statutory dues provisions u/s 234E of the Act. Accordingly, all the issues are decided in favour of the assessee against the revenue.
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2019 (12) TMI 1539 - ITAT PUNE
Revision u/s 263 - case of the assessee was selected for limited scrutiny under CASS - CIT invoked the revisionary jurisdiction u/s.263 to look into the other issues relating to the assessee which were not within the purview of the limited scrutiny - HELD THAT:- In this case, the Assessing Officer has already verified those issues for which limited scrutiny was conducted. Commissioner of Income Tax wants the Assessing officer to look into various other issues of the assessee which were not covered within the purview of the limited scrutiny. This is not permitted within the framework of the Income Tax Act.
Further on perusal of the CBDT Circular and the facts of the case, it is clear that the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of the Revenue. The Hon‟ble Supreme Court of India in the case of Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] has specifically held that “in order to assume the revisionary jurisdiction u/s.263, the order of the Assessing Officer must be erroneous so far as it is prejudicial to the interest of the Revenue.”
In the facts of the present case, these criteria are not met so far as the assessment order is concerned and therefore, we quash the order passed by the Ld. Pr. Commissioner of Income Tax u/s.263 - Decided in favour of assessee.
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2019 (12) TMI 1538 - BOMBAY HIGH COURT
Constitutional validity of provisions of Insolvency and Bankruptcy Code, 2016 and more particularly Section 3(8), Section 3(23) and Section 238 and also Sections 7, 8 & 9 - Government companies - HELD THAT: We would not wish to express any opinion on the maintainability of all the proceedings before the NCLT. We do not think that once the petition was pending in this Court, can we prevent M/s.Hindustan Antibiotics Ltd. to proceed with it only because some orders have been passed by the NCLT in the company petition. These orders also have not gained finality on account of the reference to a third member. Further, on the core issue about the applicability of the Code to M/s.Hindustan Antibiotics Ltd., the members of the National Company Law Tribunal are divided in their opinion. There is now a reference made to the third member. We do not think that the National Company Law Tribunal should precipitate the matter when a constitutional challenge is pending before this Court. None can dispute that it is only this Court which can deal with the challenge raised to the constitutional validity of the provisions of the IBC.
We do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour.
Issue notice to the learned Attorney General for India on the point as to whether the provisions of IBC, as alleged, are ultra vires Article 14 and other relevant Articles of the Constitution of India - Notice be also issued to other respondents, returnable on 22.1.2020.
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2019 (12) TMI 1537 - ITAT BANGALORE
TDS u/s 194A - non deduction of TDS on interest paid to non-banking financial companies - Addition u/s 40(a) (ia) - HELD THAT:- Admittedly, assessee has not deducted TDS under section 194 A of the act against interest paid to nonbanking financial companies. It is also an admitted fact that the companies to whom assessee has made payments are repeated companies like M/s. L & T Finance Ltd., M/s. Bajaj Finance Ltd., M/s. Reliance Capital Ltd., M/s. India Bulls Ltd., M/s. Diamler Finance Ltd., M/s. Kotak Mahindra Bank Ltd., and M/s. Tata Capital Ltd., who are regular assessee’s under Income tax Act. As Ld. AR filed before us certificate issued by chartered accountant which was not filed before authorities below, it is necessary that the same is to be verified. We set aside this issue to Ld. AO for due verification of the facts and to consider the claim in accordance with law.
Addition on account of wages expenditure not adequately backed up by primary documents - HELD THAT:- AO has not rejected the books of accounts - as per CIT (A) there is no finding by Ld. AO that expenditure incurred and claimed by assessee is either capital in nature or personal or wholly and exclusively not incurred for the purposes of business - CIT (A) observed that no defect has been pointed out by Ld. AO in any of specific vouchers - As observed that the disallowance made by Ld. AO is on purely ad hoc basis of 10% - AO has not doubted bona fides of such expenditure. Under such circumstances we do not find any reason to interfere with the view adopted by Ld. CIT (A) and the same is upheld.
