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2021 (6) TMI 1084
Deduction u/s 80P - Single Judge dismissed the writ petition on the ground that the petitioner had an effective alternate remedy by way of an appeal before the first appellate authority under the IT Act - HELD THAT:- We find that this is a case where the assessing authority has not applied the law as laid down by the Supreme Court on an issue that has been the subject matter of litigation for a considerable period of time. The reversal by the Supreme Court was itself of a judgment rendered by a Full Bench of this Court, which, in turn, had taken note of conflicting views expressed by Division Benches of this Court. When the law is finally settled by the Supreme Court in a contentious issue such as the one presented in the instant case, the said law has necessarily to be applied by the assessing authorities under the IT Act who are bound by it.
It cannot be the stand of the Department that an assessee, who is aggrieved by an assessment order passed ignoring the binding judgment of the Supreme Court, has nevertheless an alternate remedy by way of an appeal before the first appellate authority under the statute. An erroneous assessment occasioned by ignoring a binding judgment of the Supreme Court cannot be trivialized as an order against which an appellate remedy lies that would provide justice to an assessee.
We, therefore, set aside the judgment of the learned Single Judge, and also quash Ext. P11 assessment order in relation to the writ petitioner/assessee, and direct the 1st respondent assessing authority to re-do the assessment of the appellant society for the asst. yr. 2018-19 under the IT Act afresh, after issuing notice to the appellant assessee and after hearing the assessee in the matter. We make it clear that we have not expressed any opinion on the merits of the matter and that all contentions on merits are left open to the assessee to canvass before the assessing authority at the time of hearing. The assessing authority shall endeavour to complete the assessment as directed taking note of the judgment of the Supreme Court in Mavilayi [2021 (1) TMI 488 - SUPREME COURT] within an outer time limit of three months from the date of receipt of a copy of this judgment. With the above direction, the writ appeal is disposed.
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2021 (6) TMI 1083
Levy of service tax - royalty/seigniorage charges since royalty on mining leases - definition of supply as per entry No.17 of Notification No.11/2017-Central Tax (rate) dated 28.06.2017 read with Entry No.5 of Notification No.13/2017-Central Tax (rate) dated 28.06.2017 - HELD THAT:- Although the matter relates to challenge to a show-cause notice and in very rare cases this Court would interfere at the initial stage, we are of the opinion as the very incidence of tax on royalty/seigniorage charges is in question, we are inclined to entertain the writ petition.
Post on 09.08.2021.
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2021 (6) TMI 1082
Disallowance of expenditure incurred on failed IPO (failed Public issue) - Allowable revenue expenditure or not? - HELD THAT:- The issue in the present appeal is squarely covered in favour of the assessee by the decision of the Hon’ble Jurisdictional High Court in the case of Nimbus Communication Ltd. [2011 (12) TMI 696 - BOMBAY HIGH COURT] wherein the Hon’ble Jurisdictional High Court following its earlier decision in the case of M/s. Essar Oil Limited [2008 (10) TMI 649 - BOMBAY HIGH COURT] confirmed the decision of the Tribunal allowing the aborted IPO expenditure as revenue expenditure u/s 37. Similarly, the Hon’ble Madras High Court in the case of Tamilnadu Magnesite Ltd.[2018 (6) TMI 1236 - MADRAS HIGH COURT] held that the expenditure incurred for setting up of new project viz. Chemical Beneficiation Plant which is abandoned following State Government Order is allowable as revenue expenditure.
Disallowance u/s 14A - contention of the appellant that no interest bearing funds were utilized for the purpose of making any investment which yielded the exempt income - HELD THAT:- We direct the Assessing Officer not to make any addition on account of interest expenditure under Rule 8D of the Income Tax Rules, 1962 (‘the Rules’).
As regards to indirect expenses incurred for earning exempt income, the submission the assessee that amount of disallowance should be restricted lower of the exempt income and 0.5% of average value of investment, which yielded the exempt income / merits acceptance. It is very well settled position of law that the amount of disallowance u/s 14A cannot exceed the exempt income.
