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Showing 21 to 40 of 1713 Records
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2020 (2) TMI 1694
Disallowance of claim u/s 35(1)(ii) - bogus donations for claiming deduction - assessee failed to furnish the certificate issued by the prescribed authority to School of Human Genetics and Population Health (SHG & PH) Kolkata granting approval for exemption of tax in respect of donations made to it - HELD THAT:- As relying on judgment of [2019 (7) TMI 1559 - ITAT AHMEDABAD] not specifically recorded statement of representatives of the donee. He has not brought on record a specific evidence wherein donee has deposed that donations received from the assessee was paid back in cash after deducting commission. On the basis of a general information collected from the donee, the donation made by the assessee cannot be doubted. Neither representatives of the donee have been put to cross-examination, nor any specific reply deposing that such donation was not received, or if received the same was repaid in cash, has been brought on record.
donation given by the assessee to the donee, on which the assessee no mechanism to check the veracity, can be doubted, more particularly, when certificate to obtain donation has been cancelled after two years of the payment of donation. It is fact which has been unearthed subsequent to the donations. Therefore, there cannot be any disallowance on this issue. Assessee’s appeal is allowed.
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2020 (2) TMI 1693
Penalty u/s 271(1)(c) - principles of natural justice - as argued assessee was not provided sufficient opportunity of hearing before the AO in the penalty proceedings - HELD THAT:- On perusal of the penalty order, we found that the assessee in lieu of the show cause notice issued has filed explanations on 17.01.2017 and mentioned that the addition in order u/s 143(3) by AO was accepted and paid the taxes. Further, we found that there is no other date of hearing is provided, the assessee has accepted the addition to buy peace with the Department. AO in complying the provisions of Section 271(1(c) has come to a conclusion that the assessee has deliberately furnished inaccurate information and details. AR emphasized that the assessee has prima facie vital explanations to submit before the AO in the penalty proceedings and prayed for one more opportunity.
We considering the factual aspects and principles of natural justice and further the reasons envisaged by the learned Authorized Representative, consider it appropriate to provide one more opportunity to the assessee to give clarifications and explanations in detail to the AO in the penalty proceedings. Assessee appeal is allowed for statistical purposes.
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2020 (2) TMI 1692
Principles of natural justice - no appearance inspite of service of SCN - Allegation of utilisation of FDI proceeds for claiming development rights of agricultural land owners by Indian entities - HELD THAT:- In spite of service of notice, the private respondents, except respondent no.4, have not entered appearance, neither have the officers of the respondent no.4, except respondent no.14 in WP(C) No.10337/2019 entered appearance.
Keeping in view the serious nature of allegations made in the petition and the submissions made by the learned counsel for the respondent nos.1,2,3 and 31, the private respondent companies in the petitions, that is the respondent nos.5 to 14 in WP(C) 8068/2019, and respondent nos.16 to 25 in WP(C) 10337/2019, are restrained from creating any third party interest or parting with the possession of their immovable properties till the next date of hearing, except in compliance with an order passed by any statutory Authority/Investigating Agency.
List on 20th July, 2020.
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2020 (2) TMI 1691
Validity of Reopening of assessment - mandatory requirement of giving a notice u/s 143(2) - Curable defect u/s 292BB or not - HELD THAT:- Impugned reassessment order passed by the AO u/s. 147/143(3) of the Act is invalid and void-ab-inito for want of valid notice u/s. 143(2) as per law as evident from fact that when return in response to notice u/s. 148 of the Act was admittedly filed on 05.10.2015, the notice u/s. 143(2) of the Act was issued on very same date i.e. on 05.10.2015 which shows non application of mind on the part of the AO in issuing notice u/s. 143(2) of the Act and thereafter assuming jurisdiction to frame assessment on this basis, the notice is not tenable in law and therefore impugned proceedings need to be quashed.
See Silver Line [2015 (11) TMI 809 - DELHI HIGH COURT] as held Section 292BB of the Act is a rule of evidence and it has nothing to with the mandatory requirement of giving a notice and especially a notice u/s 143(2) of the Act which is a notice giving jurisdiction to the AO to frame an assessment. Decided in favour of assessee.
