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Showing 141 to 160 of 1310 Records
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2023 (2) TMI 1170 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Approval of Resolution Plan - It is submitted that the Adjudicating Authority committed error in not accepting the entire claim of the Appellant which was admitted - HELD THAT:- There are no dispute between the parties regarding the facts which took place in the CIRP and the claim which was admitted in the CIRP.
On comparison of the provisions of Section 48 of the provision of Gujarat Values Added Tax which was relied in “Rainbow Papers Limited [2022 (9) TMI 317 - SUPREME COURT]” and the Provisions of Section 37 which is sought to be relied on in the present Appeal, distinction between the provisions is clear. Section 37 specifically uses the expression “subject to any provision regarding creation of first charge in any central act”. The provision itself contemplated thus that Section 37 was subject to any provision in Central Act. The IBC Section 53 itself provides waterfall mechanism which may be treated to be law which has been contemplated under Section 37 of the MVAT Act, 2002.
The Judgement of the Hon’ble Supreme Court in “Rainbow Paper Limited” relied by Learned Counsel for the Appellant is distinguishable. The Appellant having been treated as Operational Creditor allocation of amount in the Resolution Plan cannot be said to be in violation of Section 30 (2)(b) - thus, no ground has been made to interfere with the Impugned Order.
Appeal dismissed.
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2023 (2) TMI 1169 - SC ORDER
Waiver of Service of notice - Section 5, 21, 310, 330, 331 and Section of 53 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Ms. Deepanwita Priyanka, learned counsel accepts notice on behalf of the respondent no.1-State of Gujarat.Thus, service of notice in respect of Respondent no.1-State of Gujarat is waived of.
List the matters on 16th March, 2023 at 02:00 p.m.
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2023 (2) TMI 1168 - MADRAS HIGH COURT
TDS u/s 194N - cash withdrawals exceeding Rs.1 and from their accounts from District Cooperative Banks - Validity of Circulars issued by the District Co-operative Banks informing the Petitioners about the enforcement of tax deduction at source - HELD THAT:- As brought to notice that the Hon'ble Chief Minister has sent a letter dated 24.03.2020 to the Hon'ble Finance Minister, Government of India, and that the Chief Secretary, Government of Tamil Nadu, has sent a Letter in D.O. Lr. No. 15350/CC1/2022 dated 27.09.2022 to the Chairperson, Central Board of Direct Taxes, New Delhi, making requests to exempt the Primary Agricultural Cooperative Credit Societies and other Primary Co-operative Societies from the provisions of Section 194-N of the Income Tax, 1961, for the cash withdrawal exceeding Rs. 1 Crore from their accounts from District Co-operative banks.
Petitioners seek permission of the Court to withdraw these Writ Petitions reserving the rights of the Petitioners to pursue the matter for exemption and if any adverse order is passed, to work out their remedies in that regard before the proper Forum in the manner recognized by law and they have made endorsements to that effect in the court records.
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2023 (2) TMI 1167 - SC ORDER
TDS u/s 195 - Royalty - amounts paid by the concerned persons resident in India to non-resident, foreign software suppliers - Whether constitutes as taxable income deemed to accrue in India u/s 9(1)(vi) or not? - income deemed to accrue or arise in India - HELD THAT:- List these petitions along with Review Petition [2022 (1) TMI 1388 - SC ORDER].
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2023 (2) TMI 1166 - DELHI HIGH COURT
Seeking grant of bail - flight risk - cash sales - fictitious sale of food grain - creation of accommodation/adjustment accounting entries, apart from misusing cheque discounting facilities - HELD THAT:- It is however the admitted position, that the petitioner was never arrested in the course of the 06-year long investigation; that he was remanded to judicial custody by the learned Special Judge only at the stage after cognizance was taken and the petitioner appeared before the court against summons issued, purportedly in view of the provisions of section 212 of the Companies Act; in particular considering that section 212(6) bars the grant of bail unless the twin conditions contained therein are satisfied.
As held by this court in Komal Chadha [2022 (12) TMI 982 - DELHI HIGH COURT] however, other things apart, in mechanically remanding the petitioner to judicial custody, the learned Special Judge misdirected himself in applying section 212(6) to the situation in as much as that provision relates to a stage where the court is considering grant or refusal of bail to a person who is in custody - Section 212(6) would not apply to a case where the I.O. has never sought police custody of the accused; and has not even asked that the accused be remanded to judicial custody after cognizance is taken. The decision whether to remand the petitioner to judicial custody upon his appearance, vests with the Special Judge; and that should have been considered and decided by the Special Judge in accordance with well-settled and restrictive principles as to pre-trial detention of an accused.
