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Showing 121 to 140 of 834 Records
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2020 (6) TMI 715 - DELHI HIGH COURT
Maintainability of application - appropriate forum - rape - offences of extortion, cheating, breach of trust, forgery and criminal intimidation - whether the procedure to be followed is that of 'trial of Warrant case by Magistrate' or as a 'Session triable case'? - HELD THAT:- Once the case stands committed to the Court of Sessions, the procedure enlisted under Chapter XVIII heading 'Trial Before A Court of Sessions' is followed. A bare perusal of Section 226 to 228 would show that there is no provision for recording any pre-charge evidence. After hearing and considering the records of the case and the documents, the accused is either discharged under Section 227 or if the case is exclusively triable by the Sessions Court, a charge is framed under Section 228 (1)(b). If the Judge is of the opinion that the case is not exclusively triable by the court of sessions, then he may frame the charge against the accused and transfer the case for trial to the Chief Judicial Magistrate.
Thus, it is clear that a case involving an offence which is exclusively triable by a court of sessions, once committed in terms of Section 209 Cr.P.C., has to proceed in terms of chapter XVIII where there is no provision for recording pre-charge evidence.
In the present case, a complaint was filed under Section 376 IPC along with other sections, which is exclusively triable by Court of Sessions, the learned M.M. rightly committed the case to the Sessions Court. The procedure adopted thereafter in recording pre-charge evidence was illegal and contrary to provisions of law. Further, the impugned order in remanding the case to the court of CMM with a direction to proceed in accordance with law, being illegal, is equally untenable - the case is directed to be listed before the concerned Sessions Court initially on 06.07.2020 for directions where after the trial in the present case shall proceed as "trial before a Court of Sessions", as outlined under Chapter XVIII Cr.P.C.
Petition allowed.
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2020 (6) TMI 714 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Restructuring Scheme - revival of company - Sections 230 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- The Applicant Company are directed to serve the notice upon the Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai Maharashtra, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - The Applicant Company is directed to serve the notice upon the concerned Registrar of Companies, pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - The Applicant Company are directed to serve notices along with copy of scheme upon the concerned Income Tax Authority enlisted below, within whose jurisdiction respective assessments of the Applicant Companies are made pursuant to Section 230(5) of the Companies Act, 2013 as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
The Applicant to file an affidavit of service of the notices issued to Creditors not less than seven days before the date fixed for the holding of the meetings and do report to this Tribunal that the direction regarding the issue of notices have been duly complied with.
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2020 (6) TMI 713 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Oppression and Mismanagement - siphoning of funds - Illegality or irregularity in calling for convening EoGM - Special notice under Section 169 of the Companies Act, 2013 - HELD THAT:- Nothing was prima facie brought to my notice to prove that as per the terms under the Joint Resolution Plan, P4 can claim any protection of her directorship in a legally constituted Board of R1, especially wherein there is dispute between P-1 and R-2 regarding contribution made by them towards fulfillment of Resolution Plan. At this juncture the Ld.Sr.Counsel for R2 submits that the Liability under the Resolution Plan has already been discharged. The said submission was not countered from the side of the petitioner. Moreover if any breach of resolution plan, the remedy available to the aggrieved parties is elsewhere.
The management of the affairs of the Company like the Company in hand cannot be touched by the Tribunal unless a very extreme case of injustice or unfairness is brought to the notice of this tribunal with sufficient materials. In the absence of such material, that the EoGM to be held was on complying all the requirements to be meted out for proposing a resolution for the removal of P4, this is not a fit case to allow the interim relief asked for on the side of the petitioner.
Application dismissed.
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2020 (6) TMI 712 - ITAT DELHI
TP Adjustment - comparable selection - Addition in relation to international transaction of provision of software development services rendered by the assessee to its Associated Enterprises - HELD THAT:- Considering the functional profile and extraordinary event of acquisitions Larsen & Toubro Infotech Ltd. cannot be held to be a valid comparable and thus has to be excluded from the final set of comparable.
M/s. Tata Elxsi Ltd. be rejected on functional dissimilarity.
