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Showing 101 to 120 of 1599 Records
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2013 (10) TMI 1501
Issues involved: Challenge to order of Commercial Tax Tribunal under Section 54(1)(14) of the U.P. VAT Act, 2008 for assessment year 2008-09 regarding penalty proceedings.
Summary:
The revisionist challenged the order of the Commercial Tax Tribunal, Lucknow, regarding penalty proceedings under Section 54(1)(14) of the U.P. VAT Act, 2008 for the assessment year 2008-09. The counsel for the revisionist argued that a technical mistake in filling up column 6 of Form 38 was made, but all other relevant documents proving the legitimate transportation of goods were available during inspection. It was contended that the Assessing Authority wrongly concluded an intention to evade tax based on confusion between the sale of material and its subsequent use. The counsel further mentioned that the benefit of tax realization would be provided when the tower, subject to sharing with other service providers, is erected. The order of the tribunal was criticized for missing crucial points, rendering it flawed.
The learned Standing Counsel was granted four weeks to file a counter affidavit, with a week allowed for the revisionist to file a rejoinder affidavit. In the interim, the implementation of the impugned order dated 20.9.2013 was stayed.
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2013 (10) TMI 1500
Issues involved:
The appeal and cross objection were filed against the order of ld CIT(A)-Cuttack for assessment year 2008-09 u/s 143(3)/147 of the I.T.Act, 1961.
Issue 1: Treatment of gross receipt as income
The revenue contended that the entire gross receipt of &8377; 18,74,400/- should be taxed as income due to the non-registration of the assessee society u/s 12A of the I.T.Act. The AO assessed the gross receipts under the head "income from other sources" as the assessee failed to provide details of expenditure. The ld CIT(A) directed to tax the net income instead of the gross receipt, considering the voluntary nature of contributions and grants.
Issue 2: Exclusion of expenses from gross receipt
The ld CIT(A) allowed the claim of the assessee by stating that expenses claimed in the receipt and expenditure accounts should be excluded from the gross receipt. The trust's income was to be determined based on commercial principles, deducting all outgoings, including income tax paid, to arrive at the surplus income for application or accumulation.
Judgment Summary:
The assessee trust, not registered u/s 12A, received donations treated as income by the AO. The ld CIT(A) directed taxing the net income, following precedents. The revenue's appeal was dismissed, and the cross objection was also rejected due to delay. The decision upheld the ld CIT(A)'s order, emphasizing the net income over gross receipts for taxation purposes.
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2013 (10) TMI 1499
Exemption u/s 54F of the Act - Period of limitation for investment in new House Property - Date of booking of flat is 19.1.2006 and Sale Deed date is 11.9.2008 date of housing loan is 24.5.2006 which was invested in the said property before 31.3.2007. The Revenue contended that since various courts have held that the only condition to be satisfied is that the new residential property should be purchased within the specified period of one year before or with two years after the sale of the old capital asset.
HELD THAT: - 1) The amounts paid by the assessee on booking of the asset i.e. flat at Gokulam, Kanakpura Road on 9.1.2006 and the housing loan of ₹ 40 lakh for investment in the purchase thereof have not vested the assessee with ownership of the new asset. The assessee has been vested with the ownership of the new flat only by virtue of the Registered Sale Deed dt.11.9.2008. In this view of the matter, we find that the authorities below have erred in restricting the exemption under section 54F of the Act to ₹ 6,23,433. - Decided in favor of the assessee.
Set off of long term capital loss incurred on sale of long term listed shares against LTCG on sale of immovable property- HELD THAT - We are of the view that the set off of LTCL on sale of listed securities, whose income is exempt under section 10(38) of the Act, against LTCG immovable property/as claimed by the assessee, is contrary to law and the intention, object and purpose of the Legislation in introducing clause 10(38) of the Act. - Decided against the assessee.
Levying the interest u/s.234B and interest u/s.234C- HELD THAT- The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter. The Assessing Officer is, however, directed to recompute the interest chargeable under section 234B of the Act, if any, while giving effect to this order.
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2013 (10) TMI 1498
Issues involved: Denial of credit for Education Cess and SHE Cess u/s duty paid by supplier.
