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Showing 141 to 160 of 1471 Records
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2021 (3) TMI 1331
Revision u/s 263 - Unexplained cash deposit - difference between ‘Lack of enquiry’ and ‘inadequate enquiry’ - HELD THAT:- It is for the Assessing Officer to decide the extent of enquiry to be made as it is his satisfaction as what is required under law. Reliance is placed on the decision of CIT v. Sunbeam Auto Ltd. [2009 (9) TMI 633 - DELHI HIGH COURT] wherein held that if there was any inquiry, even inadequate, that would not by itself, give occasion to the Commissioner to pass order u/s 263 of the Act, merely because the Commissioner has a different opinion in the matter and that only in cases where there is no enquiry, the power u/s 263 of the Act can be exercised. The ld. PCIT cannot pass the order u/s 263 of the Act on the ground that further/thorough enquiry should have been made by Assessing Officer.
If A.O. adopts one of the possible courses available in the scheme of the I.T. Act which results in any loss of revenue or when two views are possible and the A.O. adopts one of them with which the C.I.T. does not agree, then it would not be an order prejudicial to the interest of revenue for invoking the jurisdiction u/s. 263 - See MALABAR INDUSTRIAL CO. [2000 (2) TMI 10 - SUPREME COURT]
The order of the Ld. PCIT was definitely outside the purview of section 263 of the Act. As noted above, the exercise aimed at ascertaining the correct income of the assessee has been fulfilled by the Assessing Officer by exercising his quasi-judicial functions vis-a-vis passing the assessment order u/s.143(3) r.w.s 147 of the Act. Therefore, certainly it is not a case wherein adequate enquiries at the assessment stage were not carried out or assessment was made in haste. However, what is an opinion formed as a result of these enquiries and verification of the materials is something which is in exclusive domain of the Assessing Officer, and even if Ld. Pr. Commissioner does not agree with the results of such enquiries, the resultant order cannot be subjected to revision proceedings. - Decided in favour of assessee.
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2021 (3) TMI 1330
Reopening of assessment u/s 147 - whether the revenue is justified in reopening the assessment for the year under consideration? - claim of cost of acquisition, cost of improvement and deduction claimed u/s 54 of the Act is subject matter of present case - HELD THAT:- A plain reading of reasons recorded show that the c. Assessee in both the cases being the co-owners of the property situated at Navsari, which had been sold of on 27.06.2011 by way of registered sale deed and the consideration was ₹ 64,00,000/-. Both the assessee being co-owners of the property, had shown the amount of sale consideration received in their respective part, in their return of income and copy thereof has been placed on record.
The record indicates that the assessee had replied the query letter dated 13.02.2017 stating inter-alia that they have offered the long term capital gain for taxation after claiming deduction as per their share in the immovable property. Vide letter dated 12.03.2019, revenue had called for details with regard to claim of cost of acquisition, cost of improvement and claim u/s 54 of the Act and in pursuance of said letter, both the assessee had furnished necessary details vide letter dated 20.03.2019. It is the case of the revenue that on 19.03.2019, the reasons for reopening of the assessment had been recorded, whereas, the reply along with details had been received to their office on 22.03.2019. Under such circumstances, the day when reasons for reopening were recorded, no any details as called for were supplied by both the assessee.
We are of the view that the stand of the revenue with regard to non-filing of the necessary particulars are factually incorrect. It appears from the record that after the impugned notices issued under Section 148 of the Act, and before filing of the objections against the reasons recorded, both the assessee had furnished necessary details/documents in support of their claim of cost of acquisition, cost of improvement and deduction claimed under Section 54 of the Act.
Therefore, the assessee nowhere failed to disclose the necessary facts with regard to their assessment. It is an admitted fact that both the assessee have filed their return of income for the year under consideration, whereby, they had declared the amount received from the sale transactions and the claim with respect to cost of acquisition, cost of improvement and investment made in National Highway Authority for which they have claimed deduction under Section 54 of the Act. It is pertinent to note that while passing the order of disposing of objections against the reasons recorded, the authority failed to consider the necessary disclosures made in the return of income and the details / documents furnished by the assessee in pursuant of the query letter issued by the Assessing Officer.
