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Showing 121 to 140 of 1442 Records
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2022 (2) TMI 1323 - GUJARAT HIGH COURT
Seeking direction to Respondents to appoint full time Presiding officer in Debt Recovery Tribunal-I, Ahmedabad - sum and substance of the grievance of the petitioner is that the present petition is filed in public interest contending Presiding Officer of the Debts Recovery Tribunal-I is vacant and no Presiding Officer is posted and not only the litigant public but also advocates are facing utmost difficulty - HELD THAT:- It is brought to the notice of the Court that initially the Presiding officer, Debts Recovery Tribunal-II was given additional charge of the matters relating to Debts Recovery Tribunal-I, Ahmedabad and it was restricted upto 31.12.2021 and now it has been extended upto 31.3.2022.
Regarding the prayer under which the petitioner is seeking for a writ of mandamus to direct the respondent to appoint full-time Presiding Officer, Debts Recovery Tribunal-I, Ahmedabad, learned Additional Solicitor General of India would submit that all reasonable steps are being taken to fill the post expeditiously and same would be done. His submission is placed on record - petition disposed off.
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2022 (2) TMI 1322 - GUJARAT HIGH COURT
Rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Firstly declaration came to be rejected on the ground that the correct category would be "pending appeal" and not "show-cause-notice pending" - second form of declaration came to be rejected on the ground that "show cause notice is pending" for adjudication therefore, the case would not fall under the category of "arrears" as defined under the Finance (No.2) Act 2019 - HELD THAT:- The respondents should have taken into consideration the fact that once there is an order of remand the entire matter stands revived from its inception. The matter as on date could be said to be pending before the Commissioner. In such circumstances it cannot be said that the matter was finally heard on or before 30.6.2019. The stance of the respondents cannot be said to be in consonance with the object and reasons underlying the scheme.
The orders dated 28.11.2019 and 19.12.2019 respectively are hereby quashed and set aside. The matter is remitted to the respondents. The respondents shall accept the form of declaration under the category of "litigation" sub-category "SCN involving duty pending" and undertake the process of verification through the designated committee - application allowed.
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2022 (2) TMI 1321 - ITAT AHMEDABAD
Liability to pay advance tax u/s 207 - charging of interest u/s. 234B and section 234C for non-compliance of advance tax provisions - Assessee is a senior citizen of more than 60 years - HELD THAT:- A perusal of the income tax return submitted before us during the year under consideration shows the assessee had no income which is chargeable under the head “profits and gains” of business and profession. On a perusal of the order of the ld. CIT(A), we see that he has not brought on record any cogent material to demonstrate that the assessee is earning income from business or profession and is not drawing salary from these concerns on which TDS has been deducted u/s. 192 - CIT(A) has primarily relied on the understanding that since the assessee himself is a managing director of the company in which he is having control, he is not entitled to earn salary from the said company and the income so earned from the company bears the character "business and professional income”.
In view of the fact that the assessee is a senior citizen above 60 years of age, has been consistently filing return declaring income earned as Salary income from these concerns, tax has been deducted at source u/s 192 of the Act on the payments made to the assessee and that the Ld. CIT(Appeals) has not brought any material on record to exhibit that the assessee has not earned salary income, we are of the view that the assessee has satisfied conditions of section 207 of the Act and is not liable to pay advance tax. In the result, we hold that ld. CIT(A) has erred in confirming the charging of interest u/s. 234B and section 234C for non-compliance of advance tax provisions. Appeal of the assessee is allowed.
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2022 (2) TMI 1320 - ITAT MUMBAI
TDS u/s 194H OR 194J - Payment made to Thyrocare Services Providers (TSPs) to collect samples from the patients - Assessee has made arrangement with Thyrocare Services Providers (TSPs) to collect samples from the patients As per the terms and conditions of the agreement, the TSPs collects the samples from the patients and sends the same to the assesssee for testing - assessee raises periodical invoices on the TSPs against which the TSPs make payment to the assessee after deducting Tax at Source (TDS) - HELD THAT:- It is an admitted fact that the TSPs have option to forward the specimen samples for testing, either to the assessee or any other specialized testing laboratory. TSPs are not under obligation to send every sample for testing to the assessee unless the patients/customers specifically ask the TSPs to send the samples to the assessee for testing. The assessee is remunerated for the testing services provided to the TSPs at an agreed rate. The assessee raises periodical invoices on the TSPs. The TSPs make payment to the assessee after deducting TDS under section 194J of the Act for rendering professional services.
