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Showing 41 to 60 of 1434 Records
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2021 (10) TMI 1395 - ITAT MUMBAI
TP Adjustment - rate the interest-free loans granted by the assessee to its associated enterprise in Mauritius should be benchmarked as at an arm’s length - HELD THAT:- This issue is no longer res integra. The issue in the appeal is squarely covered, in favour of the assessee, by a coordinate bench decision in assessee’s own case for the assessment years 2009-10 and 2010-11 [2019 (6) TMI 1691 - ITAT MUMBAI]
It is indeed disappointing that even after taking note of the above fidnings of the coordinate bench, the authorioties below have justified a higher ALP on the basis of some new arguments. Given the findings of the coordinate bench-as extracted above, the reference to the fixed rate of interest and swap variable, with reference to the LIBOR, as has been done by the authorities below to go beyond LIBOR plus 300 bps, is irrelevant. There is no point in making these efforts to circumvent the conclusions arrived at by the coordinate bench, and justifying the same on the basis of a new set of arguments.
We direct the Assessing Officer to delete any arm’s length price adjustment beyond the difference, if any, between 4.01% interest charged by the assessee and LIBOR plus 300 bps. If suo motu adjustment by the assessee, i.e. adopting an interest rate of 4.01%, is below this rate, obviously no further ALP adjustment is called for. With these specific directions, the matter is restored to the file of the Assessing Officer for giving such relief as may be admissible in the terms indicated above. Appeals are allowed, in principle, and in the terms indicated above.
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2021 (10) TMI 1394 - MADRAS HIGH COURT
Review application - sheet anchor of his argument is based on the decision of the Hon'ble Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] - HELD THAT:- Though the contentions advanced by the learned counsel appearing for the review applicant are highly persuasive, in as much as, the said decision of the Hon'ble Supreme Court is subsequent in point of time, it cannot be a ground for reviewing the order passed by this Court.
The review application is dismissed.
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2021 (10) TMI 1393 - CESTAT AHMEDABAD
Refund claim of service tax paid due to wrong calculation of value - rejection also on the ground that the appellant’s payment of service tax is advance payment in terms of Rule 6(1A) of Service Tax Rules, 1994 which is required to be adjusted for the future payment - rejection also on the ground of unjust enrichment.
HELD THAT:- There is no charge in the show cause notice for denial of refund on this ground. Secondly, even if Rule 6(1A) is referred, it is found that appellant have clearly made the service tax payment in respect of an invoice of Bombardier Transportation Sweden. Therefore, it is an actual payment of service tax which falls under Rule 6(2) and does not fall under Rule 6(1A) as deposit. Therefore, on both the count the refund was wrongly rejected.
Principles of Unjust enrichment - HELD THAT:- On the perusal of the balance sheet, it is satisfied that the amount of refund is clearly shown under the head of Loan & Advances. Therefore, the appellant has established that the incidence of amount of refund has not been passed on.
On both the grounds the Commissioner (Appeals) has wrongly rejected the refund claim - the impugned order is set aside - Appeal allowed.
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2021 (10) TMI 1392 - ITAT BANGALORE
TP Adjustment - Comparable selection - HELD THAT:- Assessee is engaged in providing Business support services, thus companies functionally dissimilar with that of assessee need to be deselected.
Cedit of advance tax - We restore this issue to the file of AO to examine the claim of the assessee.
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2021 (10) TMI 1391 - ITAT DELHI
TP Adjustment - comparable selection - inclusion of E-clerx Services Ltd and TCS E-Serve Ltd. - HELD THAT:- This Tribunal has excluded E-clerx Services Ltd and TCS E-Serve Ltd. from the final set of comparables. Respectfully following the decision of this Tribunal in own case [2021 (2) TMI 575 - ITAT DELHI], we direct the Assessing Officer/TPO to exclude E-clerx Services Ltd and TCS E-Serve Ltd. from the final set of comparables. Ground with its sub grounds is, accordingly, allowed.