In the judgment by the Appellate Tribunal CESTAT BANGALORE, the issue of denial of credit for Education Cess and Secondary & Higher Education (SHE) Cess u/s duty paid by the supplier was addressed. The appellant had taken credit amounting to Rs. 1,76,888/- during the period from August 2006 to March 2011, which was denied and demanded by the Revenue along with interest and penalty.
The appellant's counsel argued that the supplier had paid the Sugar cess along with Education Cess and SHE Cess on the sugar cess amount, which the Revenue contended was not payable. While acknowledging that Education Cess and SHE Cess are not payable on Sugar cess, the counsel argued that the appellant should not be denied credit as they were entitled to Cenvat credit of duty paid by the supplier. The counsel relied on decisions of the Hon'ble Supreme Court in the cases of Sarvesh Refractories (P) Ltd. vs. Commissioner and C.C.E. vs. MDS Switchgear Ltd., emphasizing that there cannot be any assessment at the buyer's end.
The Tribunal found that the decisions of the Hon'ble Supreme Court cited by the appellant's counsel were directly relevant to the case. Consequently, it was determined that the appellant had established a prima facie case for waiver of pre-deposit and a final decision in their favor. Therefore, the appeal was allowed with any consequential relief to the appellant.
The stay application and appeal were disposed of accordingly, with the order being dictated and pronounced in open court.
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2013 (10) TMI 1497
Issues Involved:
The judgment involves the issue of penalty imposition under sections 271D and 271E of the Income Tax Act, 1961 for the assessment year 2001-02 due to violations of sections 269SS and 269T of the Act.
Penalty Imposition under Sections 271D and 271E:
The Appellate Tribunal heard two Appeals by the Assessee challenging the Orders by the Commissioner of Income Tax (Appeals) dismissing the appeal contesting the penalty imposition under sections 271D and 271E of the Income Tax Act for the assessment year 2001-02. The assessee, a partnership firm, received sums in cash from another firm, leading to violations of sections 269SS and 269T of the Act. The penalties were levied and confirmed due to the failure to provide sufficient evidence or reasonable cause for the violations.
The Tribunal considered the arguments presented by both parties. The assessee claimed that the transactions were genuine and bona fide, with no deliberate defiance of the law, and thus, penalty imposition was not justified. The Revenue contended that the assessee failed to prove a reasonable cause for the violations as required by section 273B of the Act.
The Tribunal analyzed the legal provisions of sections 269SS, 269T, 271D, and 271E, emphasizing the constitutional validity of the penalties for violations. It was clarified that the applicability of penalties depended on the factual circumstances and conduct of the assessee, not solely on the law's prescription. The Tribunal highlighted that genuine and bona fide transactions could be considered for penalty relief, but non-genuine transactions would be treated as income under section 68 of the Act.
Regarding the specific transactions in question, the Tribunal found that while one sum received qualified as a loan or deposit under section 269SS, the other sum did not fall under section 269T due to the timing of repayment. Despite the violations, the Tribunal granted relief under section 273B based on the unique circumstances of the case, including the relationship between the parties and the nature of the transactions.
In conclusion, the Tribunal allowed both appeals by the assessee, ruling in favor of penalty relief based on the grounds of reasonable cause and the applicability of the un-amended provision of section 269T of the Act.
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2013 (10) TMI 1496
Issues Involved:
1. Treatment of interest on bank deposits as income from other sources.
2. Disallowance of depreciation claimed by the assessee.
3. Direction to assess 3% of the grant allotted towards administrative expenses as income of the assessee.
Summary:
1. Treatment of Interest on Bank Deposits:
The assessee contested the CIT(A)'s decision to treat interest on bank deposits as income from other sources. The assessee argued that the interest earned on funds earmarked for business should be treated as business income. The CIT(A) relied on the decision of the Hon'ble Bombay High Court in Colaba Central Co-Operative Consumer Wholesale & Retail Stores Ltd. v. CIT, concluding that there is no overriding title over the interest income earned by the assessee. The Tribunal remitted the issue back to the Assessing Officer for verification of whether the interest earned on short-term deposits was refunded to the Government or adjusted against future grants, directing that the assessed income should not be below the returned income.