We are of the view that while recording the reasons for reassessment, the Assessing Officer failed to consider the necessary details which were on the record and without application of mind, the Assessing Officer has recorded the reasons in mechanical manner. Thus, the reasons lack validity and Assessing Officer had proceeded on erroneous premise.
There is no basis or jurisdiction for the respondent to form a belief that income of assessee chargeable to tax for the year under consideration has excaped assessment within the meaning of Section 147 of the Act. - Decided in favour of assessee.
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2021 (3) TMI 1329
Deduction u/s 80P(2)(a)(i) - Whether the provisions of Section 80P(2)(a)(i) permit the claim for deduction relatable to the interest income earned from the advances to the staff/ employees as well as from the interest earned from savings bank account? - HELD THAT:- In the light of the judgment rendered by a Division Bench of this Court [2019 (6) TMI 1658 - MADRAS HIGH COURT] the above tax case appeal is allowed, the impugned order passed by the Tribunal is set aside and the matter is remanded to the Tribunal to be heard and decided afresh. The substantial questions of law raised are left open.
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2021 (3) TMI 1328
Classification of imported goods - processed betel nut - API supari, Chikni supari, Unflavoured supari and Flavoured supari which does not contain lime or katha (catechu) or tobacco but may or may not contain any other ingredients, such as cardamom, copra or menthol - HELD THAT:- The advance ruling has been sought on classification of four different goods, each known as “supari” in common trade parlance, albeit with differentiator, viz. API, Chikni, unflavoured and flavoured. The basic raw material for each of the four goods is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 0802 80. I also note that Chapter 8 covers only edible nuts, inedible nuts and fruits being excluded by virtue of Chapter Note 1; and that betel nut/supari are masticatory. However, these items have been subjected to certain processes and added with certain materials, resulting in the question being posed whether the said processes and mixing/addition of certain materials are substantive enough to lead to the said four goods be considered as “preparation of betel nut” that would make them classifiable under Chapter 21 by virtue of Supplementary Note 2 of Chapter 21. Alternatively, whether the processes carried out on the same for cleaning, preserving and making them more attractive to certain tastes/preferences are too minor to full short of rendering them as preparations of betel nuts.
The three goods, namely API supari, Chikni supari and unflavoured supari are considered together - In these cases, one set of processes are found to be intended for cleaning; the second set for enhancing preservation; and third set for enhancing appearance or presentation, which are clearly covered by the Chapter Note 3 to Chapter 8. Addition of starch would be included under such processes. The applicant has contended that boiling of raw betel nut is a critical process, which changes the character of raw betel nut. However, in view of the Chapter Note referring to moderate heating, HSN Note and common understanding of boiling. The contention of the applicant cannot be agreed upon, regarding the exaggerated role of boiling in the process. Therefore, it is concluded that the processes to which raw betel nuts have been subjected to obtain API supari, Chikni supari and unflavoured supari are in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as preparations of betel nut, classifiable under Chapter 21.
Flavoured supari - HELD THAT:- In this regard, the concerned Principal Commissioner has also opined, citing reference to Central Excise Tariff, that flavoured supari is classifiable under Chapter 21. The reference by the Principal Commissioner of Customs to the Note 6 to Chapter 21 of the Central Excise Tariff Act, which was essentially intended to deem certain processes as “manufacture” is inappropriate in the present context. This is particularly so, given the judgment of the Hon’ble Supreme Court of India in the case of M/s. Crane Betel Nut Powder Works and of the CESTAT, Chennai in the case of M/s. Azam Laminators Pvt. Ltd. Put simply, these decisions clearly imply that addition of flavouring agents do not change the character of the good, meaning in the present case betel nut would continue to remain betel nuts and not become preparations of betel nuts.
Thus, all the four goods placed for consideration, i.e., API supari, chikni supari, unflavoured supari, flavoured supari merit classification under Chapter 8 of the First Schedule to the Customs Tariff Act, and more precisely, under the Heading 0802, and not under sub-heading 2106 90 30, as contended since they have not attained the character of “preparations of betel nut” despite the processes raw betel nuts have been subjected to and addition of starch (and flavouring agents in the case of flavoured supari).
