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Showing 121 to 140 of 1310 Records
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2023 (2) TMI 1190 - ITAT RAJKOT
Deduction u/s 80IB(10) - profit earned by the assessee from the construction of project - HELD THAT:- We find no infirmity in the order passed by the Ld. CIT(A) in deleting such addition made by the Ld. AO following the decision taken by his predecessor in the earlier year in allowing the deduction u/s. 80IA(10) of the Act taking in consideration of the judgment passed by the Co-ordinate Bench - Hence the same is confirmed. Revenue’s appeal is found to be devoid of any merit and thus dismissed.
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2023 (2) TMI 1189 - BOMBAY HIGH COURT
Dishonour of Cheque - non following of the procedure under Section 202 of the Code of Criminal Procedure - necessary averment as to attract Section 141 of the Negotiable Instruments Act is absent in the complaint - HELD THAT:- There is no averment as required under Section 141 of the N. I. Act. In the entire complaint there is no whisper about the liability of the Director. The amount of cheque is clearly more than amount shown to be due against the petitioner /accused. In view of the judgments cited above, complaint thus is not maintainable. On looking to the order of issuance of process, it is clear that the said order is passed only after perusing the complaint and the documents placed on record and examined of the complainant under Section 200 of the Cr. P. C. Learned JMFC has held that cheque in question was given by the accused to the complainant towards discharge of debt and liability.
The petitioner had sufficiently shown that Nitin Dara has authority to present the revision and the writ petition.
From the judgment of the learned Additional Sessions Judge also it is seen that though clearly a case was made out by the petitioner that no procedure under Section 202 of the Cr. P. C. was followed still the learned Additional Sessions Court failed to appreciate this aspect on the count of locus of Nitin Dara also the court has failed to appreciate that Nitin Dara had the locus to file revision. It was necessary to hold that the learned Magistrate had issued the order of process without observing the mandate under Section 202. This court holds that both the courts have thus committed an error.
Petition allowed.
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2023 (2) TMI 1188 - ITAT BANGALORE
TP Adjustment - Comparable selection - TPO has not accepted these companies only on the basis of persistent loss company - HELD THAT:- Since in this case the TPO has not accepted these companies only on the basis of persistent loss company, the assessee has provided functional results for 3 companies i.e 31/03/2014, 2015 & 2016 as above and in which we observe that in case of Sundram Business Service Ltd. , the assessee has shown profit of Rs.69,000/-. Further in case ACE Software Ltd., the assessee has shown profit continuously. In case of Hurton Communication Ltd., the assessee has calculated profit for three consequent financial years but while the filter applied, the TPO has observed it as persistent loss company. However, form the order of the TPO/DRP, we did not find any where that the assessee raised any specific objection .
Since the assessee raised this issue before us, and these were included as comparables by the assessee and filed financial statements also, therefore, considering the totality of facts, the issue is remitted back to the AO/TPO/DRP for a fresh consideration. The assessee is given liberty to file necessary documents for substantiating its case. The AO/TPO/DRP is directed to decide the issue as per law.
Transfer pricing adjustment relating to notional interest on outstanding trade receivables - assessee has raised that the interest on receivable should not be made adjustment because the TPO himself allowed 90 days credit period and all the receivables were received within the period of 90 days then why the TPO has made adjustment under this head and he also submitted that this company is a debt free company, therefore, the adjustment should not be made - HELD THAT:- We noted from the documents of the assessee that the TPO has allowed 90 days period in all the invoices are received within the 90 days of the period no adjustment can be made but the TPO has applied 6 months LIBOR + 450 basis points as per many decision of the Tribunal with the interest on receivable beyond he credit period is an international transaction and it is termed as capital financing to its AEs.
We remand this issue to the file of TPO/AO for the recalculation of the notional interest receivables if the TPO found that the invoices raised by the assessee is not received within the credit period of 90 days. The interest may be charged LIBOR rate of 6 months + 350 points, the assessee directed to provide necessary details for earlier disposal of the case, therefore this issue is allowed for statistical purposes.