Exclusion of the concern Cybercom Datamatics Information Solutions Ltd. - The assessee before us is solely engaged in the provision of software development concern hence, where the concern was also a product company, margin of the said concern cannot be included for benchmarking the ALP of the international transaction undertaken by the assessee. Accordingly, we direct its exclusion from the final set of comparable.
Once the above said concerns are excluded then no upward adjustment needs to be made in the hands of the assessee while determining the ALP of the international transaction of provision of software development services by the assessee to its AE - Decided in favour of assessee.
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2020 (6) TMI 711 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Sanction of Amalgamation Scheme - Section 230(5) of the Companies Act, 2013 and Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The meeting of the Unsecured Creditors of the Applicant Companies is dispensed with in view of the said Unsecured Creditors will not be affected by the proposed Scheme of Merger by Absorption as no arrangement is envisaged with them. Further, this Bench hereby directs the Applicant Companies to issue notice to their Unsecured Creditors as specified in section 230(3) of the Companies Act, 2013, with the direction that they may submit their representation, if any, to the Tribunal and copies of such representation shall simultaneously be served upon the respective Applicant Companies. The notice be sent by Registered Post AD/Speed Post/Email as may be feasible in view of the lockdown owing to the Covid-19 pandemic. It shall be the responsibility of the Applicant Companies to ensure that the Creditors as indicated above are put on notice regarding the Scheme, so that they may take an informed decision thereon.
The Applicant Companies shall serve notice in the prescribed form pursuant to Section 230(5) of the Companies Act, 2013 and as per Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. If no response is received by the Tribunal from such Authorities, within a period of 30 (Thirty) days from the date of receipt of such notice, it will be presumed that such authorities have no representation/objection to the Scheme.
The Applicant Companies shall file a compliance report with this Tribunal that the direction regarding issue of notices, have been duly complied with.
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2020 (6) TMI 710 - ITAT BANGALORE
Levying fee u/s 234E - Late filing of TDS returns / statement - statement processed u/s 200A - Scope of amendment - as stated to assessee this is the final opportunity to the assessee to clear the outstanding demand failing which coercive measure for recovery will be undertaken - HELD THAT:- There is no reference regarding the date of the order passed by the AO and whether the same was served on the assessee. The assessee has also strongly submitted before us that no such order has been served on the assessee either in the physical format or through email and learned DR of the Revenue also could not provide any evidence regarding service of the order on the assessee. We therefore, feel it proper that the appeals filed by the assessee before CIT(A) regarding these outstanding demands intimated to the assessee by the AO as per this letter dated 26.11.2018 should be considered as valid appeals and we proceed to decide these appeals on merit.
This is true that before 01.06.2015, demand in respect of fees under section 234E cannot be raised under section 200A of the Income Tax Act, 1961. The Assessment Year involved in the present appeals are Assessment Years 2013-14 to 2015-16. Hence, these demands are for periods prior to 01.06.2015 and therefore, not sustainable and hence, we delete these demands. This view of us is fortified by the judgment in the case of Sri Fatehraj Singhvi vs. CIT [2016 (9) TMI 964 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2020 (6) TMI 709 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Existence of debt and dispute or not - the corporate debtor says it has disputed the liability to pay the amount sought by the Petitioner - The Corporate Debtor mentions that the Petitioner has failed to place on record any document that provides with the right to receive payment from the Corporate Debtor - the Corporate Debtor mentions that no amount is due and payable and that the subject notice has been issued only to arm twist the Respondent to succumb to the unjustified demand raised.
HELD THAT:- The total amount which is being claimed by the Operational Creditor is only with respect to demurrage charges. This, the Operational Creditor mentions, is derived from the Bond letter sent by the Corporate Debtor to the Operational Creditor on Judicial Stamp paper - This Bench takes into account the fact that the Corporate Debtor has always cleared it dues/ amount owed to the Petitioner well in time except the disputed claim relating to Demurrage charges which is not enforceable, as the Bond document on the basis of which the Corporate debtor lays its claim on the purported demurrages, is a dead instrument as it never became effective in the absence of any mutually agreed date of implementation.
