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Showing 1 to 20 of 943 Records
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2020 (8) TMI 944
Repayment of loan - Letter of Comfort - can that Letter of Comfort be fairly read to be a guarantee by the 1st Defendant to repay a loan that the Plaintiff gave to another entity? - Does it accord with the requirements of a guarantee under Section 126 of the Contract Act, 1872? - Does it contain an unequivocal commitment or assumption by the 1st Defendant to repay the loan on the principal borrower's default? - HELD THAT:- In a given case, a letter of comfort may indeed amount to a guarantee. Not every letter of comfort is ipso facto a guarantee. The nomenclature is unimportant, as is the absence of the word 'guarantee' - The ordinary rules of construction and interpretation relating to contracts apply to LoCs - The document is to be construed as a whole, read in a reasonable commercial sense, and in context of events and associated documents - Yet, to be a guarantee, it must conform to the provisions of Section 126 of the Contract Act.
Whether the document in question is a guarantee or not depends upon the exact terms to which the guarantor binds himself. In law, no guarantor is liable for more than what the guarantor has undertaken - Where the terms of a written contract are unambiguous and clear, they cannot be altered by addition or subtraction. The terms of a written guarantee cannot be so altered to foist on a party a liability beyond that which the party has undertaken. The contract cannot be rewritten at the instance of one party - The conduct of the parties is a relevant factor in assessing the construction of any contract.
Broad allegations of commercial infidelity, immorality or amorality have no role at all to play in the construction of commercial contracts--especially where parties are well-equipped with legal and financial services (as opposed to an uneducated indigent or individual), and the resultant documentation is complex, and has carefully considered, well-defined provisions. A court will look to the nature of the bargain struck and the role that each of the parties was to play, and when, in what manner, and to what extent. The fact that one or more of the contracting parties are interlinked is not necessarily relevant.
The Interim Application is utterly without merit. It should be dismissed - Application dismissed.
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2020 (8) TMI 943
Conspiracy - illegal mining activities - cognizance of the offences under the MMDR Act and MCD Rules without the complaint being lodged by any competent authority as per the mandate in Section 22 of the MMDR Act and Schedule-I of the OMPTS Rules - HELD THAT:- It is true that none of the petitioners have challenged or are questioning the power of Government to issue the Notification dated 14.01.2010 authorising Vigilance Police in that respect. Undisputedly the validity of notification dated 14.1.2010 is not questioned. The averments and submissions made on behalf of the petitioners are completely silent about the said Notification made in favour of the Vigilance Police. On the other hand, as seen from the Notification dated 14.01.2020 issued by the Government in Home Department and the Notification dated 19.12.2009 issued by the Steel and Mines Department, Government of Odisha, they are neither overlapping to each other nor the Notification dated 14.01.2010 is found in conflict with the provisions of the MMDR Act or the OMPTS Rules.
A bare perusal of the notification dated 14.01.2010 clearly shows that it has given power to the Vigilance Police to investigate or lodge complaint for such offences under the MMDR Act and other relevant Acts/Rules. Therefore, in view of the specific authorization made in favour of the Vigilance Officials in that respect, the contentions of the petitioners cannot be accepted that the Dy. Superintendent of Police (Vigilance) is not authorized to file the complaint for the offences against the requirement of Section 22 of the MMDR Act. Therefore, the complaint at the instance of Vigilance Police and investigation conducted by them against the petitioners is maintainable.
A further contention is made on behalf of the petitioner Jitendranath Patnaik that in absence of all legal heirs of the lessee Late Bansidhar Patnaik, the prosecution against him alone is not maintainable. This contention has no leg to stand because as per the allegation he is the only legal heir of late Bansidhar Patnaik, who applied for renewal by producing the forged WILL and is also the beneficiary of the ill-got minerals. When other legal heirs have not played any role in such illegal mining, they need not be brought into the sphere of prosecution because only being the legal heirs under the law will not attract any offence itself, without actus reus and mens rea.
