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Showing 101 to 120 of 1518 Records

• 2022 (7) TMI 1419 - ITAT RAIPUR
  

  Disallowance towards late payment of employees contribution to provident fund and ESI - Contribution made admittedly after the due date as prescribed under the relevant statute but before the due date of filing of the return - HELD THAT:- Cuttack Bench of the Tribunal in the case of Pashupati Ispat Pvt. Ltd. [2022 (4) TMI 1541 - ITAT CUTTACK] after discussing in detail and following the plethora of case laws, has held that it is not disputed that the payment of employees contribution to PF and ESI was made before filing of the return u/s.139(1) of the Act and accordingly deleted the addition made by the AO and confirmed by the CIT(A) on account of delay in depositing the employees contribution to PF & ESI.

  We are of the opinion that the payments of the employees contribution to PF & ESI having been made before the due date of filing of the return though admittedly after the due date as prescribed under the relevant statute, the same is liable to be allowed.

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• 2022 (7) TMI 1418 - ITAT BANGALORE
  

  Non-deduction of TDS - Disallowance u/s 40(a)(i) - reimbursement of salary expenses made on behalf of the seconded employees as fee for technical services - HELD THAT:- We note that the evidences filed by assessee has not been considered by the revenue authorities.

  We therefore remand this issue to the 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] and 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. Ground raised by assessee stands allowed for statistical purposes.

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• 2022 (7) TMI 1417 - ITAT BANGALORE
  

  Disallowance of depreciation on assets given under finance lease - ownership status of Cisco Capital in relation to the assets leased out by it under finance lease, thereby disallowing the claim for depreciation made by Cisco Capital in the return of income - HELD THAT:- We are of the opinion that similar issue came for our consideration before this Tribunal in assessee’s own case for assessment year 2016-17 [2021 (11) TMI 1155 - ITAT BANGALORE] set aside the issue to the file of the AO for fresh adjudication in accordance with law. The assessee is directed to produce copies of those agreements which the AO may call for. The AO shall examine these agreements and if the terms & conditions mentioned in these agreements are similar to the terms and conditions mentioned in the agreements considered by the Hon’ble Supreme Court in the case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT] and if there are no material variations in the contracts, then depreciation has to be granted to the assessee as claimed.

  TP Adjustment - adjustment alleging payment made towards administrative support services to Cisco Systems India Pvt. Ltd. as an international transaction u/s 92B - HELD THAT:- Similar issue came for consideration before this Tribunal in assessee’s own case for the assessment year 2016-17 [2021 (11) TMI 1155 - ITAT BANGALORE] as hold that the issue of administrative and marketing support services is part of the operating cost and no separate adjustment is warranted. These grounds of assessee are partly allowed for statistical purposes.

  Interest on outstanding receivables - TPO has concluded that the receivable transaction should be treated as a separate international transaction and given the delay in receipt of receivables from AE’s - TP order, passed and adopted SBI PLR rate of 14% as computed interest on delayed receivables - HELD THAT:- Similar issue came for consideration before this Tribunal in the case of Swiss Re Global Business Solutions India Pvt. Ltd [2022 (1) TMI 1275 - ITAT BANGALORE], thus we direct the AO to consider the interest rate in terms of LIBOR and it would be appropriate to take the applicable rate of LIBOR + 2% and directed accordingly.

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• 2022 (7) TMI 1416 - ITAT AHMEDABAD
  

  Disallowance of the deduction claimed u/s 35AC - making the donation to M/s.Navjeevan Charitable Trust - HELD THAT:- Issue decided in favour of assessee as relying on P.M. Bhimani Orgochem Pvt. Ltd. [2021 (12) TMI 987 - ITAT AHMEDABAD] assessee has made the donation as per the provisions of the Income Tax Act and no defect was pointed out by the Assessing Officer or by the CIT(A) regarding the donation to Navjeevan Charitable Trust. In fact, the Revenue authorities could not establish that the said amount was returned back to the assessee from any of the records as well. Decided in favour of assessee.

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• 2022 (7) TMI 1415 - UTTARAKHAND HIGH COURT
  

  Input Tax Credit - purchase of capital goods as per Section 6(6)(b) of the U.K. VAT Act - permission of re-assessment under Section 29(4) of the U.K. VAT Act - change of opinion - HELD THAT:- If the petitioner has come to the Court, generally in normal circumstances, it is for the petitioner to demonstrate or establish that the order passed by the authorities suffers from any illegality requiring interference of this Court in exercise of certiorari jurisdiction. It is well settled principle of law that this certiorari jurisdiction should be exercised only to bring the Tribunal, functioning in the State within its jurisdiction. In this case, the respondent has demonstrated that petitioner has received input tax credit. It is also demonstrate by the respondent that upon receiving the assessment of the vendor, the Additional Commissioner was of the view that the matter should be re-looked to find if any tax concession/credit has been granted to the petitioner to which he is not entitled to.