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2021 (3) TMI 1327
Seeking withdrawal of appeal - Settlement of dispute under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - issuance of discharge certificate - HELD THAT:- Since the case has been settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 the appeal lying pending in this tribunal shall be deemed to have been withdrawn in terms of section 127(6) of Chapter V of Finance (No.2) Act, 2019.
The appeal is disposed of as withdrawn.
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2021 (3) TMI 1326
Assessment u/s 153A - Whether no incriminating material found in search? - HELD THAT:- As informed by the Revenue, that the issue, which arises in the present appeal, is covered by the judgement rendered in PARAM DAIRY LTD [2021 (2) TMI 764 - DELHI HIGH COURT]
Accordingly, the present appeal is disposed of in terms of the said judgement wherein held that in the audited report filed by the assessee along with the report, cash book, ledger, bank book etc. were mentioned; that the respondent assessee was maintaining books on TALLY Accounting Software which was seized during the search and was being treated as incriminating material; however, regular books of account of the assessee, by no stretch of imagination, could be treated as incriminating material to form basis of framing assessment under Section 153A read with Section 143(3) - also once an assessee does not receive a notice under Section 143(2) of the Act within the stipulated period, such an assessee can take it that the return filed by him has become final and no scrutiny proceeding are to be undertaken with respect to that return. Revenue appeal dismissed.
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2021 (3) TMI 1325
Classification of goods - Exemption from Customs Duty - Spinetoram - eligible for exemption under the Entry No. 249 of the Notification No. 50/2017-Cus., dated 30-6-2017 - classifiable under sub-heading 3808 99 10 of the Customs Tariff or not - HELD THAT:- Customs database indicates that it is currently being classified under sub-heading 3808 91 99. It is seen that under the tariff classification scheme of UK, ‘Spinetoram’ is classified under Tariff Item 3808919060 [Insecticides - others - Spinetoram (ISO) (CAS RN 935545-74-7), preparation of two spinosyn components (3’-ethoxy-5,6-dihydro spinosyn J) and (3’-ethoxy-spinosyn L)]. Since, the purpose of the present proceedings is not to provide a ruling on the classification of ‘Spinetoram’, it is sufficient to conclude that ‘Spinetoram’ is classifiable under Chapter 38 of Indian Customs Tariff, so long as it is continued to be imported in a form which is in conformity with the conditions laid down in the tariff.
The insecticide is a sub-set of pesticide. Spinetoram is derived from the fermentation of Saccharopolyspora spinosa and it is then chemically modified to create unique active ingredients. Its manufacturing involves some degree of synthetic modification. This is the reason why the Commissioner of Customs (Import), ACC, Mumbai is of the view that it is not a biogenic product - Import of insecticides/pesticides is subject to the provisions of the Insecticides Act, 1968. As per provisions of Section 9 of the said Act, no insecticides are allowed to be imported without a valid certificate of registration or an import permit issued by the Secretary, Central Insecticide Board & Registration Committee under his signature and office seal. Any person desiring to import or manufacture any insecticide may apply to the Registration Committee for the registration of such insecticide and there shall be a separate application for each such insecticide to obtain the certificate of registration.
The manufacturing process of ‘Spinetoram’ involves chemical/synthetic modification of fermented Saccharopolyspora Spinosa is not sufficient to reject the applicant’s assertion that it is a bio-pesticide - the product in question is classifiable under Chapter 38; is a bio-pesticide and is based on Saccharopolyspora spinosa - thus, ‘Spinetoram’ is eligible for the benefit provided under Entry No. 249 of the Notification No. 50/2017-Cus., dated 30-6-2017, as amended.