The CRLREVs are found devoid of any merit and accordingly all these Criminal Revisions stand dismissed.
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2020 (8) TMI 942
Authority of the Monitoring Committee to seal the residential premises on the private land - used for the commercial purpose or not - Whether the Monitoring Committee could have sealed these residential premises? - HELD THAT:- It is apparent from the various orders passed by this Court from time to time and from the various reports of the Monitoring Committee that it was never authorized by this Court to take action against the residential premises that were not being used for commercial purposes. It was appointed only to check the misuser of the residential properties for commercial purposes. After that, this Court directed that the Monitoring Committee should also look into the matter of “encroachment on the public land” and “unauthorized colonies” that have come up on the public land and were wholly unauthorized without sanction. At no point in time, this Court had empowered the Monitoring Committee to act visàvis to the purely residential premises.
The power of sealing of property carries civil consequences. A person can be deprived of the property by following a procedure in accordance with law. The Monitoring Committee is not authorized to take action concerning the residential premises situated on the private land. If there is unauthorized construction or in case of deviation, the requisite provisions are under the DMC Act, such as sections 343, 345, 347(A), 347(B). The mode of action and adjudication under the Act is provided including appellate provisions and that of the Tribunal. It would not be appropriate to the Monitoring Committee to usurp statutory powers and act beyond authority conferred upon it by the Court. The Monitoring Committee could not have sealed the residential premises, which were not misused for the commercial purpose as done vide Report No.149, nor it could have directed the demolition of those residential properties.
After going through the report of the Monitoring Committee and other reports which have been relied upon by the Amicus Curiae, there is no scintilla of doubt that the Monitoring Committee in the past at any point of time did not seal any residential premises being used for residential purposes, situated on the private land nor it could have ordered demolition.
Let the property sealed be desealed, and possession be restored to the owners forthwith. Let this order be complied with within three days - Issue notice.
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2020 (8) TMI 941
Wilful defaulter - petitioner has submitted that the writ petitioner is aggrieved by a portion of the order and accordingly, leave may be given to the writ petitioner to file a cross objection - HELD THAT:- It is directed that the appeal shall be heard treating the stay application as paper book. The service of notice of appeal is dispensed with.
Both the appeal and the cross-objection may appear before the appropriate Bench two weeks hence - application disposed off.
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2020 (8) TMI 940
Direction to handover the legal possession of the unit along with all the promised facilities and amenities to the complainant - Interpretation and implementation of the terms of the builder buyer's agreement - complainant has multiple bookings which prove that the complainant is not covered under the definition of ‘consumer’ as provided in the Consumer Protection Act 1986 - HELD THAT:- The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice.
There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved layout and areas of common spaces and the originally approved lay-out and areas.
Hon’ble Supreme Court in DLF HOMES PANCHKULA PVT. LTD. AND ORS. VERSUS D.S. DHANDA AND ORS. [2019 (5) TMI 2006 - SUPREME COURT] has clearly observed that when the contract/agreement has been signed by the builder and the allottee, both of them are bound by the terms of the agreement and from this aspect, the allottee is only entitled to get the compensation as mentioned in the agreement. The Hon’ble Supreme Court has given some compensation for mental agony and harassment to such allottee. In the present case, a compensation of Rs.7.50/- per sq.ft. per month is agreed between the parties for delay in possession and therefore, in the light of the decision of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; it is difficult to compensate the complainant by ordering interest on the amount paid by the complainant.
The demand for excess area is cancelled and the opposite party is directed to send revised demand excluding for the demand of excess area without adding any new demand within a period of 30 days along with the offer of possession - Opposite party is directed to hand over the possession within a period of 30 days from the date of issue of such offer letter. The possession should be complete in all respects as per the agreement.
Complaint allowed in part.