Addition on account of alleged interest on delay in collection of receivables from the AEs - invoices pertain to the year under consideration only and in most of the cases, the delay is NIL or less than 45 days. It is true that in some of the cases, the delay is more than the stipulated period of 45 days - HELD THAT:- We have been told that in the subsequent year, no addition has been made on this account and in earlier Assessment Year small additions were made which were not contested on the smallness of the amount. In light of the aforementioned observations of the Hon'ble High Court of Delhi KUSUM HEALTH CARE PVT. LTD. [2017 (4) TMI 1254 - DELHI HIGH COURT] we are of the considered view that the figure of receivables mentioned elsewhere do not reflect a pattern and, as held the assessee has already fettered the impact of receivable on the working capital which has been accepted by the DRP - we direct the Assessing Officer/TPO to delete the addition.
Assessee appeal allowed.
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2021 (10) TMI 1390 - GUJARAT HIGH COURT
Handover of physical possession of the property - assignment of debt - Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- It is not in dispute that the respondent No.1 passed the order under Section 14 on 10.9.2018 whereas the petitioner has entered into the Deed of Assignment with the original lender on 5.11.2019.
On perusal of the provision of sub-section (4) of Section 5 of the SARFAESI Act, it is clear that on the date of acquisition of financial asset by the petitioner under subsection (1) of Section 5, if any suit, appeal or other proceeding of whatever nature relating to the said financial asset is pending by or against the bank or financial institution, then only the same shall continue in the name of the petitioner who has acquired the debt by way of assignment from the original lender.
Admittedly in the facts of the case, the order under Section 14 of SARFAESI Act is passed on 10.9.2018 prior to the date of Deed of Assignment on 5.11.2019. Therefore, it cannot be said that the proceedings under Section 14 of SARFAESI Act relating to the financial assets which are subject matter of the proceedings, were pending on the date of acquisition of financial assets under sub-section (1) of Section 5 of the SARFAESI Act - the respondent No.1 could not have directed the petitioner to approach the Debts Recovery Tribunal, but the petitioner is required to file a fresh application under Section 14 of the SARFAESI Act and the petitioner could also not have requested the respondent No.1 to substitute the name of the petitioner in the order passed under section 14 on 10.9.2018 prior to the date of Deed of Assignment.
The petitioner is directed to file fresh application under Section 14 of the SARFAESI Act to get the assistance of the respondent No.1 for taking over the possession of the assets of the borrower to realise the debts which it has been assigned by way of Deed of Assignment dated 5.11.2019 - the petition is disposed of.
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2021 (10) TMI 1389 - ITAT DELHI
Royalty receipt - Explanation 2 to section 9(i)(vi) of the Income-tax Act, 1961 and Article 12(3) of the India-USA Double Taxation Avoidance Agreement (“DTAA”) - appellant being a resident of USA is covered by the beneficial provisions of DTAA between India and USA and accordingly, could not be taxed under the provisions of the Act - HELD THAT:- After going through the decisions of the Hon'ble High Court of Delhi in the case of the appellant, we find that the quarrel has now been well settled in favour of the assessee and against the Revenue by the decision of the Hon'ble High Court of Delhi [2012 (9) TMI 1081 - DELHI HIGH COURT]
Similar view was taken in Assessment Year 2013-14 by this Tribunal [2019 (6) TMI 1689 - ITAT DELHI] wherein the Tribunal has placed strong reliance on the decision of the Hon'ble High Court of Delhi in the case of Asia Satellite Telecommunications Co. Ltd [2011 (1) TMI 47 - DELHI HIGH COURT] and New Sky Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] and since the order of the Tribunal was based on these decisions of the Hon'ble Jurisdictional High Court of Delhi, the Hon'ble High Court dismissed the appeal of the Revenue holding that no question of law arises.
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2021 (10) TMI 1388 - ITAT CHENNAI
Provision for estimated loss of contracts - ascertained liability - AO observed that the said loss on an estimate, which is bound to vary due to variation in input costs - HELD THAT:- Accounting Standards are binding on the Company in so far as the preparation of books are concerned, but, are not binding for Income Tax purposes. Further, the Assessing Officer, by following the decision in the case of EDAC Engineering Limited [2013 (11) TMI 164 - ITAT CHENNAI], disallowed the same and the same was confirmed by the ld. CIT(A). The assessee, neither before the Assessing Officer nor before the ld. CIT(A) substantiated the provision made by it is an ascertained liability. Even before us, the assessee has not been able to explain as to what was the necessity for the assessee to make such a provision.