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2020 (2) TMI 1690
Nature of expenses - club entrance fees - Revenue or capital expenditure - HELD THAT:- As decided in CIT vs. Samtel Colour Limited [2009 (1) TMI 26 - DELHI HIGH COURT] holds that such an admission fee expenditure incurred for corporate membership is very much allowable as revenue expenditure. Thus both the learned lower authorities have erred in law and on facts in disallowing the impugned payments as capital expenditure. The same stands deleted.
Deduction u/s 35D regarding share issue expenditure - whether amortization is allowable only for “pre-operative expenses”? - HELD THAT:- No merit in Revenue’s instant stand since section 35D(1)(ii) makes it clear that such an expenditure is allowable not only that pertaining to “before the commencement his business” but also “after the commencement of his business, in connection with extension of his undertaking or in connection with its setting up of a new unit”.
This tribunal’s recent decision in M/s MBL Infrastructure Ltd [2020 (1) TMI 457 - ITAT KOLKATA] has held similar share issue expenses as eligible for section 35D amortization - We adopt the above detailed reasoning mutatis mutandis and accept the assessee’s contention seeking impugned amortization.
CIT-DR said that the assessee did not identify the share issue expenses - He fails to dispute that the assessee’s impugned expense have already been recorded in the books of accounts forming part of records. We thus allow the assessee’s instant second substantive ground as well.
Disallowance u/s 40(a)(ia) - Assessee not filing the necessary details of its payees - effect of section 40(a)(ia) 2nd proviso inserted in the Act vide Finance Act 2012 w.e.f. 01.04.2013 - HELD THAT:- We wish to clarify here that hon’ble Kerala high court in Thomas George Muthoot [2015 (7) TMI 810 - KERALA HIGH COURT] had held the very proviso as having prospective operation only. We note in this backdrop that the assessee’s omission, if any, in not filing the necessary details of its payees is not fatal to its cause in view of the legal developments qua interpretation of the above-stated amended proviso involving divergent views from various high courts. We thus accept the assessee’s instant third substantive grievance for statistical purposes and leave it open for the Assessing Officer to carry out the necessary factual verification as per law. This substantive ground is taken as accepted for statistical purposes.
Disallowance u/s 14A - administrative expenses disallowance - HELD THAT:- Both the lower authorities have erred in law invoking the impugned disallowance in case of an assessee’s shares held as stock-in-trade. The assessee’s instant fourth substantive grievance is accepted.
Disallowance of interest claim u/s 36(1)(viii) after changing allocation of operative expenses from asset to turnover basis - HELD THAT:- We notice qua the instant issue as well that this tribunal’s coordinate bench’s decision in Allahabad Bank [2019 (6) TMI 993 - ITAT KOLKATA] as held assessee-Bank was required to manage both performing as well as nonperforming assets and the operating expenses incurred by it thus were attributable to non-performing assets also. This vital aspect was not appreciated by the authorities below in proper perspective and as rightly contended by assessee, the basis adopted by them for apportioning the operating expenses without proper appreciation of the vital position resulted in a distorted picture - basis adopted by the assessee for the apportionment of operating expenses was more fair and reasonable and the same followed consistently by the assessee in the earlier years was accepted by the revenue.
Thus we conclude that both the lower authorities have erred in changing assessee’s allocation from asset to turnover basis thereby including even the non-performing assets as well. The impugned section 36(1)(viii) disallowance is directed to be deleted therefore.
Provision for fraud and dacoity disallowed - assessee argued since the impugned provision has followed reasonable prudence after taking into account all fraud and dacoity cases and therefore allowable as per the hon’ble apex court’s landmark decision in Chainrup Sampatram [1953 (10) TMI 2 - SUPREME COURT]- HELD THAT:- the assessee’s income realized from the corresponding customers as well as insurance sums to this effect have also been declared in the year(s) of actual receipt. Learned CIT-DR is fair enough in submitting that all these aspects requires AO’s factual verification. We therefore restore the instant issue back to AO for carrying out necessary factual verification.
Assessee appeal partly allowed.
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2020 (2) TMI 1689
Limitation prescribed u/s 132 - limitation period of 60 days - communication herein is in terms of Section-37 of the Foreign Exchange Management Act, read with Section-132 of the Income Tax Act - HELD THAT:- It postulates a limitation period of 60 days with regard to such an impugned order. The same having been examined and following the judgments of the Hon’ble Supreme Court on this point, the impugned orders were quashed by the learned Single Judge. Under these circumstances, we find no good ground to entertain this appeal. Hence, the appeal is dismissed.
