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2022 (12) TMI 1413 - AUTHORITY FOR ADVANCE RULINGS, CUSTOMS, MUMBAI
Classification of goods proposed to be imported - Roasted Areca Nuts - to be classifiable under CTH 2008 19 20 of the Customs Tariff Act, 1975 or not - HELD THAT:- The processes mentioned in Chapter 8 include chilling, steaming, boiling, drying and provisionally preserving. It does not specifically include the process of roasting. Here it is important to understand the difference between the processes of drying and roasting. The terms, however, are not defined in the Customs Tariff Act, 1975. Therefore, these terms have to be understood in a commonly accepted sense.
The Hon'ble Apex Court in the case of Alladi Venkateswarlu v. Government of Andhra Pradesh [1978 (2) TMI 184 - SUPREME COURT] held that "the commonly accepted sense of a term should prevail in construing the description of an article of food". In common trade parlance, "drying" is a method of food preservation by the removal of water. On the other hand, "roasting" means the excess or very high heat treatment that produces fundamental chemical and physical changes in the structure and composition of the goods, bringing about a charred physical appearance. Therefore, drying is a moisture removal process involving methods such as dehydration, evaporation, etc., whereas roasting is a severe heat treatment process.
The impugned goods i.e. roasted betel nuts, find specific reference in the chapter 20 of the schedule I of the Customs Tariff Act 1975 as well as corresponding HSN Explanatory Note. It is important to pay attention to the fact that in the above explanatory note a process of roasting is not specifically mentioned as a process of preservation or stabilisation or a process to improve or maintain the appearance. This corroborates the finding that the process of roasting is not covered by Note 3 to Chapter 8 and hence these products, roasted betel nuts — complete as well as cut — are not classifiable under chapter 8 of the Tariff.
The relevance of Chapter 21 is already discussed in para 5.1. Supplementary note 2 to Chapter 21 states that in this Chapter "betel nut product known as Supari " means any preparation containing betel nuts, but not containing any one or more of the following ingredients, namely: lime, Katha (catechu) and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol. Betel nut product known as "Supari" is mentioned in Subheading 21069030. Heading 2106 covers food preparations not elsewhere specified or included. Those food preparations not specified or included elsewhere in the tariff being preparations for human consumption are to be classified under this heading. Therefore, it appears that it is a residuary entry in respect of edible food preparations. As a result, edible preparations shall be classified under this entry only if the same is not classifiable under any of the other specific entries for edible preparations. As the goods under consideration are already included in Heading 2008 of the Customs Tariff Act, 1975, they stand excluded from the scope of Chapter 21.
Roasted Areca Nuts — whole as well as cut - merit classification under Heading 2008 and specifically under subheading 2008 19 20 of the First Schedule of the Customs Tariff Act, 1975.
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2022 (12) TMI 1412 - ITAT BANGALORE
TP adjustment - Exclusion of subcontracting charges - determination of net cost margin excluding the sub-contract charges is decided against the assessee by coordinate bench of this Tribunal in assessee's own case for the AY 2011-12 [2016 (9) TMI 1458 - ITAT BANGALORE].
Comparable selection - directions to the AO/TPO to apply 15% RPT filter - We direct exclusion of Larsen & Tubro Ltd., Persistant systems Ltd., RS Software (India) Ltd., and Infosys Ltd., from the final list.
Interest on receivables - TPO proposed transfer pricing adjustment in respect of outstanding receivables in respect of trade creditors being the AEs by using 6 months LIBOR + 450 basis points and CUP as the most appropriate method - HELD THAT:- This Bench referred to decision of Special Bench of this Tribunal in case Instrumentation Corpn. Ltd. [2016 (7) TMI 760 - ITAT KOLKATA] held that outstanding sum of invoices is akin to loan advanced by assessee to foreign AE., hence it is an international transaction as per explanation to section 92 B of the Act
We deem it appropriate to set aside the impugned order on this issue and remit the matter to the file of the Ld.AO/TPO for deciding it in conformity with the above referred judgment. We also direct the Ld.TPO that in the event the WCA subsumes the outstanding receivables, no separate characterisation is to be made. For those receivables that fall out of the WCA pertaining to year under consideration, then, the rate of interest to be charged must be LIBOR + 300 basis points which is in accordance with the principles laid down in case of CIT vs. Cotton Naturals (I) Pvt. Ltd. [2015 (3) TMI 1031 - DELHI HIGH COURT] by considering a credit of 90 days.