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2023 (2) TMI 1187 - BOMBAY HIGH COURT
Suit for specific performance - privity of contract or not - plaintiffs were non-suited on the ground that the defendant had agreed to sale the suit property to the plaintiffs only upon formation of Co-operative Housing Society of the tenants in the suit property and, so far as plaintiff No. 6, there was no privity of contract between plaintiff No. 6 and the defendant - HELD THAT:- There is no evidence to indicate that Girgaum Griha Nirman Mandal was registered as a society when the representations were made by plaintiff Nos. 1 to 5. Nor there is evidence to demonstrate that at any subsequent point of time Girgaum Grihanirman Mandal came to be registered as the Cooperative Society of the sitting tenants in the suit property - The situation which thus obtains is that when the offer was made the plaintiffs knew that all of them were not the tenants of the tenements in the suit property. Secondly, they were aware that Girgaum Griha Nirman Mandal was not a society, much less of the sitting tenants in the suit property.
There is an essential distinction between a fraud or misrepresentation as to the character of the instrument and contents thereof. In the case at hand, the defendant was fully aware of the character of the transaction and the jural relationship sought to be established thereunder. The defendant knew that the property was to be conveyed. However, the misrepresentation was as to the entity for whom the offer was made and in whose favour the sale was to be effected.
Thus, the defendant was within its rights in avoiding the agreement as its consent was vitiated by misrepresentation. Consequently, it would be unwarranted to delve into the considerations which are germane for determining the exercise of discretion to grant the specific performance of a contract - the Court is not precluded from ordering the refund of the consideration. Absence of prayer does not constitute an impleadment for granting said relief for a substantive reason.
The question as to how the defendant had dealt with the said amount ought not preclude the Court from awarding interest. It is more so for the status of the defendant as a public sector enterprise. To this extent, the appeal deserves to be allowed.
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2023 (2) TMI 1186 - ITAT DELHI
Addition u/s 56(2) (viib) - fair market value of the shares sold to non resident company on very high premium - AO treating the share premium received does not represent the fair market value of shares, AO added back the amount to the income of the assessee - HELD THAT:- On a reading of section 56(2)(viib), it becomes very much clear that it is applicable to resident investors and not to non-residents. That being the statutory provision, the addition made in respect of investment made by M/s. NBM Investment Fund ALP by invoking the provisions of section 56(2)(viib) is unsustainable.
Investment made by M/s. H.T. Digital Media Holding Ltd. - On a reading of section 56(2)(viib), it is observed that any consideration received for issue of shares which exceeds the fair market value of the shares can be added. As per explanation to section 56(2)(viib), fair market value of the shares shall be the value as may be determined applying such method as may be prescribed or may be substantiated by the company to the satisfaction of the Assessing Officer based on the value on the date of issue of shares or its assets including intangible assets, whichever is higher. Rule 11UA, prescribes the method for determination of fair market value. It is nobody’s case that the valuation of shares by the independent valuer is not in accordance with the statutory provisions. In fact, the departmental authorities have accepted the position that the DCF method is an accepted method under the statutory provisions. Therefore, merely because the actual sales are not matching with the estimated projected figures considered for DCF method, the fair market value determined by the independent valuer cannot be rejected. See CINESTAAN ENTERTAINMENT P. LTD. [2019 (6) TMI 1367 - ITAT DELHI] - Decided in favour of assessee.
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2023 (2) TMI 1185 - DELHI HIGH COURT
Scope of definition of ‘prohibited goods’ under Section 2(33) of the Customs Act, 1962 - petitioner contends that goods which can otherwise be imported albeit subject to licenses would not fall within the definition of ‘prohibited goods’ - HELD THAT:- The stand in this case appears to be contrary to the stand in that case. There is also lack of clarity as to which goods according to Union of India would be non-prohibited goods but, nonetheless, liable for confiscation.
List for further hearing on 16.03.2023.
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2023 (2) TMI 1184 - CESTAT MUMBAI
Seeking early hearing of appeal - HELD THAT:- The prayer made therein can be considered in the interest of justice. Accordingly, the early hearing application is allowed. Registry is directed to list the appeal for final hearing on 20.03.2023.