Addition u/s 14A r.w.r 8D(iii) - DR submitted that assessee earned exempt income and whenever there is an exempt income earned certain indirect/common expenditure could always be attributable to such receipts - HELD THAT:- . Admittedly assessee has earned exempt income and no new investment has been made by assessee during the year under consideration. Further Ld. CIT (A) has observed that all old investments by assessee have been carried out of internal generated funds and that no borrowed funds have been utilised for investments that have been made in the past. No infirmity in the order of Ld. CIT (A) in restricting disallowance to the extent of exempt income earned during the year.
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2019 (12) TMI 1536 - NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH
Seeking direction of this Tribunal to declare the CIRP proceedings in the matter - improper/defective filing of Form FA by the IRP - HELD THAT:- The recent Order of National Company Law Appellate Tribunal in HARPREET SINGH AHLUWALIA VERSUS EATIGO INDIA PVT. LTD. AND ORS. [2019 (11) TMI 1663 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] clearly establishes that this Tribunal cannot ignore the claims of the Financial Creditor M/s. State Bank of India, which is amounting to ₹ 15,60,65,148.34 plus the 0.44 crore towards Bank Guarantee in the instant case while considering the withdrawal of the Form FA filed by the Interim Resolution Professional.
The CIR process initiated is not required to be interfered - the Interim Resolution Professional is allowed to continue with the CIR process as mandated by the IBC, 2016.
List on 6.12.2019 for the statement of the IRP.
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2019 (12) TMI 1535 - BOMBAY HIGH COURT
Stay of demand - petitioner has challenged an order passed by the Income Tax Appellate Tribunal, Mumbai imposing a condition of depositing further sum of ₹ 25 crore in two equal instalments to enable the petitioner to enjoy stay against further recoveries in relation to the petitioner’s appeal before the Tribunal concerning the assessment year 2011-12 - HELD THAT:- Till date the respondents have not fled any reply. The Writ Petition is admitted. The respondents waive service.
Income-tax Appellate Tribunal, Mumbai shall not insist on the petitioner depositing the amount as directed by its order dated 4th September, 2019. This order is passed without prejudice to the rights and contentions of the parties. The Income-tax Appellate Tribunal, Mumbai is not precluded from proceeding further with the hearing of the appeal on the date fixed or any date thereafter.
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2019 (12) TMI 1534 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - earlier Appellant submitted that the Appellant intends to settle the matter with the Operational Creditors and the Committee of Creditors have not been constituted - HELD THAT:- Today, it is informed that the parties have settled the matter and the application for withdrawal has been filed before the Interim Resolution Professional, who asked some clarification from the Adjudicating Authority (National Company Law Tribunal), Kochi Bench, Kochi and the Adjudicating Authority by an order dated 2nd December, 2019 clarified the same.
The Tribunal to pass appropriate order in terms of the decision of the Honble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] taking into consideration the other factors including the claim, if any, made by other parties.
Appeal disposed off.
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2019 (12) TMI 1533 - ITAT MUMBAI
TP Adjustment - prescribed method as prescribed under section 92C - determining the arm length price of the international transactions without following any of the prescribed method as prescribed under section 92C - HELD THAT:- As in respect of advance given to AE which has been written off by the assessee, the TPO has taken the ALP of the international transaction of writing off of the bridge fee as nil and an equal adjustment has been proposed to be made in the aggregate value of international transactions reported by the assessee. Similarly, in respect of service fees for purchase of franchise, the ALP of the international transaction has been taken at nil and equal adjustment is proposed.
In both these transactions, we observe that no prescribed method has been followed by the TPO as envisaged by the provisions of section 92C of the Act. The Ld. DRP has also upheld the order of TPO while allowing some relief on the additions proposed. In our view the TPO is duty bound to propose additions/adjustments in ALP after following any of the methods as prescribed in section 92C of the Act. See M/S. JOHNSON & JOHNSON LTD. [2017 (3) TMI 1520 - BOMBAY HIGH COURT] and M/S. KODAK INDIA PVT. LTD. [2016 (7) TMI 677 - BOMBAY HIGH COURT]
In both the decisions, the Hon’ble Bombay High Court has held that it is obligatory on the TPO to follow one of the method as mandated by provisions of section 92C of the Act and therefore we are inclined to set aside the order of DRP/TPO and direct the AO to delete the additions. - Decided in favour of assessee.