The Bench based on the facts presented before it by both the Parties clearly understands that there is no “Agreement” between Parties for the Payment of Demurrage charges. Reliance on the Bond document for payment of Demurrage charges is not admissible as it was supposed to come into force from a mutually agreed “Effective Date” which was never arrived at. Therefore, there is no contractual or mutually agreed enforceable document based on which any demurrages can be claimed by the Petitioner - In the case on hand the contentions raised by the Corporate Debtor regarding nonpayment of demurrage charges are neither spurious nor hypothetical nor illusory and in fact there is a dispute as to existence of the debt payable by the Corporate Debtor.
It is established that there is a clear dispute claimed by the Corporate Debtor as provided u/s 5(6)(a) of the Code - Petition dismissed.
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2020 (6) TMI 708 - ITAT BANGALORE
TP adjustment - Negative Working Capital adjustment - international transaction of provision of Software Development services("SWD") - Whether TPO and the DRP erred in adding to the average arithmetic profit margin of the comparable companies chosen by the TPO, negative working capital adjustment? - HELD THAT:- No need for making any negative working capital adjustment when assessee does not carry any working capital risk. In fact, TPO should have done necessary working capital adjustment to the profits of the selected comparables so as to make them comparable to the assessee. In view of this, we direct the TPO not to make negative working capital adjustment.
It is undisputed that the Assessee is also a captive service provider such as the Assessee in the case decided by the Adaptec (India) P. Ltd. [2015 (6) TMI 288 - ITAT HYDERABAD] and therefore making a negative working capital adjustment without appreciating the fact that the company does not bear any working capital risks, was not correct. No other contrary decision was brought to our notice. - Decided in favour of assessee.
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2020 (6) TMI 707 - ITAT DELHI
Reopening of assessment u/s 147 - long term capital gain on sale of agricultural land - HELD THAT:- Notice u/s 148 was issued and served upon the assessee and assessment was completed vide order dated 26.03.2014. The order of the Tribunal is 26.09.2014 and the directions of the Tribunal are very clear that the AO had to verify whether the capital gains have been taxed in the hands of the HUF or not and assessment order dated 26,03,2014 clearly shows that assessment has been completed in the hands of the HUF.
Once assessment has been reopened to tax capital gain in the hands of the HUF, to avoid double taxation the Tribunal in the hands of the individual has simply directed the AO to very whether the HUF has been assessed or not. Tribunal nowhere directed the AO to reopen the assessment and make the impugned additions. In our humble opinion, the AO has totally misinterpreted the directions of the Tribunal and grossly erred in once again reopening the assessment on the same set of facts which have already been considered while framing assessment order dated 26.03.2014 in the hands of the HUF. We have no hesitation to set aside the notice u/s 148 of the Act, thereby quashing the assessment order framed pursuant to the said notice. - Decided in favour of assessee.
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2020 (6) TMI 706 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Rectification of mistake - error in the impugned AAAR order - supply of the Electrolnk along with the other consumables comprising of blanket, photo imaging plate, binary ink developer, HP imaging oil, blanket web and other machinery products by the Appellant to its customers - mixed supply or composite supply - HELD THAT:- The Appellant themselves have admitted that there is not any specific element under this bundle of supplies, which is more significant than others, ruling out the possibility of presence of any principal supply. The above submissions and the evidence produced by the Appellant themselves in the form of the Chartered Engineer’s certificate also lead us to conclude further that there are no components in this bundle of supplies, which are ancillary in nature, as all the components are indispensable in nature, and not additional or subordinate in nature. None of the components are subordinate to any one element of the supplies. That is, none are providing additional support to any specific consumable items. All these consumables are being consumed together to achieve the desired output. In absence of any one of these consumables, the entire printing function will be stalled, which clearly shows the importance of each of the components of the bundled supplies. At the same time, it also shows that none of supplies are ancillary in nature.
It is established beyond doubt that the bundled supplies by the Appellant to its customers has no principal supply, which is one of the primary conditions for any supply to be treated as the composite supply as envisaged under section 2(30) of the CGST Act, 2017.
Circular No. 32/06/2018-GST, March 1, 2018 states that value is only the guiding factor, and not the sole factor for determining the principal supply in the bundle of supply. Therefore, the Appellant’s contention based on the consumption pattern of the printing consumables, wherein consumption of Electrolnk is 41% in terms of the volume, thereby asserting the Electrolnk as the Principal supply only on the basis of its highest consumption among all the printing consumables, without establishing the fact that the same (Electrolnk) is imparting the essential nature of the supply is feeble and slight, and clearly not tenable.