Assessee has simply stated that the provision made by the assessee is an ascertained liability. If at all, it is an ascertained liability, it is the onus on the assessee to establish that the liability is an ascertained liability. No material was placed on record before the Tribunal. We are of the opinion that the provision made by the assessee for a loss on contract is not an ascertained liability and it is a simple provision made by the assessee which is not allowable u/s 37.
So far as case law placed by the assessee are concerned, the decision in the case of Rotork Controls India Limited. [2009 (5) TMI 16 - SUPREME COURT] has no application to the facts of the present case. In the order passed by the Tribunal for the AY 2005-06 dated 03.08.2017, the issue dealt by the ITAT relates to provision of warranty and therefore, in our opinion, the issue under consideration need not be remitted back to the Assessing Officer. In view of the above, the ground raised by the assessee is dismissed.
Provision made in respect of various expenditures - HELD THAT:- The assessee has made a provision - However, no explanation was given before the Assessing Officer. Even before the ld. CIT(A), the assessee has not given any explanation the reason for making such provisions of expenses. Even before us, the assessee has not been able to explain the reason for making such provisions. We are of the opinion that the provision created by the assessee in respect of various expenses is an unascertained liability and not allowable as an expenditure for the assessment year under consideration. Therefore, we confirm the order passed by the ld. CIT(A).
So far as alternative submission is concerned, we direct the Assessing Officer to verify as to whether the assessee has reversed the provision and the same is offered for taxation for the assessment year 2012-13 and decide the alternative plea in accordance with law. This ground is partly allowed.
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2021 (10) TMI 1387 - SUPREME COURT
Amnesty scheme - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking to issue discharge certificate under SVLDRS - declaration under FORM SVLDRS-1 was rejected on the ground of ineligibility, with the remarks that “Demand has neither been quantified nor has been communicated to the assessee” and “Submit SVLDRS-4 of main noticee” - it was held by Delhi High Court that In the present case, since amount could not be said to have been ‘quantified’, the petitioner was not eligible, and therefore, the reasoning given by the respondent in rejecting the application does not call for any interference.
HELD THAT:- No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petition is, accordingly, dismissed.
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2021 (10) TMI 1386 - SUPREME COURT
Initiation of contempt proceedings against the alleged contemnors-Respondents - wilful disobeying the order passed by this Court - fixation of inter se seniority list published on 29th April 2004 - HELD THAT:- There can be no quarrel with the proposition that in a contempt jurisdiction, the court will not travel beyond the original judgment and direction; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the wilful or deliberate non-compliance of the directions issued in the original judgment and order.
This Court in unequivocal terms has held that if the order of dismissal of SLPs is supported by reasons, then also the doctrine of merger would not be attracted. Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on all the courts and the tribunals in India and certainly, the parties thereto. It has been held that no court, tribunal or party would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. Such an order would mean that it has declared the law and in that light, the case was considered not fit for grant of leave - It is thus clear that though it cannot be said that the second judgment of the Madras High Court has merged into the order of this Court dated 22nd January 2016, still the declaration of law as made in the said order, would be binding on all the courts and tribunals in the country and in any case, between the parties.
The Respondents are directed to revise and publish the seniority list of the selectees, who were selected in the selection process conducted in pursuance of the notification issued by TNPSC dated 10th September 1999, strictly on the basis of the merit determined by it in the selection process and not on the basis of the roster point. The same shall be done within a period of 12 weeks from the date of this order.
SLP disposed off.
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2021 (10) TMI 1385 - ITAT RAIPUR
Revision u/s 263 by CIT - investment towards purchase of property unexplained - HELD THAT:- We find that vide notice iisued specific queries were raised by the AO seeking details and source of investment in the property purchased during the year. In response, the assessee has filed replies explaining the relevant facts towards source of money utilized for purchase of her share in property.
The source of investment was corroborated by evidence. It is trite that the PCIT cannot pass revisional order to direct the AO to make some fuller and extended enquiry desired in the opinion of the revisional authority.
In such a situation, where there appears to be inadequacy to the PCIT in the manner of enquiry, he himself should embark upon some enquiries to discover the possibility of error. A roving enquiry cannot be directed summarily. The action of the PCIT is unsustainable in law without objectively showing how the order of the AO is erroneous. The revisional direction, in the instant case, is thus unsustainable in law.
