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Showing 141 to 160 of 2133 Records
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2018 (2) TMI 1994
Imposition of ADD - import of Acyclic alcohols i.e., Iso Nonanol (INA) having Carbon No.9 - initiation of investigation for imposition of anti-dumping duty on dumped imports - HELD THAT:- The undisputed facts are that the petitioner company submitted applications dated 18.10.2016 and 02.12.2016 before the 2nd respondent under Rule 5 of the Rules seeking initiation of investigation for imposition of anti-dumping duty on the imports of 2-EH, INA and 2-PH, which are the like articles. Though the Carbon numbers of the said acyclic alcohols differ from one another, they are being treated as like articles. Even the 2nd respondent vide notification No.63/1/2001-DGAD considered and held that Isononanol imported into India and 2EH produced by the domestic industry are like articles.
The 2nd respondent failed to appreciate the evidence/information furnished by the petitioner company that they are interchangeable in usage and are considered to be substitute products. Even the notification issued by the 2nd respondent held that Isononanol is a like article to 2EH produced by the domestic industry and in the absence of 2EH, INA and 2PH can be used as raw materials for manufacturing plasticizers.
From a perusal of the impugned proceedings none of the aspects referred and placed before the 2nd respondent authority by the petitioner company are neither considered nor appreciated. In fact, there is no mention about any of these aspects so as to initiate the investigation for imposition of antidumping duty on the import of INA and 2PH more particularly in the light of the definition as contemplated under Rule 2(d) of the Rules as well as the notification issued by the 2nd respondent vide No.63/1/2001-DGAD. This clearly establishes that the 2nd respondent has not considered any of these aspects and in a mechanical manner rejected the applications of the petitioner and in a routine course issued the impugned proceedings on a nonexisting ground that the authority does not find it appropriate to initiate anti-dumping investigation concerning imports of the products not being produced by the petitioner - the ground on which the impugned proceedings are passed is not available and alien to the language employed in Rule 2(d) of the Rules for considering like article and contrary to the determination made by the 2nd respondent in notification No.63/1/2001-DGAD.
The 2nd respondent is hereby directed to consider the applications dated 18.10.2016 and 02.12.2016 filed by the petitioner company afresh after evaluation of the entire information placed before him in accordance with the provisions of the Act and the Rules - Petition allowed.
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2018 (2) TMI 1993
Deduction/exemption u/s 10B - Reopening of assessment - AO opined that for want of approval of the authority u/s 14 of the IDR Act and not that of the STPI authority, allowing deduction/exemption u/s 10B of the Act was bad and for such purpose he issued notice u/s 148 - claim of the allowability of deduction u/s 10A with respect to the STPI unit - HELD THAT:- In the reassessment proceeding for bringing to tax items which had escaped assessment, it would be open to an assessee to put forward claims for non taxability of the same. Since in this matter the amount sought to be brought under tax by reassessment proceedings is the same amount which the assessee claims non taxable u/s 10A of the Act, we hold that the assessee cannot be prevented from contending the amount which was originally allowed to be deductible u/s 10B is also deductible u/s 10A of the Act. There is no dispute that the agitation in this matter relates to the item sought to be taxed as escaped income.
We, while respectfully following the decision in the case of Sun Engineering [1992 (9) TMI 1 - SUPREME COURT] hold that the assessee has to be permitted to agitate the ground which renders the escaped income as non-taxable.
We held that it is open to the assessee to put forth claim for non taxability of the escaped income in view of Section 10A of the Act, while respectfully following the decision of Hon’ble jurisdictional High Court in Regency Creations Ltd. [2012 (9) TMI 627 - DELHI HIGH COURT] and Valiant Communications Ltd [2013 (1) TMI 1006 - DELHI HIGH COURT] we deem it just and proper to direct the learned AO to examine the claim of the assessee for deduction u/s 10A of the Act by affording an opportunity to the assessee. Appeal of the assessee is allowed for statistical purpose
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2018 (2) TMI 1992
Penalty u/s 271(1)(c) - Whether the entire proceedings for penalty u/s 271(1)(c) are rendered without jurisdiction as it has been commenced,confirmed and upheld on composite ground of “”concealment of income / furnishing of inaccurate particulars”, without particularizing the nature of breach evidencing non-application of mind? - Revenue objects to question no.(ii) being admitted, as he states that this issue was not urged before the Tribunal - HELD THAT:- We are of the view that this is an issue of jurisdiction. Therefore, it could be raised before us as it goes to the root of the dispute. Issue of jurisdiction can be urged at any time i.e. even before the appeal Court for the first time, particularly when it requires no investigation into facts. Thus, we have admitted question no.(ii) for consideration.