We reach the same conclusion as reached earlier in the appellate order, that the supply of the Electrolnk along with other consumables by the Appellant is not a composite supply. Instead the said supply can be construed as mixed supply, as it satisfies all the conditions stipulated for the ‘mixed supply’ under the provision of section 2 (74) of the CGST Act - As is evident from the facts of the case, the supplies, made by the Appellant, squarely satisfy all the conditions prescribed for the mixed supply. Accordingly, it was rightly held by the AAR that the supply of the Electrolnk along with the other consumables comprising of blanket, photo imaging plate, binary ink developer, HP imaging oil, blanket web and other machinery products is ‘mixed supply’ and not the composite supply as being made out by the Appellant.
There are no reason to amend our original order dated 17.02.2019, wherein it was held that the supply of the Electrolnk along with the other consumables comprising of blanket, photo imaging plate, binary ink developer, HP imaging oil, blanket web and other machinery products by the Appellant to its customers is ‘mixed supply’ and not the ‘composite supply’, as being claimed by the Appellant.
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2020 (6) TMI 705 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Classification of goods - fusible interlining cloth - whether the item is classifiable in Chapters 50 to 55 of the First Schedule of the Customs Tariff Act, 1975 or under Heading 5903 of the Tariff Act? - challenge to AAR decision - HELD THAT:- It is clear from the sample produced by the appellant as well as the dot printing process that the product namely fusible interlining cloth qualifies the tests to be classified under sub-heading 5903 of the Tariff. It is seen from the sample of the. Fusible interlining cloth that the coating of polyethyIene can be seen with naked eye. can be bent manually around a cylinder and is not completely coated with plastics. The representative of the appellant strongly pleaded that their product is partially coated with plastic and bears design. However, on examination of the sample, it is seen that the pattern of dots that from on the surface of the product is due to the very process of dot printing and the same is visible on the entire surface of the cloth. Thus; it cannot be said that the cloth is partially coated with plastics and that the dotted design resulted from the treatment leading to such coating.
The claim of the appellant’s advocate does not hold good and the exclusion clause (4) of chapter note 2(a) of Chapter 59, which is essential for being excluded from Chapter 59, is not applicable to fusible interlining cloth manufactured by the appellant - thus, it is clear that the subject product merits classification under sub-heading 5903 of the Tariff.
Appeal dismissed.
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2020 (6) TMI 704 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Job-Work - minor additions or not - other inputs,e.g. air, water etc., procured by the Appellant, i.e. JEL, which are essentially required for the generation of power - Circular No. 79/53/2018-GST dated 31.12.2018 - violation of principles of natural justice.
Whether steam coal, proposed to be supplied to the Appellant i.e. JEL, constitutes one of the inputs for JSL, which manufactures the steel products? - HELD THAT:- We are inclined to revise our earlier opinion, where we had denied the eligibility of the coal as an input for JSL. Thus, in light of the above submissions, it is adequately clear that coal is an input for JSL, as the same is used for the generation of electricity, which in turn is used for the manufacture of the final product i.e. steel.
On perusal of the Bombay High Court Judgment in the case of COMMISSIONER VERSUS INDORAMA TEXTILES LTD. [2010 (7) TMI 981 - SC ORDER], it is established that electricity can be generated on the Job work basis. It is further inferred that when electricity can be generated on job work basis, it is bound to happen that any inputs sent to the premises for the generation of electricity would not be sent back in the same original form. Instead, the same is destined to be consumed for the generation of electricity, which was actually the facts of the cited case law discussed herein above, wherein the Respondent i.e. lndorama Textiles Ltd. was vying to claim the input tax credit in respect of the furnace oil, which was getting consumed in the premises of their job worker. The Bombay High Court, in this case, decided in the favor of the Respondent, holding that the Respondent was justified in claiming input credit in respect of the furnace oil, being used at the job worker’s premises for the generation of electricity, which was the intermediate goods, being received by the Respondent, in that case the principal - By applying the above case law in the instant case, it is opined that coal, despite being consumed in the process of the generation of electricity, thereby becoming irretrievable, will not preclude the proposed arrangement from being the job work transaction, as understood by the Appellant.