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2019 (12) TMI 1532 - NATIONAL COMPANY LAW TRIBUNAL, JAIPUR BENCH
Scheme of Arrangement by way of Amalgamation - Sections 230 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Tribunal proposes to issue the various directions with respect to calling, convening and holding of the meetings of the Equity Shareholders, Secured and Unsecured Creditors or dispensing with the same, as well as issue of notices including by way of paper publication - the scheme is approved - application allowed.
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2019 (12) TMI 1531 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH,
Seeking for admission of the Company Petition - section 7 of IBC, 2016 - HELD THAT:- This matter needs to be settled in a shortest possible time frame failing which the Corporate Debtor be put under CIRP. We find that Hon’ble Appellate Tribunal while disposing the appeal directed this Adjudicating Authority to admit the application under section 7 of IBC, 2016 but with some caveat.
This Authority has to admit Corporate Debtor in CIRP but before that Corporate Debtor must be given opportunity to settle the claim with the Bank. However, there are no record produced either by the Bank or by the Corporate Debtor indicating as to what steps they took to settle the claim - on due consideration of all facts and circumstances of the case and considering the directions of the Hon’ble NCLAT, four week’s time is granted from the date of receipt of this order to the Corporate Debtor to convene the meeting of creditors as per the relevant provisions of the Companies Act, 2013 and get the approval of the scheme of arrangement.
The matter be listed for hearing on 16.01.2020. Interim order to continue till then - application disposed off.
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2019 (12) TMI 1530 - ITAT AMRITSAR
Revision u/s 263 - whether the AO has made enquiries about issue under consideration? - CIT noticed that the assessee has debited in the Profit & Loss Account toll Plaza expenses which included expenses of computer expenses and on weigh bridge expenses - HELD THAT:- Pr.CIT has not specified that which enquiries were ought to have made. The assessee further submitted that the Pr.CIT in his notice himself mentioned that the assessee examination of records showed the discrepancies, which means that the details were on record and were examined by the AO. Explanation 2 to section 263 was inserted with effect from 01.06.2015, hence, same is not applicable for the assessment year under consideration as it is not retrospective in nature.
The assessment order passed after verification and enquiry is not erroneous and prejudicial to the interest of the Revenue. Merely just because the view taken by the AO was not found acceptable does not mean that the AO has failed to make requisite enquiries. If the answer is affirmative then second question arises whether the acceptance of the claim by the AO was a plausible view or on the facts of the finding on the facts that the said finding of the AO can be termed as sustainable in law.
We find that vide questionnaire, the assessee was asked regarding Toll Plaza expenses consisting computer and weigh bridge expenses, court fee expenses, which were appropriated in new contractor account, the court fee expenses and recovery suit expenses were relating to business of the assessee licence fee, Ahatas income is duly shown as para copy of ledger account filed. The assessee had furnished his reply, which is found placed in the Paper Book Pages as referred above.
AO had made enquiries under Limited scrutiny assessment. We find that the AO has made due enquiries and had taken a plausible view, hence, same, cannot be disturbed by Pr.CIT in the name of further, verification and framing fresh assessment. Since the AO has made during enquiry and examined the issues, hence, invocation of Explanation 2 of section 263 is not justified no it is applicable for the assessment year under consideration as it was inserted with effect from 01.06.2015.
Pr. CIT has not done any enquiry and not suggested what enquiries were to be carried out. In view of this matter, and relying on above mentioned judicial pronouncements, we find that twin condition were not satisfied for invoking the jurisdiction under section 263 of the Act. Therefore, in absence of the same the Ld. Pr. CIT was not correct in exercise the jurisdiction under section 263 of the Act and setting aside assessment for making denovo and accordingly, we quash the impugned order passed under section 263 of the Act and allow the appeal of the assessee. Appeal of the assessee stands allowed.