Registry is directed to communicate a copy of this order to the Tribunal.
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2018 (2) TMI 1991
Penalty u/s 271(1)(c) - addition of gift which were clearly disclosed in the original return of income - Whether the entire proceedings for penalty under Section 271(1)(c) are rendered without jurisdiction as it has been commenced, confirmed and upheld on composite ground of “”concealment of income / furnishing of inaccurate particulars”, without particularizing the nature of breach evidencing non application of mind? - HELD THAT:- As Revenue objects to question no.(ii) being admitted, as he states that this issue was not urged before the Tribunal. Prima facie, we are of the view that this is an issue of jurisdiction. Therefore, it could be raised before us as it goes to the root of the dispute. Issue of jurisdiction can be urged at any time i.e. even before the appeal Court for the first time, particularly when it requires no investigation into facts. Thus, we have admitted question no.(ii) for consideration.
Registry is directed to communicate a copy of this order to the Tribunal.
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2018 (2) TMI 1990
Addition u/s 69C - Survey proceedings - expenditure which was found during the course of survey operation - assessee has filed revised return admitting additional income and the loss returned in the original return was reduced - as par AO admitted income was for the expenditure which was found during the course of survey operation and she made addition u/s 69C - CIT(Appeals) found that the additional income offered by the assessee was generated out of suppressed sales and found that the additional income cannot be set off against the business loss - HELD THAT:- The assessee claims that the expenditure incurred by him was recorded in the books of account. When the expenditure was recorded in the books of account, which was maintained in the course of regular business, it cannot be said that the assessee could not explain the source of income for meeting such expenditure. Moreover, admittedly the assessee has no other source of income other than business income. Therefore, the source for meeting the expenditure is the business.
The assessee has offered additional income during the course of survey operation. Therefore, this Tribunal is of the considered opinion that the assessee had known source of income for meeting the expenditure. Hence, the addition made by the Assessing Officer cannot be sustained. - Decided in favour of assessee.
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2018 (2) TMI 1989
Permission to clear imported goods - import of used tyres - HELD THAT:- Identical issue decided in the case of KADRI ENTERPRISE A PROPRIETOR CONCERN OF GULAM RASUL GULAM MUSTUFA SHAIKH VERSUS UNION OF INDIA & 2 [2015 (11) TMI 677 - GUJARAT HIGH COURT] where the respondents are directed to forthwith permit assessment and clearance of the goods imported by the applicant - petitioner.
The respondents are directed to permit the clearance of the goods imported by the petitioner - Customs authorities shall depute a Surveyor to check whether the tyres are reusable with or without retreading.
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2018 (2) TMI 1988
Oppression and mismanagement - Rights issue of shares - shareholding of the Petitioners had been diluted - no notices were given for the meetings pertaining to the rights issue - shifting of the registered office, also, no notice for the same is given - appointment and removal of directors - Directorial disputes.
HELD THAT:- The order of the CLB in the present case can in no circumstances be said to be either perverse, based on no evidence or arbitrary. The CLB has analysed the factual and legal position in depth and has arrived at a conclusion on facts that no case of oppression and / of mismanagement has been made out by the Appellants.
The rights issue of shares and the service of notices by UPC - HELD THAT:- The rights issue was thus obviously contemplated as being the avenue for increasing the funds of the Company and for the growth of the Company. The CLB has recorded a finding of fact (in paragraph 28) that the rights issue was necessary for the growth of the Company and therefore the action of issuing the shares could not be termed as oppressive to the Appellants and/or mismanagement of the affairs of the Company - Pertinently, despite being party to the above meetings, at no point did the Appellants seek to subscribe to the rights issue, and did not even make such enquiries for several years prior to filing the present Petition. The reason for this was clearly because the rights issue which commenced from April 2007, was not of interest to the Appellants, as the Appellants had received back the sum loaned by them to the Company to the tune of ₹ 73,00,000/ . The Appellants had accepted back the loan as they did not desire to partake in the functioning of the Company.