While computing the amount of disallowance under clause (iii) of Rule 8D(2) of the Rules, the average value of investments which yielded the exempt income alone to be considered for the purpose of arriving at average value of investment - Therefore, this ground of appeal is remitted to the file of the Assessing Officer to calculate the amount of disallowance under clause (iii) of Rule 8D(2) on the above lines indicated above. Thus, this ground of appeal is partly allowed.
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2021 (6) TMI 1081
TDS u/s 195 - disallowance u/s 40(a)(ia) on commission payments made to non residents agents - whether said services are not in the nature of technical services and does not come under purview of section 9(2) of the Act ? - HELD THAT:- As decided in M/S. PUMA SPORTS INDIA P., LTD., [2021 (4) TMI 93 - KARNATAKA HIGH COURT] this Court is of the considered opinion that in the present case the Associated Enterprises has rendered services out of India in the form of placing orders with the manufacturers who are already outside India. The commission was paid to Associate Enterprises out of India. No taxing event has taken place within the territories of India and therefore, the Tribunal was justified in allowing the appeal of the assessee.
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2021 (6) TMI 1080
Constitution of CoC - Committee of Creditors has not been constituted as yet, hence, it was ordered that the constitution of CoC to be put on hold till next date of hearing - HELD THAT:- Let the matter be fixed for consideration of impleadment application and for hearing on 3rd August, 2021.
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2021 (6) TMI 1079
Prayer for deciding application on time - HELD THAT:- It is apprised that 20th July, 2021 has already been fixed for hearing before the Adjudicating Authority - Considering the submissions of Ld. Counsel for the parties. We request the Adjudicating Authority to decide aforesaid applications on priority basis preferably on 20th July, 2021.
Appeal disposed off.
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2021 (6) TMI 1078
Dishonor of Cheque - insufficiency of funds - commercial transaction governed by contract between the parties regarding purchase of goods - Section 161(3) Cr.P.C. - Sections 406 and 420 of IPC - HELD THAT:- Admittedly, there is a contract existing between the petitioners and the defacto complainant. When the petitioners had requested for 100 tonnes of old iron from the defacto complainant, the parties had entered into a contract and the said contract was duly signed by both the parties. While that being the case, the defacto complainant cannot now take a turn and seek for a direction under the Criminal Procedure Code, that too when the present case is purely civil in nature, which involves a commercial transaction between the petitioners and the defacto complainant and no criminal offence has been made out.
It is pertinent to point out that the dispute between the parties, at the most, can be said to be the civil dispute and it is tried to be converted into the criminal dispute. Therefore, this Court is of the opinion that continuing the criminal proceedings against the petitioners will be an abuse of process of law and, therefore, the criminal proceedings are liable to be quashed. Merely because the petitioners have not have paid the amount due and payable under the agreement or even assuming not paid the amount in lieu of one month Notice, this by itself cannot be said to be a cheating and/or having committed offence under Sections 406 and 420 of the IPC.
In the present case on hand, looking at the allegations in the charge sheet, on the face of it, this Court finds no allegations are made attracting the ingredients of Section 406 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the petitioners in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the petitioners did not make payment to the defacto complainant and that the petitioners utilized the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the money / property - The mere fact that the petitioners did not pay the money to the complainant does not amount to criminal breach of trust. Even if all the allegations in the charge sheet taken at the face value are true, this Court is of the view that basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a short cut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 406/420 IPC are missing, the prosecution of the petitioners under Sections 406/420 IPC, is liable to be quashed.
The present Criminal Original Petition is allowed.
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2021 (6) TMI 1077
Seeking approval of the Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39 (4) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016 - HELD THAT:- The proposed Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38(1A) and 39 (4) of the Regulations. The Resolution Plan is not found in contravention of any of the provisions of Section 29A of the Code and is in accordance with Law. Hence the same deserves approval with following observation and direction to the CoC to make payments as per liquidation value to all the dissenting Financial Creditors in cash upfront before any payment is made to assenting Financial Creditors as per the judgment of the Hon'ble Supreme Court in the matter of Jaypee Kensington Boulevard Apartments Welfare Association & Ors. vs. NBCC (India) Ltd. & Ors. matter. [2021 (3) TMI 1143 - SUPREME COURT].