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2023 (2) TMI 1183 - ITAT MUMBAI
Validity of order passed by the TPO u/s 92CA(3) - Computation of period of limitation - HELD THAT:- As relying on Pfizer Healthcare India Pvt. Ltd. [2021 (2) TMI 1152 - MADRAS HIGH COURT] we find that the order of TPO was passed u/s 92CA (3) on 30.01.2013 is clearly barred by limitation as the same could have been passed on or before 29.01.2013. Thus, the TPO order dated 30.01.2013 is quashed as barred by limitation.
Whether once the TP order is held to be nullity or quashed on the ground of barred by limitation, then could AO have passed the draft assessment order treating it to be as eligible assessee? - As we hold that the impugned order dated 26.02.2014 is clearly barred by limitation, because once the assessee is not eligible assessee, therefore no draft assessment order could have been passed and finally the assessment order should have been passed on or before 31st March 2013 i.e. within the period limitation passed u/s 153. Thus, the impugned final assessment orders dated 26.02.2014 is barred by limitation and is hereby quashed.
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2023 (2) TMI 1182 - BOMBAY HIGH COURT
Seeking stay on demand - HELD THAT:- Considering the fact that the other Petitions are pending on the same issue between the same parties, it is appropriate that they be heard together.
List this Petition along with the other Petitions bearing WP Nos. 1608/22 and 3480/22, WP (St.) Nos. 26233/22, 26235/22, 26236/22 and 26237/22 on 27 February 2023 under the caption “For Directions” so that a suitable date can be fixed.
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2023 (2) TMI 1181 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, KOLKATA
Approval of a Resolution Plan in respect of McNally Sayaji Engineering Limited (Corporate Debtor) - approval of the resolution plan by the Committee of Creditors already done - HELD THAT:- The Resolution Plan has been approved with 99.787% voting share. As per the CoC, the plan meets the requirement of being viable and feasible for revival of the Corporate Debtor. By and large, all the compliances have been done by the RP and the Resolution Applicant for making the plan effective after approval by this Bench.
On perusal of the documents on record, it is clear that the Resolution Plan is in accordance with sections 30 and 31 of the IBC and also complies with regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
Granting time to comply with the statutory obligations or seeking approvals from authorities - HELD THAT:- The Resolution Applicant is directed to do so within one year from the date of this order, as prescribed under section 31(4) of the Code.
This Adjudicating Authority has power to grant reliefs, waivers and concessions only in relation to the Code and the Companies Act 2013 (within the powers of the NCLT) for achieving the objective of the Code. No reliefs, waivers and concessions that fall within the domain of other government department/authorities are granted. The reliefs, waivers and concessions that pertain to other governmental authorities/departments shall be dealt with the respective competent authorities/forums/offices, Government or Semi Government of the State or Central Government with regard to the respective reliefs, waivers and concessions. The competent authorities including the Appellate authorities may consider grant such reliefs, waivers and concessions keeping in view the spirit of the Code.
On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan - Petition disposed off.
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2023 (2) TMI 1180 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Belated filing of claim - claim - Seeking direction the liquidator to admit the claim of the applicant - claims were submitted 85 days after the last date that was on 05.12.2021 - HELD THAT:- It is submitted that the Corporate Debtor, Respondent herein has entered into the Supply Agreement dated 24.08.2018 with the Appellant. Further, the Agreement was between the Appellant and Mohan Motor Udyog Pvt. Ltd. a Partnership firm and the Respondent being Mohan Motor Udyog Pvt. Ltd., has nothing to do with the Supply Agreement dated 24.08.2018 and further the claim was filed with a delay of 85 days despite the notice of liquidation being published on the website of the IBBI and sufficient time being granted to all the creditors to file their claim.
In view of the fact, the Adjudication Authority has rightly been passed the impugned order - there are no merit in the instant Appeal. Therefore, the instant Appeal is dismissed.
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2023 (2) TMI 1179 - SC ORDER
Money laundering - If there is an acquittal/discharge in the scheduled offence, will the proceedings under the PMLA Act would still survive? - If one is not an accused in the scheduled offence, still independent proceedings can be initiated under the PMLA Act? - HELD THAT:- Issue notice, returnable on 14.03.2023 (NMD).