What emanates from the submissions made by ld. AR and the supporting documents is, it is the TSPs who are the payers and not the assessee. The assessee is a recipient of the amount for providing testing services to the TSPs. The assessee receives the payment on the basis of periodical invoices raised on TSPs, the TSPs make payment to the assessee after deducting TDS under section 194J of the Act. Thus, the findings of the AO are contrary to the facts, the AO) on presumptions, surmises and conjectures has entirely made out a new case by reversing the payer and payee.
AO has erred in observing that the assessee is a payer and the TSPs are recipients of the amount. The AO further erred in holding that since the assessee is making payment to the TSPs, the assessee was under obligation to deduct TDS under section 194H of the Act on commission paid to the TSPs. Thus, from the above facts, it is unambiguously clear that the case of Revenue was build up on wrong appreciation of facts. The CIT(A) after having examined and appreciating the correct facts in para-5.5 of the impugned order has rightly observed that the TSPs do not receive any payment from the appellant, rather the TSPs make payment to the appellant as per invoices raised by the appellant for the tests done by it. The ld. DR has failed to controvert the above observation of the CIT(A). - Decided against revenue.
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2022 (2) TMI 1319 - ITAT DELHI
Addition on account of ALP adjustment - assessee has been held to be a trader and goods sourced from India by its AE has been added back as its operating expenses /cost and thus resultant TP adjustment was made - assessee’s own case the adjudicating authority held that assessee is in nature of business support service provider and FOB value of goods sourced from India shall not be included while computing operating margins - HELD THAT:- The Co-ordinate Bench of the Tribunal [2017 (8) TMI 1355 - ITAT DELHI] held that in view of the undisputed fact that AEs of the taxpayer is into trading activities of various products, such as, textiles, machinery, information and communications related products, metals, products related to oil and other energy resources, general merchandise chemicals, provisions and food and the taxpayer is merely rendering business support services to these AEs in the form of facilitation services to source goods from India.
So, the limited activities carried out by the taxpayer for its AEs in the nature of licensing and facilitation of business of its AEs separates the taxpayer from the Sogo Shosha traders. Furthermore, when the taxpayer is not proved to be a risk bearer in the nature of credit risk, price risk, inventory risk, storage and handling risk etc., it cannot be treated as a trader. Moreover when undisputedly the taxpayer has not developed any intangible or accorded locational savings to its AEs and has earned net operating profit margin on cost of 129.34% against the margin of comparable at 14.05%, it cannot be said that the taxpayer has not been adequately compensated.
We find no reason to interfere with the impugned order of ld. CIT (A), hence present appeal filed by the Revenue is hereby dismissed on this ground.
Disallowance of gift expenses - HELD THAT:- We find that these expenses relate to the gifts presented to dignitaries and participants in the meetings, conferences, tea expenses and Diwali gifts, farewell gift which are of token gifts in nature cannot be considered as disallowable. Hence, the appeal of the assessee on this ground is allowed.
Business Promotion Expenses - AO disallowed an amount being the 20% the total amount claimed - AO categorically mentioned that the assessee suo motou agreed for the disallowance of the 20% of the expenses claimed. The assessee, therefore, deemed to have foreclosed the enquiry. We have also gone through the ledger placed and find that certain expenses cannot be treated as business promotion expenses. Hence, we decline to interfere with the order of the ld. CIT(A) on this issue.
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2022 (2) TMI 1318 - ITAT MUMBAI
TP Adjustment - selection of MAM - benchmarking under TNMM method - HELD THAT:- TPO has reached a conclusion that assessee has been in existence since long and has developed its own name, goodwill expertise and knowhow. Further, the group provided these services for which no cost can be earmarked. For each of the email he mentioned that these are shareholder activities and duplicate in nature.
