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Showing 121 to 140 of 1564 Records
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2022 (12) TMI 1444
Suit for recovery - misreading the relevant and admissible evidence available on record - in the absence of respondent/plaintiff being registered and licensed money lender, the suit for recovery filed at his instance was liable to be dismissed or not?
HELD THAT:- Once the Courts below recorded concurrent findings as regards the validity of execution of Ex.D-1 i.e. receipt dated 15.10.2007 by Balkar Singh, the same was required to be read and considered in conjunction with the cross-examination of respondent/plaitniff Mukhtiar Singh who specifically stated therein that the calculations with regard to the principal money as well as interest were being done by his brother Balkar Singh. He even further deposed that he along with his brother Balkar Singh were jointly calculating the principal amount as well as interest. He was not even specific and categoric while denying the receipt Ex.D-1 except for a vague and uncertain assertion in this regard - in view of the deposition made by the respondent, it can easily be traced out that the amount of loan taken by the appellant-defendant was duly returned against the receipt Ex.D-1 which even binds the respondent/plaintiff as well. Based thereupon, it is apparent that the most relevant admissible evidence in the shape of deposition of plaintiff No.1 himself being PW-1 had not been taken into consideration by Courts below while passing the impugned judgments and decrees which itself compells this Court to interfere with the same.
Maintainability of suit - HELD THAT:- A perusal of Section 3 of the Act makes it clear that a suit by money lender for recovery of loan based on a pronote after the commencement of the 1938 Act can’t be entertained and is thus liable to be dismissed unless the money lender, at the time of institution of the suit or at the time of decreeing the same or deciding the execution application, is registered and holds a valid license as required under Section 4 of the 1938 Act. In the facts and circumstances of the present case, from the deposition of PW-1 plaintiff himself it has been duly established on record that he was regularly and consistently lending money on interest and thus, was not merely a casual or occasional lender - Admittedly, in the present case respondent/plaintiff though running the business of money lending neither got himself registered under Section 4 of the 1938 Act nor even possesses any license under the said Act. Accordingly, the suit for recovery filed at his instance being based on pronote and a receipt itself was liable to be dismissed being not maintainable, in the facts and circumstances of the present case.
The impugned judgments and decrees passed by the Courts below are hereby set aside thereby resulting in dismissal of the suit filed at the instance of respondent/plaintiff - appeal allowed.
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2022 (12) TMI 1443
Seeking release on bail - HELD THAT:- Once the investigation is complete, the petitioner shall be at liberty to approach the Trial Court for his release on bail, and such a petition shall be considered as per its own merit without being influenced by the orders passed by the High Court or this Court.
SLP disposed off.
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2022 (12) TMI 1442
Ineligibility for participation in the procurement of 1000 M.W of Round-the-Clock (RTC) Power from Grid Connected Renewable Energy (RE) Power Projects by the respondent under the request for selection document (RFS) - petitioner has been excluded from the bidding process without intimating any reasons for the same and without providing any opportunity for hearing - principles of natural justice - HELD THAT:- Issue notice.
The learned counsel appearing on behalf of the respondent accepts notice.
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2022 (12) TMI 1441
Application and entitlement of Section 43B - Tribunal confirming the disallowance of service tax payable u/s 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income - whether there is any evidence or material on record for the Tribunal to substantiate its finding that the service tax payable represents service tax collected by the Appellant? - As argued the liability becomes payable when it is received and accounted for by the assessee. Therefore, applying Section 43B to the case on hand is illegal - alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal u/s 260A when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the AO is illegal and unsustainable.
HELD THAT:- We have perused the order of the Assessing Officer, CIT (Appeals), and excerpted the mistake committed by the Tribunal from the material on record. We are of the view that the questions now formulated are substantial in nature, for conclusions are recorded on an erroneous appreciation of the reply of the assessee.
Therefore, for statistical purposes, the questions are answered in favour of the assessee and against the Revenue.
The common order is set aside and remitted to the Tribunal for consideration and disposal in accordance with the law.The parties, if so advised, are given the liberty to bring on record such material as respective parties may deem fit in support of their contentions.
Assessee also claims the application of Section 145A of the Act. For the view we have expressed above, it is clear that we have not examined the availability or the extent to which the assessee’s case could be considered under Section 145A. All contentions are left open to be considered by the Tribunal.