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2020 (8) TMI 939
Allowability of exemption u/s 11 and addition u/s 115BBC - assessment of trust - unanimous donation received - HELD THAT:- As assessee has not filed full details regarding the donors which means that some details were filed by the assessee regarding donors which is not considered as full details by CIT(A) but he has not pointed out the defects or the short comings in the details filed by the assessee. For all these years, we find that the particulars given are regarding dates of receipt of donation, receipt number, name and address of the donors and the amount of donation received. Thus such details are sufficient to decide this aspect of the matter as to whether the donation are anonymous or not. Hence, we feel it proper to restore this matter on this issue also back to the file of CIT(A) for fresh decision.
Thus respectfully following this tribunal order above, we restore both issues i.e. the issue about allowability of exemption u/s 11 in both years and about addition made by the AO u/s 115BBC by alleging that this donation is unanimous donation to CIT (A) for fresh decision with similar directions - Appeals of the assessee are partly allowed for statistical purposes.
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2020 (8) TMI 938
Seeking direction for quashing of summons - illegal search and seizure proceedings conducted by the Respondent ED - HELD THAT:- As sought, let the respondents no.2 and 3 file replies within two weeks from today with an advance copy thereof to the learned counsel for petitioner through email. Rejoinder thereto, if any, be also filed within two weeks thereafter.
List on 12.10.2020 and in the meanwhile, the petitioner is directed to join the investigation as and when directed to do so, however there shall be no coercive action against him by the Department till the next date of hearing.
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2020 (8) TMI 937
Seeking grant of default bail with the aid of 167(2)(a)(ii) of Cr.P.C - whether in computation of period of 90 days or 60 days as contemplated in Section 167(2)(a) of Cr.P.C, the day of remand is to be included or excluded? - HELD THAT:- The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue.
As regards the applicability of the provisions of Limitation Act, 1963 is concerned, which prescribe limitation in filing of suits, appeals and applications is concerned, the right of release being claimed as by way of default, there is no scope of applicability of the said enactment and in particular, Section 12 (1) and (2) since there is no decision/order, against which any Appeal/ Application is being preferred.
It is pertinent to note the recent three Judge bench decision of the Apex Court in case of S. Kasi Vs. State [2020 (6) TMI 727 - SUPREME COURT] where it is reiterated that the period u/s. 167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142. The power of Magistrate authorizing detention of accused in custody by prescribing the maximum period, cannot be extended directly or indirectly by any Court with an exception contained in Special Statutes, which to that extent modify the applicability of Section 167 of the Code. Undue delay is not conducive to administration of criminal justice.
The impugned order passed by the Sessions Judge, excluding the first day of remand while computing the period of 60 days cannot be sustained and is liable to be set aside and the filing of the chargesheet by the Directorate of Enforcement on 13th July 2020, being after of 60 days, by excluding the day of remand i.e. 14th May 2020, make the applicants entitled for default bail. They deserve to be released on bail in light of the right conferred u/s. 167(2)(a) (ii), if they are prepared to and furnish the bail.
Bail application allowed.
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2020 (8) TMI 936
Maintainability of petition - petition dismissed only on the ground that the certified copy of the impugned order was not appended rather a photocopy of the impugned was appended - HELD THAT:- Counsel for the State has fairly conceded that the impugned order deserves to be set aside and the matter may be remanded back with a direction to the appellate authority to decide the appeal on merits rather than dismissing on the ground that the certified copy has not been appended though photocopy of the impugned order was attached which is not disputed to be incorrect.
The matter is remanded back to the appellate authority to decide the appeal on merits after taking into consideration the photocopy of the impugned order - impugned order set aside.
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2020 (8) TMI 935
Refund claim alongwith interest - non-compliance with the direction to decide the claim for aforesaid refund along with interest as early as possible practicably within a period of eight weeks - HELD THAT:- The respondent is directed to supply copies of the order dated 14th August, 2020 to the Court Masters as well as to the learned counsel for the petitioner during the course of day. The undertaking given by respondent with regard to payment to the petitioner is accepted by this Court and the respondent is held bound by the same.