  This Court is of the opinion that the learned Senior Advocate appearing for the petitioner has failed to establish that the respondents acted beyond their jurisdiction or acted in a manner not provided in the statute. The entire litigation revolves around the question that the plant and machinery for which the petitioner has claimed the input tax credit is new machinery and not old and used machinery.

  There is no merit in the writ application. The writ application is, therefore, dismissed.

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• 2022 (7) TMI 1414 - ITAT MUMBAI
  

  Carry forward and set–off of long term capital loss incurred on transaction of sale of equity shares as subject to payment of Securities Transaction Tax (STT) - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] as following the aforesaid decision in case of Raptakos Brett & Co. Ltd. [2015 (6) TMI 529 - ITAT MUMBAI] has attained finality as the appeal preferred by the department against the said decision has been dismissed by the Hon’ble Jurisdictional High Court, though, due to non-prosecution. Thus, we do not find any infirmity in the order of the Ld.CIT(A) in allowing the claim of carry forward of Long Term Capital Loss arising from sale of equity shares.

  Disallowance u/s 14A - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] disallowance u/s. 14A of the Act cannot be more than the exempt income earned by the assessee. Therefore, we are in agreement with the finding of the Ld.CIT(A) and we do not find any reasons to interfere with the finding of the Ld.CIT(A). Accordingly, ground raised by the revenue is dismissed.

  Addition on account of Helicopter / air craft charges - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] in the case of the assessee has allowed 1/7th of the expenses incurred by the assessee as personal. Ld.CIT(A) has relied on the above finding and accordingly, allowed the appeal filed by the assessee before him. No reason to disturb or interfere with the above finding. Accordingly, ground raised by the revenue is dismissed.

  Addition on account of software license charges - HELD THAT:- As decided in own case [2022 (1) TMI 537 - ITAT MUMBAI] CIT(A) allowed the software licence charges expenses claimed by the assessee by relying on case of DCIT v. Integrated Technology Solutions Pvt. Ltd [2016 (4) TMI 30 - ITAT MUMBAI] After considering the detailed findings of the Ld.CIT(A) we do not find any reason to interfere with the findings of the Ld.CIT(A). Therefore, the grounds raised by the revenue is dismissed.

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• 2022 (7) TMI 1413 - SUPREME COURT
  

  Validity of Arbitral Award - compensation payable to a land loser - fixation of the market value of land - applicability of Section 3G(7)(a) of the NH Act or Section 28 of RFCTLARR Act, 2013 - contention is that while determining the market value, the definite parameters as contained in Section 3G(7)(a) of NH Act alone would be applicable and in view of the provisions contained in Section 3J of NH Act the provisions of the Land Acquisition Act shall not be made applicable.

  HELD THAT:- Reliance placed on decision referred to in the case of NATIONAL HIGHWAYS AUTHORITY OF INDIA VERSUS SAYEDABAD TEA COMPANY LTD. AND ORS. [2019 (8) TMI 1227 - SUPREME COURT]. In the said case, this Court while examining the question as to whether the land loser can seek the appointment of an Arbitrator in terms of Section 11 of Act, 1996, it was noted that such power would not be available in view of the provisions contained in Section 3G(5) of NH Act since Arbitrator is to be appointed by the Central Government to discharge its functions as per the provisions of the Arbitration and Conciliation Act. Having taken note of the said decision, though it is seen that it was held so while considering the maintainability of petition under Section 11 of the Act, 1996 to exclude the right of the land loser to seek the appointment of an Arbitrator keeping in view the statutory provision in the NH Act, the larger perspective of such limited right to the land loser in the process of arbitration is also to be kept in view. Unlike the arbitration in a contractual matter where the parties from the very inception at the stage of entering into a contract would mutually agree to refer any future dispute to an arbitrator, at that very stage are aware that in the event of any dispute arising between the parties the contours of the right, remedy, and scope from the commencement of the arbitration up to the conclusion through the judicial process. The terms of arbitration and the rights and obligations will also be a part of the agreement and a reference to the same in the award will constitute sufficient reasons for sustaining the award in terms of Section 31(3) of Act, 1996.