It is to be ensured to make payment of statutory dues of its employees, ex-employees viz Gratuity, Provident Fund etc in full and on priority - application approved.
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2021 (6) TMI 1076
Rejection of the Resolution Plan by the Resolution Professional - HELD THAT:- A perusal of the MSME Certificate attached with the typed set filed by the Respondent would go on to show that the said Certificate was only obtained on 19.12.2020. Thus, it can be seen that the Applicant is trying to play a fraud upon this Tribunal, in order to gain backdoor entry to the assets of the Corporate Debtor in the guise of projecting themselves as MSME. Further, section 240A of the IBC, 2016 exempts applicability of only section 29A(c) and 29A(h) in terms of eligibility to be a resolution applicant as a medium level enterprise under MSME Development Act, 2006. In the present case, the Applicant suffers disqualification under Section 29A(e) and unfortunately, such a protection is not being granted to the Applicant/Corporate Debtor, under Section 240A of IBC, 2016 who claims themselves to be an MSME. In any case, the Applicant suffers disqualification under Section 29A(e) of IBC, 2016.
The Applicant, being the Promoter/suspended Director of the Corporate Debtor is trying to stall the process of CIRP on the guise of projecting themselves as MSME and thereby trying to gain a backdoor entry to the assets of the Corporate Debtor.
This Adjudicating Authority is of the considered view that the Respondent was right in rejecting the Application of the Applicant for the Resolution Plan - Application dismissed.
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2021 (6) TMI 1075
Adjustments qua refunds - grant extension for filing the court-fee and notarised affidavits along with the present petition - HELD THAT:- PCIT will deliberate and deal with the petitioner's communications, dated 14.01.2021, 26.02.2021 and 10.03.2021. The PCIT will pass a speaking order, after according a hearing to the authorised representative of the petitioner.
List the matter on 03.08.2021.
In the meanwhile, the respondents/revenue will maintain status quo with regard to the future adjustments qua refunds, if any, available to the petitioner, till the next date of hearing. It is made clear that, notwithstanding this direction, the plea made in the aforementioned communications addressed to the PCIT, concerning adjustment of future refunds, if any, being made available to the petitioner, will be dealt with by the PCIT.
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2021 (6) TMI 1074
Seeking withdrawal of CIRP of Corporate Debtor - Seeking to constitute a revised CoC consisting of only Operational Creditors - original Financial Creditors who constituted the CoC had given letters of withdrawal - Section 12A of IBC, 2016 - HELD THAT:- It is noted that pursuant to the orders passed by this Tribunal, two CoC meetings were convened by the RP and in none of the meeting the RP has moved an agenda for fixing his fee / remuneration, however after CoC passing a Resolution for withdrawal of the Application under Section 12A of IBC, 2016 the RP seeks for fixing his fees. However, it is seen from FORM FA presented before this Tribunal that Bank Guarantee in a sum of ₹ 10 lakh, has been provided towards fees and costs of the Resolution Professional by the Operational Creditor. However, an objection is taken in this regard in relation to the person who had taken the Bank Guarantee (BG) not to be the party concerned, but by a third party company. Learned Senior Counsel for the Board of Directors whose powers stand suspended gives an undertaking on behalf of them that the BG will not be returned unhonoured under any circumstances and that the amount for which BG has been given will be duly met.
Taking into consideration the said submissions made by the Ld. Counsel for the Applicant/RP/Respondents as well as the averments contained in the Application and also based on the unanimous Resolution passed by the CoC on 25.05.2021 under Section 12A of IBC, 2016 for withdrawal of CIRP of the Corporate Debtor, this instant Application stands allowed and in the circumstances, petition stands withdrawn. Consequently, the CIRP initiated against the Corporate Debtor also stands withdrawn.
Application closed.
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2021 (6) TMI 1073
Maintainability of appeal by NCLAT - Section 61(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The National Company Law Appellate Tribunal was right in rejecting the appeal on the ground that it was filed beyond the condonable period of 15 days after the expiry of the period of limitation of 30 days prescribed therein.