In the present case, as also in the case of Komal Chadha [2022 (12) TMI 982 - DELHI HIGH COURT], the order remanding the petitioner to judicial custody discloses no application of mind as to why, on what basis, for what reason, or for what purpose the learned Special Judge formed the view that the petitioner‟s judicial custody had become necessary, after the petitioner had been at liberty for the past 06 years. There was no allegation of the petitioner having either intimidated any witnesses; or having tampered with evidence; or having otherwise interfered in the course of investigation.
As for the question whether the petitioner is a flight risk, it is noted that no specific risk has been cited or shown to exist; and the perceived theoretical risk which exists in the case of every accused on bail, can be addressed by imposing appropriate conditions on grant of bail.
The court is persuaded to allow the present petition and admit the petitioner to regular bail, subject to the conditions imposed - petition allowed.
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2023 (2) TMI 1165 - ITAT DELHI
Income taxable in India - income from technical handling services - India – France DTAA - HELD THAT:- As respectfully following the decision of the Coordinate Bench in assessee’s own case [2020 (6) TMI 1 - ITAT DELHI] we hold that the income from technical handling services is not taxable in India as it is covered under Article 8(2) read with Article 8(1) of India – France DTAA. Accordingly, the additions made in all theses assessment years are directed to be deleted.
Income from Technical Handling Services to Non-IATP Members - whether income derived from technical handling services provided to non-IATP member airlines in India will be covered under Article 8(2)? - HELD THAT:- On carefully going through IATP pool manual as placed in the paper-book, it is observed that there is no restriction or bar imposed therein to the extent that services cannot be provided to non-IATP pool members. As relying on assessee own case [2020 (6) TMI 1 - ITAT DELHI] held assessee being a pool member and providing service in that capacity to the guest members comes under the purview of Article 8(2) of the DTAA between India and France. Therefore, the CIT(A) was not right in sustaining the taxability under Article 7 of the DTAA - we direct the Assessing Officer to delete the addition.
Taxability of Interest Income - AO noticed that the assessee, though, had earned interest on fixed deposits, however, they were not offered to tax - HELD THAT:- Undisputedly, it is a fact on record that the fixed deposits made by the assessee are out of funds connected with the operation of aircraft in international traffic, hence, covered under Article 8(1) as the assessee has no other business. Therefore, in our view, the interest earned on such fixed deposits will be covered under Article 8(3), hence, not taxable. Therefore, the Assessing Officer is directed to delete these additions in all the assessment years. These grounds are allowed.
Income from Collection Charges - AO did not accept the claim of the assessee and brought it to tax by linking it to the PE in India. The addition made was upheld by the first appellate authority - HELD THAT:- The amount retained by the airlines from UDF/PSF is known as discount or commission. It is the claim of the assessee that even assuming that it is in the nature of income, however, it will be covered under Article 8 of the tax treaty. It is observed, assessee’s claim has been accepted by learned DRP in assessment yea 2012-13 and by learned Commissioner (Appeals) in assessment year 2013-14. However, on examining the nature of receipts, we are of the view that it has no connection with assessee’s business of operation of aircrafts in international traffic.
Rather, the assessee gets some incentive for making timely payment of UDF/PSF to the airports. Therefore, the collection charges are not directly connected to assessee’s business of operating aircraft in international traffic, as per Article 8(1) read with Article 8(4) of India – France DTAA. Therefore, we uphold the addition. Ground raised is dismissed.
Income from Commission - income connected to operation of aircraft in international traffic - HELD THAT:- The facts on record reveal that when a passenger travels in assessee’s airlines, for instance, from Paris to New Delhi and then to Chennai the assessee books ticket for the entire travel including the domestic leg, though, the domestic leg travel is taken up by the domestic airlines. A part of the cost of tickets of the domestic travel payable to the domestic airlines is retained by the assessee as commission. Thus, entire journey of the passenger from the starting point to the destination is arranged by the assessee, though, the domestic leg of travel is completed by a domestic carrier. Thus, in our view, the commission income earned by the assessee is directly connected to operation of aircraft in international traffic, hence, covered under Article 8(1) read with Article 8(4), therefore, is exempt from taxation in India. Accordingly, ground raised by the assessee is allowed, whereas, the Revenue’s ground is dismissed.