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2020 (2) TMI 1688
Assessment u/s 144C - APA between the assessee and the CBDT with reference to the TP issues - HELD THAT:- As pointed by assessee that the assessee has submitted two separate letters before the Registry of this Tribunal on 29.01.2020 in which, it is submitted by the Managing Director of the assessee company that the assessee wants to withdraw the grounds of appeal filed on 29.02.2016 for Assessment Year 2011-12 and filed on 22.12.2017 for AY 2013-14 because the assessee has entered into a Unilateral APA with the Central Board of Direct Taxes under section 92CC of the Income Tax Act, 1961 and the assessee has also enclosed a copy of the said agreement for both the years. Appeals of the assessee are dismissed as withdrawn.
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2020 (2) TMI 1687
Infringement of copyrights - Suit for declaration, injunction, rendition of accounts and damages - prime contention of the plaintiff is that the defendants had not only adopted the idea of copyright work of the plaintiff but also had adopted the manner, arrangement, situation to situation, scene to scene with minor changes additions or embellishments here and there.
HELD THAT:- The plaintiff has proved the fact that he has registered the story “SPM” with the third defendant association on 10.04.2013. The script of “SPM” is marked as Ex.P.1. The script of movie “Kathi” is marked as Ex.D.2 and the CD of the film “Kathi” is marked as Ex.D.3. In the plaint, it is alleged that the script “SPM” and script of “Kathi” are replica of each other. Whereas, on reading both the scripts, this Court finds that there is not even iota of similarity. Whatever similarity drawn and mentioned in the comparative chart - Ex.P.5 are very remote and even if it be in isolation, they are not similar taken as a whole - this Court finds that the plaintiff has miserably failed to prove that his form, manner arrangement and expression of idea has been infringed by the defendants. The script of the plaintiff is based on emotion between two couple centering around an old lady. Whereas, the script of the second defendant “Kathi” is on land grabbing by a schemy industrialists. There is no similarity on the fundamentals or substantial aspect neither mode of expression is similar.
As the Hon'ble Supreme Court has said in R.G. ANAND VERSUS M/S. DELUX FILMS AND OTHERS [1978 (8) TMI 231 - SUPREME COURT], the surest and safest test to determine whether or not, there has been a violation of copyright is to see, if the Reader, Spectator or the Writer after having read or seen both the works is clearly of the opinion and gets non mistakenly that the subsequent work appears to be copy of the original. On reading of Ex.P.3 script (“SPM”) and Ex.D.2 script ('Kathi'), this Court do not get such impression. Rather, this Court finds that the scripts are two different and distinct play and plot. While the plaintiff has not even able to establish that the story of “Kathi” is replica of his script “SPM”, his allegation that the remake right acquired by the defendants 4 and 5 and the film “Kaidhi No.150” produced by the defendants 4 and 5 is also infringement of script of “SPM” is totally baseless. More so, when the plaintiff has not produced any document to show in connection with “Kaidhi No.150” - this Court holds that the plaintiff has no legal right and the plaintiff has failed to establish any infringement of his copyright by the defendants. Hence, this issue is negatived.
Since, the plaintiff has failed to place evidence to prove the Telugu movie produced by defendants 4 and 5 “Kaidhi No.150”, is remake of “Kathi” Tamil feature film which is based on the story “SPM”, the suit is liable to be dismissed for want of cause of action - Undoubtedly, the plaintiff is the copy right owner over the literary work “SPM” since, he has registered the same with the third defendant, on 10.04.2013. But that does not give him any right to sue the defendants alleging that the movie “Kathi” is based on his script since, there is no similarity either in idea or subject matter, the play or the expression or the ideas.
Since, the plaintiff has failed to prove his case of infringement, no case for rendition of accounts from the defendants, is made out. As the consequence, the plaintiff is not entitled for compensation and damages.
Suit dismissed.
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2020 (2) TMI 1686
Revision u/s 263 - Eligibility of deduction u/s 54EC - HELD THAT:- There is no dispute between the parties about the two dates each of receipt of sale consideration of painting(s) followed by reinvestment in REC bonds.