Disallowance u/s. 40(a)(ia) - salary cost reimbursed to Applied Material Inc. on an ‘at cost’ basis - non-deduction of TDS on reimbursement of salary expenses made on behalf of the seconded employees as fee for technical services - HELD THAT:- We remand this issue to the Ld.AO to consider the claim in accordance with the decision of M/s. Flipkart Internet Pvt. Ltd. [2022 (6) TMI 1251 - KARNATAKA HIGH COURT] and M/s. Toyota Boshoku Automotive India Pvt. Ltd. [2022 (4) TMI 1443 - ITAT BANGALORE], Goldman Sachs Services Pvt. Ltd. [2022 (4) TMI 1444 - ITAT BANGALORE] having regard to the evidences filed by the assessee. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. On verification once it is ascertained that the assessee has deducted tax on the entire salary payable to the seconded employee u/s 192 of the act, no disallowance is warranted under section 40(a) (i) of the act.
Denial of depreciation claimed on leasehold improvements - Assessee failed to submit documentary proof/ evidences substantiating the date of ‘put to use’ of assets for leasehold improvements acquired during FY 2014-15 - HELD THAT:- Both sides submits that the facts of the issue in the present year is identical with that of A.Y. 2014-15 [2022 (6) TMI 1357 - ITAT BANGALORE]. We therefore direct the Ld.AO to verify the additions made to the asset during the year under consideration based on the evidences filed by assessee for determining the disallowance in accordance with law.
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2022 (12) TMI 1411 - PUNJAB AND HARYANA HIGH COURT
Appointment of Interim Resolution Professional - HELD THAT:- Learned senior counsel has referred to the proceedings dated 08.08.2022, wherein Mr. B.C. Bhandari of SREI Infrastructure Finance Ltd. appeared in those proceedings. It is further submitted that while hearing the arguments, before passing the impugned order, this fact was brought to notice of NCLT, Chandigarh that proceedings are already pending before NCLT, Mumbai Bench with regard to framing of a scheme for the purpose of ascertaining the claim of the creditors and said case is now listed for 25.01.2023. It is also submitted that there is every possibility that the entire settlement may be arrived in those proceedings.
Notice of motion for 07.02.2023.
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2022 (12) TMI 1410 - ITAT MUMBAI
Special Audit u/s 142(2A) - assessee is against appointment of Special Auditor u/s. 142(2A) - HELD THAT:- Facts on records clearly indicate that the AO without even examining the accounts of the assessee has formed an opinion regarding nature and complexity of the accounts of the assessee. This opinion has been formed by the AO in a very casual manner. Without examining the books of account the AO can have no understanding of the nature and complexity of the accounts of the assessee.
We are unable to impress upon ourselves to subscribe to the view of AO to hold nature of accounts of the assessee as complex, without even having a look at the books of assessee.
Hon’ble Apex Court in Sahara India [2008 (4) TMI 4 - SUPREME COURT] has held that there has to be a genuine and honest attempt on the part of Assessing Officer to understand accounts of the assessee. The contention of the Revenue is that the assessee is non-co-operative and did not produce books, under such circumstances, AO could have resorted to any other relevant provision available under the Act to complete the assessment but reference to Special Audit. The satisfaction of the Assessing Officer in the instant case is at the outset, shallow, flawed and unsustainable.