However, Mr. Vikas Singh, learned senior counsel for the appellant seeks liberty to move the National Company Law Tribunal by invoking Rule 11 of the National Company Law Tribunal Rules, 2016. The appellant shall have such liberty, if permissible in law.
Appeal dismissed.
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2021 (6) TMI 1072
Seeking enlargement on bail - allegation is that appellant played an active role in the conspiracy and is one of the 'masterminds' - HELD THAT:- Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon.
While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. The gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail - apart from militating against the presumption of innocence, pre-trial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial. The three cardinal concerns against grant of bail pending trial, namely of evidence tampering, witness intimidation and abscondence, can be addressed by imposition of requisite conditions on grant of bail.
The appellant shall furnish a personal bond in the sum of ₹ 50,000/- with 02 local sureties in the like amount, to the satisfaction of the learned Trial Court - the bail is granted subject to conditions imposed.
Application allowed.
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2021 (6) TMI 1071
Seeking stay of the operation, implementation and execution of the order - HELD THAT:- The order dated 17.01.2019 has been challenged by the applicant by way of First Appeal No.1224 of 2021. The First Appeal came to be admitted by this Court vide order dated 07.06.2021.
Let Notice be issued to the opponent – returnable on 12.07.2021. Till the next returnable date, the opponent shall maintain status quo as regards the nature, character and possession of the attached properties.
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2021 (6) TMI 1070
Maintainability of appeal - HELD THAT:- This appeal is under Section42 of the Prevention of Money Laundering Act, 2002 against the order passed by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PBPT Act at New Delhi.
The appeal requires consideration. Admit - Let Notice of admission be issued to the otherside.
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2021 (6) TMI 1069
Seeking grant of Bail - criminal conspiracy - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices - commission of crime - sham consultancy agreements - fake invoices for consultancy services were prepared - Applicability of twin conditions of Section 45 of PMLA - HELD THAT:- The issue of applicability of twin conditions of amended Section 45 of PMLA has arisen before the various Hon'ble High Courts of this country and divergent view has come across. The Hon'ble High Court of Delhi in the matter of UPENDRA RAI VERSUS DIRECTORATE OF ENFORCEMENT [2019 (7) TMI 576 - DELHI HIGH COURT] and, the Hon'ble Madhya Pradesh High Court in the matter of DR. VINOD BHANDARI VERSUS ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT [2018 (8) TMI 1848 - MADHYA PRADESH HIGH COURT] and the Hon'ble Bombay High Court in the matter of CHHAGAN CHANDRAKANT BHUJBAL VERSUS ASSISTANT DIRECTOR ENFORCEMENT DIRECTORATE AND ANR [2016 (6) TMI 1148 - BOMBAY HIGH COURT] have taken a view that post amendment of Section 45 of PMLA, twin conditions do not get revived and hence, are inapplicable to the bail application filed under the PMLA - However, a contrary view has been taken by the Hon'ble High Court of Orissa at Cuttack in the matter of MOHAMMAD ARIF VERSUS DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA [2020 (7) TMI 425 - ORISSA HIGH COURT] and by the Hon'ble High Court of Patna in the matter of VIDYUT KUMAR SARKAR VERSUS THE STATE OF BIHAR AND ORS. [2020 (7) TMI 581 - PATNA HIGH COURT].
Further, till date, no court has declared the twin conditions mentioned in the amended Section 45 of PMLA to be unconstitutional on the ground of it being violative of Article 14 of the Constitution of India.
Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application.
It is apparent that accused played a major role by getting the illegal commission transferred from M/s. Uralkali General Trading, Gibralter and Gulf Marine, Dubai into the account of entities owned by Rajiv Saxena and from there, the said commission was transferred as per his instructions and that of co-accused Pankaj Jain and Sanjay Jain - the accused in his statement under Section 50 of PMLA has not been able to give the source of such huge funds received by him in cash or in the entities owned by him. Therefore, there is a prima facie material to hold that accused is involved in the offence of money laundering and since the Ld. Special Counsel for the ED has opposed the grant of bail, therefore, as per Section 45 of PMLA, accused is not entitled to bail.