2. Disallowance of Depreciation:
The Assessing Officer disallowed the depreciation claimed by the assessee, stating that the assessee did not own the business assets and had no dominion or control over them. The CIT(A) upheld this view. The Tribunal agreed, noting that the assets were funded by the Central and State Governments and beneficiaries, and the assessee did not exercise absolute dominion or right over the assets. Consequently, the assessee's grounds on this issue were rejected.
3. Assessment of 3% Grant for Administrative Expenses:
The CIT(A) directed the Assessing Officer to assess 3% of the grant allotted for administrative expenses as the income of the assessee, without allowing any deduction for expenditure. The assessee argued that only 2% of the grant was available for administrative expenses, and the final sanction was still awaited. The Tribunal found that the CIT(A)'s observation that 3% of the grant was released to the assessee was without basis. The issue was remitted back to the Assessing Officer for verification of whether the 2% grant was sanctioned and received by the assessee, and to allow corresponding expenditure incurred by the assessee.
Conclusion:
Both appeals of the assessee were partly allowed for statistical purposes, with specific issues remitted back to the Assessing Officer for further verification and fresh decision.
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2013 (10) TMI 1495
Issues Involved:
1. Confirmation of penalty u/s 271(1)(c) of the I.T. Act, 1961.
2. Whether the levy of penalty for disallowance of sundry expenses amounts to concealment of particulars or filing of inaccurate particulars.
3. Applicability of the Supreme Court's decision in CIT v. Reliance Petroproducts (P.) Ltd. regarding incorrect claims not amounting to concealment.
4. Consideration of penalties on estimated disallowances.
5. Consistency in penalty proceedings for subsequent assessment years.
Summary:
Issue 1: Confirmation of Penalty u/s 271(1)(c)
The assessee-company challenged the order of CIT(A) confirming the penalty of Rs. 3,70,984/- levied by the AO u/s 271(1)(c) of the I.T. Act, 1961. The Tribunal upheld the penalty, stating that the assessee had submitted inaccurate particulars of income by claiming illegal payments as sundry expenses, which were not allowable u/s 37 of the Act. The Tribunal emphasized that the penalty was justified as the assessee's claim was not bona fide and was made to reduce taxable income and payable tax.
Issue 2: Disallowance of Sundry Expenses
The assessee argued that the disallowance of a particular claim does not amount to concealment of particulars or filing of inaccurate particulars. However, the Tribunal noted that the assessee had debited expenses relating to illegal payments to Dock workers, Union Leaders, and Government Employees, which were not allowable as per the explanation to section 37(1) of the Act. The Tribunal held that the assessee had deliberately debited these expenses to the P & L Account, resulting in inaccurate particulars of income.
Issue 3: Applicability of CIT v. Reliance Petroproducts (P.) Ltd.
The assessee relied on the Supreme Court's decision in CIT v. Reliance Petroproducts (P.) Ltd., arguing that an incorrect claim does not amount to concealment of particulars. The Tribunal distinguished the facts of the present case from Reliance Petroproducts, noting that in the latter, there was no finding of incorrect or false details supplied by the assessee. In contrast, the present case involved a clear finding of inaccurate particulars and concealment of income.
Issue 4: Penalties on Estimated Disallowances
The assessee contended that penalties should not be levied on estimated disallowances. The Tribunal, however, maintained that the reduction of disallowance to 25% did not negate the blameworthiness of the claim. The Tribunal emphasized that the disallowance related to payments prohibited by the explanation to section 37(1) of the Act, and such payments were not allowable from the moment they were made.
Issue 5: Consistency in Penalty Proceedings
The assessee argued that in subsequent assessment years, the AO did not initiate penalty proceedings despite making similar additions. The Tribunal dismissed this argument, stating that each assessment year is separate, and the facts and circumstances of each year must be considered independently.
Conclusion:
The Tribunal confirmed the orders of the CIT(A) for the assessment years 1998-99, 2002-03, and 2003-04, upholding the penalties levied u/s 271(1)(c) of the Act. The appeals filed by the assessee were dismissed for all three assessment years.
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2013 (10) TMI 1494
Issues involved: Interpretation of income tax provisions regarding treatment of waived loan amount as income.
