Advanced Search Options
Case Laws
Showing 81 to 100 of 17992 Records
-
2022 (12) TMI 1431
TP adjustment - comparable selection - HELD THAT:- Exclude Infosys BPO Company from the list of comparable as company has diversified functions, top global brand and huge turnover of Rs.1831.36 Crores.
M/s. Eclerx Services Ltd. is not comparable since it is functionally different. Since there are no segmental details, expenditure incurred on outsourcing, we are of the opinion that the CIT (Appeals) is justified in excluding this company as comparable. Admittedly, the functions of the assessee as well as e-Clerx have not change for the last two years i.e., from 2010-11 and 201213. AO in these two years had not considered e-Clerx as a comparable. No reason to grant any relief to the Revenue. Accordingly, we uphold the order passed by the ld.CIT(A) excluding the e-Clerx from the list of comparable.
Remit the issue of comparability in respect of these three companies i.e. M/s. Jindal Intellicom Pvt. Ltd., M/s. Informed Technologies Limited and M/s. Ace BPO Services Pvt. Ltd. to examine and decide as per law.
Interest rate charged on the trade receivable - AR had submitted that the Tribunal had allowed the credit period of 120 days as held in OSI Systems Pvt Ltd, Hyderabad [2020 (12) TMI 294 - ITAT HYDERABAD] and trade payables are required to be setoff against the trade receivables and the interest should be restricted to LIBOR plus 100 - CIT(A) has restricted the charging of interest at LIBOR +200 basis points allowing the credit period of 60 days - HELD THAT:- Though, the ld.AR cited the decision in the case of OSI System Pvt. Ltd.[Supra] but, the said decision is not applicable to the facts of the case as the Tribunal in the said case had held applicability of LIBOR +200 basis points to be applied on the trade receivables. Similarly, the Tribunal without assigning any reason has held that 120 days credit period is reasonable period.
In our view, no documentary evidence has been brought on record before us so that we can infer that 120 days credit period is a reasonable period. CIT(A) after relying upon the decision of OSI Systems (supra) for the reasons best known to him, had arbitrarily reduced the credit period from 120 days to 60 days.
The approach of ld.CIT(A) is without any basis. Hence, we direct the TPO/Assessing Officer to charge interest at LIBOR + 200 points. We direct AO / TPO to allow the credit period and charge interest over and above the outstanding period of 120 days.
-
2022 (12) TMI 1430
Seeking release the property seized under the alleged crime under the PML Act - it was held by High Court that The request of the ED counsel for continuing the prosecution against the petitioners is nothing but abuse of process of law.
HELD THAT:- The special leave petition is dismissed with liberty to move in case the challenge to the discharge in the predicate offence succeeds.
-
2022 (12) TMI 1429
Maintainability of appeal - Duties and functions carried out by IRP. - Disallowing certain CIRP expenses claimed by the Appellant/IRP - HELD THAT:- There are no reason to interfere with the order impugned. The civil appeal is, accordingly, dismissed - However, liberty granted to the appellant to file an application before the NCLAT in reference to the facts which have been noticed in Paragraphs 14 and 15 of the order impugned dated 30th May, 2022.
-
2022 (12) TMI 1428
AO jurisdiction to assess the case of assessee - Tribunal held that after the Commissioner of Income Tax-3, Mumbai had passed an Order on 19 December 2014, transferring the assessment jurisdiction from Mumbai to Pune, the assessing officer at Mumbai had no jurisdiction over the file of the assessee on the date when the Order of assessment came to be passed on 24 December 2014 - HELD THAT:- Tribunal rejected the argument of the revenue that the AO would continue to exercise the jurisdiction in the case of the assessee inasmuch as PAN of the assessee came to be transferred only 29 December 2014. It was held that the transfer of PAN is consequential to the Order of transfer of jurisdiction and that it is a PAN, which follows the jurisdiction and not vice versa.
In our view, there is no illegality in the Order dated 9 August 2017, which has been passed by the Tribunal.
-
2022 (12) TMI 1427
Application filed under Section 9 of the IBC, 2016 rejected - rejection on the ground that it does not fulfil the threshold as prescribed under Section 4 proviso where minimum default amount has been increased to Rs. 1 Crores by Notification of MCA dated 24.03.2020 - HELD THAT:- The Application has been filed by the Operational Creditor on 01.12.2021 for an amount of Rs. 42,94,620/-. The issue raised in the Appeal is fully covered by the Judgement of this Tribunal in the matter of HYLINE MEDICONZ PRIVATE LIMITED VERSUS ANANDALOKE MEDICAL CENTRE PRIVATE LIMITED [2022 (9) TMI 954 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] where it was held that no error has been committed by the Adjudicating Authority in rejecting Section 9 application filed by the Appellant on 18.01.2021 which did not fulfil the threshold of Rupees One Crore.