The Appellants have no explanation for their having taken back their loan, save and except to contend that this was not reflective of their disinterest in the company. In this regard, the CLB has arrived at a finding of fact, based on the conduct of the Appellants and this finding ought not to be interfered with in exercise of jurisdiction under Section 10F. As a matter of fact, after accepting their loan amounts back in or about March 2007, at no point did the Appellants write a single letter or demand to participate or show any interest in participating in the company until issuance of the show cause notice on 5th November 2007 - even on merits it cannot be said that the rights issue was either oppressive or done behind the back of the Appellants.
Shifting of registered office - HELD THAT:- Pertinently, it is the admitted position that the UPC amount paid was ₹ 3/. It is more than sufficient for service on Appellant Nos.1 and 2; the other Directors and Shareholders being part of the Respondent Group, may well have been served by other means – they have raised no objection as to service or receipt of the notices. Once again this aspect is purely factual and is being dealt with only in light of the contentions raised by the Appellants. The crucial factor remains that shifting of the Registered Office has caused no prejudice to the Company, and is not oppressive in the least. There is nothing to show that the shifting was done to prejudice the Appellants - this contention does not constitute oppression or mismanagement.
Directorial disputes - HELD THAT:- The Appellants have relied upon an RTI Application of 2012 to contend that no notice was received of the meeting for removal of the Appellants as Directors. It appears from the impugned judgment that this issue of the RTI Reply was not pressed before the CLB. Even otherwise, it is pertinent to note that in all the various allegations of not having received notice for various meetings, the Appellants have not sought to obtain any RTI on the delivery of notices for all the meetings which are the subject matter of dispute between 2007 and 2010, but have only purported to obtain an RTI for a meeting held in 2011. Be that as it may, the Appellants have been removed by resolutions and with appropriate Form 32’s filed, to the satisfaction of the ROC. It is nobody’s case that the ROC has thereafter raised any objections to the filing of the Forms or indeed to the manner of removal of the Appellants - Further the Company is not under any circumstances either a family company or a closely held quasi partnership, in which circumstances potentially directorial disputes may be raised. The judgments relied upon by the Appellants in this regard will have no application to a company such as Respondent No.1. Further, it does not appear that this issue of ‘quasipartnership’ was pressed before the CLB, and was not pressed in arguments before this Court.
The Appeal ought to be dismissed as it does not give rise to any question of law. The factual findings are strictly matters which were within the province of the CLB. The CLB having exercised its discretion after analysing the evidence before it, this Court cannot to replace the discretionary order passed by the CLB with any contrary order - Even otherwise, on the findings of delay/laches and unclean hands, the present Appeal ought to be dismissed as the CLB has rightly declined to exercise its equitable jurisdiction in favour of the Appellants.
Appeal dismissed.
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2018 (2) TMI 1987
Income from House Property - Annual letting value of a property let out to a company where she is the Managing Director - Whether the receipt of interest-free security deposit by a taxpayer can be ignored while computing ALV of a property let out? - HELD THAT:- The transactions must be viewed as a whole. It is not enough to examine the separate ingredients of a transaction; for the totality of a transaction may be different from the sum of its parts. Viewed as a whole, the transaction adopted by the assessee in the instant case was a device to reduce the tax burden. This is the germ of the “pre-ordained series of transactions”.
The two issues i.e. ‘Leave and License Fee’ and ‘Security Deposit’ in the instant appeal are interconnected and part of the same transaction. To persuade the Tribunal to adopt, in relation to closely integrated situation, a step by step, dissecting approach, would be a denial rather than an affirmation of the true judicial process.
We find from the list of Directors of Asit C. Mehta Investment Intermediates Ltd, given to us by the Ld. counsel in response to a query by us, that the assessee (Licensor) is the Managing Director in Asit C. Mehta Investment Intermediates Ltd (Licensee). The receipt by the assessee as interest-free security deposit from the licensee-company in which she herself is the Managing Director cannot be ignored while computing the annual letting value.