Summary:
The High Court of Madhya Pradesh heard an appeal under section 260A of the Income Tax Act, 1961 against the order passed by the Income-tax Appellate Tribunal. The case involved a one-time settlement (OTS) between the respondent-assessee and Dena Bank, where a portion of the loan amount was waived by the bank. The Assessing Officer (AO) treated the waived amount as income of the assessee, which was challenged by the assessee before the Commissioner of Income Tax (Appeals) (CIT(A)). The CIT(A) allowed the appeal and directed the AO to delete the addition made. The Revenue then appealed before the Tribunal, which upheld the CIT(A)'s decision. The High Court, after reviewing the orders of the AO, CIT(A), and the Tribunal, concluded that the waived amount should not be treated as income of the assessee since the principal amount of the loan was never claimed as expenditure. Therefore, the Court found no error in the Tribunal's decision and dismissed the appeal, stating that no question of law arose in the matter.
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2013 (10) TMI 1493
Issues Involved:
1. Adoption of Fair Market Value (FMV) of land and built-up area for computing capital gains.
2. Justification of FMV adopted by the assessee based on the Registered Valuer's report.
Summary:
Issue 1: Adoption of Fair Market Value (FMV) of land and built-up area for computing capital gains
The Revenue's appeal contested the CIT(A)'s decision to adopt the FMV of land at Rs. 900 per sq. yard and built-up area at Rs. 100 per sq. ft. for computing capital gains. The Assessing Officer (AO) had initially adopted the FMV based on SRO values, which were Rs. 75 per sq. yard for land and Rs. 34.10 per sq. ft. for the built-up area. The AO rejected the assessee's higher FMV claims, supported by a Registered Valuer's report, and relied on the SRO values, citing decisions from the Visakhapatnam Bench of the Tribunal and the Andhra Pradesh High Court.
The CIT(A), however, considered the prime location of the property in Banjara Hills and comparable cases, concluding that Rs. 900 per sq. yard for land and Rs. 100 per sq. ft. for the built-up area were reasonable FMVs. The Tribunal upheld the CIT(A)'s decision, noting that the jurisdictional High Court in CIT V/s. Ashwin Datla had established that SRO values are not scientifically prepared and cannot be adopted as FMV.
Issue 2: Justification of FMV adopted by the assessee based on the Registered Valuer's report
The assessee's cross-objection challenged the CIT(A)'s adoption of Rs. 900 per sq. yard for land instead of the Rs. 1,000 per sq. yard claimed based on the Registered Valuer's report. The Tribunal found that the Registered Valuer's report lacked specific comparable cases to justify the higher valuation and only vaguely mentioned local enquiries. Consequently, the Tribunal upheld the CIT(A)'s valuation of Rs. 900 per sq. yard, finding no apparent error.
Conclusion:
The Tribunal dismissed both the Revenue's appeal and the assessee's cross-objection, affirming the CIT(A)'s adoption of Rs. 900 per sq. yard for land and Rs. 100 per sq. ft. for the built-up area as reasonable FMVs for computing capital gains. The Tribunal emphasized that SRO values cannot be considered FMV and that the assessee failed to provide sufficient evidence to justify a higher valuation.
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2013 (10) TMI 1492
Issues involved: Appeal against disallowance of interest expenditure u/s. 37(1) of the Income Tax Act, 1961 for Assessment Year 2009-10.
Summary:
Issue 1: Disallowance of interest expenditure by Assessing Officer
The assessee obtained a secured loan and paid interest on it, claiming it as expenditure u/s. 37(1) of the Act. The Assessing Officer disallowed the interest amount as expenditure, stating that not charging interest on a loan given to a Trust while paying interest on borrowed funds is not admissible. The Trust invested the loan in shares, earning tax-free income. The CIT(Appeals) allowed the appeal, citing a judgment that expenditure on Employee Stock Option Plan (ESOP) is allowable. The Revenue appealed to the Tribunal.
Issue 2: Arguments of the Revenue and the Assessee
The Revenue argued that interest paid by the assessee on borrowed funds was rightly disallowed, as the Trust received interest-bearing funds without interest. The Assessee contended that the borrowings were used for ESOP shares, a taxable perquisite for employees, making it an allowable expenditure. They cited relevant judgments to support their stance.