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2021 (3) TMI 1324
Seeking extension of time for making payments as per the approved resolution plan - HELD THAT:- The resolution applicant has made substantial payments, however, due to COVID 19 pandemic there is considerable delay in honouring the commitments. Hence, this application is made seeking extension of time. The Ld. counsel further states that the resolution applicant and State Bank of India are negotiating for settlement, and that the settlement talks are in final stages. Considerable amount has been paid to SBI, and substantial payment shall be made on or before 31.03.2021. The negotiations are in final stages. The Ld. Counsel also states that there were various difficulties from different quarters, hence, the Resolution Applicant had to face lot of hardships and difficulties, implementing the plan, consolidating the resources of corporate debtor, people etc. Be it as it may, the applicant shall make all endeavours to make considerable payments on or before 31.03.2021, to prove its bona fide.
List this application, along with all other pending applications on 12.04.2021 for hearing.
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2021 (3) TMI 1323
Violation of principles of natural justice - Corporate Debtor into liquidation on the recommendation of the Committee of Creditors (COC) comprising of the sole lender Punjab National Bank - allegation is that the Rules of Natural Justice have not been followed by the COC - HELD THAT:- The Suspended Management being the Promoter was all along represented in the COC meetings and never raised any objection as emanates from para 1 of the impugned order. This being a matter of record, the Appellant- Promoter’s disputing the factum of his participation in the COC meetings cannot be entertained. That apart, under Section 33(2) of the Insolvency and Bankruptcy Code, 2016 read together with explanation inserted by Act 26 of 2019 enforced w.e.f. 16th August, 2019, the COC is empowered to take a decision in regard to liquidation of the Corporate Debtor even after an application has been filed by the Resolution Professional placing the Resolution Plan approved by the COC before the Adjudicating Authority for approval.
Of course, the withdrawal of the Resolution Plan can be done before its approval by the Adjudicating Authority. This implies that even after approval of the Resolution Plan by the COC and laying it before the Adjudicating Authority, the COC can change its mind and pass a Resolution liquidating the Corporate Debtor subject to only exception that such course cannot be adopted after its confirmation i.e. after approval of the Resolution Plan by the Adjudicating Authority.
Appeal dismissed.
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2021 (3) TMI 1322
Reopening of assessment u/s 147 - Whether Tribunal is right in law in quashing the notice under section 148 of the Act and pursuant to assessment under section 147 and read with 143(3) of the Act is valid? - HELD THAT:- Ground No.1, i.e. with regard to reopening assessment under section 147, was given up by the assessee before the CIT(Appeals). Recording the submissions of the learned AR., the Commissioner of Income Tax (Appeals) dismissed the said ground. However, the Income Tax Appellate Tribunal took into consideration the said ground which was given up by the assessee before the Commissioner of Income Tax (Appeals) and held against the Revenue.
When the assessee themselves have given up the ground, the Income Tax Appellate Tribunal should not have taken into consideration the said ground and given a finding as against the Revenue. The common order passed by the Tribunal cannot be sustained on this ground alone.
We set aside the common order passed by the Income Tax Appellate Tribunal and remit the same to the Tribunal for fresh consideration. The Tribunal is directed to go into the merits of the matter and pass an order afresh on merits and in accordance with law.
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2021 (3) TMI 1321
TP adjustment - Comparable selection - HELD THAT:- There is no dispute between the parties about the assessee being engaged in software development business having carried out the corresponding international transactions with its overseas AE(s) thereby disclosing net cost + margin of 17.18%. It is thus purely an issue of the alleged wrongful exclusion and inclusion of comparable entities only.
M/s.Mind Tree Ltd - We thus hold in this factual backdrop that the learned panel has rightly directed exclusion of M/s.Mindtree since lacking not only the reliable functional similarity but also having extraordinary events in the relevant time span in FY.2009-10. We therefore see no reason to accept the Revenue’s instant ground. The same stands rejected.
M/s.E-Infochips Bangalore Ltd., Kals Information Systems and Persistent Systems P. Ltd.- It transpires at the outset that this tribunal’s co-ordinate bench’s order in M/s.Pegasystems Worldwide India Pvt. Ltd. [2015 (10) TMI 2495 - ITAT HYDERABAD] has already held in the very assessment year i.e., AY.2010-11 that former twin entities are not functionally similar in software development activity; and therefore, are not to be taken as valid comparables.
M/s.Persistent Systems Ltd. as not a valid comparable in assessee’s line of business of international transactions in the relevant previous year. The same is directed to excluded therefore.