At paragraph No.4.8.1 onwards he has not stated that there is no rendition of the services. Therefore, the earlier finding of the TPO and subsequent finding of the TPO at paragraph No. 4.8 are contradictory. Even while examining the email he does not state that no services have been rendered but emails have been rejected stating that these are shareholders activity or duplicative in nature.
CIT(A) examined the emails and gave categorical finding about the rendition of the services. This finding remains uncontroverted. Further, if the learned TPO was not satisfied with the contents of the email, he could have further probed the transaction with respect to various programme and its content. In view of this facts, we do not find any infirmity in the order of the learned CIT(A) in holding that the peculiar Intra group services are shown to have been rendered by the associate enterprises to the assessee. Therefore, he directed it to be benchmarked under TNMM method. In view of these ground Nos.1-4, the appeal of the learned Assessing Officer are dismissed.
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2022 (2) TMI 1317 - GAUHATI HIGH COURT
Seeking direction to forthwith set his father at liberty from illegal detention - petitioner contended that the detention and arrest of the detenue was in complete violation of his indefeasible rights guaranteed under Articles 14, 21, 22(1), and 22(2) of the Constitution and the procedural rights, inter-alia, in Sections 50, 50A and 57 Cr.P.C. - validity of remand order - violation of rights or not - HELD THAT:- It is noticed that Article 22(2) of the Constitution mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the aforesaid period without the authority of a Magistrate.
Chapter V of the Code of Criminal Procedure prescribes the complete procedure of arrest of persons. Section 41 Cr.P.C. vests power on a police officer to arrest any person, who is either involved or suspected to be involved in cognizable and non-cognizable offences. In the case of a non-cognizable offence, however, the power to investigate such offence requires prior order of a competent Magistrate. A conjoint reading of Sections 50 and 50A Cr.P.C. reveals that once the police officer arrests a person it is obligatory on his part to inform the arrestee the full particulars of the grounds of arrest and inform about arrest and place where he is being held to his friends, relatives or such other persons as may be disclosed or nominated by him - it can be inferred that assuming that the detenue was picked up from his residence at Tingkhong, Dibrugarh for the purpose of interrogation or investigation by the police, it neither amounted to arrest nor detention, nor taking into custody as certainly enough there was no legal surveillance or restrictions on the movements of the detenue in any manner during the period of his voluntary co-operation in preliminary enquiry in the said case within the meaning and scope of Section 46 Cr.P.C.
Where the detenue voluntarily accompanied with police to assist in investigation, there was no obligation on the part of the investigating police officer to ensure compliance of the obligations, provided under Sections 50, 50A and to obtain a transit remand under Section 167 Cr.P.C. in respect of the said detenue and as such, there was certainly no violation of the fundamental rights stipulated in the aforesaid Sections of Cr.P.C. or the mandate of Article 22(1) of the Constitution.
The detenue voluntarily cooperated with the investigating police officer in the preliminary enquiry in connection with Fatasil Ambari P.S. Case No. 817/2021 and voluntarily moved with them to Guwahati from Naharkatiya Tingkhong residence assuring to deliver certain relevant documents which were available at his Guwahati residence and accordingly, after they reached the said Police Station, the police asked him for refreshment and bring the documents from his Guwahati residence - In the instant petition, it is noticed that the detenue was put under arrest on 16.12.2021 at 6 p.m. observing necessary formalities as required under Sections 50 and 50A Cr.P.C. and produced him before the Court of learned Judicial Magistrate at Guwahati on the following day, that is, on 17.12.2021 at 1.45 p.m., that is, within a period of 24 hours of his arrest. There is no confusion, if one looks at the records, that in anterior period to the detenue's formal arrest, he was neither detained nor arrested within the implications of Section 41 or 41B Cr.P.C. Therefore, it cannot be said that the detenue's right under Article 22(2) of the Constitution read with Sections 56 and 57 Cr.P.C. was violated.