The present writ petition is disposed of with liberty to the petitioner to challenge the order dated 14th August, 2020 refusing grant of interest to the petitioner, by filing appropriate proceedings in accordance with law. All rights and contentions of the parties are left open.
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2020 (8) TMI 934
Dishonour of Cheque - case is posted for marking of the documents from the respondent's side and for cross-examination after recording petitioner's statement under Section 313 of the Code of Criminal Procedure - HELD THAT:- There is a procedural irregularity inasmuch as the statement of the petitioner under Section 313 of Cr.P.C. is recorded much before the completion of the respondent's evidence. The Section 313 statement should have been after the respondent's evidence was completed including his cross-examination. This irregularity renders the entire proceeding from the stage of recording the accused’: plea vitiated. Therefore, neither of the impugned judgments can be sustained. The learned counsel relies upon a decision of this Court in Crl.R-P. No. 100241/2018 decided on 13th March 2019 in support of his submission that the impugned judgments will have to be set aside and the case remanded for re-trial from the stage of cross-examination of the respondent.
The case is restored to the Beard of VI JMPC, Belagavi, for re- trial commencing with the cross-examination of the respondent. The parties shall appear before the VI JMPC. Belagavi without further notice, on 14 of September 2020 - The revision petition is accordingly allowed.
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2020 (8) TMI 933
Judgment-debtor has the means to satisfy the money decree or not - Ascertainment of assets and income of the judgment-debtor - Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure - requirement of modifications in the judgements and formats of affidavit.
HELD THAT:- This Court is of the view that the directions issued by this Court in the judgment dated 05th December, 2019 and formats of the affidavits (Annexures A, B and C) formulated by this Court require modification, in order to make them more comprehensive. The judgment dated 05th December, 2019, is hereby modified.
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2020 (8) TMI 932
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - It was held by NCLAT that the Application filed under Section 7 by the Appellant / Financial Creditor should have been admitted by the Adjudicating Authority - HELD THAT:- There are no ground to interfere with the impugned order passed by the National Company Law Appellate Tribunal.
Appeal dismissed.
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2020 (8) TMI 931
Direction to Resolution Professional to produce details of assets of the 'Corporate Debtor' along with the valuation report by two valuers within four weeks - HELD THAT:- The 'Corporate Debtor' is not a going concern and there being no resolution plan, the 'Committee of Creditors' has unanimously decided to send the 'Corporate Debtor' into the liquidation. Once the application under Section 33 of the 'I&B Code' was moved before the Adjudicating Authority, in the given circumstances, it was left with no option but to order the liquidation of the 'Corporate Debtor'. Collecting of material in regard to the assets of the 'Corporate Debtor' and valuation reports etc. is not germane to the disposal of the application under Section 33 of the 'I&B Code'.
Since the impugned order suffers from legal infirmity, same cannot be supported, the same is set aside with direction to the Adjudicating Authority to dispose of the application of the 'Resolution Professional' under Section 33 of the 'I&B Code' within a week's time.
Appeal disposed off.
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2020 (8) TMI 930
Rejection of Application for grant of interim relief - condonation of delay of 404 days in filing the review petitions - sufficient cause for delay, exists or not - HELD THAT:- There is delay of 404 days in filing the review petitions for which no sufficient cause has been shown by leaned counsel for the petitioner.
The review petitions are dismissed both on the ground of delay as well as on merits.
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2020 (8) TMI 929
TP adjustment - APA for international transactions - arm’s length in terms of provisions of section 92C - assessee has adopted the transaction by transaction approach which was disregarded by the TPO by aggregating all transactions and applying TNMM method and made a total adjustment - DRP upheld the application of TNMM on the basis that the appellant had adopted TNMM in the previous years and margins of the comparable companies were recomputed - HELD THAT:- Tribunal, in a series of decisions, have consistently held that even if the year under dispute is not covered by APA, if the FAR is same, APA should be adopted for international transactions for the year under dispute.