The accused is also not entitled to bail as per proviso to Section 45 of the PMLA on the ground of he being a sick and infirm person as there is nothing on record to suggest that accused is sick to that extent that in case he remains incarcerated, then his health condition will further deteriorate.
The investigation is at the stage of collection of evidence regarding identification of proceeds of crime and finding of trail of remaining ill gotten money, which in the case of money laundering is generally routed through a complex web of companies. Therefore, taking into account the above mentioned factors, even if twin conditions mentioned in Section 45 of PMLA are ignored, then also having regard to the serious economic offence committed by accused wherein the alleged amount of ₹ 685 Crores has been laundered, the possibility of tempering with the witnesses, the accused being an influential person and the investigation being at an initial stage, the court is not inclined to release the accused on bail, even as per Section 439 Cr.P.C.
Bail application dismissed.
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2021 (6) TMI 1068
Accrual of income - Addition on account of accrued interest on seed money loans - Hypothetical income - taxability or otherwise of the interest on the seed money advances given to the entrepreneurs, which are classified as sticky advances - income should be computed either on cash or on accrual basis as per amendment w.e.f. A.Y. 1997-98 - assessee is following the mercantile system of accounting - whether since all items of accounts were maintained as per mercantile system of accounting, there was no basis for accounting said accrued interest income on cash basis as section 145(1)? - HELD THAT:- This issue is identical to the issue of taxability of interest on Non-performing Assets. There is no dispute that the interest had not been recognized in the books of account on sticky advances, the claim is in the nature of interest on doubtful debts, there is an uncertainty as to the recovery of advances as well as principal amount of the advances. The Hon’ble Supreme Court in the case of UCO Bank [1999 (5) TMI 3 - SUPREME COURT] held that no hypothetical income can be brought to tax.
Hon’ble Supreme Court in the case of CIT vs. Shoorji Vallabhdas And Co., [1962 (3) TMI 6 - SUPREME COURT] laid down the principle that what can be taxed is only a real income, in respect of which the right to receive income had accrued, the same principle was reiterated in the case of UCO Bank (supra).
Hon’ble Supreme Court again in the case of CIT vs. Vasisth Chay Vyapar, [2018 (3) TMI 56 - SUPREME COURT] while considering the issue in the context of taxability of interest on Nonperforming Assets held that when interest was not received and the possibility of recovery almost Nil, the interest could not be treated to have accrued.
Thus the issue in the present appeal is identical to the issue of taxability of interest on the non-performing assets. Therefore, the ratio laid down in the above decisions clearly applicable to the facts of present case. Therefore, we do not see any reason to interfere with the order of the ld. CIT(A). Accordingly, the ground of appeal raised by the Revenue is dismissed.
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2021 (6) TMI 1067
Reopening of assessment u/s 147 - Reliance on new information unearthed - whether very initiation of reopening proceedings is not in consonance with the conditions stipulated under Section 147? - HELD THAT:- When there is a new information of material on the record, the Assessing Officer is empowered to initiate reopening proceedings under Section 147 of the Act. Various circumstances are contemplated under Section 147 of the Act and based on any one of such circumstances, the Assessing Officer has reason to believe, then he is empowered to reopen the assessment. Even under-assessment is a ground for reopen.
Thus, this Court is of the considered opinion that the reopening of assessment in the present case is done based on new information unearthed and such an information is to be clarified by the assessee, by participating in the adjudicating process and this Court cannot go into the details regarding transactions or the intricacies involved in such transactions. All such disputes on facts are to be adjudicated with reference to the original documents and evidences made available between the parties and the scope of the jurisdiction cannot be extended to conduct a roving enquiry in these aspects.
The power of judicial review under Article 226 of the Constitution of India is to scrutinise the processes through which the decision is arrived by the competent authority by following the procedures as contemplated under the law, but not the decision itself. Thus, the petitioner-assessee has to participate in the adjudication. It is needless to state that the respondents are bound to provide opportunities to defend the case by the petitioner. By affording the opportunities, as contemplated, the proceedings are to be concluded. In this view of the matter, the case on hand is not a fit one for the purpose of quashing of the proceeding.