Appeal dismissed.
-
2022 (12) TMI 1426
Assessees in default u/s 201/201(1A) - failure to deduct withholding tax against External Development Charges (EDC) paid to Haryana Urban Development Authority - order passed u/s 271C by respondent no.1 and the notice of demand of even date passed u/s 156 of the Act.
HELD THAT:- To be noted, the aforementioned penalty order and demand notice concern Financial Year (FY) 2013-2014.
Issue notice. Counter-affidavit(s) will be filed within the next ten days. Rejoinder(s) thereto, if any, be filed before the next date of hearing.
-
2022 (12) TMI 1425
Revision u/s 263 against company dissolved/ non-existing - assessment in the hands of the representative/agent - Who may be regarded as agent u/s 163? - whether the CIT has power to pass an order u/s 163 of the Act? - HELD THAT:- As per provisions of section 163 it does not show the authority as to who can pass the order u/s 163 of the Act. Though section 246 of the Act which contains the provisions relating to the appealable orders before the CIT at clause (d) which mentions “An order made u/s 163 of the Act treating the assessee as agent of the non agent” which means that the order u/s 163 of the Act is to be passed by an authority below the rank of a commissioner, because if the commissioner passes the order, then it cannot be appealed against before the ld. CIT(A).
Section 253 of the Act contains the provisions relating to appeals to the appellate Tribunal and in the said section, there is mention of all orders passed under different sections of the Act which are appealable before the appellate Tribunal but there is no mention of order passed u/s 163 of the Act, which means that the commissioner has no power to pass an order u/s 163 of the Act.
Though the ld. DR had vehemently stated that the commissioner has concurrent jurisdiction/powers as that of the Assessing Officer, but in light of the aforesaid discussion, we do not find any merit in this contention of the ld. DR.
In light of the provisions of section 163 considered in light of the aforementioned discussion, order passed u/s 163 of the Act by the CIT, International-2 deserves to be quashed and treated as nonest. The ld. CIT assumed jurisdiction u/s 263 of the Act on the basis of order passed u/s 163 of the Act.
Since the very basis [order u/s 163 of the Act] has been removed, the super structure i.e. order u/s 263 of the Act must fall.
Original assessment against company[Non resident] now dissolved - As there is no dispute that the Assessing Officer framed assessment u/s 143(3) of the Act in the case of Monet Limited in the status of non-resident. In our considered opinion and understanding of law, since the principal has been assessed to tax than for the same income, there cannot be a separate assessment in the hands of the representative/agent, when the alleged representative/agent are also non-residents.
Principal Monet Limited has been extinguished. Then how can there be representative /agent of non-existing company. Provisions of section 163 of the Act are not akin to that of section 159 wherein a legal heir is substituted in place of a deceased assessee. This answers the third issue raised by Shri Pardiwalla.
CIT, International Taxation-2 passed an order u/s 163 of the Act without having any such authority and thereafter, wrongly assumed jurisdiction u/s 263 of the Act treating Cairnhill CIPEF Limited and Cairnhill CGPE Limited as representative /agent of Monet Limited which extinguished on 19.12.2018 and framed the impugned orders which do not have any support /backing of any provisions of the Act.
Assessee appeal allowed.
-
2022 (12) TMI 1424
Reopening of assessment u/s 147 - validity of Order passed u/s 148A(d) and notice u/s 148 - period of limitation - petitioner as pleaded that proceedings were time barred as the window available to the respondent/revenue for issuance of fresh notices under the new regime was available only between 01.04.2021 and 30.06.2021 - Addition u/s 68 - HELD THAT:- Revenue, cannot but accept that insofar as the first aspect is concerned i.e., limitation, the same is covered by the judgment rendered by the coordinate bench in Suman Jeet Agarwal [2022 (9) TMI 1384 - DELHI HIGH COURT]
For second aspect revenue says that there is no specific assertion in the counter-affidavit. Therefore, quite clearly, the department has not taken a stand either way, on the assertion made that the said amount has been taxed in the hands of the creditor.
Thus, for the foregoing reasons we are inclined to set aside the impugned order passed under Section 148A(d) and notice issued u/s 148 of the Act.