  In the arbitration proceedings relating to NH Act, the parties are not governed by an agreement to regulate the process of arbitration. However, in the process of determination of just and fair compensation, the provisions in Section 26 to 28 of RFCTLARR Act, 2013 will be the guiding factor. The requirement therein being adverted to, should be demonstrated in the award to satisfy that Section 28(2) and 31(3) of Act, 1996 is complied. Therefore, what is also to be kept in perspective while noticing the validity or otherwise of an award regarding which the non-furnishing of reasons is contended as patent illegality is the reason assigned for determining just compensation in terms thereof. The situation which may arise in cases when a lesser compensation is determined in the arbitration proceedings and the land loser is complaining of the award is also to be kept in perspective since the requirement of reasons to be given by the learned Arbitrator in cases for determination of market value and compensation should indicate reasons since the same will have to be arrived at on a comparative analysis for which the reasons should be recorded and Section 26 to 28 of RFCTLARR Act will be relevant. Neither the land loser nor the exchequer should suffer in the matter of just and fair compensation. Hence the reasons under Section 31(3) is to be expected in that manner, the absence of which will call for interference under Section 34 of Act, 1996.

  Under the scheme of the Act 1996 it would not be permissible to modify the award passed by the learned Arbitrator to enhance or reduce the compensation based on the material available on record in proceeding emanating from Section 34 of Act, 1996. The option would be to set aside the award and remand the matter.

  Whether the award passed by the learned Arbitrator would stand vitiated merely because the guideline dated 28.03.2016 which is marginally subsequent in point of time is reckoned, when the acquisition notification under Section 3A of NH Act was prior to the same i.e. on 01.02.2016? - HELD THAT:- Section 3G(7)(a) of NH Act provides for determination of the market value on the date of publication of the acquisition notification under Section 3A. In a normal circumstance, for the determination of the market value, the rate prevailing prior to the date of the notification shall be the basis more particularly when the determination is made based on sale exemplars, as otherwise there is a likelihood of manipulation with escalated price being dishonestly indicated in the subsequent transactions - In circumstances where a document which is proximal to the date of acquisition is not available, it would be open to rely on a document which is much prior in point of time and if the time gap is more, determination could be made by providing for reasonable escalation depending on the area wherein the acquired property is situate and nature of property. Similarly, in a circumstance where no document which is prior to the date of the acquisition notification is available and the exemplars are subsequent to the date of acquisition notification, the value therein could be noted and reasonable de-escalation be considered to determine the appropriate value. Needless to mention that no strait-jacket formula can be applicable to all cases with arithmetical precision in the matter of determination of compensation.

  In the instant case it is no doubt true that the notification issued by the Department of Stamps and Registration on 07.11.2014 is prior to the acquisition notification dated 01.02.2016. It is also to be noted that there was a time gap of more than one year between the two. In a normal circumstance, even if the notification dated 07.11.2014 was taken into consideration it would be open for the learned Arbitrator to consider certain amount of escalation to determine the market value - in the present facts and circumstances, the reliance placed on the guideline value notification dated 28.03.2016 for reckoning the market value of the property acquired under the preliminary notification dated 01.02.2016, by itself cannot be accepted to be a patent illegality committed by the learned Arbitrator.

  Whether an appropriate consideration has been made by the learned Arbitrator in the matter of applying the market value notified as a guideline value under the notification dated 28.03.2016 - whether the manner in which the said guideline was taken into consideration amounts to denial of opportunity to NHAI amounting to violation of principles of natural justice violating Section 28(2)? - HELD THAT:- The land value for ‘Zunadu’ and ‘City Greens’ are notified separately at Serial Nos.250 and 529. In that circumstance not just to place reliance on the notification dated 28.03.2016 but also to apply the value notified for ‘Zunadu’ and ‘City Greens’ to the acquired lands, necessary pleading in claim petition and evidence with opportunity to NHAI to rebut the same should have been placed before the learned Arbitrator. Based on the same a consideration in that regard was required to be made by the learned Arbitrator to arrive at a conclusion with regard to the applicability of the guideline value fixed under notification dated 28.03.2016 for the lands that had been converted to purposes other than agriculture. Further while applying the guideline value fixed for ‘Zunadu’ and ‘City Greens’ to the acquired lands by discarding guideline value for the same survey number, necessary evidence to derive comparison between the lands so as to apply the value fixed in respect of another item of land in the same notification was necessary to be brought on record and was to be considered by the learned Arbitrator by assigning reasons.

  From the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996.

  That being the fact situation and also the position of law being clear that it would not be open for the court in the proceedings under Section 34 or in the appeal under Section 37 to modify the award, the appropriate course to be adopted in such event is to set aside the award and remit the matter to the learned Arbitrator in terms of Section 34(4) to keep in view these aspects of the matter and even if the notification dated 28.03.2016 relied upon is justified since we have indicated that the same could be relied upon, the further aspects with regard to the appropriate market value fixed under the said notification for the lands which is the subject matter of the acquisition or comparable lands is to be made based on appropriate evidence available before it and on assigning reasons for the conclusion to be reached by the learned Arbitrator.