Whether the assessment u/s.143(3) r.w.s 153C of the Act is time barred? - In the instant case it is undisputed that seized documents were handed over to the AO on 17/11/2011. Therefore, the assessment should have been completed on or before 31/03/2013, whereas, the assessment order was passed on 14/11/2013, hence, clearly beyond the period of limitation as specified u/s. 153B - The extended time for completing assessment would have been available to the AO if reference to Special Auditor was held to be valid. As a sequitur to our findings on reference to Special Auditor, we hold the assessment order time barred, ergo, liable to be quashed.
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2022 (12) TMI 1409 - CALCUTTA HIGH COURT
Maintainability of appeal - appeal dismissed on the ground of delay of more than four months in addition to the period granted by the judgment of the Hon’ble Supreme Court during the COVID period - HELD THAT:- There is no cogent and proper explanation of delay in filing the appeal of more than 200 days. The medical documents, the petitioner has annexed, are self-contradictory. Prescription annexed has been issued by one doctor, medical certificate has been given by another doctor who is a general practitioner and diagonised that petitioner was suffering from pulmonary disease while the prescription annexed shows that the petitioner was suffering from skin diseases and such prescription has been issued by the Dermatologist.
Petition dismissed.
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2022 (12) TMI 1408 - CESTAT MUMBAI
Levy of penalty - payment of redemption fine missed out - dispute under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 already settled - present Appellant is the Director of the company - HELD THAT:- On perusal of the Order-in-Original it is noticed that negligence in general is attributed to the conduct of the present Appellant. This being the allegations and having regard to the fact that the present Appellant’s declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 having been given a lawful consideration, he would have paid nil penalty in view of the relief available to him under Section 124(i)(b) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules 2019, we are of the considered view that even after failure on the part of the Appellant to avail the benefits of the scheme in its totality in view of Board Circular No. 1071/4/2019- CX.8 dated 27.08.2019 and consistent decisions of this Tribunal, two of which are P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] and M/S EXOTICA HOUSING PVT. LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE, CUSTOMS, GOODS AND SERVICE TAX, NEW DELHI. [2020 (2) TMI 1697 - CESTAT NEW DELHI].
The order of penalty imposed by the Commissioner (Appeals) in respect of the present Appellant is set aside - Appeal allowed.
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2022 (12) TMI 1407 - RAJASTHAN HIGH COURT
Seeking grant of bail - availment of fraudulent input tax credit - evasion of tax - HELD THAT:- It is an admitted position that petitioners had evaded the tax and got the benefit of input tax credit of Rs. 11.30 Crores. Hon’ble Apex Court while granting the bail to Vinay Kant Ameta directed to him to deposit Rs. 200 Crores.
Considering the contentions put-forth by the counsel for the petitioners and taking into account the facts and circumstances of the case and without expressing any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioners on bail with a condition to deposit Rs. 2 Crores each by the petitioners before the respondent Department as under protest.
The bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners Saurabh Jindal S/o Shri Satyendra Kumar and Yashik Jindal S/o Shri Mahadev Jindal shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs. 50,000/- with two sureties of Rs. 25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.
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2022 (12) TMI 1406 - ITAT DELHI
Penalty u/s 271(1)(c) - addition of interest on deposits in HSBC account and addition on account of difference in interest income disclosed in return - HELD THAT:- Tribunal has deleted the addition [2022 (8) TMI 950 - ITAT DEHRADUN] in the quantum proceedings and remanded the matter to the file of the A.O. We are of the opinion that the present penalty proceedings and penalty order made thereon deserves to be deleted. Accordingly, the penalty order passed in the years under consideration is hereby deleted. Appeals filed by the assessee are allowed.
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2022 (12) TMI 1405 - ITAT PUNE
Penalty u/s 272A(1)(d) - non-complying with the notice u/s 142(1) - HELD THAT:- We find that on receipt of notice u/s 142(1) dated 05.09.2019, the appellant sought time for 15 days to file the required details and the requisite details were filed on 04.11.2019.