The assessee’s reinvestment falls within six months from the date of transfer. He is entitled for the impugned section 54EC deduction. We make it clear that the legislature has amended section 54EC by inserting 2nd proviso to sub-section(1) of the Act by the Finance Act 2014 w.e.f. 01.04.15 restricting the reinvestment amount to a lumpsum of Rs.50,00,000/-; even if it involves more than one financial year, w.e.f 01.04.15 only without having retrospective effect. We wish to reiterate here that we are dealing with assessment year 2014-15.
It emerges from the case records that the learned special bench had came across the concerned assessee’s date of receipt of sale consideration as 10.06.08 and reinvestment of the corresponding capital gains on 17.12.08 only.
We therefore adopt the reasoning Alkaben B. Patel [2014 (3) TMI 842 - ITAT AHMEDABAD] mutatis mutandis and hold that the assessee’s impugned reinvestment dated 28.04.14 after receiving final amount of consideration on 01.11.13 as very well beyond six months and therefore, he is entitled for the impugned section 54EC deduction.
PCIT’s impugned revision action in the above-narrated facts and circumstances is not sustainable since the Assessing Officer’s alleged failure in either or not examining the case or disallowing the above-stated deduction relief has not caused any prejudice to interest of the Revenue. His assumption of section 263 revision jurisdiction stands reversed therefore. AO’s regular assessment herein stands revived as a necessary corollary.
Coming to remaining eight assessees’ cases both the learned representatives are ad idem that the same also involve identical facts since they had received the sale consideration of painting(s) on more than one occasion containing different dates followed by reinvestment thereof in REC bonds on similar two dates only. More particularly qua the latter one being beyond a period of six months from the date of transfer of the relevant capital asset(s). PCIT’s revision direction in these eight cases are also stood reversed therefore.
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2020 (2) TMI 1685
Release of attached property - priority over settlement of dues - HELD THAT:- On the conjoint reading of both the Acts, we are of the considered view that PMLA would prevail over the SARFAESI Act. The adjudicating authority could not release the properties during the pendency of trial which commenced pursuant to the FIR dated 25.03.2013.
Appeal disposed off.
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2020 (2) TMI 1684
Benefit/perquisite u/s.2(24(iv) - addition of notional interest - Calculation of benefit by taking the rate of interest @ 6% per annum - AO held that amount has been received by the assessee as a Director without any interest, and therefore, in terms of provision of Section 2(24)(iv), the interest free advance received by the Directors is to be treated as Benefit/perquisite received by him, because he is the person who has controlled the affairs of these two companies and also other companies - HELD THAT:- ITAT order in [2019 (1) TMI 2001 - ITAT DELHI] wherein the Tribunal has dealt and decided this issue by following the order of the Tribunal in Assessment Year 2009-10 [2018 (3) TMI 1575 - ITAT DELHI] wherein set aside ground of the appeal of the revenue to the file of the Ld. assessing officer with a direction to the assessee to show before him that how the about transaction of receiving loan from a firm to the assessee free of interest where a company where the assessee is director which is provided huge interest free funds to such firm is not chargeable to tax as income under section 2(24)(iv) - AO may examine the arguments of the assessee and decide the issue afresh in accordance with the law after granting assessee adequate opportunity of hearing. Accordingly, ground No. 3 of the appeal of the revenue is allowed with above direction.
Thus, respectfully following the aforesaid precedent in assessee’s own case, we restore all this issues raised before us to the file of the Assessing Officer for reconsideration as per the direction of the Tribunal. Appeals of the assessee are allowed for statistical purposes.
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2020 (2) TMI 1683
Levy of service tax - Photography Services - digital offset printing - the activity was undertaken by the appellant, for which necessary soft copies of pictures, photographs and print material was provided by the clients - time limitation - HELD THAT:- In case of M/S. VENUS ALBUMS CO. PVT. LTD. VERSUS CCE, CHANDIGARH/LUDHIANA/AMRITSAR [2018 (11) TMI 754 - CESTAT CHANDIGARH] Chandigarh Bench has on the identical facts held that the activity undertaken by the appellant amounts to manufacture and classifiable the Chapter 4911, therefore, no service tax is payable by the appellant. In alternate, we hold that the activity undertaken by the appellant is exempted from payment of service tax. Therefore, no service tax is payable by the appellant.
Time Limitation - HELD THAT:- There are no reasons to differ with the decision of the Chandigarh Bench. Since we hold that the demand cannot be sustained on the merits, we are not going into the issue of limitation.