The principal will not be in position to independently bring back the inputs from the premises of the job worker, thereby not satisfying the conditions laid out in section 143 (1)(a) of the CGST Act, 2017 - the proposed arrangement under consideration is satisfying the condition laid down under section 143 (1) (a) of the CGST Act, 2017 in respect of bringing back of the inputs by the principal i.e. JSL from the job worker’s premises i.e. JEL, after the completion of the job work. Thus, the earlier observation in this regard is sought be revised.
Accordingly, no GST will be leviable on this supply.
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2020 (6) TMI 703 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Central Government or not - appellant is Ordnance Factory Bhandara - AAR observed that the Appellant cannot be construed as Central Government on the ground that the same had not been created by the Constitution of India as a legislative, executive or judicial authority of the country - HELD THAT:- Where the Appellant is charging some rent/consideration from their employees for providing accommodation facility in the residential colony maintained by it, which renders the said activity of the Appellant as supply of residential services, which is an exempt supply in itself in terms of the provisions made at Sr. 12 of the Notification No. 12/2017-C.T. (Rate) dated 28.06.2017. Further, the education services provided by the factory school to the children of the employees, renting of the recreational halls to the employees for organizing some family functions against certain considerations are exempt supply.
Since, all the aforementioned supplies made by the Appellant are exempt supply, any inputs or input services viz. maintenance, upkeep, repair, providing security, garbage collection, sewage treatment, civil construction, sweeping & cleaning, etc., pertaining to the residential quarters of employees of Ordnance Factory Bhandara & other allied organisations, market area, places for worship of God, gardens, parks, playgrounds, swimming pool, footpaths, street lightings, which are used inside the residential colony will not be available to the Appellant for ITC in accordance with the provision of Section 17(2) of the CGST Act, 2017.
Shops that are given on rental basis for commercial purposes - HELD THAT:- As per the provision of section 16(1) of the CGST Act, 2017, the Appellant is entitled to avail ITC in respect of expenditures incurred on the input services used in the taxable supply of the renting of immovable property for commercial purposes.
Inter-connected roads between various establishments and facto premises - HELD THAT:- It is observed that the construction and maintenance of the roads in the factory estate is mandatory for the Appellant to carry out their business operation. Without the proper road, the transportation of inputs, capital goods, and the finished products of the Appellant will not be able to take place. Thus, as per section 16(1) of the CGST Act, 2017, the expenditures incurred on the construction and maintenance of the road from the factory’s main gate to the factory premises where the manufacturing activities take place is eligible for ITC, since the same is incurred on the input services, which are used in the course or furtherance of business - However, the construction and maintenance of the roads within the residential complex of the factory estate are in relation to the supply of the accommodation facility to the employees in the residential colony maintained by the Appellant, which are an exempt supply as discussed above, therefore, ITC in respect of such expenditures on the construction and maintenance of road inside the residential colony will not be available to the Appellant in accordance with the provision of section 17(2) of the CGST Act, 2017.
Land that is currently not used for any purpose whatsoever - HELD THAT:- The ITC in respect of the health services are available to a registered person subject to the condition that the employer i.e. the registered person, is under obligation to provide such health services to its employees in terms of the provisions of any law for the time being in force. In the present case, it is obligatory for the Appellant to provide the health services to its employees and their dependents as per the Ordnance Factory Medical Regulation. Hence, the ruling pronounced by the AAR in this regard is erroneous, and warrants to be set aside.
ITC - input services pertaining to maintenance and upkeep of guest houses maintained by them - HELD THAT:- As the Appellant is charging rent from the guests availing the guest house facilities, which may be considered as exempt supply in terms of Sr. NC. 6 of the Notification no. 12/2017- Central Tax-(Rate) dated 28.06.2017 as the Appellant, as discussed above, has been held to be the Central Government. Therefore, No ITC is available against the said exempt supply in terms of the provision of section 17(2) of the CGST Act, 2017. Therefore, the ITC in respect of the inputs and input services pertaining to the guest houses will not be available to the Appellant.