No illegality in remand order - HELD THAT:- A perusal of the above impugned order, it is revealed that the learned Judicial Magistrate on being satisfied that the detenue on his own engaged a counsel to defend his case and that his arrest and detention in connection with the said case was justified and further, that the provisions contained in Sections 50, 50A and 57 Cr.P.C. were duly complied with granted his police custody under Section 167(2) Cr.P.C. for 2(two) days subject to the guidelines - It is apparent that the learned Judicial Magistrate having found no irregularity in anterior part of formal arrest and post arrest period of the detenue, felt no necessity to proceed against the investigating officer or take judicial notice of alleged unfounded irregularities/illegalities.
Petition dismissed.
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2022 (2) TMI 1316 - KERALA HIGH COURT
Seeking permission to travel abroad - Should an accused in a pending criminal case seek permission from the Court concerned for visiting a foreign country in terms of the Notification GSR 570(E) dated 25/8/1993 r/w S. 6(2)(f) of the Passports Act, 1967 even if he holds a valid passport? - HELD THAT:- S. 317(1) of Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and to proceed with trial in his absence. Ordinarily the court should be generous and liberal under Ss. 205 and 317 of Cr.P.C and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable.
The petitioner is employed at Riyadh, Saudi Arabia as a security watchman. He took leave and came to native place on 24/9/2020 only to make appearance in the above case. But due to Covid 1-19 restriction he could not go back. Thereafter he received a notice from his employer to report for duty on or before 13/11/2021. It was at that juncture he moved the application u/s. 317 of Cr.P.C at the Court below. In Annexure A1 affidavit, he has specifically stated that he is the sole bread winner of his family and unless he goes back to Saudi Arabia, he would lose his job. He clearly undertook in the affidavit that he has absolutely no objection in proceeding with the trial in his absence and he has also stated that Adv. Shamsudheen K. will be appearing for him at the Court. He has also undertaken that he will not dispute his identity. In these circumstances, the Court below ought to have allowed his application seeking exemption from personal attendance.
This Crl. M.C can be disposed of with a direction to the learned Magistrate to consider Crl. M.P. No. 405/2021 in the absence of the petitioner and to pass orders in accordance with law - Application disposed off.
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2022 (2) TMI 1315 - ITAT MUMBAI
Depreciation on Assets (Finance Lease) - ownership of asset - finance lease, all the risks and rewards incidental to ownership of an asset is transferred to the lessee and the lessor cannot claim depreciation on the leased plant and machinery citing the reason that the lessee has not claimed depreciation on the leased plant & machinery - whether AS-19 allows the lessee to claim depreciation on the asset and not the lessor, in case of Finance Lease? - CIT- A deleted the addition - As argued CIT(A) has erred in granting the relief to the assessee, irrespective of the fact that the decision of the Hon’ble Tribunal is being challenged by the revenue before the Higher Forums - HELD THAT:- It appropriate to consider the observations of the Hon’ble Tribunal RELIANCE CORPORATE IT PARK LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE- 3 (3) (1) , MUMBAI [2019 (6) TMI 1489 - ITAT MUMBAI] held that the assessee is continued to have ownership of the asset even after leave and license agreement with Reliance Industries Ltd and the assessee has claimed depreciation for earlier two ears. In fact, it has been accepted by the department in assessment proceedings. The assessee further explained that the lessee did not claim depreciation on the leased asset. Therefore, considering over all acts of this case and also by following the ratio of the Hon’ble Supreme Court in the case of ICDS [2013 (1) TMI 344 - SUPREME COURT] we are of the considered view that the assessee is entitled for depreciation on the leased asset as per provisions section 32(1)(ii) of the Act. The Ld CIT(A) after considering relevant facts has right ly deleted additions made by the AO towards disallowance of depreciation, hence we are inclined to uphold the findings of the Ld. CIT(A) and reject the ground taken by the revenue. - Decided in favour of assessee.
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2022 (2) TMI 1314 - RAJASTHAN HIGH COURT
Reopening of assessment u/s 147 - Scope of Section 148A as newly inserted - Comparison between old and new provisions for reassessment - Individual identity of Section 148 as prevailing prior to amendment - applicability of the newly inserted provisions of Section 148A and the amendments brought inter alia w.e.f. 1.4.2021 - identity of Section 148 as prevailing prior to amendment and insertion of section 148A - HELD THAT:- As relying on SUDESH TANEJA WIFE OF SHRI CP TANEJA [2022 (1) TMI 1212 - RAJASTHAN HIGH COURT] no notice u/s 148 would be issued for the past assessment years by resorting to the larger period of limitation prescribed in newly substituted clause (b) of Section 149(1). This would indicate that the notice that would be issued after 01.04.2021 would be in terms of the substituted Section 149(1) but without breaching the upper time limit provided in the original Section 149(1) which stood substituted.