We also find merit in the plea of the assessee that having regard to CBDT instruction Nos. 7/2015, 20/2015 & 5/2016 and also CBDT letter dated 30.11.2017, the AO was not entitled to go beyond the reasons for selection of matter for limited scrutiny.
As a corollary, it is not open to the PCIT to pass revisionary order and remit the matter to the AO on other aspects by rendering assessment order as erroneous and prejudicial to the interest of the Revenue. This is the view consistently taken by the co-ordinate benches in several decisions, some of which are noted earlier. The action of the PCIT u/s 263 of the Act thus cannot be approved on this parameter also. Appeal of the assessee is allowed.
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2021 (10) TMI 1384 - SC ORDER
TDS u/s 195 - commission paid outside India - disallowance made u/s 40(a)(i) - HC [2021 (4) TMI 93 - KARNATAKA HIGH COURT] held in the present case the Associated Enterprises has rendered services out of India in the form of placing orders with the manufacturers who are already outside India - commission was paid to Associate Enterprises out of India. No taxing event has taken place within the territories of India and therefore, the Tribunal was justified in allowing the appeal of the assessee - HELD THAT:- The special leave petition is dismissed.
Pending application(s), if any, stand disposed of.
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2021 (10) TMI 1383 - GUJARAT HIGH COURT
Detention of goods alongwith vehicle - discrepancy found in the documents visa-vis the goods being transported or not - discrepancies in respect of some post transactions of the buyer and the buyer had claimed some wrongful input tax credit - HELD THAT:- In the case of Mahadev Enterprise [2016 (5) TMI 1274 - GUJARAT HIGH COURT], the Court has held that each matter has to be decided on its own facts and the Tribunal while deciding the case of one party cannot place reliance upon the facts which have come to its knowledge only in another proceeding and apply them to a third party who has no connection with those proceedings. The Court found that there was a complete absence of any materials on record establishing the transaction made being non-genuine. There was also no material to show that the dealer, at any point of time, had been called upon to establish the genuineness of such transactions or to produce any documentary evidence.
Adverting to the facts on hands, it is not in dispute that the goods along with the vehicle, when were in transit, was stopped by respondent No.2 and the driver had produced the invoice and e-way bill and other documents as required by the authority concerned. There was also an order for physical verification passed in Form GST MOV 2 and the report was issued in the form of GST MOV 4. It is not in dispute that there was absence of discrepancies and anomalies in the documents when compared with the goods which were being transported. The only ground was the vehicle and goods had been seized, was because of the credential of the buyer to whom were goods being sent. In this case, it is alleged that the buyer, in the past, had taken wrong credit. The buyer also responded to the email sent by the petitioner that no proceedings had been initiated against him under the GST Act in relation to the claim of input tax credit in respect of the past transactions and yet, that is the ground for initiation of action.
Considering the e-way as well as invoices produced by the driver, since, are in order, the goods and the conveyance are ordered to be released. Resultantly, this petition is allowed directing release of goods and conveyance. However, the show-cause notice of inquiry against the purchaser which has been initiated, there shall be no interference. Without opining anything on merits and without intervening show-cause notice that may be contemplated against the said buyer as well as qua the present petitioner in that regard (if any), this petition is allowed.
The petition is disposed off.
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2021 (10) TMI 1382 - ITAT HYDERABAD
TP Adjustment - comparable selection - HELD THAT:- We find no merit in the assessee's former twin substantive grounds since the DRP herein has directed exclusion of M/s. Infosys BPO Limited not only on the basis of turnover but due to its brand value, diversified activity as other functional dissimilarity as well. This tribunal coordinate bench decisions in assessee's cases itself for Assessment Year 2008-09 and 2009-10 have also directed M/s. Infosys BPO Limited’s exclusion in the very segment. And that the Revenue has not been able to pin point any change in the corresponding facts in all these assessment years. We therefore uphold learned DRP’s direction ordering exclusion of M/s. Infosys BPO Limited from the array of comparables.