Security deposit in the instant case is to circumvent real rent and the same shall fall within the ambit of ‘Income from House Property’. Taking into account the facts and circumstances of the case against the backdrop of interest rate on term deposits offered by Public Sector Banks during the relevant period, we direct the AO to estimate interest on security deposit @ 9% in place of 10% on the amount done by him and bring the resultant amount as well as the leave and license fees to tax under the head ‘Income from House Property’. - Decided partly in favour of assessee.
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2018 (2) TMI 1986
TP Adjustment - international transactions entered by the assessee with its overseas associated enterprise - validity of the reference made u/s 92CA(1) to the Transfer Pricing Officer - as per the assessee, if the reimbursement of expenses is considered while determining the arm’s length price of the international transaction, then the rate charged by the assessee for the manning services comes to US$ 152, which is in excess of the arm’s length rate of US$ 150 adopted by the TPO - HELD THAT:- TPO has reproduced the details of expenses reimbursed by the associate enterprise which are on various heads, viz., fish vessel expenses, travelling expenses, port expenses, licence and certification expenses, uniform expenses, training expenses, repair team expenses etc. - finding of the Assessing Officer clearly supports the assertion of the assessee to the effect that the said expenses have been incurred by it in the course of providing the manning service to the associate enterprise, and the same have been recovered from the associate enterprise as reimbursements. We are only trying to highlight the fact that the said expenses are in relation to the ‘tested transaction’ and therefore there is no justification in not considering them while computing the arm’s length price.
The plea of the Revenue based on the observation of the CIT(A) that the expenses have not been shown in the Profit & Loss Account, and therefore, it cannot be taken into consideration, is to say the least, avoiding the obvious. Ostensibly, if such expenses were to be debited to the Profit & Loss Account, it would require simultaneous equivalent credit to the Profit & Loss Account on account of reimbursements.
Ostensibly, if one is to determine the rate charged by the assessee from its associate enterprise per crew per month, it would entail taking into consideration the recoveries by way of reimbursements also; and, as the Tabulation reproduced by us earlier shows that once such recoveries are also factored into the rate charged from the associated enterprise, the rate comes to US$ 150.28 per crew per month and upon comparison with the rate of US$ 150 adopted by the TPO, the amount recovered by the assessee from the associate enterprise compares favourably, and, thus it would obviate the need for any further adjustment to the stated values in order to arrive at the arm’s length price. Therefore, on this short point, the adjustment sustained by the CIT(A) is found to untenable - Decided in favour of assessee.
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2018 (2) TMI 1985
Gain on sale of shares - price received by the assessee over and above the market value - allowable business income u/s 28(va) - price received by the assessee over and above the price quoted in the Stock Exchange is for non-compete fee - HELD THAT:- The assessee got the shares valued by an independent valuer. The agreement for purchase of shares with M/s Tube Investment of India clearly says that no non-compete fee would be paid by the purchaser. Moreover, when the assessee is selling a large amount of 2,82,50,291 equity shares to M/s Tube Investment of India, the purchaser gets control over the company. Moreover, ₹81/- per share was not only paid to the assessee but also to third party general public.
Therefore, it cannot be said that ₹10/- per share was excessively received by the assessee over and above the market rate quoted in the Stock Exchange as non-compete fee. When the price fixed by the Stock Exchange for a single share was ₹71/- and the assessee was selling 2,82,50,291 equity shares whereby the controlling interest in the company stands transferred, this Tribunal is of the considered opinion that there cannot be any presumption that the price received by the assessee over and above the price quoted in the Stock Exchange is for non-compete fee. Therefore, the CIT(Appeals) has rightly deleted the addition made by the Assessing Officer - Decided against revenue.
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2018 (2) TMI 1984
Revision u/s 263 - Capital gain computation - HELD THAT:- While passing the assessment order AO recalculated the capital, against the capital gain computed by assessee in its working furnished before the AO, arisen from the development right sold by assessee - assessee filed appeal before the CIT(A). Thus, certainly the recalculation of LTCG was made by AO after raising sufficient queries during the assessment proceeding. AO made the addition of more than ₹ 90 Lakhs in the assessment order. The assessee filed appeal before the ld. CIT(A). When the order was revised the appeal on the same issue was pending before ld CIT(A).