Under no circumstances the extended period available in clause (b) of sub-section (1) of Section 149 which we may recall now stands at 10 years instead of 6 years previously available with the revenue, can be pressed in service for reopening assessments for the past period. This flows from the plain meaning of the first proviso to sub-section (1) of Section 149. In plain terms a notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid.
By virtue of notifications dated 31.03.2021 and 01.04.2021 issued by CBDT substitution of reassessment provisions framed under the Finance Act, 2021 were not deferred nor could they have been deferred. The date of such amendments coming into effect remained 01.04.2021.
In the result we find that the notices impugned in the respective petitions are invalid and bad in law. The same are quashed and set aside. The learned Single Judge committed no error in quashing these notices. All the writ petitions are allowed. Appeals of the revenue are dismissed.
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2022 (2) TMI 1313 - KARNATAKA HIGH COURT
Recovery notice - addition u/s 68 - petitioner submits that one of the main partners died and the Firm was left with other partners, who were wife and daughter and therefore they needed time to take over the business and practically the business has come to a stand still and the Firm continues only for the purpose of recovery of dues - HELD THAT:- Taking note of the Assessment Order having been passed while observing that assessee has not filed any reply or response to the notice under Section 142(1) of the Income Tax Act and that the Assessing Officer in terms of Section 68 has treated the deposit as unexplained and treated it as deemed income of the assessee and had directed to add the same to the income of the assessee for the Assessment Year 2018-2019, it would meet the interests of justice to provide another opportunity to the petitioner to explain and file his objections regarding the proposed addition
Accordingly, taking note of the circumstances referred to above detailing the bona fide lapse on the part of the petitioner, the Assessment Order at Annexure-G1 dated 26.04.2021 is set aside and consequently, the recovery notice at Annexure-G2 dated 08.11.2021 is set aside. The matter is relegated to the first respondent to resume the proceedings from the stage of reply to the show cause notice dated 16.03.2021.
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2022 (2) TMI 1312 - ITAT MUMBAI
Addition u/s 68 - unexplained cash credit - amounts received by the assessee as share capital lack genuineness and these amounts were added to the income of the assessee - HELD THAT:- When matter was carried in appeal before the Commissioner (Appeals), she noticed that the assessee has furnished (a) PAN Card of investor; (b) ITR Acknowledgement along-with computation of income of the investor company; (c) Financial statements of the investor company; (d) Bank Statement of the investor company highlighting the share application money invested ; (e) Copy of duly signed Share Application forms of the investor; (f) Copy of the Return of Allotment (Forrn 2) filed with the Registrar of Companies; (g) Copy of boards' resolution of the appellant company for issuing shares at premium and allotment of shares to the investor company; (h) Copy of Offer letter given by the assessee to the investor dated 02.08.2013; (i) Copy of letter showing acceptance to the offer of shares filed by the investor dated 06.08.2013; (j) Copy of Affidavit of Mr. Bhagwanji Patel ; (k) Copy of letter given by the assessee to the investor for intimation of allotment dated 02.11.201; (l) Retraction Statement of Shri Pradeep Poddar dated 09.12.2014; (m) CBDT Letter F.No.286/98/2013-IT(Inv II) dt. 09.01.2014; and (n) Judgment of Hon'ble Gujrat High Court (Ramanbhai B Patel and Chetnabhen J Shah[2016 (7) TMI 1212 - GUJARAT HIGH COURT]
If we follow the path taken by the coordinate benches in the cases where production of the evidences showing identity of parties and money having been routed through banking channels, in the absence of any findings to show lack of genuineness, we should unhesitatingly uphold taking the amounts outside the ambit of the unexplained credits under section 68.