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2022 (12) TMI 1440
Classification of services - Supply of Tangible Goods Service - leasing out Power Generating and Heat Recovery Equipments to various parties under various Lease Agreements - transaction between the Appellant and its customers would involve the transfer of right of possession and effective control or a transfer of right to use or not - HELD THAT:- The appellant supplies Power Generating Equipments / gas genset (Plant) to Customers on standby charges and variable charges basis under the agreement. We find that during the subsistence of the agreement, the lessee alone has the right to use the Plant and even the Appellant cannot trespass that right of the lessees/ customers. The Lessees fix the pattern in which the plant is to be used and the time when it will function. All the permission to be obtained from the statutory authorities to be obtained such as Electrical, Pollution, CCR have to be taken by the Customers, the lessee shall ensure the safety of the plant in a manner similar to its own plant. Customers have to provide fuel, Jacket water & feed water, the site and other facilities.
On going through the clauses of agreement, it is found that the appellants had handed over the "Goods‟ possession to the lessee as also the right to use. Therefore the transaction of appellant does not satisfy the condition of “without transferring right of possession and the effective control of such machinery, equipment and appliances”. Hence the activity does not fall under the definition of “Supply of tangible goods for use”.
The adjudicating authority has held that since as per contract the equipment will remain sole property of equipment provider and skilled manpower supplied by the Appellant are responsible for maintenance operations of gas genset/plant, it is clear that the legal right and effective controls rests with the appellant - There is separate service agreement entered between the Appellant and customer under which various services are provided on which service tax has been discharged by the Appellant. Once the control and possession of gas genset/equipments was transferred to the customers, mere supply of manpower for maintenance will not change the nature of the transaction. All these factors are to be taken into consideration while determining the nature of service. Therefore finding of the impugned orders in present matters legally not correct.
The transfer of right to use gas genset/ plant on lease charges basis is a deemed sale in terms of Article 366(29)A of the Constitution, which is exclusive from service. Since the nature of transaction under dispute is deemed sale, no service tax can be demanded, as held in various judgments and relied upon by the Appellant in the present matter.
The demand raised cannot sustain and requires to be set aside - Appeal allowed.
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2022 (12) TMI 1439
Estimation of income - bogus purchases - addition sustained by the ld. CIT(A) at the rate of 5% of bogus purchases - HELD THAT- We note that the issue under consideration is squarely covered by the judgement of the Co-ordinate Bench in the case of Pankaj K. Chaudhary [2021 (10) TMI 653 - ITAT SURAT] wherein the Co-ordinate Bench of Surat has sustained the addition at the rate of 6% of bogus purchases. Thus we dismiss the appeals of the assessees and we allow the appeals of the Revenue partly.
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2022 (12) TMI 1438
Provisional release of goods - Section 110 A of the Customs Act, 1962 - HELD THAT:- A similar order in M/S. EXCELLENT BETELNUT PRODUCTS PVT. LTD. THROUGH ITS DIRECTOR VERSUS DIRECTORATE OF REVENUE INTELLIGENCE, NAGPUR REGIONAL UNIT; COMMISSIONER OF CUSTOMS, ICD BORKHEDI, NAGPUR [2021 (12) TMI 1454 - BOMBAY HIGH COURT] could be passed in the present case, where it was held that We are of the opinion that purposes of this petition shall be served if this petition is treated as an application made under Section 110 A of the Customs Act, 1962 and decide appropriately.
Petition disposed off.
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2022 (12) TMI 1437
Levy of penalty - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Discharge Certificate of SVLDRS-4 - HELD THAT:- The Tribunal in the case of P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] has held that insistence of payment of penalty by a co-noticee, when the main party has settled the issue under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, defeats the spirit of the scheme itself.
The penalty imposed on the Accountant, Mr. Sasthi Charan Banerjee being a co-noticee, is set aside - Appeal disposed off.
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2022 (12) TMI 1436
Assessment u/s 144C r.w.s. 144B - Corporate Social Responsibility (CSR) - Disallowance of deduction u/s 80G - DRP concluded that even though deduction for CSR Expenses was not allowable u/s 37 (in view of the Explanation 2 to Section 37 of the Act inserted by the Finance Act, 2014, with effect from 01.04.2015), there was no bar for allowance of the same under Section 80G of the Act (except for the donations made to the Swach Bharat Kosh and the Clean Ganga Fund), provided all the other conditions of Sec. 80G are fulfilled.