  C.A. No.4681/2022 @ SLP(C)No.2503/2022

  Whether the course adopted by the learned Arbitrator to apply the subsequent notification dated 05.12.2018 issued by the Department of Stamps and Registration to reckon the special instructions contained in that notification so as to enhance the market value by 50% of the guidance value which is provided in the notification dated 27.10.2014 and thus arrive at the market value of Rs.25,800/- per sq. mtr. with the aid of two different guideline value notifications is justified?

  HELD THAT:- The learned Arbitrator has committed patent illegality in applying two different notifications in determining the market value, keeping in view the scope available under Section 34 of Act, 1996 it would not be open for this Court to substitute our view to that of the learned Arbitrator and modify the award. Further, the learned Additional Solicitor General sought to refer to Special Instruction No.6 in the notification of 2014 to arrive at the market value even if it is accepted that the value of industrial land is not indicated in the notification. These are aspects to which the learned Arbitrator is required to advert so as to arrive at the conclusion. In the circumstance where we have opined that the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary, the only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect.

  The awards passed by the learned Arbitrator is to be set aside and the matters be remanded in terms of Section 34(4) of Act, 1996 so as to enable the learned Arbitrators to assign reasons to arrive at their conclusion - The consideration to be made by the learned Arbitrator however is as to the material and evidence if any available to treat the acquired land as comparable to the lands situate in ‘City Greens’ and ‘Zunadu’ layout and award the compensation based on the guidance value indicated for the lands in the said layout if found comparable. The reason for not applying the guideline value indicated for the lands in the very survey number of the acquired lands is to be disclosed on such consideration.

  Appeal disposed off.

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• 2022 (7) TMI 1412 - CALCUTTA HIGH COURT
  

  Seeking grant of bail - Money Laundering - involvement in gross corruption of financial irregularities by offering jobs of primary teachers to various persons in lieu of money - illegal accumulation of huge amount of money from unscrupulous job seekers - validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment.

  Validity of an order allowing an Advocate on behalf of the accused to remain present during his interrogation - HELD THAT:- On perusal of the entire materials on record as well as the decisions referred to by the learned A.S.G., this Court is of the view that the order passed by the learned Magistrate allowing an Advocate on behalf of the accused to remain present during his interrogation suffers from patent illegality and liable to be set aside.

  In the petition filed on behalf of the accused before the learned Magistrate, an order allowing the learned Advocate for the opposite party to remain present during investigation was prayed for stating, inter alia, that during raid, the E.D. did not allow the Advocate of the opposite party to be present which allegedly violated constitutional safeguard of the accused. However, on perusal of the case diary, it is found that the learned Advocate was present during raid conducted by the E.D. in the house of the accused and he talked to the accused. Therefore, the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is palpably a false statement - the impugned order allowing the learned Advocate for the accused to be present during interrogation of the accused is set aside.

  Legality and validity of the order passed by the learned Magistrate directing the Investigating Officer to take the accused to S.S.K.M. Super speciality Hospital for his medical treatment - HELD THAT:- As per the direction of the Hon'ble Supreme Court in D.K. Basu [1996 (12) TMI 350 - SUPREME COURT] the Investigating Agency is under obligation to get the accused examine medically. The Investigating Officer is also under obligation to get an accused medically treated after every 48 hours during the period of remand under police custody. It is on record that the accused was declared fit by a hospital run by the Central Government after he being medically examined after arrest. From the first order passed by the learned Magistrate rejecting the prayer of the accused for bail and remanding him to the custody of E.D., this Court does not find any submission made on behalf of the accused regarding his physical illness immediately after arrest, the accused became so ill that he was admitted to S.S.K.M. Super speciality Hospital.

  It is needless to say that the Doctors start medical treatment of the patient after taking HIPPOCRATIC OATH. Therefore, incredibility of medical practitioners and doctors should not be assumed. However, our experience as a common man with regard to the role of the doctors attached to S.S.K.M. Super speciality Hospital is not happy - Under such background and considering the fact that the accused is the senior most Cabinet Minister in the State of West Bengal having immense power and position, it would not be impossible for the accused with the aid of other political executives to take shelter under the garb of serious illness and medical treatment to evade interrogation. If this happens, the Lady Justice will be cursed by the tears of hundreds and thousands of deserving candidates whose future was sacrificed in lieu of money.

  This Court passes the following direction:-

  (i) The Investigating Agency is directed to take the accused by air ambulance to AIIMS, Bhubaneswar in the early morning on 25th July, 2022.

  (ii) The accused shall be taken to NSC Bose Airport, Calcutta by an ambulance of S.S.K.M. Super speciality Hospital.

  (iii) He will be accompanied by a doctor of S.S.K.M. Super speciality Hospital and an Advocate for the accused.