Whether they were eligible to avail ITC in respect of the expenditure related to purchase of LPG cylinders used within industrial canteen? - HELD THAT:- Input Tax Credit in relation to LPG cylinders that are re-filled for use in industrial canteen should be allowed as per amended section 17(5) (b) & 16(1) of the CGST Act, 2017.
Whether proportionate Input Tax Credit has to be reversed in cases where lesser payment is made to the supplier due to deduction on account of liquidated damages from supplier’s dues? - HELD THAT:- The transaction related to L.D. is being recorded in separate accounting code. Maintenance of such accounting codes by the Appellant clearly shows that the Appellant is paying the actual taxable amount and GST thereon to its suppliers, as mentioned in the tax invoices raised by its suppliers. Further, the reflection of the illustrated sample invoices in the GSTR -2A of the Appellant further substantiates the Appellant’s claim that the suppliers are also aware of their liability to pay the actual GST and not the lesser amount of GST are being paid by the suppliers, even in the cases where there is deduction of liquidation damages from the payment made to such suppliers - the Appellant was rightful in challenging the ruling pronounced by AAR in this regard, and accordingly, they are not required to reverse the ITC on account of the deduction of L.D. from the payment made to the suppliers.
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2020 (6) TMI 702 - ALLAHABAD HIGH COURT
Permission to withdraw appeal - appealable order or not - HELD THAT:- It is admitted that the order dated 31.08.2018 is the subject matter of challenge in Writ Tax No.1298 of 2018, which is pending consideration. There are no reason to entertain the writ petition, challenging the consequential order.
The present petition is dismissed as withdrawn.
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2020 (6) TMI 701 - KARNATAKA HIGH COURT
Computation of deduction u/s 10A - re-allocation of common expenses between 10A and non 10A units made by the assessing officer based on the order of the tribunal dated 18.11.2005 in the assessee's case for the Assessment year 1999-2000 - HELD THAT:- The aforesaid question of law has already been answered by a Bench of this Court in [2013 (11) TMI 1766 - KARNATAKA HIGH COURT]. It is further pointed out that the decision passed by the Tribunal has been affirmed by a Bench of this Court in the aforesaid decision. - Decided in favour of assessee.
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2020 (6) TMI 700 - ITAT BANGALORE
Levy of penalty u/s 234E - Rectification u/s 154 - creating charge for levy of fee for certain defaults in filing statements - fee levied even for the period prior to coming into operation of Section 200A - debatable issue - apparent mistake in the order of the AO levying late fee under Section 234E - HELD THAT:- We found that the assessee received the order on 19.04.2014 for the A.Y. 2014-15 and has filed rectification petition with the CPC-TDS for correction of statements which is not disputed, and the same was processed and order under Section 154 of the Act was passed by CPC TDS on 13.03.2019. Aggrieved by the order, the Assessee has filed an appeal under Section 246 of the Act with the CIT (Appeals).Considering the provisions of law and the facts of the case, we found the assessee has challenged the order under Section 154 of the Act, which is permissible under the Law.
As decided in case of Fatheraj Singhvi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] when the amendment made under Section 200A of the Act which has come into effect on 1.6.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015. Hence, the demand notices under Section 200A by the respondent-authority for intimation for payment of fee under Section 234E can be said as without any authority of law and the same are quashed and set aside to that extent - Decided in favour of the assessee.
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2020 (6) TMI 699 - ITAT BANGALORE
Determination of ALP in respect of international transaction of rendering SWD services - Selection of comparable - HELD THAT:- Assessee provides support services to its group entities. The services provided by the Assessee are Call Centre, Shared services and Offshore development Centre (testing and support) thus companies functionally dissimilar with that of assessee need to deselected from final list.
Non-grant of deduction under section 10A on the income determined as per Mutual Agreement between Competent Authorities of India and USA - HELD THAT:- In the present case the conditions under which the dispute was resolved under MAP, was that the Assessee had to increase its taxable income and the sum agreed was to be subsequently invoiced and realized and thereby there was inflow of foreign exchange in India. Such features do not exist when the adjustment to ALP is suggested by a TPO which is subsequently incorporated in an order of assessment by the AO.