Since the demand of Service Tax itself cannot be sustained, demand of interest under Section 75 of Finance Act, 1994 and penalties imposed under Section 77 and 78 ibid to cannot be sustained and are set aside - appeal allowed.
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2020 (2) TMI 1682
Reopening of assessment u/s 147 - whether the learned Tribunal was legally justified in upholding the action of the Assessing Officer reassessing the “interest income” of the appellant under sections 147 / 148? - HELD THAT:- This question has to be answered in the affirmative notwithstanding the fact that the AO, admittedly, on account of oversight / mistake failed to assess the interest income since there was no question of double addition which had arisen in this case.
A judgment of the Hon'ble Supreme Court which was referred to and relied upon by the learned advocate representing the appellant rendered in Commissioner of Income-Tax v. Corporation Bank Ltd. [1999 (2) TMI 16 - SUPREME COURT] has no manner of application at all in the facts of the instant case, since that judgment was rendered prior to the applicable law having undergone several amendments.
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2020 (2) TMI 1681
Equality of opportunity for women seeking Permanent Commissions (PC) in the Indian Army - HELD THAT:- The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1). The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army. The fundamental right is recognised in the specified streams where women are permitted to seek engagement as equal members of the Armed force that the Indian Army represents - The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution.
Stereotypes and women in the Armed Forces - HELD THAT:- Courts are indeed conscious of the limitations which issues of national security and policy impose on the judicial evolution of doctrine in matters relating to the Armed forces. For this reason, it is noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals. At the same time, we have adverted in some detail to the line of submissions urged before this Court. These submissions detract from the significant role which has been played by women SSC commissioned officers since their induction in 1992. The time has come for a realization that women officers in the Army are not adjuncts to a male dominated establishment whose presence must be “tolerated” within narrow confines - The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women.
Consequence of non-compliance - HELD THAT:- There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. The judgment of the Delhi High Court was rendered on 12 March 2010. Nearly a decade has elapsed since the date of the decision. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. However, it failed to do so despite the categoric assertion by this Court in its order dated 2 September 2011 that what was stayed as an interim measure is the action for contempt and not the operation of the judgment. Having failed to enforce the judgment, the Union Government has now informed the Court that it would not consider women officers who have crossed the age of fourteen years in service as SSC officers for the grant of PCs.
The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary for this Court to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision. The Union Government has not applied it in such a manner, which is evident from the fact that the decision contemplates that women officers already in service but with less than fourteen years would be entitled to be considered. We therefore clarify that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them.
The failure of the government to implement the judgment of the Delhi High Court has caused irreparable prejudice to the women officers. Over the chequered history of the litigation of the past decade, they have lost the benefit of promotions and the assumption of higher responsibilities as members of the Armed Force. To turn around now and inform them that they will lose the entitlement of being considered for the grant of PCs would be a travesty of justice. We are accordingly of the view that SSC women officers, both within the period of fourteen years‟ service and beyond, should equally be entitled to consideration for the grant of PCs.
The courts are conscious of the limitations which questions of policy impose on judicial intervention in matters relating to the Armed Forces. At the same time, faced with a salient decision of the Union Government to extend to all women SSC officers the option for the grant of PCs as well as the situation which has come to pass due to the non-implementation of the binding directions of the Delhi High Court as well as this Court, nonintervention in the present matter would be nothing short of a travesty of justice.
The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:
(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;
(b) The option shall be granted to all women presently in service as SSC officers;
(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;
(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;
(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;
(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and
(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.
(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and
(iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.
Appeal disposed off.
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2020 (2) TMI 1680
Refusal to release the payment in terms of the unconditional guarantee - refusal on the ground that the money may not have been made available by Simplex to the bank - HELD THAT:- IOCL says that it was in such circumstances that IOCL was constrained to invoke the writ jurisdiction of this court for a direction on the Bank of Baroda to release the payment under the unconditional bank guarantee. IOCL maintains that in such circumstances and considering the conduct of the Bank of Baroda, an appropriate order ought to have been passed to revoke its licence since it had acted in a manner unbecoming of a bank, a nationalised bank at that. The cross-objection is against such part of the order impugned dated June 24, 2019 by which the bank has been directed to immediately make the payment; but the Reserve Bank has not been required to look into the conduct of the Bank of Baroda to cancel its licence.