  (iv) The AIIMS, Bhubaneswar Authority is directed to medically examine the accused by a team of specialist doctors of Cardiology, Nephrology, Respiratory Medicines and Endocrinology.

  (v) The AIIMS, Bhubaneswar will prepare a report and handover the copies of the same to the Investigating Officer, Medical Officer of S.S.K.M. Super speciality Hospital and the learned Advocate for the accused by 3:00 p.m. on 25th July, 2022.

  (vi) The Investigating Officer shall forward soft copy of the above-mentioned medical report to his counterpart in Calcutta who, in turn, shall produce it before the learned Special Judge under PML Act.

  (vii) The learned Special Judge, shall take up the hearing of the case No. ECIR/KLZO-II/19/2022 dated 24th June, 2022 at 4:00 p.m. on 25th July, 2022.

  (viii) The Investigating Officer shall make necessary arrangement for the production of the accused through the medium of electronic video linkage under amending provision of Clause (b) of sub-section (2) of Section 167 of the Code of Criminal Procedure (West Bengal Act 20 of 2004, Section 3).

  Revision disposed off.

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• 2022 (7) TMI 1411 - CALCUTTA HIGH COURT
  

  Benefit of concessional rate of duty - It is the case of the petitioner that initially when the impugned adjudication order was passed, petitioner’s declaration under Form-‘C’ and other documents were not accepted against interstate sales at concessional rate in the return filed by the petitioner’s dealer in its regular course of business - impugned adjudication order dated 1st September, 2011 was further challenged before the three forum i.e. before the appellate authority, revisional authority and thereafter by way of review and all the four authorities below considering the materials/documents produced before them did not accept the claim of the petitioner.

  HELD THAT:- It is not a case in this writ petition that the impugned orders were passed either in violation of principle of natural justice by denying the petitioner any opportunity of hearing before the authorities or the impugned orders have been passed by the authority who have got no jurisdiction or constitutional validity of any vires of any provision of law is involved in this writ petition. The whole case of the petitioner is based on material evidence and which have been appreciated by the four authorities below and in exercise of constitutional writ jurisdiction of this Court under Article 226 of the Constitution of India, it would not be proper to interfere with the impugned orders which are based on finding of facts and based on material evidence and this writ court cannot substitute the findings of the authorities below.

  Petition dismissed.

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• 2022 (7) TMI 1410 - CALCUTTA HIGH COURT
  

  Bogus LTCG - unexplained cash credits u/s 68 - HELD THAT:- The questions of law raised by the revenue in this appeal were considered in the case of PCIT Kolkata v/s Swati Bajaj and Ors.[2022 (6) TMI 670 - CALCUTTA HIGH COURT] wherein the appeals filed by the revenue were allowed. The present appeal filed by the assessee is for the assessment year 2014-15 and there was no other connected appeal of the very same assessee [2019 (6) TMI 1698 - ITAT KOLKATA] and the appeal filed by the revenue has been allowed. Decided in favour of the revenue.

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• 2022 (7) TMI 1409 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
  

  Application for revival of Corporate Insolvency Resolution Process (CIRP) rejected - in the corporate insolvency process, settlement reached between the parties - HELD THAT:- The Consent Terms clearly entitle the Financial Creditor to revive the Section 7 petition in event any default of the terms of the Consent Terms - Further, the order dated 05.02.2020 cannot be read as an order by which Consent Terms has not been taken on record when by the said order application filed alongwith the consent terms under Rule 11 of NCLT rules, 2016 was taken on record and was allowed. When the application was allowed in terms of the consent terms, Clause 8 itself shall be treated to be part of the order which shall entitle the Financial Creditor to revive the petition in the event of any default.

  Judgment of this Tribunal which has been relied by the Respondent in Krishna Garg and Anr. vs. Pioneer Fabricators Pvt. Ltd. [2021 (2) TMI 1344 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] was a case where neither settlement terms were filed nor the same were brought on the record - The facts in the present case are distinguishable from the above case as Consent Terms were filed and also were taken on record by the Adjudicating Authority. When the Adjudicating Authority allowed the application filed, the Consent Terms were also taken record and the Financial Creditor was fully entitled to seek revival of the Section 7 petition in event of default of consent terms.

  The Section 7 petition is revived - appeal allowed.