Issue 3: Tribunal's Decision
The Tribunal noted that borrowings were for acquiring shares under ESOP. The Trust, not limited to the assessee's shares, also held shares of group companies. The Tribunal agreed with the CIT(Appeals) that the benefit to employees through the Trust qualifies as a perquisite. It upheld the CIT(Appeals) decision to proportionately disallow expenditure if shares were allotted to employees of other group companies, with the disallowance allowed in those companies' hands. The Revenue's appeal was dismissed for lack of merit.
This summary captures the key issues, arguments, and the Tribunal's decision regarding the disallowance of interest expenditure under section 37(1) of the Income Tax Act for the Assessment Year 2009-10.
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2013 (10) TMI 1491
Computation of "House Property Income" - Determination scope of Annual Letting Value - Composite rent - After the 2001 Finance Act Amendment , all receipts includes in the annual letting value (ALV)? - HELD THAT - The scope of ALV i.e. the annual letting value before and after amendment does not include value of other amenities provided as per separate agreements of the tenants and the owner for providing extra facilities like watchman, sweeper, mali etc. There is no change by way of amendment in the scope of ALV, there is no infirmity in the order of CIT(A), which is upheld. Decided in favor of assessee.
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2013 (10) TMI 1490
Issues Involved:
The appeal concerns the denial of deductions u/s. 80-IB(10) of the Income-tax Act, 1961 amounting to Rs. 7,08,34,948 in relation to the project "Harsh Paradise" due to non-completion of the project by the stipulated date of 31.03.2008.
Details of the Judgment:
Issue 1: Denial of Deductions
The appellant, a partnership firm engaged in construction schemes, claimed a deduction u/s. 80-IB(10) for the profits from the "Harsh Paradise" project. The Assessing Officer denied the deduction as the completion certificate for building H-4 was not obtained before 31.03.2008. The appellant contended that despite the non-completion of H-4, deductions should be allowed for completed buildings. The Tribunal noted that completion certificates were received for buildings H-1, H-2, H-3, and G, fulfilling the conditions for deduction u/s. 80-IB(10). Referring to a precedent, the Tribunal held that the appellant is entitled to the deduction for completed buildings except H-4. The order of the CIT(A) was set aside, directing the Assessing Officer to allow the deduction.
Issue 2: Precedent and Adjudication
The Tribunal considered a precedent from the appellant's case in the assessment year 2008-09 where a similar dispute was resolved in favor of the appellant. The Tribunal reiterated that completion of buildings H-1, H-2, H-3, and G before the deadline entitles the appellant to claim deductions u/s. 80-IB(10) for those buildings. The Tribunal emphasized a liberal interpretation of the law in favor of the appellant, considering the circumstances beyond their control in completing the entire project.
Conclusion:
Based on the precedent and the facts of the case, the Tribunal allowed the appellant's appeal, directing the Assessing Officer to permit the deduction u/s. 80-IB(10) for the completed buildings of the "Harsh Paradise" project. The decision was made on 30th October 2013 by the Appellate Tribunal ITAT Pune, setting aside the CIT(A)'s order.
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2013 (10) TMI 1489
Issues involved: Appeal challenging the order of the CIT(A) regarding exemption u/s. 11 of the I.T. Act, violation of Bombay Public Trust Act, and admission of additional evidence without giving a reasonable opportunity to the Assessing Officer.
Exemption u/s. 11 of the I.T. Act:
The Assessing Officer (AO) denied the benefits of section 11 to the assessee, citing non-maintenance of 10% of beds for indigent patients and weaker sections, leading to a violation of the Bombay Public Trust Act. The AO found that only 25 patients were treated at concessional rates, contrary to the claim of free treatment. The First Appellate Authority (FAA) held that the assessee had kept 10% of beds reserved for the needy, transferred 2% of gross revenue to the Indigent Patients Fund, and provided free treatment to the poor and needy, with specific beds reserved for them.
Violation of Bombay Public Trust Act:
The AO contended that the assessee's actions violated the norms of the Bombay Public Trust Act, impacting the eligibility for section 11 benefits. However, the FAA found that the assessee had not breached the provisions of the BPT Act, as specific beds were reserved for poor and weaker sections, and funds were allocated for indigent patients.