Interest of receivables - DRP’s directions take note of the TPO’s observations having merely proposed to charge interest @12% p.a. regarding the receivables exceeding the credit period of 30 days - Suffice to say, the DRP has admittedly directed the TPO to ascertain LIBOR rate for 12 months in FY.2009-10 without even indicating the corresponding comparables in the relevant segment involving the receivables in issue. We make it clear that Chapter-X in the Act is a special provision wherein each and every upward and downward adjustment ought to be made after analysing the array of comparables in the very segment than based on mere proposal lacking any uncontrolled transactions information. We thus deem it proper to delete the impugned arm’s length price for this precise reason alone. The assessee succeeds in its 10 to 12 substantive grounds and the Revenue’s corresponding second substantive ground is declined.
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2021 (3) TMI 1320
Maintainability of petition - Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2019 - HELD THAT:- The petitioner herein had applied under Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2019. The case was considered by the Designated Committee and he was asked to make certain payment on or before 30.06.2020. The petitioner did not comply with the said condition.
Tthe writ petition is allowed by granting extension of time by seven more days. It is now brought to my notice by the learned standing counsel that as per Section 127(5) of the Finance Act, 2019, the payment will have to be made under the said scheme as directed by the designated committee. That apart, Rule 7 of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, states that every declarant shall pay electronically the amount as indicated in Form SVLDRS-4 issued by the designated committed on or before 30.06.2020.
The writ petition is dismissed.
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2021 (3) TMI 1319
Seeking direction to respondents to accept the amount as specified in the SLVDRS-3 - benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme - HELD THAT:- This Court deems it fit that in the given facts and circumstances that the petitioner is a bona fide businessman and is prepared to pay the amount in question in accordance with the scheme along with interest for the period which he has defaulted in scheme and looking into the extreme pandemic conditions of COVID and the death of petitioner's father, this is a fit case for invocation of the powers under Article 226 of the Constitution of India.
The respondents are directed to accept the amount as specified in SLVDRS-3 Form No.L280120SV301549 dated 28.01.2020 and give the petitioner benefit of Sabka Vishwas Scheme - Petition allowed - decided in favor of petitioner.
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2021 (3) TMI 1318
Carry forward of CENVAT credit balances of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess utilized as on 1.7.2017 - balances were not allowed to be carried forward in Tran-1 under section 140 of CGST Act, 2017 were liable to be refunded to the respondent in cash under the provisions of section 142(3) of the Central Goods & Services Tax, 2017 read with section 11B of the Central Excise Act, 1944 or not?
HELD THAT:- The appeal is admitted on the substantial question of law - the refund as directed by the CESTAT, New Delhi by order dated 26.04.2019 shall remain stayed subject to the final outcome of the appeal.
List the matter after four weeks.
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2021 (3) TMI 1317
Validity of assessment u/s 153C - challenged jurisdiction of the AO assumed under section 153C of the Act on the ground that requisite addition contemplated under this section are not available in the present case -HELD THAT:- The orders of the CIT(A) in both the cases have attained finality as the appeals of the Revenue were dismissed on account of low tax effect involved in them
There is no necessity to record any finding, which otherwise not going to materially affect the assessee. It will be purely an academic issue. There is no tax liability in the hands of the assessee by virtue of taking cognizance under section 153C of the Act. Whatever tax liability fastened in the hands of both the assessee by the AO is concerned, that stands eliminated by virtue of order of the ld.CIT(A), and those orders have attained finality. Some documents ought to have been recovered which belong to the assessee, only thereafter, cognizance can be taken under section 153C.
We do not wish to indulge in academic discussion on the issue raised by the assessees in appeals. However, in case, in future some Misc.Application or otherwise, appeals of the Revenue are revived or restored to their original numbers, then both the assessees will be at liberty to raise this preliminary ground in their respective appeals before the Tribunal in shape of cross objection. It is also observed that our non-adjudication and non-consideration of this issue on merit will not cause or prejudice to the assessees or other assessees of this group in their respective appeals. With the above observation, both the appeals are dismissed.