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• 2022 (7) TMI 1408 - ITAT MUMBAI
  

  TP Adjustment - MAM selection - assessee has taken on lease dredgers from its associated enterprises - TPO rejected the independent valuer certificate used by the assessee for benchmarking the transaction of charter hire of dredgers using cup as most appropriate method and proceeded to benchmark charter hire dredgers and payment to associate enterprises for sub-contract of specified dredging activities using TNMM and aggregating these transaction - HELD THAT:- As decided in assessee's own case [2019 (5) TMI 1978 - ITAT MUMBAI] the material facts permeating through different assessment years are more or less identical as the terms and conditions on which the dredgers are hired have not changed. That being the case, applying the rule of consistency, a different view cannot be taken in the impugned assessment year with regard to the benchmarking of lease rentals paid for charter hire of dredgers by applying CUP method. For the aforesaid reasons, we allow the grounds raised by the assessee with a direction to the Assessing Officer / Transfer Pricing Officer to accept the benchmarking done by the assessee under CUP method after verifying the fact that the independent valuer has made the valuation as per CIRIA norms.

  Taxability of management service fees - Issue decided in favour of assessee as own case for A.Y. 2011-12 [2019 (5) TMI 1978 - ITAT MUMBAI] held that amount received is neither in the nature of royalty nor fees for technical services under Article–12 of India–Netherland Tax Treaty. That being the case, we delete the addition made by the Assessing Officer.

  Taxability of salary received - This issue also covered in favour of the assessee by the decision of the ITAT, Mumbai, in the case of the assessee itself [2019 (5) TMI 1978 - ITAT MUMBAI] held that reimbursement of salary is not in the nature of fees for technical services as per Article–12(5) of India–Netherland Tax Treaty. Therefore we delete the addition made by the Assessing Officer. These grounds are allowed.

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• 2022 (7) TMI 1407 - PUNJAB AND HARYANA HIGH COURT
  

  Writ petition maintainability against notice issued u/s 148 - Validity of reopening of assessment - petitioner seeks issuance of writ in the nature of certiorari for quashing notice issued to the petitioner u/s 148A (b) - Whether at this stage of notice under Section 148, writ Court should venture into the merits of the controversy when AO is yet to frame assessment/re-assemment in discharge of statutory duty casted upon him under Section 147 of the Act ?

  HELD THAT:- The aforesaid question already stands answered by this Court in Gian Castings Pvt. Ltd. Vs. Central Board of Direct Taxes and others [2022 (6) TMI 246 - PUNJAB & HARYANA HIGH COURT] where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such a pre-mature stage - there is no reason to warrant interference by this Court in exercise of the jurisdiction under Article 226/227 of the Constitution of India at this intermediate stage when the proceedings initiated are yet to be concluded by a statutory authority. Also upheld by SC [2022 (7) TMI 1272 - SC ORDER]

  Admittedly in the present case the procedure as contemplated of the 1961 Act was followed and the authority acted within jurisdiction though petitioner alleges that it erred as the petitioner claims that the order passed under section 148A (d) warrants interference owing to error of fact.

  No reason to interfere at this stage.

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• 2022 (7) TMI 1406 - ITAT DLEHI
  

  Rectification u/s 154 - whether the AO while taking refuge of section 154 has rightly passed second order on the same application for rectification of the order which has already been decided on merit? - HELD THAT:- Section 154 of the Act mandates that an amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the Assessee or (the deductor) or (the collector), shall not be made under this section unless the authority concerned has given notice to the person(s) referred above of its intention to doso and has allowed a reasonable opportunity of being heard.

  The rule of ‘Audi laterampartem’ says ‘hear the other side’. If the order is passed by the authority without providing notice or the reasonable opportunity of being heard to the person affected by it, if mandatorily required under the statute, then the same would be invalid and liable to be set aside.

  Coming to the instant case, from the record and order u/s 154 of the ACT, it clearly appears that the AO has neither given any notice to the Assessee qua its intention to do such amendment, which has the effect of enhancing or reducing a refund or otherwise increasing the liability of the Assessee, nor provided any opportunity of being heard to the Assessee, while passing an order u/s. 154 of the Act, hence dents the roots of the case.

  On the aforesaid analyzations, we are of the considered view that the order u/s. 154 of the Act by the AO, is unsustainable being invalid and void ab initio.

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• 2022 (7) TMI 1405 - ITAT MUMBAI
  

  Validity of assessment - no proper service of notice u/s 143(2) - Addition on-money payment on purchase of a flat - HELD THAT:- Assessment record does not contain any proof regarding service of notice under section 143(2) to the assessee. There should not be any dispute that the AO would get jurisdiction over the return of income filed by the assessee only upon service of notice u/s 143(2) meaning thereby, the AO could not scrutinize the return of income without issuing notice u/s 143(2) in accordance with law.

  We find support for this legal proposition from the decision rendered by Hon'ble Supreme Court in the case of ACIT Vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] Accordingly, in the present case, the impugned assessment order framed by the AO is liable to be quashed for want of jurisdiction - set aside the order passed by learned CIT(A) as well as AO.

  We give liberty to the Revenue to seek recall of this order in accordance with law, if it is found subsequently that there was proper service of notice u/s 143(2) of the Act. Appeal filed by the assessee is treated as allowed.