HELD THAT:- DRP issued specific direction to allow deduction u/s 80G of the Act after verifying whether the other conditions specified u/s 80G were fulfilled. As per mandate of Section 144C(13) of the Act, upon receipt of directions issued by DRP the Assessing Officer was required to complete the assessment in conformity with the directions issued by the DRP.
We hold that the Final Assessment Order, passed by the AO was not in conformity with the directions issued by the DRP and is therefore, set aside, being contrary provisions of Section 144C(13) of the Act. The issue is remanded back to the file of AO with the directions to pass the Final Assessment Order in conformity with the directions issued by the DRP. Appeal allowed.
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2022 (12) TMI 1435
Seeking grant of Regular Bail - smuggling - Ganja - procedure for collection of sample, faulty - violation of standing order 1/88 of the guidelines of NCB - HELD THAT:- As mandated by the Hon'ble Supreme Court in judgment of UOI. VERSUS BAL MUKUND & ORS. [2009 (3) TMI 914 - SUPREME COURT], standing order 1/88 has been opined to be a "requirement of law" - The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted.
Thus, in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable - applicant is in custody since 26.02.2022 and has no criminal antecedents. He has no criminal cases of any nature pending against him.
The applicant is entitled to be released on bail u/s 20/29 of the NDPS Act registered at PS Crime Branch on the subject to terms and conditions fulfilled - application allowed.
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2022 (12) TMI 1434
Approval of Resolution Plan - Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- All requirements provided under Section 30(2) of Code and Regulation 36 to 39 of CIRP Regulations, 2016 have been complied with - It is also found that the Resolution Plan addresses the cause for default and contains measures to run the Corporate Debtor in future - it is also found Resolution plan is both feasible and viable as held by CoC and it also contains provision for its effective implementation.
The approved Resolution Plan shall become effective from the date of passing of this order - the order of moratorium dated 01.09.2020 passed by this Adjudicating Authority under Section 14 of the Code shall cease to have effect from the date of this order.
Application allowed.
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2022 (12) TMI 1433
Accrual of income - reliance on documents seized in search - In view of the admitted facts, AO, FAA, and ITAT having concurrently recorded findings of the fact against the assessee
HELD THAT:- Having considered the review petition on both merits and delay, we find no grounds to interfere.
Review petition is dismissed.
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2022 (12) TMI 1432
Stay of demand - petition by directing the appellant to deposit 20% of the tax - high pitched assessments - HELD THAT:- Admittedly, the assessments are high pitched assessments and when such high pitched assessments are appealed against and an order of stay is sought for either before the AO by filing an application u/s 220(6) orders are passed by the assessing officer either keeping the notice of recovery in abeyance and not treating the assessee as an assessee in default till the appeal is disposed of.
There are yet another set of cases where the AO for reasons to be recorded imposes certain conditions as a condition for grant of stay. The appellant’s case falls under the second category where the assessing officer has directed 20% of the demand to be paid by the assessee for being entitled to grant of stay.
It is an undisputed fact that as against the impugned assessment order, appeal has been filed before the CIT (Appeals), second respondent on 25th January, 2018. It is not clear as to why the appeal is pending before the Commissioner (Appeals) for more than two years. Identical issues have come up for consideration before various High Courts and we would refer to two of the decisions of the High Court of Delhi, namely, Valvoline Cummins Limited [2008 (5) TMI 20 - HIGH COURT OF DELHI] and Soul [2008 (8) TMI 502 - DELHI HIGH COURT].
In both these cases, the Hon’ble Division Bench of the High Court of Delhi has considered high pitched assessments and has also taken note of the instruction issued by the CBDT and have held that when the assessments are unreasonably high pitched, the notices of recovery should remain stayed till the disposal of the appeal by the first appellate authority. In cases on hand, the return filed by the assessee was a loss return. However, the assessing officer has assessed the income and it is definitely a high pitched assessment. That apart, we find that the appeal was filed before the Commissioner of Income Tax (Appeals) well within the period of limitation and is pending since 25th January, 2018.