Accordingly, we direct TPO to consider the FAR of the year under consideration with FAR of the years in APA. The assessee is directed to produce all necessary documents in compliance with APA and the AO/TPO is directed to decide the issue in light of APA in respect of international transactions in dispute in the present appeal and adopt the same methodology which has been directed to be adopted in the APA.
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2020 (8) TMI 928
TP Adjustment - comparable selection - CIT upholding action of the AO by selecting Heinz India Pvt. Ltd. as comparable - HELD THAT:- As in commercial world, the manufactures in order to earn higher turnover at times reduce their margin of profit. It means higher turnover lower the margin of the profit, therefore, merely because a comparable company as a higher turnover cannot be the ground for its exclusion. However, we find that Heinz India Ltd. cannot be a good comparable as it is engaged in a different set of products.
As mentioned elsewhere Heinz India manufactures products like drinks, Prickly Heat Power (Nycil), Tomato Ketchup and Ghee whereas the appellant is a manufacturer of chocolate and confectionaries goods. Being functionally dissimilar, Heinz India fails the test of functional similarity and deserves to be excluded. As relying on RAMPGREEN SOLUTIONS PVT LTD case [2015 (8) TMI 931 - DELHI HIGH COURT] we direct the AO / TPO to exclude Heinz India from the final set of comparables.
Adjustment on account of custom duty - HELD THAT:- The undisputed fact is that the assessee has imported 100% of its raw material whereas the average import in the case of the comparable companies is only 0.56% -As relying on TEREX INDIA PVT. LTD. AND (VICE-VERSA) [2019 (4) TMI 412 - ITAT DELHI] we direct the AO/TPO to allow the adjustment of custom duty.
Adjustment on account of capacity utilisation - As financial report of every company contains the details relating to the capacity utilisation and the same are available in the public domain also. The financial reports of the comparable companies used by the TPO do contain the capacity utilisation details and the same can be used for giving the benefit of under utilisation of capacity by the appellant company. We accordingly direct the AO /TPO to allow adjustment of capacity utilisation by comparing the data of the comparable companies in so far as capacity utilisation is concerned with that of the assessee. In alternate the assessee shall furnish the relevant data and the AO / TPO shall examine the same after giving a reasonable opportunity of being heard to the assessee.
Ad-hoc disallowance of miscellaneous expenses - HELD THAT:- Facts on record show that the AO has disallowed Rs.289800/-being 10% of the miscellaneous expenses incurred during the year and the CIT( has restricted the disallowance to Rs.50,000/-. FAA has already given substantial relief to the assessee and considering the smallness of the amount we decline to interfere. This ground is accordingly dismissed.
Set of brought forward losses - HELD THAT:- We find that in A.Y.2008-09 the assessed loss was determined by the AO. The same was brought forward in A.Y. 2009-10 at Rs.12204535/-. The AO is directed to allow set of brought forward losses as per the provisions of the law. In the result the appeal by the assessee is allowed in part for statistical purpose.
Treatment of provision for impairment of assets as non operation - HELD THAT:- A provision for impairment of assets is not a depreciation charge nor amortisation of fixed assets but it is a provision made to the carring amount of the fixed assets which is reversible in nature. Moreover section 92 (1) of the Act requires that any income arsing from an international transaction / allowance for any expenses shall be computed having regard to arms length price.
Impairment of assets cannot be related as international transaction of the assessee. Provision for impairment of assets is not regular business expenditure since it is not recurring in nature and is not related normal business operation and hence not in the nature of operation expenses, therefore, in our considered opinion the same cannot be treated as operating expenditure for the calculation of PLI of the assessee. We accordingly direct the AO / TPO to exclude provision of impairment of assets as operating expenditure.
Exclusion of Candico India Ltd. in the final set of comparables - only reason for rejecting it is a persistent loss making company - HELD THAT:- As relying on case of GOLDMAN SACHS (INDIA) SECURITIES PVT. LTD. [2016 (4) TMI 1136 - BOMBAY HIGH COURT] we direct the AO / TPO to include Candico India in the final set of comparables.