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2023 (2) TMI 1164 - ITAT DELHI
Unexplained cash deposits - Sufficiency of own funds - HELD THAT:- The assessee has placed cash flow statement to buttress the contention that the assessee was having sufficient reason for earning and making deposits in cash.
A bare perusal of cash flow statement so submitted goes to prove that the assessee was having sufficient funds to make deposits. Therefore, considering the same, authorities below are not justified in making and sustaining the impugned addition. Hence, AO is hereby directed to delete the addition. The grounds raised by the assessee in this appeal are allowed.
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2023 (2) TMI 1163 - SUPREME COURT
As per NAGARATHNA J.
Ascertainment of paternity of the child - DNA profiling - allegation of adultery - presumption of legitimacy under Section 112 of the Evidence Act - non-compliance on the part of the appellant of the direction to subject Master "X" to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114.
HELD THAT:- The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise. “Access” or “non-access” must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy.
Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable - the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception vide SMT. KAMTI DEVI VERSUS POSHI RAM [2001 (5) TMI 955 - SUPREME COURT].
Whether an adverse presumption can be drawn in the nature of Illustration (h) to Section 114, as to the wife’s adulterous conduct when she refuses to comply with a direction for the child to undergo a DNA test? - HELD THAT:- Section 114 states that the Court may presume the existence of any fact that it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in relation to the facts of a particular case. Broadly speaking, there are two classes of presumptions, viz presumption of fact and presumption of law. The latter is again categorised as “rebuttable presumptions of law” and “irrebuttable or conclusive presumptions of law” - The respondent sought to establish by way of a DNA test that the son conceived during the said period was born outside wedlock and as a result of the appellant-wife’s adulterous relationship with another person and consequently demonstrated infidelity on the part of the appellant-wife. This Court took note of the plea of the respondent-husband as to nonaccess at the relevant time, and accordingly opined that it would be a fit case for directing that a DNA test be conducted. Further, in the facts and circumstances of the said case, this Court accepted that a DNA test would be the only way in which the respondent-husband could establish his plea of infidelity on the part of the appellant-wife.
Use of DNA profiling technology as a means to prove adultery - HELD THAT:- A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case - This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity.
In Nandlal Wasudeo Badwaik [2014 (1) TMI 1793 - SUPREME COURT], the facts of the case were that due to non-opposition of the counsel for the wife, this Court directed that the serological test be conducted. The report was brought on record, which stated that the appellant-husband was not the biological father of the minor child. At the request of the respondent-wife, a re-test was ordered, which also revealed the same result. The plea with regard to the applicability of section 112 of the Evidence Act was taken only after the DNA test was conducted on the direction of this Court and the report was brought on record. This Court held that when a report of a DNA test conducted on the direction of a Court, was available on record and was in conflict with the presumption of conclusive proof of the legitimacy of the child, the DNA test report cannot be ignored. Hence, this Court relied on the DNA test report and held that the appellant-husband would not be liable to pay maintenance - in the present case, no DNA test is available till date, which was conducted on the direction of a competent Court. Therefore, the respondent-husband would first need to dislodge the presumption under Section 112 of the Evidence Act and thereafter seek a direction to conduct a DNA test of Master ‘X”.
The Rights to Privacy, Autonomy and Identity of Children under The Convention on Rights of Child - HELD THAT:- The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children. Further, Article 8 of the Convention provides children with an express right to preserve their identity. Details of parentage are an attribute of a child’s identity. Therefore, long-accepted notions about a child’s parentage must not be frivolously challenged before Courts of Law.
Best interests of a child - HELD THAT:- A parent may, in the best interests of the child, choose not to subject a child to a DNA test. It is also, antithetical to the fundamentals of the right to privacy to require a person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive - the reasons for the parent’s refusal may be several, and hence, it is not prudent to draw an adverse inference under Section 114 of the Evidence Act, in every case where a parent refuses to subject the child to a DNA test - it is necessary that only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy, the Court can direct such test. Further, a direction to conduct DNA test of a child, is to be ordered even rarely, in cases where the paternity of a child is not directly in issue but is merely collateral to the proceeding, such as in the instant case.
The impugned judgment of the High Court of Judicature at Bombay dated 22nd November, 2021 and the order of the Family Court, Pune dated 12th August, 2021, are set aside - Appeal allowed.
As per V. Ramasubramanian, J.