Excluding M/s. Jeevan Scientific Technology Limited on the ground that it had failed to satisfy the turnover filter despite the fact that the said entity had derived income both from BPO operation as well as ERP segment - We find that the Revenue’s instant arguments are against the facts on record wherein it has been found that this entity had derived income of Rs.79.21 lakhs form BPO operation only and no revenue from ERP segment as against the turnover limit of Rs.1 Crore set by the TPO in his analysis. We therefore decline the Revenue instant third substantive ground as well.
Exclusion of comparables on functional dissimilarity.
Disallowance of overhead and trademark licence fees - not filed any objection corresponding details despite the DRP’s remand directions to this effect - HELD THAT:- The assessee has placed before us the corresponding invoices along with the AO’s consequential order for Assessment Year 2003-04 and 2009-10 not making any such disallowance in light of the corresponding agreement and invoices. Faced with this situation, we deem it appropriate to restore the instant issue back to the AO for his afresh factual verification as per law within three effective opportunities of hearing subject to the condition that the assessee itself shall file all the documentary evidence by electronic mode as well as registered post.
Capital expenditure on software license fees - disallowance on the ground that it the assessee had not filed any objections to this effect before the DRP - HELD THAT:- CIT-DR fails to dispute that the DRP’s detailed discussion regarding assessee's objection No.10 in para 2.10 page 14 had clearly directed the AO to grant depreciation @ 60% in view of the tribunal's findings in preceding assessment years. We therefore allow the assessee's instant substantive ground in principle and leave it open for the AO to frame consequential computation as per law.
Disallowing deduction u/s. 10A - expenditure towards software lincence fee disallowed in the assessment order relating to STPI unit of the company - HELD THAT:- The same is admitted being an alternate plea; without prejudice to the foregoing third substantive ground, and restored back to the Assessing Officer as per law in light of the relevant facts and the corresponding factual position in preceding and succeeding assessment years.
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2021 (10) TMI 1381 - RAJASTHAN HIGH COURT
Seeking grant of bail - offence compoundable or not - HELD THAT:- Having regard to the totality of the facts and circumstances of the case and looking to the custody period as also the fact that conclusion of the proceedings is likely to take some time and without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.
This bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Praveen Jangir S/o Mohan Lal Jangir shall be released on bail provided he executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
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2021 (10) TMI 1380 - MADRAS HIGH COURT
Benami transactions - Notice and attachment of property involved in benami transaction - Reason to believe - whether the transactions in question constituted benami transactions, and merely adopt the identical contents of the communication of the forwarding authority? - petitioner argues that no material was available with the Department to discharge such onerous burden and thus the assumption of jurisdiction was itself bad in law - HELD THAT:- The nature of the transactions in question have to be established by the petitioner before the authorities upon the respondents discharging the initial burden cast upon them to furnish the primary evidences available with them to the effect that the property is benami in nature. This is a rebuttable presumption and the effectiveness of the rebuttal will depend on the evidences furnished by the noticees to the authorities.
In our considered view, therefore, the enquiry contemplated at the stage of initial investigation is only preliminary, based upon prima facie reasons and conclusions. A detailed verification of the evidences as regards whether the transactions were benami or otherwise can, and must only be undertaken in the course of adjudication and not at the stage of preliminary enquiry.
The thrust of the petitioner's case is the alleged insufficiency of materials as well as the fact that the evidences gathered are unreliable. However, and at the risk of repetition, the enquiry conducted under Section 24 is only a preliminary enquiry and the use of the phrase 'reason to believe' only indicates a prima facie satisfaction that all was not well as regards a particular transaction. In the present case, the trajectory of events as has been noticed by me in the preceding paragraphs of this order do not lead to the conclusion that the respondents had no reasons at all to justify the invocation of Section 24.
Denial of opportunity to cross examine the parties at the stage of investigation - As regards this, the respondents deny that such opportunity was sought for by all petitioners. In any event, they reiterate that opportunity for cross examination will be granted, as appropriate, in the course of adjudication proceedings.
In the present case, the testimony of the parties is one among other material that the respondents claim to be in possession of. The petitioners also rely upon a decision of the learned single Judge in Thilagarathinam Match Works Vs. Commissioner of Central Excise, Tirunelveli [2013 (11) TMI 535 - MADRAS HIGH COURT] to the effect that where the assessee asks for a request for cross examination, such request must be acceded to.