-
2022 (12) TMI 1423
Validity of reopening of assessment - notice issued u/s 148A(b) - period of limitation - as notice issued u/s 148 is time-barred as issued beyond the window available i.e., between 01.04.2021 and 30.06.2021 as per the provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 - HELD THAT:- The record shows that on two previous occasions, i.e., 10.10.2022 and 21.11.2022, opportunity was given to Mr Maratha to obtain instructions. Obviously, no instructions have been received by Mr Maratha.
Issue notice. Respondents accepts notice on behalf of the respondents (which includes CBDT/respondent no.3). A counter-affidavit will be filed within three weeks from today.List the matter on 21.07.2023
-
2022 (12) TMI 1422
CIT(A) passed ex parte - Levy of penalty u/s 271(1)(c) - Denial of natural justice - Addition of unconfirmed sundry creditors - HELD THAT:- We are of the view that by dismissing the appeal without considering the issue on merits, Learned CIT(A) has failed to follow the mandate required in Sub Section (6) of Section 250 - it is also a well settled principle of natural justice that sufficient opportunity of hearing should be offered to the parties and no parties should be condemned unheard.
We set aside the impugned order of CIT(A) and restore the issue to the file of CIT(A) for re-adjudication of the issue after granting sufficient opportunity of hearing to the assessee and considering the submissions of the assessee - Appeal of the assessee is allowed for statistical purposes.
-
2022 (12) TMI 1421
Seeking direction being issued to respondent no. 2 to decide and rule on the petitioner’s application dated 31.03.2021 - case of petitioner is that the reason that the petitioner has been issued the show cause-notice dated 06.12.2022 is inextricably linked to the decision by respondent no. 2 on the aforementioned application - HELD THAT:- The writ petition is disposed of with the direction to respondent no. 2 or any other officer who is assigned with the task to dispose of the petitioner’s application dated 31.03.2021, to dispose of the same within the next six weeks.
The application will disposed of by way of a speaking order.
-
2022 (12) TMI 1420
Exemption u/s 11 - objects of the trust or institution and the genuineness of its activities - List on 25th April, 2023 along with CUTTACK DISTRICT TENNIS ASSOCIATION [2023 (4) TMI 1228 - ORISSA HIGH COURT]. In the meantime, defects be removed.
-
2022 (12) TMI 1419
Seeking grant of Anticipatory bail - bungling and misappropriation of funds and cheating etc - supply of medicines at exorbitant price, causing huge loss to the Government - HELD THAT:- Looking at the nature of offence and also taking note of the fact that the economic offences constitute/form a different class and while considering the bail application of an accused in such an offence, it is required to be visited differently than the offences under the IPC, this Court does not deem it appropriate to enlarge the accused-applicant on anticipatory bail. This anticipatory bail application is, therefore, rejected.
However, it is provided that if the accused-applicant surrenders and applies for regular bail within seven days from today, the same shall be considered, preferably on the same day, keeping in mind that the accused-applicant was not arrested by the Directorate of Enforcement, invoking the powers under Section 19 of the PMLA during the investigation and he had cooperated with the investigation - Application disposed off.
-
2022 (12) TMI 1418
“ESOP” (Employee Stock Options) deduction - not an allowable revenue expenditure u/s.37? - HELD THAT:- As in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] involving the preceding twin assessment years 2010-11 and 2011-12, has already rejected the Revenue’s arguments as relying on CIT Vs. Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Thus, we see no infirmity in the order passed in allowing the claim of ESOP expenses under section 37(1) of the Act. The ground raised by the Revenue is rejected.
Disallowance of interest income on Non Performing Assets (NPAs) on accrual basis - HELD THAT:- It emerges during the course of hearing that the same is also no more res integra in light of hon’ble jurisdictional high court’s recent common order involving assessment years 2009-10 to 2011-12 in assessee’s case(s) itself [2019 (4) TMI 378 - BOMBAY HIGH COURT] declining the Revenue’s ground held that interest on NPAs cannot be taxed on accrual basis. It was noted that NBFC would be governed by the directions issued by the Reserve Bank of India and RBI directives provided that under certain circumstances, a loan or advance would be treated as NPA. The Court on the real income theory held that such interest would not be taxable. We notice that the decision of the Delhi High Court in case of Vasisth Chay Vyapar Ltd [2010 (11) TMI 88 - DELHI HIGH COURT] was carried in the appeal by the Revenue before the Supreme Court. The Supreme Court in the judgment reported in [2018 (3) TMI 56 - SUPREME COURT] approved the decision of the High Court and dismissed the appeal. Decided against revenue.