Interplay between Sections 112 and 114(h) of the Evidence Act - HELD THAT:- It is interesting to note that the Evidence Act does not include legitimacy of birth during marriage, either under the category of a fact which “may be presumed” or under the category of a fact which “shall be presumed”. On the contrary, the Act places birth during marriage as “conclusive proof” of legitimacy. But Section 112 keeps a window open, enabling a party to the marriage who questions the legitimacy of the child, to show that he/she had no access to the other, when the child could have been begotten.
In the case on hand, the very pleading of the respondent in his petition for divorce before the Family Court is that the second child-Master "X" was born on 17.7.2013 and that the respondent came to know about the alleged adulterous behavior of the appellant herein, only on 14.9.2016. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case.
There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h).
Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.
What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife - in cases of this nature the Court must bear in mind that Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all - the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112, is rejected.
Whose rights, are to tilt the balance in the scales of justice? - HELD THAT:- Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.
The Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed.
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2023 (2) TMI 1162 - ITAT DELHI
Disallowance u/s 14A - no dividend income received - HELD THAT:- During the year, the assessee has not received any dividend, hence we hold that in the absence of any dividend received and claim of exempt income, no disallowance u/s 14A is called for.
Foreign Travel Expenses disallowed - assessee could not produce any documentary evidences inspite of providing multiple opportunity - CIT(A) deleted the addition on the grounds that all the details have been provided and the foreign travel is a business contingency - HELD THAT:- It reflects the details of employees name, designation, date of visit, and the countries visited. We find that the employees visited countries namely, Nairobi, South Africa, Singapore, China, Tashkent, Denmark, Dhaka, France, Bangkok, Hong Kong, Dubai, Italy, USA, Canada, Sri Lanka. We find that the entire trips have been made by the employees and the Directors. There were no trips pertaining to any personal staff or relatives of the directors of the employees. All the tours have been made for the purposes of expanding the business for imports and exports. In the absence of any personal element or nonbusiness purpose brought by the AO any tours undertaken, we hereby affirm the action of the ld. CIT(A) in deleting the addition.
Car Expenses disallowed - Addition made on the grounds of personal use owing to non submission of any log books produced for verification of the purpose of the journeys performed by the company vehicles and the personal use of the cars by the directors cannot be ruled out - CIT(A) deleted the addition on the grounds that the details of the personally owned vehicle by the directors were obtained and examined - HELD THAT:- Since, the directors have also own the vehicles in their personal capacity, the allegation of the AO that the company vehicles were used for personal purpose in the absence of any tangible evidence cannot be sustained. The decision of the CIT(A) is hereby affirmed.
Trading Results of Fabrics - AO applied GP @ 28.97% on the total turnover - CIT(A) held that the GP rate of 28.97% of footwear cannot be applied to the sale of fabric and held that GP @ 7% on the declared sale is acceptable - HELD THAT:- Having gone through the entire issue of purchase and sale of goods to the tune of Rs.8 .3 Cr. and after examination of the material on record, we decline to interfere with the order of the ld. CIT(A) determining the GP @7%.
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2023 (2) TMI 1161 - ITAT PUNE
Addition u/s 69A - unexplained money addition - eligible to be set off as well both against unaccounted cash as well as unaccounted jewellery - HELD THAT:- DR could hardly dispute that the foregoing twin judicial precedents are already in assessee’s support that such a set off could very well be granted even against jewellery items and vice-versa. This is further coupled with the clinching fact that seized material against the assessee found during the course of search on 04.11.2017. There is neither any amount mentioned therein nor the sum total thereof so as to draw any presumption of correctness of contents thereof u/s 292C of the Act.
Assessee’s search statement had admitted various amounts as per the contents of seized document - We find no merit in the Revenue’s instant argument in light of CBDT’s twin landmark circulars dated 10.03.2003 and 18.12.2004 that a searched party’s admissions or confessions during search or survey hardly carry any significance in the absence of any supportive evidence. We reiterate that the foregoing sole seized document is totally “dumb” as there are no clear-cut entries which could suggest any payments or receipts, as the case may be involving this assessee - Decided in favour of assessee.
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2023 (2) TMI 1160 - ITAT BANGALORE
TP Adjustment - imputing interest on outstanding receivables due from AEs - HELD THAT:- As the issue is already decided by the Coordinate Bench in favour of the assessee. In the circumstances, the remaining unchanged as compared to the A.Y. 2017-18, this issue is squarely covered in assessee’s own case for A.Y. 2017-18. So, the addition made on account of transfer pricing adjustment on outstanding receivables amount is to be decided afresh in the light of above order in assessee’s own case.