In the meantime, the parties shall maintain status quo with reference to the properties referred to in the order impugned.
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2023 (2) TMI 1178 - ITAT MUMBAI
Jurisdiction of the present appeal - ITAT power to transfer cases between various benches - ITAT Mumbai or Bangalore - HELD THAT:- Appellant believes that the jurisdiction of the present appeal would lie with Hon'ble Income-tax Appellate Tribunal, Bangalore. Further the Hon'ble Bombay High Court in the case of MSPL Limited [2021 (5) TMI 739 - BOMBAY HIGH COURT] had held that President, Income tax Appellate Tribunal does not have the power to transfer cases between various benches of the tribunal.
Appellant allowed to withdraw the appeal filed before the Hon'ble Mumbai Tribunal with liberty to file fresh appeal with the Hon'ble Income Tax Appellate Tribunal, Bangalore with a condonation of delay.
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2023 (2) TMI 1177 - DELHI HIGH COURT
Income taxable in India - income earned from licensing/sale of software - taxability as royalty - Tribunal has ruled that neither income earned from licensing/sale of software products nor subscription fee earned for providing cloud services, could be construed as royalty - HELD THAT:- As revenue, says that the proposed questions are covered by the judgment of Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT].
We are also informed that a review petition has been filed which is pending consideration. Accordingly, the appeal is closed as no substantial question of law arises for our consideration.
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2023 (2) TMI 1176 - DELHI HIGH COURT
Assessee in default u/s 201(1)/201(1A) - failure to deduct withholding tax against External Development Charges (EDC) paid to Haryana Urban Development Authority (in short “HUDA”) - HELD THAT:- As what has been assailed is the order dated 31.01.2023 passed under Section 201(1)/201(1A) of the Act by the respondent and the notice of demand of even date i.e., 31.01.2023 passed under Section 156 of the Act.
Issue notice. Respondents accepts notice on behalf of the respondent/revenue. Counter-affidavit will be filed within the next 10 days.
Rejoinder thereto, if any, will be filed before the next date of hearing. List the above-captioned matter on 19.05.2023.
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2023 (2) TMI 1175 - CESTAT MUMBAI
Demand of service tax on advances received - contract for ‘construction and commissioning of railway sliding and signaling telecommunication systems including associated electrical and mechanical instruments’ for facilitating handling of coal at the Kudgi and Gadarwara super thermal power projects - benefit of N/N. 25/2012-ST dated 28th June 2012 - HELD THAT:- Entitlement of every sort of railways to the exemption provided, either by exclusion from the definition of ‘taxable service’ in the ‘pre-negative list’ regime or by specific exemption in the ‘negative list’ regime has been dealt with in several decisions of the Tribunal.
While addressing the issue of ‘commercial consideration’ being the bench mark for determining eligibility for exclusion/exemption, the Tribunal, in HINDUSTAN CONSTRUCTION COMPANY LTD VERSUS COMMISSIONER OF SERVICE TAX MUMBAI – VII [2020 (10) TMI 380 - CESTAT MUMBAI] held that Under the Railways Act, 1989, the monopoly of establishing the rail networks vests with the ‘Indian Railways’ and any other operator functions within a policy pertaining to outsourcing of such activities save where the law, for particular objectives, makes an exception. One such is the metro operations for which specific enactments enable other operators without derogating from the status of being ‘railway’ and, more often than not, by enterprises that are jointly owned by the Central and State Governments. Even where the ownership does not vest in the government, the operation of such railways is under special enactment which are not excluded from the sphere of the expression ‘railways’.