When the appellant sought time to file the details, the said application was not disposed of by the Assessing Officer either rejecting the said application or granting time.Ultimately the assessment was completed by the Assessing Officer u/s 143(3) of the Act accepting the returned income.
Thus, it will conclusively prove that no prejudice was caused to the AO on account of non-complying with the notice u/s 142(1) issued on 05.09.2019 and inaction of the Assessing Officer on the adjournment petition moved by the assessee would also enable the appellant to believe that the time to comply with the extension of time as prayed was granted.
It cannot be said that the appellant is guilty of contumacious conduct to comply with the notice u/s 142(1) of the Act. Thus, it is not a fit case for levy of penalty u/s 272A(1)(d) - Decided in favour of assessee.
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2022 (12) TMI 1404 - ALLAHABAD HIGH COURT
Inclusion of name of petitioner in the list of daily wages employee as Data Entry Operator in respondents' department taking into consideration the long services of petitioner from year 2004 to till date - petitioner submits that the petitioner has made a representation for the redressal of his grievance before the respondent no. 3, however, the same has not been considered - HELD THAT:- Considering the fact that the application of the petitioner is pending consideration before the respondent no. 3 and without entering into the merits of the case, the present petition is disposed off giving liberty to the petitioner to move a fresh application before the respondent no. 3 along with a copy of this order, which shall be decided in accordance with law with all expeditions preferably within a period of two months from the date of presentation of representation along with certified copy of this order.
While deciding the claim of the petitioner, the respondent no. 3 shall decide as to whether the persons similarly to the petitioner have been regularized or not.
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2022 (12) TMI 1403 - ITAT SURAT
Unaccounted job work received - CIT(A) restricting the addition made by the AO by estimating the profit @ 20% to 5% as net profit of the suppressed job work charges as income for the year under consideration - HELD THAT:- We find that the Ld. CIT(A) while restricting the addition to the extent of 5% of alleged unaccounted job work receipt followed by the decision of President Industries [1999 (4) TMI 8 - GUJARAT HIGH COURT] wherein it was held that “on the issue of suppression of said consideration only the addition to the extent of profit element may be made”.
We are also of the view that wherein there is no fool proof of evidence of unaccounted sales or independent material to substantiate such allegation, only profit element to avoid the possibility of revenue leakage is sufficient to meet the ends of justice and not the substantial part of the disputed transaction. Therefore, we are not inclined to enhance the disallowance of alleged unaccounted job work receipt by assessee. Hence, ground No.1 to 4 raised by Revenue are dismissed.
Disallowance in rectification order u/s 154 passed by Ld. CIT(A) in granting credit of additional income declared by assessee while filing return of income - CIT(A) on filing application under section 154 of the Act by assessee on account of additional business income, granted credit of such additional income. The ld CIT(A) thus, granted set of income, which was voluntarily offered by the assessee in response to notice under section 153A, to which the assessee is legally eligible. Thus, we do find any reasons for interference in the order passed by Ld. CIT(A). Hence, ground No.5 & 6 of Revenue’s appeal is dismissed.
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2022 (12) TMI 1402 - ITAT DELHI
Income deemed to accrue or arise in India - amount received by the assessee for providing management support services - scope of services performed under the MSA [Master Service Agreement] - Fee for Technical Services (FTS) - India-Belgium Double Taxation Avoidance Agreement (DTAA) - Assessee is a non-resident corporate entity incorporated under the laws of Belgium - HELD THAT:- The scope of services to be rendered under the agreement certainly does not indicate that they are anything other than managerial services as it aids and assists the customer for performing its day to day business activity.
Commissioner (Appeals) has partly accepted assessee’s claim and allowed benefit of 50% of the amount received to be fee for managerial services, that too, purely on estimate. This, in our view is without any basis.