Admission of additional evidence:
During the appeal hearing, it was noted that certain documents were filed before the FAA but not presented to the AO. The Departmental Representative argued that the FAA admitted additional evidence without giving a reasonable opportunity to the AO. Citing relevant legal precedents, the Tribunal emphasized the importance of affording the AO a chance to examine or counter additional evidence. Consequently, the matter was remanded back to the FAA for a fair hearing and a fresh order, ensuring principles of natural justice were upheld.
Conclusion:
The Tribunal partially allowed the effective ground of appeal filed by the AO, leading to the partial allowance of the appeal. The case was remanded to the FAA for a fair hearing, emphasizing the importance of providing a reasonable opportunity to all parties involved in the proceedings.
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2013 (10) TMI 1488
Computation of Export turnover and total turnover - For the purpose of section 10A the telecommunication expenses in respect of export required to be excluded from the export turnover or total turnover and both - HELD THAT - In view of the decision of the High Court in [2011 (8) TMI 782 - KARNATAKA HIGH COURT], the AO is directed to reduce the telecommunication expenses from the export turnover as well as the total turnover, while computing deduction u/s. 10A of the Act. Decision in favor assessee.
Investment made out of temporary fund available from business - Income from short term deposits to be treated as Income from other sources or business income for purpose of deduction u/s 10A? - HELD THAT - Referring [2005 (3) TMI 93 - KARNATAKA HIGH COURT] where the assessee, instead of keeping that amount idle, since it did not require the same for its immediate business activity, had deposited that amount by way of short-term deposit in the bank and the amount so deposited is only the funds which it had received towards the export to be made by it and the amounts so deposited in the bank and the interest income derived because of such deposit have close link with the business activity of the assessee and therefore the interest on bank deposits was assessable as business income. In light of the aforesaid decisions, we are of the view that the claim made by the assessee deserves to be accepted.
Business of software development services - the appellant is in the business of man power deployment - recompute the deduction u/s 10A of the Act after reducing the profit attributable to Business of Man Power Deployment - violation of the principles of natural justice - the assessee is eligible to deduction u/s. 10A? - HELD THAT - the order of the CIT(A) does not give any basis for coming to the conclusion that the assessee was in the business of manpower deployment. It is not understandable as to how such conclusion can be arrived at on the basis of perusal of P&L account and the composition of personnel cost found in the P&L account. The conclusions are without any basis and in our view cannot be sustained. Decision in favor assessee.
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2013 (10) TMI 1487
Issues Involved:
1. Non-adjudication of specific grounds by CIT (A).
2. Fresh comparability analysis at the time of assessment.
3. Use of multiple year data for calculating operating margin.
4. Rejection of certain comparable companies.
5. Acceptance of additional comparable companies.
6. Calculation of transfer pricing adjustment without considering +/- 5% variation.
Summary:
1. Non-adjudication of Specific Grounds:
The Assessee argued that the CIT (A) erred in not adjudicating specific grounds, including the AO's adherence to the JCIT's order u/s 92CA(4) and the TPO's rejection of the transfer pricing analysis without invoking specific clauses u/s 92C(3). The Tribunal dismissed these grounds as academic.
2. Fresh Comparability Analysis:
The Assessee contended that the CIT (A) erred in rejecting the contention that a fresh comparability analysis should not be conducted at the time of assessment using non-contemporaneous data as per Rule 10D(4). This ground was dismissed as not pressed.
3. Use of Multiple Year Data:
The Assessee's contention for using multiple year data for calculating the operating margin was rejected, aligning with multiple judgments favoring Revenue. This ground was dismissed.
4. Rejection of Certain Comparable Companies:
The CIT (A) rejected the inclusion of Lazard India Ltd and GeefCee Finance Limited as comparables. The Assessee did not press this ground, and it was dismissed.
5. Acceptance of Additional Comparable Companies:
The Tribunal reviewed the inclusion of ICDS Securities Ltd and Sumedha Fiscal Services Ltd by CIT (A). It found that ICDS Securities Ltd, primarily engaged in credit card services, and Sumedha Fiscal Services Ltd, involved in loan syndication and project consultancy, were not functionally comparable to the Assessee's investment advisory services. Thus, these companies were excluded from the list of comparables.
6. Calculation of Transfer Pricing Adjustment:
The Assessee argued that the AO erred in calculating the transfer pricing adjustment without considering the permitted +/- 5% variation from the Arms Length Price as per proviso to section 92C(2). The Tribunal directed the AO to apply the proviso in accordance with the law.