We are informed by the Advocate appearing for the appellant that till date the notice of demand has not been enforced on the assessee. Thus, considering the peculiar facts and circumstances of the case, we are of the view that the appeal itself should be directed to be disposed of by the Commissioner of Income Tax (Appeals) at an early date and until then, recovery proceedings should be kept in abeyance.
Appeals are allowed and the order passed in the writ petitions is set aside with a direction to keep the recovery notices issued by the assessing officer kept in abeyance and direct the CIT(Appeals), the appellate authority, to disposed of the appeals on merits.
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2022 (12) TMI 1431
TP adjustment - comparable selection - HELD THAT:- Exclude Infosys BPO Company from the list of comparable as company has diversified functions, top global brand and huge turnover of Rs.1831.36 Crores.
M/s. Eclerx Services Ltd. is not comparable since it is functionally different. Since there are no segmental details, expenditure incurred on outsourcing, we are of the opinion that the CIT (Appeals) is justified in excluding this company as comparable. Admittedly, the functions of the assessee as well as e-Clerx have not change for the last two years i.e., from 2010-11 and 201213. AO in these two years had not considered e-Clerx as a comparable. No reason to grant any relief to the Revenue. Accordingly, we uphold the order passed by the ld.CIT(A) excluding the e-Clerx from the list of comparable.
Remit the issue of comparability in respect of these three companies i.e. M/s. Jindal Intellicom Pvt. Ltd., M/s. Informed Technologies Limited and M/s. Ace BPO Services Pvt. Ltd. to examine and decide as per law.
Interest rate charged on the trade receivable - AR had submitted that the Tribunal had allowed the credit period of 120 days as held in OSI Systems Pvt Ltd, Hyderabad [2020 (12) TMI 294 - ITAT HYDERABAD] and trade payables are required to be setoff against the trade receivables and the interest should be restricted to LIBOR plus 100 - CIT(A) has restricted the charging of interest at LIBOR +200 basis points allowing the credit period of 60 days - HELD THAT:- Though, the ld.AR cited the decision in the case of OSI System Pvt. Ltd.[Supra] but, the said decision is not applicable to the facts of the case as the Tribunal in the said case had held applicability of LIBOR +200 basis points to be applied on the trade receivables. Similarly, the Tribunal without assigning any reason has held that 120 days credit period is reasonable period.
In our view, no documentary evidence has been brought on record before us so that we can infer that 120 days credit period is a reasonable period. CIT(A) after relying upon the decision of OSI Systems (supra) for the reasons best known to him, had arbitrarily reduced the credit period from 120 days to 60 days.
The approach of ld.CIT(A) is without any basis. Hence, we direct the TPO/Assessing Officer to charge interest at LIBOR + 200 points. We direct AO / TPO to allow the credit period and charge interest over and above the outstanding period of 120 days.
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2022 (12) TMI 1430
Seeking release the property seized under the alleged crime under the PML Act - it was held by High Court that The request of the ED counsel for continuing the prosecution against the petitioners is nothing but abuse of process of law.
HELD THAT:- The special leave petition is dismissed with liberty to move in case the challenge to the discharge in the predicate offence succeeds.
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2022 (12) TMI 1429
Maintainability of appeal - Duties and functions carried out by IRP. - Disallowing certain CIRP expenses claimed by the Appellant/IRP - HELD THAT:- There are no reason to interfere with the order impugned. The civil appeal is, accordingly, dismissed - However, liberty granted to the appellant to file an application before the NCLAT in reference to the facts which have been noticed in Paragraphs 14 and 15 of the order impugned dated 30th May, 2022.
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2022 (12) TMI 1428
AO jurisdiction to assess the case of assessee - Tribunal held that after the Commissioner of Income Tax-3, Mumbai had passed an Order on 19 December 2014, transferring the assessment jurisdiction from Mumbai to Pune, the assessing officer at Mumbai had no jurisdiction over the file of the assessee on the date when the Order of assessment came to be passed on 24 December 2014 - HELD THAT:- Tribunal rejected the argument of the revenue that the AO would continue to exercise the jurisdiction in the case of the assessee inasmuch as PAN of the assessee came to be transferred only 29 December 2014. It was held that the transfer of PAN is consequential to the Order of transfer of jurisdiction and that it is a PAN, which follows the jurisdiction and not vice versa.