CIT issued show-cause notice for revision of assessment order passed under section 143(3) during the pendency of the appeal. The show cause notice was issued in respect of the same issue pending before the ld. CIT(A). Clause-(c) of Explanation 1 attached with section 263 prescribe that where any order passed by AO is subject matter of appeal, PCIT or CIT is precluded to consider those issues , though he may consider the other issues which may not been considered or appealed in such appeal
When the subject matter of disallowance was pending adjudication before the ld. CIT(A). The ld. CIT ought not to have revised the order for passing assessment order afresh. Our view is also supported by the provision contained under section 251 of the Act, wherein the appellate Commissioner has a power to confirm, reduce, enhance or annul the assessment order.
Even on other alternative argument, we may note that the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] held that where two view was possible and the AO has taken one view. The order of ld. CIT revising order in such circumstances cannot be treated as order erroneous or prejudicial to the interest of Revenue. - Decided in favour of assessee.
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2018 (2) TMI 1983
Permission to sell three tugs - company under liquidation - HELD THAT:- The Official Liquidator shall sell the two tugs, namely, Gal Beaufort Sea and Gal Ross Sea to M/s Akil Corporation in accordance with the terms proposed by the party. The Applicant has already received 10% of the offer amount as EMD, which it will have to deposit with the Official Liquidator. The liquidator shall hold the amount of EMD as also balance payment to be made by M/s Akil Corporation to the account of the company in liquidation. Distribution of the sale proceeds or declaration of dividend shall await hearing of the company application.
The Company Application is stood over to 28 February 2018 - By the next date, the Applicant shall submit a valuation in respect of the third tug, namely, Sangita.
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2018 (2) TMI 1982
Rectification u/s 254 - Exemption u/s 10(37) - determination of assessability of interest received by the assessee as part of the enhanced compensation against the acquisition of agricultural land owned by the assessee - HELD THAT:- In view of the settled position of law on the issue in appeal as on date, is that as laid down in the case of ‘Ghanshyam HUF’ [2009 (7) TMI 12 - SUPREME COURT] and reiterated in the case of ‘CIT Vs. Govindbhai Mamaiya’ [2014 (9) TMI 587 - SUPREME COURT].The ITAT having followed the proposition laid down in the aforesaid decisions while rendering its judgement, therefore, there is clearly no error in the said order.
Even otherwise, powers of the Tribunal u/s 254 of the Act are very limited and are restricted to rectifying only apparent errors and it has no power to review. The Hon’ble Bombay High Court in the case of ‘Commissioner Of Income-Tax vs Ramesh Electric And Trading Co.’ [1992 (11) TMI 32 - BOMBAY HIGH COURT] while relying upon the decision of the Hon’ble Supreme Court in the case of ‘T. S. Balaram, ITO v. Volkart Brothers’ [1971 (8) TMI 3 - SUPREME COURT] and further relying upon the decisions of the various High Courts has categorically held that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent, which is apparent from the record, and not a mistake which is required to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Misc. Applications are hereby dismissed.
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2018 (2) TMI 1981
Deemed dividend income u/s 2(22)(e) - HELD THAT:- The purpose of Section 2(22)(e) of the Act is to tax the benefit extended by private limited company to its shareholders holding shares not less than 10% as beneficial owner of shares (not being shares entitled to a fixed rate of dividend income). There is no dispute with regard to shareholding of the assessee. Now coming to the amount of advance taken by assessee, we note that assessee has not only taken loan / advance from SVPL, but also it has sometime given advance to SVPL. Thus, there was change in the balance shown by assessee. Thus, it cannot be termed as advance taken by assessee as it was fluctuating during the year.
There remains no doubt that the transactions between assessee and SVPL is representing current account transactions. Therefore, the provision of Section 2(22)(e) cannot be attracted to such transactions. Also bearing in mind the entire facts of the case, we deem it fit and proper to uphold the grievance of the assessee and quash the impugned revision order as devoid of jurisdiction. The assessee gets the relief, accordingly - Assessee’s appeal stands allowed.