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• 2022 (7) TMI 1404 - SC ORDER
  

  MAT applicability on bank - Tribunal held that the assessee-Bank cannot be considered as a Company - Section 115JB applicability to assessee Bank for MAT purposes - HC decided issue in favour of assessee - HELD THAT:- Leave granted.

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• 2022 (7) TMI 1403 - ITAT AHMEDABAD
  

  Disallowance of interest expenses on account of diversion of interest-bearing loan - HELD THAT:- As the impugned amount borrowed by the assessee has been diverted for making the contribution in the partner’s capital account, investment in the lands and interest free/interest bearing advances. As far as the contribution in partner’s capital account is concerned, we note that the assessee has shown interest income from the partners which is chargeable to tax. Assessee, against such interest income from the partners ship account, is eligible for deduction for the interest expenses. It is for the reason that there is direct nexus between the interest income and the interest expenses.

  Interest expense on loan diverted to interest bearing loans and advances is also eligible for interest expenses. It is for the reason that there is direct nexus between the interest income and the interest expenses.

  The amount of loan diverted for the investments in land and interest free loans and advances, the corresponding interest cannot be allowed as deduction against the interest income. It is for the reason that there is no direct nexus between the interest income and the interest expenses.

  Such interest expenses cannot be allowed as deduction either under the provisions of section 36(1)(iii) or 57 of the Act. In view of the above, we set aside the order of the CIT (A) with the direction to the AO to calculate the amount of interest attributable to the investment made in the lands and interest-free loans and advances and make the disallowance proportionately. Hence the ground of appeal of the assessee to this extent is partly allowed.

  Unexplained cash expenses - assessee has incurred certain expenses on purchase of property such as stamp duty charges and registration charges but failed to explain the source of such expenses - HELD THAT:- We note that all the cash expenses incurred by the assessee have been duly incorporated in the cash book. No doubt raised by the authorities below with respect to the cash book filed by the assessee. Since, the expenses incurred in cash have been duly recorded in the books of accounts, the source of cash for such expenses cannot be doubted. The cash book is a summary of the transactions which are carried out in cash demonstrating the source of receipt of cash and payment of cash. Thus, it cannot be said that such expenses were incurred by the assessee outside the books of accounts. The issue on hand relates to the cash payment which was recorded in the cash book but corresponding receipt of cash was nowhere doubted by the authorities below, accordingly, we set aside the finding of the CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.

  Addition on account of interest expenses on the car loan and the depreciation on the car - As found that the assessee is not carrying out any business activity and therefore such expenses cannot be allowed as deduction as business expenses under the provisions of income tax Act - HELD THAT:- Admittedly, the assessee is a partner in 5 partnership firm and drawing handsome amount of share of profit, remuneration and the interest. Indeed, the amount of share of profit is not chargeable to tax in the hands of the assessee but the remaining items of interest income and the remuneration are chargeable to tax under the head business and profession which have been duly disclosed in the income tax return.

  Thus, in such a situation, the interest on the car loan and the depreciation thereon cannot be denied for the purpose of the deduction -

  Admittedly, there is a flat rate of tax in the case of partnership firm whereas the rate of tax in the case of a partner is qualified for slab rate of tax besides the maximum exemption limit provided under the statute. As such, had the deduction been allowed to the partnership firm, there would have been less revenue in the hands of the partnership firm. Thus keeping in view the above principles, we are not convinced with the finding of the learned CIT-A and accordingly direct the AO to delete the addition made.

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• 2022 (7) TMI 1402 - GUJARAT HIGH COURT
  

  Reopening of assessment u/s 147 - Validity of notice of reopening - HELD THAT:- Petitioner seeks permission to withdraw the present petition.

  Permission as prayed for is granted.

  The petition stands disposed of as withdrawn. Notice is discharged. Interim-order is vacated.

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• 2022 (7) TMI 1401 - ITAT BANGALORE
  

  TP Adjustment - Comparable selection - HELD THAT:- Exclusion of companies as functionally dissimilar with that of assessee need to be deselected from final list.

  Adjustment on account of notional interest on outstanding receivables - Whether Outstanding receivables cannot be treated as a separate international transaction? - HELD THAT:- The assessee has provided IT enabled services to its AEs and amount outstanding as trade receivables merely represent the dues which are to be received by the Assessee against the services provided. As a business practice, the Assessee did not charge any interest on delayed realisation of invoice from AEs nor paid any interest on delayed payables.

  Early or late realization of service proceeds is incidental to the transaction of sale/ service, and not a separate transaction in itself. These represent the consequence of an international transaction and not an international transaction per-se. If the ALP in respect of an international transaction of service is determined, then there can be no question of treating non-receipt of interest in such transaction as separate international transaction warranting any further adjustment. Once ALP is determined in respect of the sale/ service transaction, it would be deemed to be covering all the elements and consequences of such transaction of sale/ service.