Not considering export incentives as operating item while determining margin of the Appellant - assessee humbly submitted that export incentive income earned is directly linked to the provision of services by the entity to its group company. Accordingly. income earned by sale of SEIS scrips should be considered as operating in nature while determining the operating revenue of the assessee - HELD THAT:- We consider that an item which relates to the international transaction in question, be considered as an operating item for the purpose of computation of operating profit margin of such transaction. The income recognized for such scrips relates to the provision of IT enabled services, as the entitlement to such scrips arises only on account of such IT enabled services rendered by the assessee to its AEs. Accordingly, such income qualifies as a part of operating revenue for the purpose of computation of operating profit margin of the transaction pertaining to rendering of IT enabled services by the assessee.
In this case it may be appropriate to consider export incentive as part of operating revenue in a TNMM analysis.
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2023 (2) TMI 1159 - ITAT KOLKATA
TP adjustment - fees / commission for Corporate Guarantee given by the assessee on behalf of its AE - HELD THAT:- In most of the decisions referred the rate of Guarantee Fee has been taken to be in the range of 0.3% to 0.5%. In the present case, it is admittedly a fact on record that assessee suo motu has charged Guarantee Fee @ 0.50% from its AE. We also take note of the observations made by ld. CIT(A) in respect of basis of ‘CCC’ credit rating adopted by the ld. TPO for the purpose of benchmarking of fee towards Corporate Guarantee which is devoid of any comparative factual data. Also, ld. CIT(A) has considered the equal split of benchmarking rate arrived by ld. TPO between the assessee and its AE which doesn’t bear any rationality
As the fact that the assessee itself has suo motu charged Guarantee Fees/Commission @ 0.50%, no reason to interfere with the findings given by the ld. CIT(Appeals) on this issue. Accordingly grounds taken by the Revenue in this respect are dismissed.
Deposit of employee PF & ESI contribution u/s 36(1)(va) - payment was made beyond the due date of filing the return - HELD THAT:- The issue is squarely covered against the assessee in view of the recent judgment in the case of Chekmate Services Pvt. Ltd.[2022 (10) TMI 617 - SUPREME COURT] wherein it has been held that “deduction u/s 36(1)(va) in respect of delayed deposit of amount collected towards employees’ contribution to PF cannot be claimed when deposited within the due date of filing of return even when read with Section 43B. Decided against assessee.
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2023 (2) TMI 1158 - KERALA HIGH COURT
Seizure of cash from premises - existence of business or not - case of Revenue is that quarrying was being carried out both in the individual name as well as in the name of a firm and on getting information regarding some irregularities, the inspection was carried out which resulted in the seizure - HELD THAT:- It is not deemed proper for this Court to interfere at this stage and direct release of the cash, which is primarily a matter which has to be considered by the Authorities concerned. The 1st petitioner has preferred Ext.P11 application before the 1st respondent.
The writ petition is hence disposed of directing the 1st respondent to consider and pass orders on Ext.P11 after hearing the petitioners at the earliest, at any rate within three weeks from the date of receipt of a copy of this judgment.
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2023 (2) TMI 1157 - GAUHATI HIGH COURT
Recovery of service tax - services rendered by the petitioner as goods transportation and handling for the Food Corporation of India - exempted from payment of service tax under the Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 w.e.f. 01.07.2012 or not - HELD THAT:- Upon due perusal of the order in M/S. N.E. LOGISTICS AND ANR. JUGAL KISHORE MAHANTA VERSUS UNION OF INDIA AND 2 ORS. THE PRINCIPAL COMMISSIONER GST AND CENTRAL EXCISE COMMISSIONERATE GUWAHATI [2022 (3) TMI 1157 - GAUHATI HIGH COURT] and GB CHOWDHURY HOLDINGS PVT LTD VERSUS THE UNION OF INDIA AND ANR, PRINCIPAL COMMISSIONER GST AND CENTRAL EXCISE COMMISSIONERATE [2022 (4) TMI 510 - GAUHATI HIGH COURT] respectively, this Court is of the view that this writ petition can also be disposed of in similar terms by interfering with the impugned order and remanding the matter back to the respondents authorities. This Court proposes to dispose of this matter in terms of the orders passed by the Co-ordinate Bench in view of the fact that a perusal of the Mega Exemption Notification dated 20.06.2012 reveals that in respect of the services stated to be rendered by the petitioner as transporter of goods, the service tax is payable by the recipient of such services.