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2018 (2) TMI 1980
Rejection of application for grant of stay of collection of the disputed tax - Valuation - handling charges and warranty claims - pre-sale or post sale consideration - HELD THAT:- As the substantive appeal is still pending consideration before the Appellate Deputy Commissioner, and as the Judgment of the Supreme Court in MOHD. EKRAM KHAN & SONS VERSUS COMMISSIONER OF TRADE TAX, UP. (AND ANOTHER APPEAL) [2004 (7) TMI 341 - SUPREME COURT]s relates to warranty charges which forms a substantial part of the turnover subjected to tax, we consider it appropriate to direct the respondents not to take coercive steps to recover the balance tax due, pending disposal of the appeal before the Appellate Deputy Commissioner, on condition that the petitioner deposits 2/3rds of the disputed tax with the Assessing Authority within four weeks from today.
Petition disposed off.
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2018 (2) TMI 1979
Eligibility for grant of alternate accommodation - HELD THAT:- The Appeal preferred by the petitioner on the issue of eligibility for grant of alternate accommodation shall be decided by the Mumbai Municipal Corporation as expeditiously as possible and in any event, within a period of four months from today - The decision taken on the Appeal shall be communicated to the petitioner by the Municipal Corporation. If the petitioner is held to be eligible for grant of alternate accommodation, along with the decision on Appeal, alternate accommodation shall be offered to the petitioner. Time of three weeks shall be granted to the petitioner to accept the alternate accommodation from the date of service of the decision in Appeal to the petitioner. For the said period of three weeks, the structure of the petitioner shall not be demolished.
Appeal dismissed.
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2018 (2) TMI 1978
Disallowance u/s 14A - assessee has already suo motu offered a disallowance - HELD THAT:- We find merit in the submissions of the assessee as the facts and issue involved in the case are squarely covered by the aforesaid decisions of the Hon'ble High Courts in ‘CIT Vs. Max India Ltd’ [2016 (11) TMI 1012 - PUNJAB AND HARYANA HIGH COURT]and ‘CIT Vs. Kapson Associates’ [2015 (8) TMI 1277 - PUNJAB AND HARYANA HIGH COURT]
Disallowance is restricted to ₹ 6.43 lacs u/s 14A of the Act that has been suo motu offered by the assessee. Any further disallowance made by the Assessing officer or confirmed by the CIT(A) is hereby ordered to be deleted. - Decided in favour of assessee.
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2018 (2) TMI 1977
Termination of services by Appointing Authority i.e. the Commandant, CISF Unit, NLC Neyveli - termination of services on account of suppression of facts in the Attestation Form about the registration of a criminal case against him - petitioner is only praying for an opportunity to present his case before the Competent Authority requiring the respondents to examine his case in the light of the guidelines laid down by the Supreme Court in AVTAR SINGH VERSUS UNION OF INDIA (UOI) AND ORS. [2016 (7) TMI 1575 - SUPREME COURT].
HELD THAT:- In the case of Avtar Singh, the Apex Court has considered the question of suppression of information or submitting false information regarding a criminal case in the verification form and clarified the legal position.
The petitioner herein was involved in a case registered on 10.03.206 under Sections 323/341/325/447/34 IPC at PS Khoh, which was compounded with the permission of the Court and he was acquitted on 31.03.2006. On his failure to mention about his involvement in Police Case No.119/2006, the petitioner's services have been terminated for suppression of the fact of his involvement in a criminal case. As per the record, the date of birth of the petitioner is 01.01.1988 and on the date of registration of FIR i.e. on 10.03.2006, he was 18 years and two months old and the matter has been amicably settled soon thereafter, resulting in his acquittal on 31.03.2006. A photocopy of the certified copy of the order passed in FIR No.119/2006 is on record, which discloses that the FIR, which was registered on 10.03.2006, was in respect of a quarrel within the family and the matter was compromised soon thereafter. The offence was permitted to be compounded by the learned ACJM, Deeg on 31.03.2006 resulting into acquittal of the accused persons including the petitioner herein.