Thus, the process and procedure as envisaged for provisional attachment under Section 24 is of a narrower compass when compared with the process of adjudication to follow thereafter. That apart, not all the petitioners before me appear to have sought an opportunity to cross examine witnesses. It would thus suffice to state that it is open to the petitioners to make such request for cross-examination once they have been supplied with the relied upon documents at the time of adjudication, and such request, if and when made, will be considered by the respondents in accordance with law.
The mode of payment employed as between the parties and the actual amount transacted are pure questions of fact that are best left for verification and determination by the authorities concerned. This question is also left open for decision in the course of adjudication by the authorities.
The challenge to the impugned orders under Section 24(4) fails and the respondents are directed to proceed in line with Sections 25 and 26 forthwith. All writ petitions are dismissed. The petitioners were protected during the pendency of these Writ Petitions by virtue of an undertaken given by learned Standing Counsel for the respondents that there would be no escalation of the matter to the stage of adjudication. With the passing of this order that undertaking does not continue any longer.
The respondents will continue with adjudication under Section 25 and complete proceedings in light with the mandate of that Section. Notices under Section 26 of the PBPT Act will be issued within a period of 30 days from date of issue of these orders accompanied with all material that the respondents rely on and proceedings under Section 26 shall be conducted scrupulously in line with the mandate thereof.
The petitioners shall be afforded full opportunity to put forth all contentions before the adjudicating authority who shall take note of the same and pass speaking orders in accordance with law. Connected Miscellaneous Petitions are closed and the order of interim protection, if any, stands vacated forthwith. No costs.
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2021 (10) TMI 1379 - KARNATAKA HIGH COURT
Deduction u/s 35D - share premium collected on the issue of Share Capital - whether to be treated as part of the ‘Capital Employed’ for allowing deduction? - HELD THAT:- The points raised herein are squarely covered by the judgment of Berger Paints India Ltd., [2017 (3) TMI 1531 - SUPREME COURT] Hence, this substantial question of law is answered against the assessee and in favour of the Revenue.
Cost of acquisition of companies be treated as asset for allowing deduction u/s 35D - HELD THAT:- This issue is squarely covered by the decision of this Court in the assessee’s own case in [2021 (10) TMI 1209 - KARNATAKA HIGH COURT] wherein as held that going by meaning assigned to the word “extension”, quite apart from the horizontal expansion in the industrial undertaking, vertical expansion also stands included within the meaning of the term “extension” of the industrial undertaking - as further stated that the assessee has incurred expenditure for the purpose of acquisition of Subex Americas Inc., and Subex UK Limited and the same was incurred for the purpose of expansion of the business. There being vast difference between “expansion” and “extension”, the arguments of the learned counsel for the assessee, placing reliance on the consolidation procedures as per the Accounting Standard [AS-21], cannot be countenanced this substantial question of law is answered against the assessee and in favour of the Revenue.
Deduction u/s 35D be disturbed in the subsequent years - HELD THAT:- Section 35D has been disturbed in the subsequent years in a manner known to law. Hence, this question is answered in favour of the Revenue and against the assessee.
Deduction u/s 10AA - telecommunication expense re to be excluded from export turnover in computing deduction - HELD THAT:- This question is covered by the ruling of Coordinate Bench of this Court in the case of M/s. Mindtree Ltd. [2020 (8) TMI 767 - KARNATAKA HIGH COURT] held that assessee has incurred expenditure in foreign currency from export turnover for software development. Similarly, the telecommunication charges attributable to delivery of computer software outside India could not have been excluded from the export turnover in view of Explanation 1(i) to Section 10AA of the Act. It is also noteworthy that Explanation 2 to Section 10AA provides that profits and gains derived from; on site development of computer software (including services for development of software) outside India shall be deemed to be the profits and gains derived from the export of computer software outside India. - Decided in favour of assessee.
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2021 (10) TMI 1378 - SUPREME COURT
Detention of goods - sending of fake injections - failure to communicate the State Government or Central's government rejection of the Appellant's representation - violation of procedural rights - HELD THAT:- The unexplained delay on part of the State Government in deciding the representation of the Appellant and second, the failure of the Central and State Governments to communicate the rejection of the representation to the Appellant in a timely manner. The basis of the extensions which have been issued on 15 July 2021 and 30 September 2021, finds its genesis in the original order of detention dated 11 May 2021. Once the order of detention stands invalidated, the consequential extensions would follow the same course. During the course of the proceedings, both parties have advanced submissions on the merits of the order of detention. In the view which we have taken, it is not necessary to consider these other grounds of challenge since the Appellant is entitled to succeed on the violation of his procedural rights under the Constitution and the statute.