  Aggregation approach - All service related costs are embedded in the remuneration received from the AEs - It is to be appreciated that where companies are aware of the fact that customer will take longer than the agreed time to pay the outstanding dues, the same is factored in the price/ mark-up charged for the services rather than to levy of actual interest when the payment is eventually made by the customer. The principle of aggregation is well established rule in the transfer pricing analysis. This principle seeks to combine all functionally similar transactions wherein arm's length price can be conducted for a number of transactions taken together. The said principle is enshrined in the transfer pricing regulation itself.

  As per the Hon’ble DRP’s directions, the notional interest computation must be made on an Invoice-by-Invoice basis. The Hon’ble DRP directed the Assessee to furnish the TPO with InvoiceIT( wise details of period of delay for the computation of notional interest which was submitted with the TPO vide submission dated 23 April 2021. However, the TPO has not provided any workings for computation of the notional interest on delayed receivables to determine whether the directions of the DRP to compute interest on a Invoice-by-invoice basis has been followed and accordingly the Issue is remitted to AO/TPO for fresh consideration.

  Working capital adjustment appropriately takes into account the delayed/ outstanding receivable; separate TP adjustment is unwarranted - We direct the AO / TPO to redo the transfer pricing analysis in respect of interest on outstanding receivables by taking into account the directions of the Tribunal in assessee's own case.

  Deduction u/s 10AA - HELD THAT:- The claim of assessee to be verified by the AO/TPO in accordance with the return of income filed by the assessee. Accordingly, we direct the AO/TPO to consider claim of assessee u/s 10AA of the Act in accordance with law. The issue remitted to AO/TPO for fresh consideration

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• 2022 (7) TMI 1400 - ITAT BANGALORE
  

  TP adjustment in SWD segment - Comparable selection - application of different filters - assessee filed its objections before the DRP contending that the turnover filter should have an upper limit and the same is not applied by the TPO - DRP rejected the contention of the assessee stating that there is no correlation between the profit margins and the turnover of companies as far as service sector - HELD THAT:- We direct the AO / TPO to apply the appropriate upper turnover filter and exclude the companies having turnover in excess of Rs.200 crores.

  Exclusion of Inteq Software Ltd. on the basis that the RPT filter for AY 2014-15 fails while computing the margin of the company on an average - Margin of Inteq Software Ltd. for AY 2014-15 should not be considered and therefore direct to exclude this company from the comparables.

  Exclusion of Infobeans Technologies Ltd. on the basis that it is functionally not comparable for AY 2015-16 and therefore the margin of that year should be exclude while computing the average margin of that company - As relying on BORQS Software Solutions P. Ltd. case. [2021 (10) TMI 1351 - ITAT BANGALORE] we direct the AO to exclude the margin for AY 2015-16 of while arriving at the 3 year average profit of Infobeans Technologies Ltd.

  Working capital adjustment - TPO did not allow any adjustment on the working capital as upheld by DRP - In the view of the ruling in the case of M/s. Huawei Technologies India (P) Ltd.[2018 (10) TMI 1796 - ITAT BANGALORE] the basis of rejection of the relief by the DRP is no longer valid -We therefore direct the AO/TPO to consider the working capital adjustment in the light of the aforesaid ruling and allow appropriate adjustment in arriving at an arm’s length price.

  TP adjustment towards interest on outstanding receivables - TPO treated the outstanding receivables from AE as in the nature of loan facility given to the AE and imputed interest @ 6 months LIBOR plus 450 basis points which works out to 4.985% - HELD THAT:- Respectfully following the decision of the coordinate Bench of the Tribunal in the case of Barracuda Networks (I) P. Ltd. [2022 (5) TMI 322 - ITAT BANGALORE] we hold that interest on receivables is a separate international transaction and separate benchmarking is required to be done. We therefore remit the issue to the TPO for fresh examination and take into consideration the guidelines laid down in the aforesaid decision of the Tribunal. The TPO is also directed to verify and consider the fact that the payables from AE is more than the receivable from AE as submitted by the assessee.

  Disallowance of Depreciation on Goodwill - HELD THAT:- We notice the coordinate Bench of this Tribunal in the assessee’s own case [2022 (5) TMI 722 - ITAT BANGALORE] depreciation claimed by the assessee on goodwill acquired deserves to be allowed in accordance with law. AO is directed to compute depreciation in accordance with the principles laid down in case of Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] - We hold that depreciation on goodwill deserves to be allowed. We direct the AO to recompute the depreciation with similar directions as in AY 2015-16.

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