The matter remanded back to the Inspector General, CISF South Sector HQrs,, ChPT Campus, Chennai to reexamine the issue in the light of decision of the Supreme Court in Avtar Singh's case - Petition allowed by way of remand.
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2018 (2) TMI 1976
Interpretation of statute - Whether the word 'fuel' as used in Clause 1.1.27 of the Power Purchase Agreement (PPA) means "natural gas only" or includes Regasified Liquefied Natural Gas (RLNG) also? - HELD THAT:- A wrong question will inevitably lead to a wrong answer - The question for consideration presently is not if RLNG is a form of natural gas, but whether the parties intended to exclude any form of gaseous fuel from the ambit of the contract except for natural gas in its natural form from the domestic market, keeping the price of gas in mind, which would ultimately set the price per unit of electricity for the consumer. The PPA is a technical commercial document. It has been drafted by persons conversant with the business. RLNG and natural gas as used in the agreement are not synonymous or interchangeable. The principle of business efficacy will also have to be kept in mind for interpreting the contract. The terms of the agreement have to be read first to understand the true scope and meaning of the same with regard to the nature of the agreement that the parties had in mind.
The Respondent's letters dated 07.08.2012 and 27.08.2012 become crucially relevant for the understanding that it was itself under no misapprehension that RLNG was never intended to be included within the definition of natural gas under the contract. In the former, the Respondent wrote, "We await the confirmation from your good office to take it up further for obtaining necessary consent, if any, in accordance with law for use of RLNG and the resultant tariff increase." The latter again requested for permission to use RLNG to supplement shortfall in gas from the KG-D6 Basin, requesting to acknowledge its usage. The contention of the Respondent that these were only intimations and not request for permission to use RLNG stands belied from the plain language used in them - The sporadic use of RLNG on one or two occasions under pressing circumstances, after due orders Under Section 11 of the Electricity Act, 2003, for short durations, cannot make the exception the norm to contend either that RLNG was included in the term fuel or that the Appellant had agreed to its use. The question of waiver by the Appellant or application of the principle of approbate and reprobate does not arise in the facts of the case.
The present was a contract for purchase of power generated from fuel which was reasonably priced so as to keep in check the cost of power generated from the same, in the interest of the consumer. Undoubtedly, cost of fuel was a primary consideration in the mind of the Appellant - there can be no manner of doubt that the parties by their conduct and dealings right up to the institution of proceedings by the Respondent before the Commission were clear in their understanding that RLNG was not to be included within the term "Natural Gas" under the PPA.
The definition of natural gas in Section 2(za)(i) of the PNGRB Act, has no relevance to the present controversy as the Act was enacted with the object to oversee and regulate refining, processing, distribution and marketing of petroleum products and natural gas - thus, the inevitable conclusion is that the intention of the parties under the agreement, as amended from time to time, was to generate power from fuel reasonably priced, so as to ultimately make available power to the consumers at reasonable rates. The choice of fuel as natural gas only has, therefore, to be understood as being confined to natural gas only in its natural form. The Respondent was well aware that RLNG was never intended to be included in the definition of natural gas as understood by the parties, notwithstanding that it may be a variant of natural gas.
Appeal allowed.
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2018 (2) TMI 1975
TPA - comparable selection - HELD THAT:- Referring to software development activity and applying CUP Method as the Most Appropriate Method ('MAM') companies functionaly dissimilar with that of assessee need to be deselected from final list.
Selection of MAM - TPO in rejecting CUP Method adopted as the MAM by the assessee for its TP Study and adopting TNMM as the MAM for carrying out the comparability analysis - As relying on own case [2016 (6) TMI 1322 - ITAT BANGALORE] we decide the issue against the assessee and confirm the order of the TPO in adopting TNMM as the MAM. Consequently, ground No.2 of the assessee's appeal is dismissed.
Risk adjustment - Since the assessee has not given the computation of risk adjustment of the assessee vis-à-vis the comparable companies, we hold that the assessee shall not be entitled to any risk adjustment and accordingly reverse the DRP's decision granting the assessee risk adjustment
Charging of Interest u/s. 234B & 234D - HELD THAT:- The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter.
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9911796707