Once the assessee was able to demonstrate that the amount received is in the nature of managerial services, it cannot be treated as FTS in view of the restrictive meaning of FTS under Article 13(4) of India-UK tax treaty, which specifically excludes managerial services. As regards the applicability of MFN clause and the restrictive provision of India-UK tax treaty, in our view, there cannot be any dispute as the Assessing Officer has accepted the legal position.
Whether 50% of the amount received can be treated as FTS under India- UK DTAA? - Article 13(4)(c) of India-UK tax treaty says that if in course of rendering services the service provider makes available technical, knowledge, experience, skill, knowhow, or processes etc then it can be regards as FTS. The expression ‘make available’ has not been defined either under the treaty provisions or under the Act.
The expression ‘make available’ has been judicially interpreted in various decisions. As per the ratio laid down ‘make available’ would mean imparting of technical knowledge, skill, knowhow, etc. which enables the recipient of service to apply such technical knowledge, experience, skill, knowhow etc. independently in exclusion of the owner of such technical knowledge, experience, skill, knowhow etc.
In the facts of the present appeal, admittedly, except some general observations of the Departmental Authorities that the assessee has made available technical knowledge, skill, experience, knowhow, etc. there is no material on record to demonstrate such fact. The make available condition of Article 13(4)(c) of India-UK tax treaty has not been satisfied. In any case of the matter, attribution of 50% of the receipts to the alleged consultancy services is purely on estimate and without any reasonable basis. Thus delete the addition sustained by learned Commissioner (Appeals). Appeal of assessee allowed.
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2022 (12) TMI 1401 - MADRAS HIGH COURT
Recovery proceedings - attachment of bank accounts of the Petitioner with the Second Respondent as a recovery measure for implementation of the Order in DIN & Letter - HELD THAT:- This Court by separate order dated [2022 (12) TMI 1400 - MADRAS HIGH COURT ] has set aside the Order in DIN & Letter passed by the First Respondent and remitted the matter back for fresh decision, which has to be completed by 28.02.2023. Having regard to the aforesaid order passed, it is made clear that if the First Respondent does not pass any order by 28.02.2023, the impugned orders of attachment of bank accounts of the Petitioner with the Second Respondent, shall stand vacated from that date onwards.
Writ Petitions are disposed on the aforesaid terms
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2022 (12) TMI 1400 - MADRAS HIGH COURT
Stay of demand - financial stringency faced by an assessment and the balance of convenience in the matter constitute the 'trinity', so to say, and are indispensable in consideration of a stay petition by the authority.
HELD THAT:- It is apparent from the impugned order that while requiring the Petitioner to pay 20% of the disputed payment by 19.10.2022, his request for stay of the demand has been rejected without even awaiting compliance of the aforesaid requirement, which vitiates the entire proceedings.
In such circumstances, the impugned order in DIN & Letter which cannot be sustained, is set aside and the matter is remitted to the First Respondent to be decided afresh taking note of what has been stated supra. It shall be incumbent upon the First Respondent to deal with each of the contentions raised including additional submissions said to have been made on 12.12.2022 and pass a reasoned order on merits
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2022 (12) TMI 1399 - ITAT SURAT
Revision u/s 263 - cash deposits unexplained - As per CIT AO granted relief to the assessee without making inquiries into the claim that assessee has made specified bank notes (SBN) cash deposits in specified demonetization period - HELD THAT:- The assessee provided the details with date of sales, name of customers, address of customers, description of sales gross weight of jewellery, diamond weight and amount utilized on such sales. We find that assessee also provided sales made in the month of October, 2016 VAT returns, filed before VAT authority under statutory obligation, copy of VAT return of the month of October and November, 2016. The assessee also furnished cash book, sale book for the month of October and November, 2016, wherein stock register showing the entries of sales and names and complete address of the customers to whom cash sales were made. The assessee stated that there is no scope of any doubt that assessee has furnished names and addresses of such customers, sales invoices, statutory VAT return.