The impugned judgment of the High Court dated 24 August 2021 shall stand set aside. The order of detention dated 11 May 2021 and the extensions dated 15 July 2021 and 30 September 2021 shall accordingly stand quashed and set aside - Appeal allowed.
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2021 (10) TMI 1377 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH COURT III
Failure on the part of Resolution Professional to perform his duty - Seeking direction to respondent to continue providing its services to Corporate Debtor in terms of the Agreement dated 15.01.2007 executed between the Respondent and Corporate Debtor - seeking declaration that non-providing of the services with regard to Record Management Services and Record Retrieval Services by the Respondent as violated Section 14(2)(a) of the IBC - entitlement to payment in terms of agreement after commencement of CIRP of the Corporate Debtor - seeking direction to respondent to compensate the losses suffered by the Corporate Debtor on account of the refusal of the Respondent to provide uninterrupted critical services in terms of the agreement - Section 14 (2)(A) of I&B Code.
HELD THAT:- It is therefore clear to the Bench that the Respondent Company was fully aware that the services provided by it are critical in nature. The Bench finds it clear in the averments made by the Respondent in their reply/application bearing I.A. No. 1628/2021 that the Respondent has made a wrong and fallacious interpretation of section 14(2A) when its says that this section is not applicable to the present case - The Bench also found that the refusal of the Respondent to deny access to the RP to the Business record of the Corporate Debtor is in contrary to Section 18 and 25 of the Code - The Bench notes that the business record of the Company is an indelible right of the Resolution Professional and a contractual duty of the Respondent which it has has failed to perform. In view of this the Bench, the Bench is of the views and as pleaded by the Corporate Debtor that the Corporate is entitled for cost incurred by the Respondent under Section 235A of the Code.
The Corporate Debtor pleaded that it had to continue to render establishment cost in several cities during the Covid period because of non-availability of data from the Respondents because of which it could not take a decision regarding release of properties taken on rent. Thus, as per the Corporate Debtor has resulted into an additional cost of about Rs. 6.22 crores.
The Respondent is directed to continue providing its services to the Corporate Debtor as per the terms of the Agreement dated 15.01.2007 executed between the Respondent and the Corporate Debtor - Since the Respondent has not provided any services from the commencement of CIRP dated 22.10.2019 till the present date, the Respondent is not entitled to any payment in terms of the agreement towards Record Management Services and Record Retrieval Services for this period. It is also directed to refund payments, if any, back to the RP/Corporate Debtor as refund for the period between commencement of the CIRP on 22.10.2019 till present.
Application allowed.
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2021 (10) TMI 1376 - SUPREME COURT
Possession (allegedly) of assets disproportionate to known sources of income - offences punishable Under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act 1988 (PC Act) and Section 109 of the Indian Penal Code 1860 (IPC) - HELD THAT:- In the present case, the Appellant is challenging the very "source" of the Respondents' income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the Respondents to quash the FIR would be contrary to fundamental principles of law. The High Court has gone far beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to absolve the Respondents - The investigation is stated to be at an advanced stage and is likely to conclude within a period of two to three months. At the same time, the Court has been assured by the ASG on the instructions of the Investigating Officer that before concluding the investigation, the first and second Respondents will be called in order to enable them to tender their explanation in respect of the heads of Disproportionate Assets referred to in the FIR.
The only infirmity pointed out by the Respondents which has been acceded to by the Appellant is in relation to the addition of the value of the elevator separately when the whole house had already been valued. However, by itself, it only being a value of Rs. 10 lakhs, this will not be enough to take away the whole basis of the Disproportionate Assets case against the Respondents. Hence, at this stage, the FIR against the Respondents cannot be quashed and it is held that the Appellant's investigation pursuant to it shall continue.
The impugned judgment dated 11 February 2020 of the Single Judge of the Telangana High Court quashing the FIR and any proceedings pursuant to it, are set aside - appeal allowed.
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