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2020 (8) TMI 927
TP Adjustment - benchmark the reimbursement of AMP expenditure by the AE - TPO on the basis of its TP study computed the average ratio of AMP/sales expenditure at 2.29% of comparables vis-à-vis 6.23% of the comparables and proceeded to compute the AMP expenditure - HELD THAT:- Tribunal in taxpayer’s own case in AY 2010-11 [2018 (12) TMI 111 - ITAT DELHI] which is exactly on the identical issue and adjustment on account of AMP expenditure made by the TPO has been found to be not sustainable on the ground that no international transactions held to be involved and that economic/legal ownership of the brand seeking compensation for AMP expenditure is inconsistent with the characterization and business model of the taxpayer and that adjustment on account of AMP expenses is not permissible within the scheme of “Chapter – X”.
Even otherwise, adjustment on account of AMP expenses is not permissible within the scheme of “Chapter - X” of the Act as has been held by the Hon’ble Delhi High Court in case of Maruti Suzuki India Ltd. vs. CIT [2015 (12) TMI 634 - DELHI HIGH COURT]
We are of the considered view that addition made by AO/DRP/TPO on account of AMP expenses is not sustainable and as such question framed is answered in the negative.
We set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable.
Adjustment made by the TPO/DRP/AO by applying the BLT on account of AMP expenses in the absence of international transactions between the taxpayer and AE is not sustainable in the eyes of law, hence ordered to be deleted. Decided in favour of assessee.
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2020 (8) TMI 926
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - deterioration of the value of the corporate debtor (CD) which is not in operation - Financial Creditors - HELD THAT:- It is certain that other than the alleged clarity regarding the total amount of claim due from the CD there is no other objections seen raised from the CD. Availing loan exceeding one crore rupees as per amended proviso to section 4 of the Code as well as default of the loan amount within the period of limitation and before the declaration of lockdown I.e before, 25.03.2020 is an admitted fact. The application has been filed in proper form. The applicants have produced several documents including loan sanction letter, agreements, final recall notice, Information Utility Certificate, CIBIL Report, etc. The applicants have also proposed the name of Interim Resolution Professional and filed the Written Communication dated 04/06/2020 given by the said Insolvency Professional. It seems that all the compliance u/s. 7 of the I & B Code has been made. Being satisfied that the CD has committed default, that default occurred prior to declaration of lockdown, that application is complete and there is no disciplinary proceedings against the proposed resolution professional, this application is fit for admission.
The default admittedly committed being falls under the exhalation to section 10-A inserted by notification dated 5th June, 2020, this application is also maintainable and liable to be admitted.
Application admitted - moratorium declared.
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2020 (8) TMI 925
TP Adjustment - AE’s transaction by adopting internal TNMM - HELD THAT:- We remand the matter back in the present two years also to AO/TPO to undertake fresh analysis to bench mark the AE’s transaction by adopting internal TNMM in preference to external TNMM and if the assessee is able to establish that he has undertaken similar international transaction with AE and non-AE in the same countries, external benchmarking will be done otherwise the AO/TPO will act in accordance with law. The entire TP issue in both the years is restored back to AO/TPO with the above directions for fresh decision by a speaking and reasoned order after affording reasonable opportunity of being heard to the assessee.
Disallowance out of club expenses - We find that learned CIT(A) has decided the issue in cryptic manner without any discussion in respect of any judicial pronouncement on this issue. The judgment as noted above is very much relevant for deciding this issue and since the entire TP issue is being remanded to the AO/TPO for a fresh decision, we feel it proper to remand this issue also to the file of AO for a fresh decision after considering all judicial pronouncements on this issue along with the judgments noted above after allowing reasonable opportunity of being heard to the assessee and the AO should pass a speaking and reasoned order on this issue also. Accordingly, ground 2 is allowed for statistical purposes in both years.
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