AO made addition of 10% of the total cash deposit during the month of October and November 2016. On the basis of aforesaid factual discussions and on the basis of details called for by AO, we find that the Assessing Officer after calling the details of cash deposit, while making addition of 10% of cash deposit of Rs. 77.00 lacs, being income component, which is a reasonable addition. The addition made by assessing officer is plausible and legally sustainable view, which cannot be branded as erroneous.
The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, is nothing but change of opinion. It is settled position in law that no revision of assessment order is permissible on mere change of opinion.
AO took reasonable, plausible and legally sustainable view, which cannot be branded as erroneous. There is no doubt that while accepting the claim in the assessment, there may be some loss of revenue, tax can be levied only with the authority of law, and every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue unless the view adopted by assessing officer permissible in law.
Once the assessing officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the assessing officer is unsustainable in law. Grounds raised by the assessee is allowed.
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2022 (12) TMI 1398 - ITAT MUMBAI
Ex-parte order passed by ITAT - assessee is seeking recall of the order - assessee submitted that due to death of his Aunty i.e. close relative, he was busy in her funeral and post funeral ceremonies and therefore he could neither appear before the Tribunal not could intimate to the assessee for seeking adjournment in the case - HELD THAT:- According to us, the reasons advanced by the assessee are one of the sufficient cause for his non-appearance. As the submission on the behalf of the assessee have not been considered by the Tribunal, therefore, in the interest of the justice and in view of Rule 24 of the ITAT Rules, 1963, the appeals of the assessee are recalled for hearing. The Registry is directed to fix the appeal in due course and intimate the parties accordingly.
Miscellaneous Applications filed by the assessee are allowed.
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2022 (12) TMI 1397 - ITAT MUMBAI
Income deemed to accrue or arise in India - Treating the fabrication charges received as fees for technical services - taxed the same under section 9(1)(vii) of the I.T. Act read with Article-12(4)(a) of the DTAA between India and Singapore - HELD THAT:- As decided in assessee own case [2022 (7) TMI 1396 - ITAT MUMBAI] the fact that an arrangement regarding situs of entities providing different facilities, in connection with a transaction of the multinational group, is done in a tax-efficient manner, cannot be reason enough to disregard the arrangement.
We are satisfied that so far as the income of the assessee from the refurbishing of the bushes is concerned, it is not taxable in India as the provisions of Article 12(3) cannot be invoked in this case, and that, so far as the provisions of Article 12(4)(a) are concerned, these provisions cannot be invoked as the assessee has not rendered these services in connection with the services “for which a payment described is received” by the assessee. Thus delete the impugned addition The assessee gets the relief accordingly. - Decided in favour of assessee.
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2022 (12) TMI 1396 - ITAT DELHI
Income deemed to accrue or arise in India - agency PE - both the authorities treated the assessee as DAPE [Dependent Agent Permanent Establishment] - nature of the business activities carried out by the assessee and subsidiary of the assessee viz. Krones India Pvt. Ltd. (“KIPL”) - HELD THAT:- For an enterprise to be considered as habitually securing orders wholly or almost wholly for the other enterprise, it is essential that the enterprise frequently accepts orders on behalf of the other enterprise or habitually represents to persons offering to buy goods or merchandise that acceptance of an order by such enterprise constitutes the agreement of the other enterprise to supply goods or merchandise under the terms and conditions specified in the order and further the other enterprise takes actions that give purchasers the basis for a reasonable belief that such person has authority to bind the other enterprise.
We are of the considered view that KIPL is only undertaking marketing enterprise and contracts are finalized by the assessee and signed by the assessee outside India. Therefore, KIPL cannot be said to be habitually securing and concluding order on behalf of the assessee.
KIPL maintains stock inventory and economically dependent on the assessee - The agreement with KIPL is effective from 2007 and we are in Assessment Year 2011-12 which means that no adverse view has been taken by the Revenue in the past and we have been told by the ld. counsel for the assessee that no adverse view has been taken by the Revenue after the present assessment.