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2019 (12) TMI 1528 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Agreement under Clause 7 (e) clearly says that the payment for services should be made immediately failing which it carries interest at the rate of 15% p.a. will be charged until the date of settlement. The invoices issued also contains a condition that the payment should be made immediately, and it did not refer the element of interest in the bills. However, the Petitioner charged @ 18% p.a., which is also contrary to the term and conditions of the Agreement and also invoices in question. It is also relevant to point out here that, there are 36 invoices starting from 22.02.2018 to 12.11.2018 for total 36 invoices amounting to ₹ 52,94,136.38/- which includes principal amount of ₹ 39,52,469/- and interest of ₹ 13,41,667.38/-. Therefore, the Petitioner failed to point out that whether the Agreement in question, which is valid for period of 2 years was further extended or not.
The Petitioner without resorting correlates the claims and Statutory Demand notice in question. The Statutory notice cannot give cause of action unless it's supported by debt, which is legally payable by the other party. Therefore, the Petitioner failed to make out any case with regard to the alleged outstanding amount, which is under dispute, and it is based on invalid Agreement. Therefore, the Tribunal cannot go roving enquiry with regard to the alleged claim, under the provisions of the Code, which is summary in nature.
The claim made in the instant Petition is not only contrary to the terms of Agreement but also in serious dispute. The Petitioner failed to respond to various emails sent by the Respondents and to correlate the bills.
It is not in dispute that the Agreement in question has already expired during 2017 itself, and there is a refundable security deposit of ₹ 12,00,000/- which is stated to have forfeited in lieu of outstanding amount. Even as per Agreement, rate of 15% p.a. will be charged until the date of settlement. However, the Petitioner has claimed 18% p.a. - The Adjudicating Authority should be satisfied before initiating CIRP that all extant provisions of Code in the light of object of Code stand fulfilled. As stated supra, initial debt it is based on lapsed Agreement and the claim also in serious dispute. Therefore, the instant Company Petition is filed in order to recover the alleged disputed outstanding amount, instead of seeking to initiate CIRP on justified reasons.
It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. Un-disputed claim is sine qua non for initiating CIRP - The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum.
The instant Company Petition is filed other than the object of the Code with intention to recovery of the alleged outstanding amount - the Petitioner has failed to make out any case so as to initiate CIRP as prayed for and thus, it is liable to be dismissed.
Petition dismissed.
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2019 (12) TMI 1527 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Scheme of Amalgamation - seeking holding, convening as well as dispensation with various meetings - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding, convening and dispensation of various meetings issued - directions regarding issuance of various notices also issued.
The scheme is approved - application allowed.
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2019 (12) TMI 1526 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH BENCH
Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The objections/observations to the Scheme have been received only from Official Liquidator, Regional Director, Registrar of Companies and the shareholder P.P. Jibi Jose, Dlip Kumar Surana & Hanuman Share and Stock Brokers P. Ltd. and their objections/observations are adequately replied to by the Petitioner Companies and hence there is no impediment in the sanction of the Scheme. Therefore, the Scheme (Annexure P-1) is approved. While approving the Scheme, it is clarified that this order should not be construed as an order in any way granting exemption from payment of any stamp duty, taxes or any other charges, if any, and payment in accordance with law or granting permission.
It is directed that the Petitioner Companies shall comply with the provisions of FEMA/RBI Act. With the sanction of the Scheme, the Transferor Company shall stand dissolved without undergoing the process of winding up resulting in increase in the share capital of the Transferee Company as per the terms of Scheme.
Application disposed off.