On the other hand, if we follow the path of putting genuineness to test on the basis of an overall larger picture and ground realities, it will be difficult to overlook all the red flags raised by the case history such as of a man of limited means being director in score of companies, the fact that some companies investing Rs 118 crores in the assessee group, could be purchased by the group entities for just Rs 5 crores, the fact that every time DTPL had to make payments to the assessee company, there were similar credits in its bank accounts of the DTPL from different sources, the fact that DTPL’s annual office expenses were less than Rs 20,000, the fact that the DTPL made this investment at a huge premium and there is no justification on record for such a huge premium-that too through a private placement, and the fact that DTPL aptly meets the description of shell companies which are used for financial manoeuvrings.
The phenomenon of shell companies being used for financial manoeuvrings and even money laundering, as even Hon’ble Prime Minister took note of in his 2017 independence day address, is not an open secret- secret if it is; we, as a specialized Tribunal, cannot even pretend to be so naïve to be oblivious of it. When we so look at this case without any blinkers on, the share capital transaction in question can be anything but genuine, and genuineness is a critical factor for deciding whether or not a transaction can be said to be unexplained credit under section 68. Clearly, therefore, there is no meeting ground in the approaches so adopted by the coordinate benches.
In order to ensure that there is consistency in approach, it is time that the matter is referred to a larger bench so that a reasonably uniform stand can be adopted in such cases, and some broad parameters can be set for taking calls in such cases.
We have no doubt about what needs to be done in this case and in which manner the matter needs to examined in greater detail, and we are of the considered view that the approach adopted by Leena Power [2021 (9) TMI 1124 - ITAT MUMBAI] is the right course, but we have to be equally respectful to contrary approaches adopted by the coordinate benches, and leave the matter to a larger bench to take an appropriate call and also to give requisite guidance for the division benches. Such a divergence of approach by the division benches, howsoever bonafide, has to be avoided, and an authoritative decision by a larger bench, which will constitute binding precedent for all the division benches, can certainly bring an end to this divergence of approach.
We direct the Registry to place the matter before Hon’ble President, for taking a call on our recommendation for constitution of a bench of three or more members to decide this bunch of appeals.
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2022 (2) TMI 1311 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Co-operative Societies registered under the Multi-State Co-operative Societies Act, 2002 - scope of Corporate Person as defined under Section 2(d) and Section 3(7) of the Code - applicability of IBC to Co-operative Societies registered under Multi-State Cooperative Societies Act, 2002 - Whether the Multi-State Co-operative Societies Act, 2002 prevail over the IBC? - HELD THAT:- After bare reading of the provisions of the Code, even if we consider the Corporate Debtor to be a ‘Corporate Person’ as defined under section 3(7) of the Code, the Corporate Debtor is itself a Co-operative Society and hence cannot come under the provisions of section 2(d) of the Code as the Central Government has not issued the Notification of the applicability of the Code to the Co-operative Society.
The Corporate Debtor which is Co-operative Society, to become the ‘Corporate Person’ under section 3(7) has to complete the criteria given under section 2 of the Code, which deals with applicability of the Code. If the Corporate Debtor in the matter is not covered under the section 2 of the Code, the question of applicability of section 3(7) does not arise.
Thus, it is clear that the Corporate Debtor being Co-operative Society is not the ‘Corporate Person’ nor the provisions of Code are applicable to the Co-operative Society as the Corporate Debtor in the matter is registered/incorporated under Multi-State Co-operative Societies Act, 2002 which is a special statute and provides specific provisions for the winding up of the Societies registered under the same. And hence, the Corporate Debtor being Co-operative Society cannot be put under Insolvency Resolution Process.
This Bench finds no merit in admitting Petition filed by the Financial Creditor under section 7 of the Code against the Corporate Debtor who is a Co-operative Society registered under the Multi-State Co-operative Societies Act, 2002 - this Bench is of considered view that the Corporate Debtor who is Co-operative Society registered/incorporated under the Multi-State Co-Operative Societies Act, 2002, does not come under the purview of the Code and therefore the CIRP cannot be initiated against the Corporate Debtor.
Application dismissed.