Risk Adjustment:
The Tribunal dismissed the Assessee's claim for risk adjustment, stating that it is not automatic and must be substantiated with facts and figures.
Revenue's Cross Appeal:
The Revenue contested the CIT (A)'s relief to the Assessee by taking the Arm's Length margin at 32.25% instead of 45.67%. The Tribunal upheld the exclusion of GeefCee Finance Limited due to persistent losses and maintained the exclusion of four other comparables as they were not functionally similar to the Assessee.
Conclusion:
Both cross appeals were partly allowed, with directions to the AO/TPO to re-evaluate the comparables and apply the +/- 5% variation as per section 92C(2).
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2013 (10) TMI 1486
The Appellate Tribunal CESTAT NEW DELHI dismissed the appeals by M/s. J S Steel Traders against CCE, Ludhiana for non-compliance with the provisions of Section 35F of Central Excise Act. The High Court's order dated 22.2.13 dismissing the appeal was confirmed.
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2013 (10) TMI 1485
1. ISSUES PRESENTED and CONSIDERED The core legal question addressed by the Kerala High Court in this judgment is whether a complainant in a private complaint, upon the acquittal of the accused, can utilize the new statutory remedy of appeal provided under the proviso to Section 372 of the Code of Criminal Procedure (Cr.P.C.) or if they are confined to the earlier remedy under Section 378(4) Cr.P.C., which requires obtaining special leave from the High Court. 2. ISSUE-WISE DETAILED ANALYSIS Relevant Legal Framework and Precedents: The judgment examines the amendments introduced by the Amendment Act 5 of 2009 to the Cr.P.C., specifically the proviso to Section 372, which grants victims the right to appeal against acquittals, convictions for lesser offenses, or inadequate compensation. It also considers the definition of "victim" under Section 2(wa) Cr.P.C. and its implications. The court references various High Court decisions to highlight differing interpretations of these provisions. Court's Interpretation and Reasoning: The court analyses the intention behind the amendments, emphasizing the need to provide victims with a role in the criminal justice process, particularly in appealing against acquittals. It considers the legislative intent to not exclude complainants from the definition of victims if they satisfy the criteria under Section 2(wa) Cr.P.C. Key Evidence and Findings: The court notes the inconsistent interpretations by different High Courts regarding the applicability of the proviso to Section 372 Cr.P.C. to complainants in private complaints. It highlights that the Bombay High Court and other courts have excluded complainants from the definition of victims, while others, like the Jharkhand and Rajasthan High Courts, have included them. Application of Law to Facts: The court applies the amended provisions to the facts of the cases before it, determining that complainants in private complaints who meet the definition of victims are entitled to appeal under the proviso to Section 372 Cr.P.C. The court reasons that the statutory right to appeal should not be denied to complainants who are also victims, as they have suffered loss or injury due to the accused's actions. Treatment of Competing Arguments: The court addresses arguments against extending the proviso to Section 372 Cr.P.C. to complainants, such as potential redundancy of Section 378(4) Cr.P.C. It refutes these by highlighting that Section 378(4) Cr.P.C. remains relevant for cases where the complainant and victim are different or where statutory authorities file complaints. Conclusions: The court concludes that complainants in private complaints who meet the definition of victims have a statutory right to appeal under the proviso to Section 372 Cr.P.C. It emphasizes that this right is available for judgments rendered after December 31, 2009, and that complainants may have dual remedies but should adhere to the principle of hierarchy of courts. 3. SIGNIFICANT HOLDINGS Preserve Verbatim Quotes of Crucial Legal Reasoning: "A complainant in a complaint under Section 138 of NI Act is also a victim and is entitled to the same benefit as the victim in any other case instituted on a private complaint." Core Principles Established: - Complainants in private complaints who qualify as victims under Section 2(wa) Cr.P.C. can appeal under the proviso to Section 372 Cr.P.C.
- The existence of two remedies (proviso to Section 372 and Section 378(4) Cr.P.C.) does not negate the statutory right provided by the amendment.
- The principle of hierarchy of courts dictates that appeals should be filed in the lowest competent forum.
Final Determinations on Each Issue: - Complainants in private complaints who are victims have a right to appeal under the proviso to Section 372 Cr.P.C.