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2021 (6) TMI 1066
Rectification of mistake - assessee challenged segregation and separate benchmarking the intragroup services from the manufacturing and trading segment - HELD THAT:- We have perused the submissions advanced by both sides in light of records placed before us. We note that the said Ground No.1.3 is raised by assessee challenging the segregation of service by Ld.AO/TPO. Therefore observation of this Tribunal deserves to be deleted.
Accordingly we delete the observation in para 14 of the impugned order at page 6. Henceforth para 14 shall be read as under:
“14. The Ld.AR submitted that Ld.TPO has not analysed the services rendered by AE to assessee in the light of evidences filed by assessee. He also submitted that even Ld.CIT(A) summarily rejected submissions of assessee without verifying various evidences filed.”
Disallowance of management fee under section 40(a) of the Act by Ld.AO on protective basis - HELD THAT:- From the records we note that in the impugned order, this Tribunal remanded the issue of computation of arms length price of intragroup services back the Ld.AO, and accordingly this issue becomes academic. We refer to the specific observation of this Tribunal which consider this aspect in para 8 and para 25.Accordingly we reject this plea of assessee.
We thus direct registry to fix the appeal only to adjudicate the additional ground raised by assessee wide application dated 21/09/2020 that reads as under:
“Ground no. 2.5: Deduction in respect of 'education cess on income-tax' and 'secondary and higher education cess on income-tax' for the year under consideration, while assessing the total income of the Appellant
• The Learned Assessing Officer ("Learned AD") and Hon'ble Commissioner of Income Tax ("Hon'ble CIT(A)"), while assessing the total income of the Appellant for the year under consideration, have erred in not allowing a deduction for education cess and secondary & higher education cess (collectively known as "education cess") for the year under consideration
• On the facts and circumstances of the case and in law, the Learned AD and Hon'ble CIT(A) ought to have allowed deduction of education cess for the year under consideration, though not claimed as a deduction by the Appellant while filing its return of income.”
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2021 (6) TMI 1065
Rectification u/s 254 - non maintainability of appeal on low tax effect - apparent error in the order of the ITAT vide which the Tribunal has disposed a large number of cases by a combined order dated 14.8.2019 due to low tax effect relying on the CBDT Circular No.17 of 2019 dated 8.8.2019 - HELD THAT:- HELD THAT:- There is nothing to suggest in the said Circular/ Office Memorandum that they shall have retrospective effect. On the contrary, from the language employed in the said Circular dated 06.09.2019, it clearly transpires that the appeals may be filed on merits as an exception to the other Circulars issued earlier, where the Board by way of special order direct filing of Appeals on merits in the cases involved in organized tax evasion activity.
By virtue of the said Circular dated 06.09.2019, the appeals could be filed on merits, irrespective of the monetary limits fixed in earlier cases, if the Board passes special order for filing appeals in cases involving tax evasion activity. The said Circular speaks about the Appeals that may be filed with the special order of the Board in future, and hence could not be construed to have retrospective effect.
Tribunal interpreting the said Circular/ Office Memorandum in the impugned order has rightly observed that in respect of each case or category of cases whether an appeal should be filed in view of the Circular dated 06.09.2019 or not shall be decided by the Board by way of special order, and thus a specific requirement of issuance of special order by CBDT is a must. The Tribunal therefore has rightly held that the CBDT Circular No. 23/2019 dated 06.09.2019 should be read along with the Office Memorandum dated 16.09.2019, in respect of the appeals to be filed pursuant to such special orders of CBDT and shall apply to all the appeals filed on or after 16.09.2019 by the revenue, where the tax effect may be low but the appeal could still be filed by the revenue on merits.
Appeals including the appeal in case of the respondent, which were disposed of by the Tribunal vide the common order dated 14.08.2019 could not be said to have been filed pursuant to the special order of the CBDT in view of the Circular dated 06.09.2019 read with the Office Memorandum dated 16.09.2019, and therefore it could not be said that the Tribunal had committed any mistake apparent from the record, which would require rectification as envisaged in Section 254(2) of the said Act.
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