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2022 (2) TMI 1310 - ITAT SURAT
Denial of exemption u/s 11 - audit report has required under Form 10B was not uploaded at the time of filing the return of income - assessee realise its mistake on receipt of intimation u/s 143(1) and assessee uploaded the audit report in Form 10B and filed application under section 154 for correcting/rectification in the intimation u/s 143(1) - HELD THAT:- We find that the Hon’ble jurisdictional High Court in case of CIT vs. Xavier Kalavani Mandal (P.) Ltd [2012 (9) TMI 1049 - GUJARAT HIGH COURT] held that in order to claim exemption under section 11, the assessee can filed audit report in Form 10B even at later stage either before the Assessing Officer or before appellate authority by showing a sufficient cause.
In case of Sarvodaya charitable Trust [2021 (1) TMI 214 - GUJARAT HIGH COURT]held that where the assessee is a public charitable trust registered under section 12A of the Act and substantially satisfied condition for availing benefit of exemption as a charitable could not be denied exemption, the assessee merely on bar of limitation in furnishing audit report in Form 10B.
Considering all we find that though the assessee has not filed any return of income at the time, however, it was available before the ld. CIT(A) as it was uploaded much before filing application under section 154. Therefore, we find that the assessee has complied the procedural requirement, therefore, the Assessing Officer/CPC is directed to verify the claim of the assessee and grant necessary deduction under section 11 of IT Act. In the result, the appeal of the assessee is allowed for statistical purposes.
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2022 (2) TMI 1309 - CALCUTTA HIGH COURT
Disallowance u/s 14A r.w.r. 8D - disallowance of foreign travel expenses, claim for additional depreciation and commission to foreign and Indian agents - HELD THAT:- With regard to the commission paid to four entities abroad, the discussion on the said issue - After noting the details of the overseas commission paid to four parties, the tribunal has referred to the documents and certificates in the form of paper book and came to the conclusion that the documents conclusively proved that the commission agent has rendered services to the assessee outside India.
Commission paid to the other agents abroad were considered and after taking note of the facts the tribunal was satisfied that the commissioner was right in granting relief to the assessee.
With regard to the commission paid to the Indian agents for export sales - After noting the facts, the tribunal held that the commission is not paid to any related party of the assessee. We find that no substantial question of law arises for consideration on the three issues.
Restriction of disallowance u/s 14A the tribunal has discussed the said issue and after noting the facts, directed the assessing officer to disallow only a sum u/s 14A on the ground that the disallowance under the said provision cannot exceed the exempt income.
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2022 (2) TMI 1308 - BOMBAY HIGH COURT
Condonation of delay - delay of about 8 to 9 years in filing the appeals before the CIT (A) - Penalty u/s 271(1)(c) - HELD THAT:- Appellant has received three penalty orders for the three assessment years as mentioned earlier. It is appellant’s case that to buy peace and put an end to the dispute, they paid the penalty amount as well. That is not disputed. One fine day, almost 8 years later, sometime in 2013, appellant received a notice calling upon to show cause as to why prosecution should not be initiated against appellant. Surprised with the turn of events, appellant decided to challenge the penalty orders. The challenge was rejected by CIT(A) saying that the appeals have been filed with much delay. CIT(A) overlooked one factor that the prosecution itself has been launched 8 or 9 years after the penalty amount was paid by appellant. If the department feels that they can do this after 8 or 9 years delay, in our view, they must apply the same yardsticks for an assessee.
We condone the delay in filing the appeals. CIT(A) is directed to consider the appeals filed by appellant in accordance with law and dispose the same within 12 weeks from the date of this order is uploaded. Appellant will forward a copy of the appeals filed alongwith the copy of this order to CIT(A) within one week of this order being uploaded. CIT(A) shall grant a personal hearing to appellant and intimate date and time of personal hearing at least 7 days in advance.
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2022 (2) TMI 1307 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking exclusion of period of 186 days from the Liquidation period in relation to the timelines of Liquidation Process of the Corporate Debtor - seeking to fix an early date for hearing the Applications - dissolution of SBQ Steels Ltd. under section 54 of the Code - HELD THAT:- It is seen that the Corporate Debtor has been completely liquidated and in the said circumstances as averred and as prayed for by the Applicant that an order for dissolution is required to be passed by this Adjudicating Authority under Section 54 of the IBC, 2016.