Considering the conduct of the appellants, the Reserve Bank of India should consider what appropriate steps may be taken against the Bank of Baroda, including revoking its licence or the authority to carry on banking business, if necessary - Appeal dismissed.
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2020 (2) TMI 1679
Seeking release of the seized gold ornaments - HELD THAT:- The writ application is disposed off, directing the Chief Commissioner, CGST, Central Excise & Customs Opposite Party No.1 to dispose of the representation of the petitioner, by passing a reasoned order, within a period of two months from the date of receipt of a certified copy of this Order.
The writ application is accordingly disposed of.
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2020 (2) TMI 1678
Taxability of Home Office Allocation receipts - FTS receipts - HELD THAT:- As decided in assessee own case [2017 (12) TMI 299 - ITAT KOLKATA] receipt in question is not FTS and cannot be charged to tax in the hands of the Assessee. Nevertheless, we are of the view that it would be just and appropriate to direct the AO to examine the claim of the Assessee in this regard and if the claim of the Assessee is found to be correct, then the receipt in question cannot be taxed as FTS. We hold and direct accordingly. Thus the relevant grounds of Cross objections by the Assessee are allowed.
Agreement between the appellant and TIL was purely advisory services and such advisory services rendered cannot be treated as fees for included services under Article 12(4)(b) since there is no make available of technology.
Home office receipts during the year under consideration are pursuant to the same agreement between the appellant and TIL which has already been considered by the Hon’ble ITAT while adjudicating the appeals for A.Ys 2002-03 to AY 2007-08. Thus we uphold the same and dismiss this ground of the revenue for all the Assessment Years.
Taxability of charge back of receipts - assessee had received an amount on account of charges from TIL/Timken Engineering and Research India Private Limited (TERI). These receipts were reimbursements of payments made by the assessee to third parties towards, provision of various services to TERI, TIMPL and TIL - HELD THAT:- As decided in assessee own case [2017 (12) TMI 299 - ITAT KOLKATA] the sums received by the appellant in question are pure reimbursements on actual with no mark up and the appellant is not the ultimate beneficiary of the sum in question. The appellant has not rendered any service to TIL and there is no basis on which the sum in question can be considered as FTS in the hands of the appellant. Further, even assuming it is FTS, the services rendered does not make available any technical skill, knowledge, etc. to the service recipient.
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2020 (2) TMI 1677
Income deemed to accrue or arise in India - Business connection /permanent establishment in India - Whether the appellant had a business connection in India in terms of the Act and a permanent establishment [PE] in India in terms of the India-Singapore Double Taxation Avoidance Agreement [DTAA] - HELD THAT:- The Tribunal in the aforementioned appeals for A.Y 1999-2000 to A.Y 2004-05 had upheld the orders of the lower authorities and had concluded that the assessee was having business connection and PE in India. We find that though the assessee had raised a ground of appeal assailing the observations of the DRP that the assessee had a PE in India in terms of Article 5(1) and 5(8) of the India-Singapore DTAA but during the course of the hearing of the appeal no contention was advanced by the ld. A.R to support his aforesaid claim. We thus following the orders passed by the coordinate benches of the Tribunal in the assesses own case uphold the order of the DRP that the assessee had a business connection/PE in India. The Ground of appeal No. 2 raised by the assessee before us is dismissed.
Amount of income that was attributable to the PE of the assessee in India - We herein conclude that 15% of the gross receipts pertaining to India bookings shall be the income attributable to the India operations of the assessee. Also, we follow the view taken by the Tribunal in the aforesaid preceding years viz. A.Y 1999-2000 to A.Y 2004-05 [2009 (7) TMI 1341 - ITAT DELHI] and A.Y 2005-06 to A.Y 2011-12 [2018 (2) TMI 1767 - ITAT MUMBAI] that as the commission paid by the assessee to its NMC viz. ADSIL at 25% of its gross receipts pertaining to India bookings was higher than its income attributable to India, therefore, no part of the aforesaid income would remain in the hands of the assessee which could be brought to tax in India. As such, in terms of our aforesaid observations we allow the Ground of appeal No. 3 raised by the assessee.