- In cases of acquittal by the Sessions Court in private complaints, the complainant who is also the victim has a statutory right of appeal under the proviso to Section 372 Cr.P.C.
- The remedy under Section 378(4) Cr.P.C. remains applicable where complainants and victims differ or in statutory complaints.
The judgment directs that records be returned to the respective parties to enable them to file appeals before the appropriate forum, with considerations for the time pending before the High Court under Section 14 of the Limitation Act.
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2013 (10) TMI 1483
CENVAT Credit - group insurance premium - rent-a-cab services - denial on account of nexus - Held that:- The issue is no longer res integra and has been settled in favour of the appellants in view of the decision of the Tribunal in the case of KPMG v. CCE, New Delhi [2013 (4) TMI 493 - CESTAT NEW DELHI], where credit on these services are allowed - credit allowed - appeal allowed - decided in favor of appellant.
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2013 (10) TMI 1482
Issues Involved:
The judgment involves issues related to violation of Section 13(1)(c) of the Income-tax Act, 1961, denial of benefit under Section 11 to a charitable institution, and computation of income including depreciation for charitable purposes.
Violation of Section 13(1)(c):
The case revolved around a charitable institution violating Section 13(1)(c) by providing funds to interested parties associated with the institution, as per the findings of the Assessing Officer. The Assessing Officer highlighted transactions involving M/s General Commercial Agencies and trustees with substantial interest, leading to the denial of benefits under Section 11.
Benefit under Section 11:
The Commissioner of Income Tax (Appeals) examined the grounds raised by the assessee in detail, particularly regarding the accounting of transactions involving trustees and interested parties. It was found that the separate accounting of receipts and payments without netting or squaring up did not constitute a violation under Section 13(1)(c). The Commissioner concluded that there was no breach of Section 13(1)(c) and directed the Assessing Officer to grant the benefit of Section 11 to the assessee.
Depreciation Computation for Charitable Purposes:
Regarding the computation of income including depreciation for charitable purposes, it was argued that the assessee, being a charitable institution, was entitled to depreciation allowance as per normal accounting practices. The judgment clarified that the allowance of depreciation and recognition of funds spent on acquiring assets for charitable purposes are distinct segments. There was no double benefit as the application of funds for charitable purposes was derived from the income computed conventionally. The lower authorities were directed to compute the income after providing for depreciation and treat the asset acquisition expenses as application of funds for charitable purposes.
In conclusion, the appeals filed by the Revenue were dismissed, and the cross-objections filed by the assessee were allowed, emphasizing compliance with Section 11 benefits and proper computation of income including depreciation for charitable activities.
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2013 (10) TMI 1481
Issues involved: Seeking directions for framing regulations regarding lodging caveats before the Company Law Board (CLB) and regulating filing of caveats u/s 148A of CPC, challenging the orders of CLB as nullity.
Summary:
1. The writ petition sought directions for framing regulations by the CLB and this court regarding lodging caveats u/s 148A of CPC and challenging certain orders of the CLB as nullity.
2. The petitioners filed a caveat before the CLB and sought to establish their interest in the matter, intending to request impleadment as an intervenor.
3. The petitioners argued that the CLB made orders without serving requisite papers to the caveators, leading to the orders being considered nullity and requiring to be quashed.
4. The main question for consideration was whether the failure to provide notice to the caveators renders the proceedings and orders passed a nullity.
5. The Company Law Board Regulations do not specifically address the applicability of Section 148A of CPC, but Regulation 44 empowers the Bench to make necessary orders for the ends of justice.
6. The lodging of a caveat entitles the caveator to bring it to the court's notice, but the right to be heard depends on the court's determination.
7. Previous judgments establish that failure to provide notice under Section 148A does not automatically render the order a nullity.
8. The court found that the failure to provide notice alone is insufficient to vitiate the proceedings unless special prejudice is demonstrated.
9. The court emphasized the limited writ jurisdiction and the availability of alternate remedies under the Companies Act for grievances.
10. The court expressed concern over implicating CLB officials unnecessarily and cited previous cases deprecating such actions.
11. The petition was dismissed, allowing the petitioners to pursue their application before the CLB, without expressing any opinion on the merits of their claims.
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