The dissolution of the Corporate Debtor viz., M/s. SBQ Steels Limited is ordered and the Liquidator is directed to forward a copy of this Order to the RoC concerned - application allowed.
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2022 (2) TMI 1306 - ALLAHABAD HIGH COURT
Interpretation of statute - provision of Section 107(6)(b) of the Uttar Pradesh Goods and Services Tax Act, 2017 - maintainability of appeal - requirement to deposit 10% of the disputed tax amount or 10% of the total disputed amount? - HELD THAT:- For the purposes of maintaining its appeal, the petitioner was required to deposit 10% of the disputed tax amount and not 10% of the total disputed amount as has been directed by the Appeal Authority. Also there is no dispute that the petitioner had deposited 10% of the disputed tax amount (involved in the appeal) arising from the original order dated 22.11.2017 passed by the Deputy/Assistant Commissioner, Mobile Squad, First Unit, Chandauli.
The order passed by the Appeal Authority is set aside and the matter remitted to the Appeal Authority to re-hear the appeal on merits and pass fresh order in accordance with law - Petition allowed by way of remand.
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2022 (2) TMI 1305 - SUPREME COURT
Maintainability of petition - petition dismissed for want of non-prosecution - Commission of offence or not - requirement of conjoint reading of positive and negative reports submitted under the Sub-sections (2) and (8) of Section 173 respectively - scope for filling a protest petition against a report under Section 173(2) or Section 173(8) of the CrPC - final report under Section 173(2) CrPC and the supplementary report under Section 173(8) CrPC, are negative reports or not - HELD THAT:- The initial report under Section 173(2) CrPC which was submitted before the competent court after investigation found that prima facie the appellants were involved in the commission of the offences alleged. The subsequent report under Section 173(8) however has come to the conclusion that the proceedings were liable to be dropped since prima facie no case involving the commission of the offences has been established.
In the judgment of this Court in Vinay Tyagi [2012 (12) TMI 1130 - SUPREME COURT] it has been held that a further investigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with “as part of the primary report” in view of the provisions of sub-Sections 3 to 6 of Section 173 - In terms of sub-Section 8 of Section 173, in the event of a further investigation, the report has to be forwarded to the Magistrate upon which, the provisions of sub-Sections (2) to (6) shall (as far as may be) apply in relation to such report or reports as they apply in relation to a report forwarded in sub-section (2).
In the present case, the record before the Court indicates that upon the submission of the supplementary report, the JFCM Court - I, Alappuzha by an order dated 19 May 2018 dismissed the protest petition submitted by the first respondent for non-prosecution - the Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent.
Appeal disposed off.
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2022 (2) TMI 1304 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Seeking furnishing of details of the transactions on the basis of which such misappropriation, unauthorized and illegal use of the funds advanced by the corporate debtor has made - seeking direction to respondents to make payment along with interest from the date of default payment of the corporate Debtor - HELD THAT:- The amount as reflected in the books is not an advance paid by the corporate debtor, it is the sale consideration paid by the corporate debtor on behalf of the operational creditor which is required to be adjusted from the accounts of Operational creditor and not recoverable from respondent No. 1. The applicant denying the contention of the respondent No. 1 stated that the advance given by corporate debtor to the respondent No. 1 had no connection with the transaction between SRS limited and the Respondent No. 1. As per the share purchase agreement there is not even a single reference of the corporate debtor and no authorization was ever granted by the corporate debtor to the Respondent No. 1 Company to sell the shares of Hotline CPT Ltd. to SRS Limited, against payment made by corporate debtor to Respondent No. 1. Accordingly, there is no relation of the sale with the Corporate Debtor and the outstanding amount appearing in the books of corporate debtor is duly recoverable from all the respondents jointly and severally.
The amount outstanding as per the ledger statement is due and recoverable from Respondent No. 1 to Respondent No. 3. All the respondents are hereby directed to pay amounts claimed by the Resolution Professional within 3 weeks from the date of the order. The Respondents shall be jointly and severally liable to make the entire payment as prayed by the applicant Resolution Professional.
Application allowed.
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