10% of the expenses reimbursed by ADSIL were to be held as the business income of the assessee - HELD THAT:- As relying on assessee own case A.Y 2005-06 to A.Y 2011-12 [2018 (2) TMI 1767 - ITAT MUMBAI] we herein direct that 10% of the aforesaid amoun be brought to tax as the business income of the assessee. At the same time, the assessee would be entitled for claiming ‘set off’ of the aforesaid amount against the commission payment made by it to its NMC viz. ADSIL. The Ground of appeal No. 4 raised by the assessee is partly allowed in terms of our aforesaid observations.
TP adjustment in respect of USD denominated interest free ECB loan that was advanced by the assessee to its wholly owned subsidiary company in India, viz. ADSIL - HELD THAT:- As following the view taken by the Tribunal in the aforesaid preceding years viz. A.Y 2005-06 to A.Y 2011-12 [2018 (2) TMI 1767 - ITAT MUMBAI] in the assesse’s own case, we herein conclude that the notional interest income on the loan (interest free) that was advanced by the assessee to its AE viz. ADSIL would be assessable as the income of the assessee which has a business connection/PE in India. At the same time, we are in agreement with the claim of the ld. A.R that the said notional interest income on the loans advanced by the assessee to its AE would be entitled to be adjusted against the expenditure incurred by the assessee by way of marketing service fees paid to its National Marketing Agency in India, i.e its NMC viz. ADSIL. Ground of appeal No. 5 raised by the assessee is disposed off in terms of our aforesaid observations.
Levy of interest u/s 234B and interest u/s 234C - HELD THAT:- As in N.G.C Network Asia CCC [2009 (1) TMI 174 - BOMBAY HIGH COURT] had concluded that the Tribunal had rightly deleted the interest levied on the assessee under Sec. 234B of the Act. We thus in terms of the aforesaid observations of the Hon’ble High Court direct the A.O to delete the interest levied on the assessee under Sec. 234B and Sec. 234C.
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2020 (2) TMI 1676
Evidentiary value of school leaving certificate - Whether the judgment and decree passed by the Courts below suffer from illegality on account of improper consideration of Ex.P1, i.e., school leaving certificate? - HELD THAT:- School Leaving Certificate has been produced by the plaintiff and said to be signed by his father. The person who has recorded the date of birth in the School Register or the person who proves the signature of his father in the School Transfer Certificate has not been examined. No official from the School nor any person has proved the signatures of his father on such certificate. Apart from the self-serving statement, there is no evidence to show that the entry of the date of birth was made by the official in-charge, which alone would make it admissible as evidence under Section 35 of the Indian Evidence Act, 1872. However, the High Court has not found any other evidence to prove the truthfulness of the Certificate (Ex.P/1).
In Birad Mal Singhvi [1988 (8) TMI 440 - SUPREME COURT], the Date of Birth was sought to be proved by the Principal of the School. Though, the Principal could not produce the admission form in original or its copy. It was held therein that the entries contained in the school’s register are relevant and admissible but have no evidentiary value for the purpose of proof of date of birth of the candidates. A vital piece of evidence was missing as no evidence was placed before the court to show on whose information the date of birth was recorded in the aforesaid document. It was held that The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned.
In Madan Mohan Singh, [2010 (8) TMI 1168 - SUPREME COURT] this Court held that the entries made in the official record may be admissible under Section 35 of the Indian Evidence Act, 1872 but the Court has a right to examine their probative value.
Both the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.
The High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the First Appellate Court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of the fact - the High Court committed grave error in law in setting aside the concurrent findings of facts recorded by the First Appellate Court and the Trial Court - Appeal allowed.
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2020 (2) TMI 1675
Uploading FORM GST TRAN-1 - HELD THAT:- We take note of the fact that, challenge in these appeals are against an interim order. The said order does not contain any specific directions. On the other hand, the learned counsel for the respondents in the writ petition was only directed to get instruction with respect to the alleged non-compliance of the directions contained in the earlier judgments. It is well within liberty of the appellants herein to point out the above mentioned aspects before the learned Single Judge and to seek appropriate modification of the interim order, if found necessary. We do not find anything to presume that, the learned Single Judge will not consider such submissions, if made with supporting materials.
The above writ appeals are hereby dismissed by reserving liberty to the appellants to raise all the contentions raised herein before the learned Single Judge, in seeking modification of the impugned interim order, if found necessary.
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