Pune Bench of the ITAT had an occasion to deal with an identical question in the context of determination of ALP under the Advance Pricing Arrangement [APA] in the case of Dar Al Handasah Consultants (Shair & Partners) India Private Limited [2019 (12) TMI 153 - ITAT PUNE] and took the view that deduction u/s. 10A of the Act on additional income offered as per APA would be eligible to claim deduction u/s. 10AA.
The proviso to section 92CA(4) of the Act will apply only to adjustment to transfer pricing made by the AO which is enumerated in Sl.No.(ii) above and not to any other modes of determination of ALP. The decision of the Pune Bench of ITAT in the case of Dar Al Handasah Consultants (Shair & Partners) India Private Limited (supra) will be clearly applicable to the facts of the present case.
Whether non-receipt of foreign exchange within the period required u/s. 10A of the Act would be a bar to allow the deduction in AY 2007-08? - As already observed that similar to provisions of section 92CC of the Act, the provisions of the DTAA r.w.s. 90(2) of the Act provide to the contrary in matters where issues are settled under the MAP. Following the decision of the Tribunal referred to above, we hold that the assessee should be allowed the benefit of deduction u/s. 10A of the Act in respect of the amount settled under the MAP for the AY 2007-08. Accordingly, the relevant grounds of appeal are allowed.
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2020 (6) TMI 698 - ITAT DELHI
TP Adjustment - Adjustment of AMP expenses and restricting the addition for ticketing services and tours and travel services packages - HELD THAT:- Hon’ble Delhi High Court in the case of Jubilant Foodwork Pvt. Ltd. [2014 (8) TMI 353 - DELHI HIGH COURT] has held that the expenditure incurred by the assessee on advertisement expenses is revenue in nature since no permanent character or advantage is achieved via the same and such expenses for advertising consumer products generally are a part of the process of profit earning and not in the nature of capital outlay. Similar view has been taken by the Hon’ble Delhi High Court in the case of CIT vs. Monto Motors Ltd. [2011 (12) TMI 50 - DELHI HIGH COURT].
In view of the above discussion and in view of the detailed order passed by the CIT(A) on this issue and considering the fact that the Revenue in assessee’s own case for AYs 2010-11 onwards has not considered such AMP expenses as international transaction, therefore, we do not find any infirmity in the order of the CIT(A) in deleting the addition on account of adjustment of AMP expenses as computed u/s 92CA(3).
Short charge to MMT US for ticketing charges and tours and travel package services - HELD THAT:- The assessee had also given the break-up on the basis of the finding given by the CIT(A) in A.Y. 2005-06. Nothing substantial was brought to our notice either by the Ld. AR or by the ld. DR against the finding given by the ld.CIT(A) on this issue. We, therefore, uphold the same and the ground raised by the assessee and the Revenue on this issue are dismissed. Accordingly, ground of appeal Nos.1-7 filed by the Revenue and ground No.1 raised by the assessee are dismissed.
Addition u/s 14A r.w.r. 8D - HELD THAT:- It is the submission the assessee that he has not received any exempt income during the year and, therefore, he has no objection if the same is restored to the file of the AO for verification of the issue in the light of the decision in the case of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] wherein it has been held that in absence of any exempt income, no disallowance u/s 14A can be made. Since the issue requires verification at the level of AO, therefore, we deem it proper to restore this issue to the file of the AO with a direction to find out as to whether the assessee has, in fact, received any exempt income and decide the issue
TDS u/s 195 - Non-deduction of TDS on payment of gateway charges paid to HDFC and ICICI Bank - HELD THAT:- The assessee has the option to obtain a No-deduction Certificate from the AO which he has not done in the instant case. It is the submission of the ld. Counsel for the assessee that identical issue had come up before the Tribunal in assessee’s own case for A.Y. 2009-10 and the Tribunal [2017 (9) TMI 1775 - ITAT DELHI] has decided the issue pertaining to non-deduction of taxes on payment gateway charges in favour of the assessee with certain directions/observations. Further, the appeal filed by the Revenue was dismissed by the Hon’ble High Court - we deem it proper to restore this issue to the file of the AO with a direction to decide the issue afresh in the light of the decision of the Tribunal in assessee’s own case for A.Y. 2009-10 and decide the issue as per fact and law.