Though the AO has heavily relied upon the TP Study Report of KIPL, but has not brought any evidence on record that KIPL has habitually secured orders for the assessee. None of the customers have been examined by the Assessing Officer though the customers from India include renowned organizations like Nestle, Coco Cola, Pepsico etc.
Considering all we are of the considered view that the observations made in the TP Study Report of KIPL regarding scope of its business activities do not result in holding KIPL as DAPE of the assessee and further, since KIPL has been remunerated by the assessee for commission activities on arm’s length basis, no further attribution is required in lieu of law laid down by the Hon'ble Supreme Court in the case of Morgan Stanley [2007 (7) TMI 201 - SUPREME COURT]
We, accordingly, hold that pursuant to the specific exclusion of independent agent under Article 5(5) of the DTAA, the case o the assessee falls outside the scope of PE. We, accordingly, direct the Assessing Officer to delete the impugned addition. Appeal of the assessee is allowed.
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2022 (12) TMI 1395 - ITAT HYDERABAD
Late filing fee u/s 234E - intimation u/s 200A - whether late fee and consequential interest could be levied in respect of the TDS statements relating to the period prior to 01/06/2015? - HELD THAT:- There is no dispute that the period covered under all these appeals are prior to 01/06/2015. It is also not in dispute that after noticing the decisions of the Hon'ble Gujarat High Court [2017 (7) TMI 458 - GUJARAT HIGH COURT] Hon'ble Karnataka High Court ([2016 (9) TMI 964 - KARNATAKA HIGH COURT]), and many other decisions of the Co-ordinate Benches of the Tribunal, the Delhi Bench of the Tribunal in the case of Supreme Brahmaputra (JV) [2020 (9) TMI 289 - ITAT DELHI] held that when there are conflicting decisions of various Hon'ble High Courts, in the absence of any view taken by the jurisdictional High Court, while following the decision of the Hon'ble Apex Court in the case of Vegetable Products Ltd.,[1973 (1) TMI 1 - SUPREME COURT] the view in consonance with the plea of the accused has to be taken.
Thus we hold that the issue is in favour of the assessee and direct the learned Assessing Officer to delete the addition made under section 234E of the Act.
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2022 (12) TMI 1394 - ORISSA HIGH COURT
Levy of Entry Tax - scheduled goods imported from outside the territory of India - Section 3 of the Odisha Entry Tax Act, 1999 - levy of penalty u/s10(2) of the Act - Whether levy under Section 3 of the Odisha Entry Tax Act, 1999 is attracted on scheduled goods imported from outside the territory of India? - HELD THAT:- The issue now stands settled in STATE OF KERALA AND OTHERS VERSUS FR. WILLIAM FERNANDEZ ETC. ETC. [2017 (10) TMI 491 - SUPREME COURT] where it was held that We thus do not find any substance in the submission of the learned counsel for the petitioner that entry tax legislation is not covered by Entry 52 List II. - the Court declines to frame question as urged.
Whether in the facts and circumstances of the case levy of penalty U/s.10(2) of the Act is warranted? - HELD THAT:- With the legal position having been settled only in October 2017, most of the Dealers-Assessees were under bona fide impression that Entry Tax would not payable on goods imported into India. Therefore, it could reasonably be contended that till such time there was no willful or deliberate attempt by the Dealer-Assessee to waive payment of Entry Tax.
The Court notes that under Section 10 (2) of the OET Act, there is an element of discretion in the Assessing Authority to levy penalty where the escapement or under assessment of tax “is without any reasonable cause.” Since the Court is satisfied that the non-payment of Entry Tax on imported goods by the Petitioner, cannot be said to be without reasonable basis, the Court is of the view that in the present case the levy of penalty was not justified.
The question is accordingly answered in the negative i.e., in favour of the Petitioner and against the Department. The impugned Assessment order in so far as it imposes penalty on the Petitioner is hereby set aside - Revision petition allowed.
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