In our view, there is no illegality in the Order dated 9 August 2017, which has been passed by the Tribunal.
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2022 (12) TMI 1427
Application filed under Section 9 of the IBC, 2016 rejected - rejection on the ground that it does not fulfil the threshold as prescribed under Section 4 proviso where minimum default amount has been increased to Rs. 1 Crores by Notification of MCA dated 24.03.2020 - HELD THAT:- The Application has been filed by the Operational Creditor on 01.12.2021 for an amount of Rs. 42,94,620/-. The issue raised in the Appeal is fully covered by the Judgement of this Tribunal in the matter of HYLINE MEDICONZ PRIVATE LIMITED VERSUS ANANDALOKE MEDICAL CENTRE PRIVATE LIMITED [2022 (9) TMI 954 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] where it was held that no error has been committed by the Adjudicating Authority in rejecting Section 9 application filed by the Appellant on 18.01.2021 which did not fulfil the threshold of Rupees One Crore.
Appeal dismissed.
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2022 (12) TMI 1426
Assessees in default u/s 201/201(1A) - failure to deduct withholding tax against External Development Charges (EDC) paid to Haryana Urban Development Authority - order passed u/s 271C by respondent no.1 and the notice of demand of even date passed u/s 156 of the Act.
HELD THAT:- To be noted, the aforementioned penalty order and demand notice concern Financial Year (FY) 2013-2014.
Issue notice. Counter-affidavit(s) will be filed within the next ten days. Rejoinder(s) thereto, if any, be filed before the next date of hearing.
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2022 (12) TMI 1425
Revision u/s 263 against company dissolved/ non-existing - assessment in the hands of the representative/agent - Who may be regarded as agent u/s 163? - whether the CIT has power to pass an order u/s 163 of the Act? - HELD THAT:- As per provisions of section 163 it does not show the authority as to who can pass the order u/s 163 of the Act. Though section 246 of the Act which contains the provisions relating to the appealable orders before the CIT at clause (d) which mentions “An order made u/s 163 of the Act treating the assessee as agent of the non agent” which means that the order u/s 163 of the Act is to be passed by an authority below the rank of a commissioner, because if the commissioner passes the order, then it cannot be appealed against before the ld. CIT(A).
Section 253 of the Act contains the provisions relating to appeals to the appellate Tribunal and in the said section, there is mention of all orders passed under different sections of the Act which are appealable before the appellate Tribunal but there is no mention of order passed u/s 163 of the Act, which means that the commissioner has no power to pass an order u/s 163 of the Act.
Though the ld. DR had vehemently stated that the commissioner has concurrent jurisdiction/powers as that of the Assessing Officer, but in light of the aforesaid discussion, we do not find any merit in this contention of the ld. DR.
In light of the provisions of section 163 considered in light of the aforementioned discussion, order passed u/s 163 of the Act by the CIT, International-2 deserves to be quashed and treated as nonest. The ld. CIT assumed jurisdiction u/s 263 of the Act on the basis of order passed u/s 163 of the Act.
Since the very basis [order u/s 163 of the Act] has been removed, the super structure i.e. order u/s 263 of the Act must fall.
Original assessment against company[Non resident] now dissolved - As there is no dispute that the Assessing Officer framed assessment u/s 143(3) of the Act in the case of Monet Limited in the status of non-resident. In our considered opinion and understanding of law, since the principal has been assessed to tax than for the same income, there cannot be a separate assessment in the hands of the representative/agent, when the alleged representative/agent are also non-residents.
Principal Monet Limited has been extinguished. Then how can there be representative /agent of non-existing company. Provisions of section 163 of the Act are not akin to that of section 159 wherein a legal heir is substituted in place of a deceased assessee. This answers the third issue raised by Shri Pardiwalla.
CIT, International Taxation-2 passed an order u/s 163 of the Act without having any such authority and thereafter, wrongly assumed jurisdiction u/s 263 of the Act treating Cairnhill CIPEF Limited and Cairnhill CGPE Limited as representative /agent of Monet Limited which extinguished on 19.12.2018 and framed the impugned orders which do not have any support /backing of any provisions of the Act.
Assessee appeal allowed.
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