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2020 (6) TMI 697 - ITAT DELHI
Exemption u/s 10(37) - interest received on compensation/enhanced compensation u/s 28 and 34 of the Land Acquisition Act - whether the interest on the compensation received by the assessee is in the nature of compensation exempt from tax u/s 10(37 ) or taxable under Section 56 (2 )( viii) as interest under the head “ income from other sources”? - HELD THAT:- As decided in SHRI SATBIR, SHRI VED PAL, SHRI SHEO CHAND, SHRI KARAMBIR, SHRI DHARAM PAL AND SHRI CHANDGI RAM VERSUS THE ITO, WARD – 1, JIND [2018 (7) TMI 1163 - ITAT CHANDIGARH] proposition laid down in Ghanshyam, HUF [2009 (7) TMI 12 - SUPREME COURT] remains and which having been laid down by the Hon'ble Apex Court is the law of the land and has to be followed by all lower authorities. The interest received by the assessee during the impugned year on the compulsory acquisition of its land u/s 28 of the Land Acquisition Act, is in the nature of compensation and not interest which is taxable under the head income from other sources u/s 56 of the Act as held by the authorities below. The compensation being exempt u/s 10(37) of the Act is not disputed. In view of the same the order passed by the CIT(Appeals) upholding the addition made by the AO on account of interest on enhanced compensation is, not sustainable.
Further the issue under consideration regarding the taxability of interest on enhanced compensation is a debatable issue and do not constitute a mistake apparent on record. In view of the limited and restricted powers of rectification u/s 154 or u/s 254 as the case may be, it cannot be said that any mistake apparent on record had occurred in the order of the Tribunal. In view of the above discussion, these appeals of the assessee are hereby allowed.
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2020 (6) TMI 696 - ITAT DELHI
Special Audit u/s.142 (2A) - whether the action of the ld. CIT, Central-II for granting extension for the further period is legally valid are not? - HELD THAT:- As carefully gone through the entire events and the verbatim of the letters. We also tried to dwell whether the intention of the AO is to” extend the period” or conveying the” approval of the CIT”. While it may be an administrative phenomenon to intimate, inform the CIT about the fact of the special audit party appointed seeking extension, but statutorily that power is vested with the AO. On going through the established judgment, it cannot be disputed that the statutory powers vested with one specified authority cannot be exercised by another authority unless and until the statute provides for the same. And we find that the extension has not been given by the AO.
The powers and the jurisdiction of the various authorities to implement the Income Tax Act stands clearly defined in the statute. For example, the power to approve the accounts audited u/s 142(2A) lies with CIT/PCIT/CCIT or PCCIT. The powers u/s 144A are to be exercised by the Joint Commissioner or Additional Commissioner. The powers u/s 251 are specific to the Commissioner (Appeals). Similarly, the powers u/s 263 and 264 are to be exercised by the PCIT/CIT. Further, in exercise of the powers conferred under clause (a) of sub-section (2) of section 119 of Income-tax Act, 1961, Central Board of Direct Taxes, may direct that the Chief Commissioner of Income-tax and Director General of Income- tax may reduce or waive interest charged under section 234A or section 234B.
While levy of the penalty u/s 271AAB is the power of the Assessing Officer, the provisions u/s 274(2) mandates that the prior approval of the JCIT is required before levy of such penalty. Thus, we find that the statute has accorded implementation of the various provisions to specified authorities which cannot be interchanged.
A power which has been given to a specified authority has to be discharged only by him. Substitution of that officer/authority by any other officer, may be of higher rank, cannot validate the said order/ action. The extension could have been valid only if it had been given by the Assessing Officer after due application of mind and after examining the existence of circumstances as provided in proviso below Sec. 142 (2C), since, it has to be given only by competent authority. In this case, the extension has not been given by the AO but by the CIT, Central-II and the AO has only conveyed the approval, therefore, we hold that the extension given by the CIT, Central-II is beyond the powers vested as per the statute and accordingly the assessment completed after the due date is held to be void ab initio. Appeal of revenue dismissed.
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