-
2022 (12) TMI 1417
Alleged detention of the vehicle and excavator - inaction on the part of the respondent WBGST authority concerned in not considering the case made out by the petitioner - Petitioner submits that he is suffering from huge financial loss everyday because of such detention of the vehicle and excavator in question - HELD THAT:- Considering the facts and circumstances of this case and submission of the parties this writ petition is disposed of by directing the respondent authority concerned to consider and dispose of the aforesaid representation by taking a decision in accordance with law and by passing a reasoned and speaking order after giving an opportunity of hearing to the petitioner or his authorised representative within 16th December, 2022 positively.
Petition disposed off.
-
2022 (12) TMI 1416
Disallowance u/s 14A r.w.r. 8D - suo motu disallowance made by assessee - HELD THAT:- As decided in Joint Investment [2015 (3) TMI 155 - DELHI HIGH COURT] that such a disallowance ought not to exceed the corresponding exempt income itself. The fact also remains that the assessee’s suo motu disallowance as already exceeds the sum which has nowhere been contested during the course of hearing. We, therefore, direct the AO to restrict the impugned section 14A r.w.r. 8D disallowance to a lump sum figure of Rs. 50,000/- each in both these assessment years
Disallowance of “ESOP” (Employee Stock Options) deduction u/s.37 - HELD THAT:- This tribunal’s very recent order in assessee’s case itself [2022 (9) TMI 239 - ITAT PUNE] rejected the Revenue’s arguments discount on ESOP being a general expense, is an allowable deduction u/s 37(1) of the Act during the years of vesting on basis of percentage of vesting during such period subject to upward or downward adjustment at the time of exercise of option as following case of Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
-
2022 (12) TMI 1415
Misappropriation of public funds - making false entries in the cash book and misappropriating money - misappropriation and falsification of accounts - sub-section (2) of Section 300 of the CrPC. - HELD THAT:- Section 300 of the CrPC embodies the general rule which affirms the validity of the pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). Sub-section (1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried earlier or for any other offence arising from the same fact situation, except the cases dealt in with under sub-sections (2) to (5) of the section - Section 300 of the CrPC is based on the maxim nemo deber bis vexari, si costest curiae quod sit pro una et eadem causa which means that a person cannot be tried a second time for an offence which is involved in an offence with which he was previously charged.
The whole basis for this provision is that the first trial should have been before court of competent jurisdiction. There must have been a trial of the accused, that is to say, that there should have been a hearing and determination or adjudication of the case on merits. Where the accused has not been tried and as such convicted or acquitted, Section 300(1) shall not be applicable - Section 300 of the CrPC bars the trial of a person not only for the same offence but also for any other offence on the same facts in Thakur Ram vs. State of Bihar [1965 (11) TMI 161 - SUPREME COURT].
The Trial Court has held that in the present case, the allegation is that after conducting the auction of coconuts and half filled grains, two-thirds of the amount collected from the successful bidder was not remitted to the treasury, however, in the earlier cases, the allegations were that the accused misappropriated some amount to be paid to the proprietor of Agricultural Marketing Corporation, Kozhikode, Kerala State Coir marketing Corporation, Kozhikode from the State Seed Farm, Perambra by forging and falsifying records - it can be said that the present cases pertain to the same set of facts and are in respect of same offences, for the same period, committed in the same capacity as the previous three cases wherein the appellant herein was already prosecuted in the year 1999. The core allegation in all these five cases pertains to misappropriation by making false entries in the cash book. The allegation of the prosecution that two-thirds of the auction amount was not remitted to the treasury would be covered under the allegations of misappropriation of funds, that the appellant has already been prosecuted for in the year 1999. The appellant is right in contending that the charge in the first three cases were framed on 17.08.1999 which is much after the audit and the prosecution would have been well aware of the misappropriation in respect of the present cases on 17.08.1999.
The High Court was not justified in affirming the judgment of conviction and sentence passed by the Trial Court - the Trial Court as well as the High Court were not right in convicting and sentencing the appellant herein and therefore, the impugned judgments are liable to be set aside.
Appeal allowed.
-
2022 (12) TMI 1414
Exemption u/s 11(1) and 11(2) - exemption denied merely on the ground of belated filing of Audit Report in Form 10B - whether Tribunal was right in confirming the order of the respondent in denying the claim of exemptions more so when such audit report was admittedly filed electronically well before the order denying such exemptions came to be passed ? - Whether the order passed by the Income Tax Appellate Tribunal is perverse inasmuch as the same is contrary to law laid down by the Hon’ble the jurisdictional High Court or not following the binding judgements of Hon’ble the jurisdictional High Court ?
HELD THAT:- Appeal admitted on substantial questions of law raised before this Court - Notice for final disposal, returnable on 13/12/2022.
-
2022 (12) TMI 1413
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.
-
2022 (12) TMI 1412
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.
........
|