This Court is of the view that the matter can be remanded back to the authorities who will re-consider the matter afresh and pass appropriate orders. The petitioner will appear before the respondent authority on 13.03.2023 on which date the Principal Commissioner, CGST & CX, Guwahati will proceed for hearing of the matter afresh - Petition allowed by way of remand.
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2023 (2) TMI 1156 - CALCUTTA HIGH COURT
Request for Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issue involved in this writ petition requires affidavit from the respondent for final adjudication - List this matter for final hearing in the monthly list of May, 2023.
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2023 (2) TMI 1155 - SC ORDER
Levy of Service tax alongwith interest and penalty - Business Auxiliary services - service of procurement of space on the vessel - It was held by CESTAT Mumbai that Section 65(19) ibid will not address these independent principal-to-principal transactions of the appellant and, with the space so purchased being allocable only by the appellant, the shipping line fails in description as client whose services are promoted or marketed. Therefore, the demands, with interest thereon, and penalties are set aside.
HELD THAT:- This Court is of the opinion that the order impugned does not call for interference. The appeal is, accordingly, dismissed.
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2023 (2) TMI 1154 - ITAT KOLKATA
Relief u/s 90 - foreign tax credit - claim denied for delay in filing Form No. 67 - assessee earned income from Tanzania and as deducted as withholding tax and the credit for the same was claimed as relief under section 90 of the Act against the tax liability arising in India - HELD THAT:- As last date for filing the return u/s 139(4) of the Act for A.Y. 2017-18 was 31.03.2019 and the assessee filed Form 67 on 28.09.2018 alongwith revised return - where the assessee filed the original return on 06.07.2017 when there was no mechanism for filing Form No. 67, as it came into effect on 19.09.2017 and thereafter before the expiry of the due date prescribed u/s 139(4) of the Act, the assessee furnished Form 67 and also filed the revised return.
Claim of the assessee towards withholding taxes paid in Tanzania is to be given against the tax liability on the income declared in India. Even otherwise filing of Form 67 has been held to be directory in nature by the Coordinate Bench, Mumbai in the case of Sonakshi Sinha [2022 (10) TMI 107 - ITAT MUMBAI] wherein as held assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income Tax Rules, which provided that such form shall be filed on or before the due date of filing of the return of income.
Thus allow the claim of the assessee made in From No. 67 and give benefit of relief of withholding tax credit in Tanzania against the tax liability arising in India. Decided in favour of assessee.
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2023 (2) TMI 1153 - ALLAHABAD HIGH COURT
Recovery order - assessee closed its business and surrendered the registration - denial of natural justice inasmuch as it may be true that a notice was issued to the assessee, which remained to be acted upon for reason of the business having closed - Section 74 of the CGST/SGST Act, 2017 - HELD THAT:- While the assessee contends, no notice came to be issued to him, at the same time, it is undisputed that upon the assessee visiting the portal of the department, a notice was found existing. In such circumstances, on one hand, it may not be held, the impugned order has been passed in complete denial of natural justice inasmuch as it may be true that a notice was issued to the assessee, which remained to be acted upon for reason of the business having closed. At the same time, in the totality of the facts and circumstances of the case especially closure of business before the impugned order came to be passed, once indulgence is warranted.
The present writ petition is disposed of with a direction, in case the assessee files a statutory appeal within a period of three weeks from today, that appeal may be entertained on merits, without raising any objection as to limitation.
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2023 (2) TMI 1152 - ITAT PUNE
Rectification of mistake - Ground No. 10 on Bogus purchases disallowance has not been adjudicated - HELD THAT:- We accept the contention of the ld.AR that this is a mistake apparent from the record. Therefore, we recall the order of the ITAT, SERUM INSTITUTE OF INDIA LTD. [2018 (6) TMI 509 - ITAT HYDERABAD] only for limited purpose of adjudicating the Ground No. 10 raised by the assessee. Accordingly, the Miscellaneous Application of the assessee is allowed.
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2023 (2) TMI 1151 - ITAT DELHI
Rectification of mistake u/s 254 - non-adjudication of the ground as a mistake apparent from the record - HELD THAT:- The report of the Revenue has confirmed about raising of such ground by the assessee. The Tribunal inadvertently has not adjudicated the ground. Therefore, to sub-serve the interest of substantial justice, the order [2019 (10) TMI 1561 - ITAT DELHI] passed by the Tribunal is hereby, recalled to the extent of adjudicating the additional ground as taken - Therefore, Registry is directed to fix the appeal for hearing in due course for adjudicating the additional ground.
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