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2021 (3) TMI 1316
TP Adjustment - comparable selection - HELD THAT:- It is pertinent to note that the comparables which were argued by the assessee to be excluded as a functionally dissimilar cannot be simplicitory included - as seen from annual report and the documents provided by the assessee before us that the functional profile was not properly verified by TPO / AO. Thus, it will be appropriate to direct the TPO to exclude these three comparables i.e. M/s Aptico Ltd.; Axis Integrated System Ltd. and Killik Agencies and Marketing Ltd.
As regards the inclusion prima facie after seeing the documentation of all the three companies it can be seen that the functional profile of each of the company were not exactly similar to the assessee company and besides that there are filters which was taken into account by the TPO during the reference proceedings has not been properly sufficient and comparable to the assessee company. Though the assessee pointed out that these companies have to be included, it needs proper verification as the data before us cannot convey as to how these comparables has to be accepted. Therefore, it will be appropriate to remand back the inclusions to the file of the TPO / Assessing Officer for through verification of these comparable companies and if found comparable, the same should be taken into account.
Working capital Adjustment - As issue from the perusal of the order of the TPO / Assessing Officer it can be seen that the computation of the working capital adjustment was not properly done and the same has to be done in accordance with the ALP margins. Therefore, we direct the TPO / Assessing Officer to re-compute the working capital adjustment as per the ALP margins.
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2021 (3) TMI 1315
Invocation of extended period of limitation - suppression of facts or not - HELD THAT:- In accordance with the judgment of the Customs, Excise and Service Tax Appellate Tribunal in M/S. SEM CONSTRUCTION VERSUS C.C.E. & S.T. -RAJKOT [2020 (8) TMI 739 - CESTAT AHMEDABAD] that the extended period of limitation could not have been invoked, there being no suppression.
Appeal dismissed - decided against appellant.
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2021 (3) TMI 1314
Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Substantial Questions of Law framed for consideration on account of certain subsequent developments - HELD THAT:- Having heard both the parties through video conference, We are inclined to treat the instant appeal of the assessee as withdrawn relying on the decision of the Hon’ble High Court of Madras in the case of DCIT vs. M/s. Keyaram Hotels P. Ltd [2020 (11) TMI 142 - MADRAS HIGH COURT].
Accordingly, We hereby dismiss the instant appeal of the assessee for the A.Y. 2008-09 as withdrawn. However, We also make it clear that, if the assessee’s case is not accepted in the Vivad-se-Vishwas Scheme by the Revenue for whatsoever may be reason on a subsequent date, then the assessee shall be at liberty to file Miscellaneous Petition before the Tribunal within the time limit prescribed under the Act to reinstate her appeal - Appeal of the assessee is dismissed as withdrawn.
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2021 (3) TMI 1313
Cancellation of anticipatory bail granted - non-compliance with the condition within the time stipulated by this Court - HELD THAT:- Issue notice.
There shall be interim stay of the impugned order(s) and the amount already recovered shall remain with the respondent(s) in the meanwhile.
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2021 (3) TMI 1312
Refund of service tax - time limitation - adjudication order was passed on 18-12-2014 and the same was reviewed by the reviewing authority on 13-3-2015, thereafter on 8-4-2015, the appeal was filed before the Ld. Commissioner (Appeals) - Section 85(3) of the Finance Act, 1994 - HELD THAT:- As the time limit prescribed under Section 85(3) of the Finance Act, 1994 is that any person aggrieved from adjudication order is required to file the appeal before the Ld. Commissioner (Appeals) within 60 days of the receipt of the adjudication order and the said period can be extended by another one month if reasons of causing delay has been explained satisfactorily.
Admittedly, in the case in hand the appeals have been filed beyond the extended period of time limit prescribed under Section 85(3) of the Finance Act, 1994 before the Ld. Commissioner (Appeals) and the said aspect has not been examined by the Ld. Commissioner (Appeals) while entertaining the appeal filed by the Revenue which is in gross negligence while entertaining the appeal.
Ld. Commissioner (Appeals) has gone beyond its jurisdiction to pass the impugned order, therefore, the impugned order is not sustainable in the eyes of law - Appeal allowed - decided in favor of appellant.
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