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2019 (12) TMI 1525 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH
Maintainability of application - initiation of CIRP - applicant/respondent, seeking another opportunity to the to put forth its stand on admission of the application moved under Section 7 of the Code effectively - Financial Creditors - it was averred that the application was incomplete and as the OTS process was on, thus, default could not have been alleged and there is need to espouse the plea so raised and bring it home by putting forth the oral submissions - HELD THAT:- The right to hearing was given and availed by the learned counsel for the applicant/respondent in CP(IB) No. 250/Chd/Pb/2018. Therefore, reopening of the proceedings is not necessary.
The terms of the sanction letter dated 27.12.2018 were not complied with by the applicant/respondent in CP(IB) No. 250/Chd/Pb/2018 and therefore, the sanction letter dated 27.12.2018 granting OTS was automatically cancelled. The novation of contract, if any, does not therefore arise in the present case where the OTS proposal is not complied with and automatically cancelled.
The prayer for granting another opportunity to the applicant/respondent to put forth its stand on admission of the application moved under Section 7 of the Code effectively is denied - application dismissed.
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2019 (12) TMI 1524 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCH
Seeking order for liquidation of Corporate Debtor - section 33(2) of I & B code, 2016 - HELD THAT:- In the instant case, the contention of the Suspended Director cannot be taken into consideration in view of the aforesaid amended provisions of Section 33(2) of IB Code, 2019. Thus, in view of the facts and circumstances recorded by RP, this Adjudicating Authority did not receive any Resolution Plan under Sub-Section (6) of Section 30 and the CoC resolved to liquidate the Corporate Debtor with required majority. Therefore, in exercise of powers conferred under Sub-Clauses (i), (ii) and (iii) of Clause (b) of Sub-Section (1) of Section 33 of the I&B Code, 2016, the liquidation order is passed.
Application allowed.
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2019 (12) TMI 1523 - AUTHORITY FOR ADVANCE RULINGS — MUMBAI BENCH (INCOME-TAX)
Income received or deemed to be received in India - Business Income OR Royalties OR Fees for technical services - proof of business connections in India - payment pertains to business proposed to be carried out outside India - liability of withholding tax on premium payments - proposed payments by the applicant to VIVO for the grant of exclusive right to offer ring back tone Services to VIVO's customers in Brazil would be considered to be received or deemed to be received in India - applicant submits that the taxability of the amount of premium paid by the applicant to VIVO is required to be examined under the provisions of the Income-tax Act, 1961 and the provisions of the applicable Double Taxation Avoidance Agreements (DTAA "Tax Treaty"), whichever is more beneficial - HELD THAT:- Applicant received information and contents from VIVO, and thereupon value added products were developed by the applicant. The above replies of the applicant and flow chart submitted by the learned authorised representative confirms in unequivocal terms that the software and content development and customisation of services and testing of products were to be carried out by the applicant in India.
Applying the logic of CIT v. Havells India Ltd. [2012 (5) TMI 449 - DELHI HIGH COURT] to our facts we conclude that the source of premium payment is based in India as all value-added activities are located in India. The case of the applicant does not fall under the second limb of exclusion under section 9(1)(vi)(b). Thus, under the Income-tax Act, the payments are taxable as royalty in the hands of VIVO under the deeming provisions of section 9.
The applicant has kept a database, nurtured by commercial experience, relating to its mobile services which was being made available to the applicant and this valuable right has been shared with the applicant on exclusive basis and this is clearly in the nature of commercial information and experience which is shared with the applicant and the consideration paid is thus covered under article 12(3) of the treaty.
Since we have held that the payments are in the nature of royalty, we are not commenting on the pleas raised by either side for inclusion/exclusion of premium payment as fee for technical services. Suffice it to say that in relation to premium payments no services were rendered by VIVO in India or in Brazil and thus the captioned payment cannot be treated as fees for technical services.
Ruling:
(a) and (b). The payment of ₹ 12.70 million by the applicant to VIVO for the grant of exclusive right to offer ring back tone services to VIVO's customers in Brazil is income deemed to accrue or arise in India in terms of section 9(1)(vi)(b) as royalties.
(c) The amount payable by the applicant is taxable in India under the provisions of the India-Brazil tax treaty as royalties.
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