It is, thus, clear that the proposition of strict construction of intent of exemption notification must also go hand in hand with strict construction of every word/phrase therein. The exemption from tax is available to ‘railways’, excluding mono rail or metro, by notification no. 25/2012-ST dated 20th June 2012 after 1st July 2012 and, as conceded by the adjudicating authority, there being no definition of ‘railway’, either therein or in Finance Act, 1994, the distinction between railway for private purpose and railway for public service cannot be artificially contrived to suit tax administration; neither can the definition in another statute be drawn upon for the purported purpose of illumination. The Railways Act, 1989 was enacted to authorize Government of India to operate the railway network of the country; it also affords a framework for administration of the railway services and jurisdictional monopoly - The statute, too, did not consider it necessary to fall back on the definition of ‘railways’ in another statute for determination of taxability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July 2012, and exemption for the period, thereafter, is abundantly clear.
Following the decisions of the Tribunal that have consistently interpreted the legislative intent of the exemption, the impugned order is set aside - appeal allowed.
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2023 (2) TMI 1174 - ITAT VISAKHAPATNAM
TP adjustment - international transaction - corporate guarantee given by the assessee-company to its AEs for the loan taken by the AEs - HELD THAT:- In the case of M/s. Devi Sea Foods Limited [2022 (9) TMI 587 - ITAT VISAKHAPATNAM] this Bench of the Tribunal has held that the corporate guarantee given to the AE is an international transaction and shall be chargeable @ 0.50% on the amount of corporate guarantee given to the AEs.
We are of the considered view that the corporate guarantee commission is an international transaction and should be charged @ 0.50% on the corporate guarantee amount given to the AEs. We therefore partly allowed the grounds raised by the assessee.
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2023 (2) TMI 1173 - DELHI HIGH COURT
Validity of reopening of assessment u/s 147 - substantial question of law - HELD THAT:- As both counsels agree, that the following questions of law would arise for consideration:
(i) Whether the Tribunal erred in admitting and adjudicating the additional ground concerning jurisdictional defect, in the reasons recorded by the AO, even when no such ground was raised before the first appellate authority CIT(A)?
(ii) Whether the Tribunal misdirected itself in law in holding that the reasons recorded by the Assessing Officer for triggering proceedings under Section 147/148 of the Income Tax Act, 1961 were vague, bereft of reasons and did not establish a live link between the material available with him and formation of belief that income chargeable to tax had escaped assessment?
Arguments heard. Judgment reserved.
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2023 (2) TMI 1172 - DELHI HIGH COURT
Reopening of assessment u/s 147 - validity of Order passed u/s 148A(d) and notice u/s 148 - period of limitation - HELD THAT:- The record shows that the impugned notice was sent by e-mail to the Petitioner at 12:11 A.M. on 16.07.2021 on the e-mail ID: [email protected]. It cannot but be accepted by the respondent/revenue that even though the notice is dated 30.06.2021, the e-mail that has been placed on record evidencing service of the impugned notice, bears a date and time stamp: 16.07.2021 at 12:11 A.M. No other document establishing delivery of the impugned notice on any date prior to 16.07.2021 has been placed on record by the respondent/revenue.
We agree with learned Counsel for the petitioner/assessee, that the impugned notice is barred by limitation and is contrary the view taken by the Court in Suman Jeet Agarwal case [2022 (9) TMI 1384 - DELHI HIGH COURT] and Vinayak Services case [2022 (12) TMI 1424 - DELHI HIGH COURT]
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2023 (2) TMI 1171 - DELHI HIGH COURT
Reopening of assessment - Validity of order u/s 148A(d) - notice barred by limitation - HELD THAT:- The record shows that the impugned notice was sent by e-mail to the Petitioner at 12:12 A.M. on 16.07.2021 on the e-mail ID. It cannot but be accepted by the respondent/revenue that even though the notice is dated 30.06.2021, the e-mail that has been placed on record evidencing service of the impugned notice, bears a date and time stamp: 16.07.2021 at 12:12 A.M. No other document establishing delivery of the impugned notice on any date prior to 16.07.2021 has been placed on record by the respondent/revenue.
In these circumstances, we agree with learned Counsel for the petitioner/assessee, that the impugned notice is barred by limitation and is contrary to the view taken by the Court in Suman Jeet Agarwal case [2022 (9) TMI 1384 - DELHI HIGH COURT] and M/s Vinayak Services case [2022 (12) TMI 1424 - DELHI HIGH COURT]
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