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Showing 141 to 160 of 1739 Records
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2017 (8) TMI 1604
Reopening of assessment u/s 147 - validity of reason to believe - audit wing of the Department brought to the notice of the AO that an amount of expenditure actually incurred for services rendered by the assessee-company has escaped assessment - HELD THAT:- AO came to a conclusion after considering the audit objection, that there was no escapement of income. Therefore, it cannot be said that the audit wing of the Department has merely brought to the notice of the Assessing Officer the fact of escapement of income. Once, the Assessing Officer is not satisfied about escapement of income and requested the audit wing to drop the proceeding, he cannot change his mind subsequently and issue notice under Section 148 for reopening assessment.
No material is available on record to suggest that the Assessing Officer reopened the assessment due to change of circumstances after the reply dated 04.03.2014 requesting the audit wing of the Department to drop the audit objection. In the absence of any material, this Tribunal is of the considered opinion that the reopening of assessment is not justified. Therefore, the consequential assessment order passed by the Assessing Officer cannot stand in the eye of law. .Accordingly, the order of the Assessing Officer is quashed - Decided in favour of assessee.
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2017 (8) TMI 1603
Bail application - allegation against the petitioners in the FIR is of having demanded/accepted money from the investors/home buyers to the tune of several hundred crores of rupees, even though there were no requisite sanctions and approvals or zoning plan for the construction - HELD THAT:- Issue notice. Mr. Rahul Mehra, learned Standing Counsel accepts notice.
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2017 (8) TMI 1602
Recovery of disputed amount - petitioner has failed to execute the work awarded to it within the time stipulated - whether writ petition against action of the State authorities seeking to recover disputed amount would be maintainable or not? - HELD THAT:- This question is no longer res integra and in ABL INTERNATIONAL LTD. & ANR. VERSUS EXPORT CREDIT GUARANTEE CORPORTION OF INDIA LIMITED & ORS. [2003 (12) TMI 584 - SUPREME COURT] it was held that writ petition is maintainable in case of contractor taking recourse to extraordinary remedy seeking to invoke writ jurisdiction of Court, alleging action of State authorities as arbitrary and unreasonable.
Jurisdiction - whether the State authorities are justified in issuing notice for recovery of the aforesaid subject amount in dispute without having due adjudication by the competent authorities? - HELD THAT:- The State authorities cannot recover the above-stated amount from the petitioner without due and prior adjudication by the competent authority, the impugned notices are liable to be quashed.
The notices issued by the Superintending Engineer and the Engineer-in-Chief dated 20-8- 2015 and 4-8-2015, respectively, are arbitrary, unreasonable and violative of Article 14 of the Constitution of India, the same are therefore, liable to be quashed - Petition disposed off.
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2017 (8) TMI 1601
Cancellation of registration of appellant - failure to pay tax U/s. 27(5) of Gujarat VAT Act - HELD THAT:- The appellant did not produce sufficient evidence before the learned cancelling authority therefore, view taken by the learned cancelling authority was correct. Secondly, the appellant has paid tax and interest accepting indirectly that the purchases were not genuine. The cancelling authority has power to cancel registration on grounds mentioned under section 27(5) of GVAT Act.
The cancellation of registration passed by the learned Commercial Officer (6) Unit-76, Bhavnagar dated 12.01.2016 is confirmed - appeal dismissed.
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2017 (8) TMI 1600
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- There are three ingredients/primary conditions to be fulfilled for an admission of CIRP viz., an application in a prescribed format with prescribed fees is to be filed by a concerned party; such party shall furnish a name of Interim Resolution Professional, who should free from any disciplinary proceedings; a default of debt in question has occurred - As per Section 3(12) of IBC 2016, Default means non-payment of debt when whole or any part or installment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. Whereas debt has been defined under section 3(11) of the Code, which says "Debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt.
The Hon'ble NCLAT in the case of M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR [2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] has held that once default. has occurred; application is complete; no disciplinary proceedings are pending against proposed IRP, Adjudicating Authority, on its satisfactions of above is required to admit the case. Adjudicating Authority for the purposes of Insolvency and resolution liquidation for corporate persons is National Company Law Tribunal, constituted under section 408 of the Companies Act, 2013.
So the instant application/petition is properly instituted by duly authorized officer of IDBI and submitted application in a prescribed form with required fee along with all the relevant documents duly certified by the competent officer - It is not in dispute that various working capital term loans/working capital facilities/Restructured term loans/funded interest term loans/Priority Loans/Long Term working capital term loans, granted by the IDBI and availed by the respondent-LITL. The total overdue as on June 15th 2017 is ₹ 2,34,96,12,889/-. The default of the loans in question are also not in dispute as date of defaults in all the loans happens to be 28th /30th November 2016 with 197/199 days of default in each case.
There is a default occurred, the instant application is complete and the IRP is to be appointed in accordance with law - Application admitted.
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2017 (8) TMI 1599
Validity of Reopening of assessment u/s 147 - bogus purchases - HELD THAT:- Returns were processed u/s 143(1) of the Act and notice u/s 148 of the Act in both the years were issued on 03-12-2012 within four years. The re-opening was done on the basis of information from DGIT investigation, Mumbai that the assessee has claimed bogus purchases and therefore income has escaped assessment. Accordingly, we also confirmed the action of the AO as confirmed by CIT(A).
Bogus purchases - CIT(A) restricting the profit rate at 12.5% - HELD THAT:- Assessee might have made purchases from grey market and obtained these bogus bills from hawala parties by paying some commission. In these circumstances the assessee might have saved VAT and also purchased material from grey market at a lower price. For that the CIT(A) has restricted the addition made by the AO of unproved purchases by estimating and applying the profit rate @ 12.5% as against addition made by the AO of 100% of the bogus purchases. According to us, the profit rate applied by CIT(A) at 12.5% is quite reasonable and accordingly a reasonable profit rate is estimated. We find that the in the decision of the Hon’ble Gujarat High Court in the case of CIT vs. Smith P Seth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] wherein the profit rate is estimated at 12.5%. We find that the CIT(A) has rightly restricted the profit rate on unverified purchases and we are of the view that he has rightly estimated the profit. - Decided against assessee.
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2017 (8) TMI 1598
Long Term Capital Gain, Taxability and Year of Taxability - taxability or assessibility of the income in which year - Determination of cost of acquisition of the rights being transferred - whether the receipts on account of development agreement relating to TDR related FSI is taxable as capital gains or not? - HELD THAT:- We find that this issue has been adjudicated upon by the Hon’ble Bombay High Court in the case of CIT v. Sambhaji Nagar Co-op. Hsg. Society Ltd [2014 (12) TMI 1069 - BOMBAY HIGH COURT]. It is held that the asset i.e. FSI/TDR is generated by change in the development control regulations. A specific insertion would therefore be necessary so as to ascertain its cost for computing the capital gains. The Court, referring to the decision of the Apex Court in CIT v. D. P. Sandu Bros Chembur P Ltd [2005 (1) TMI 13 - SUPREME COURT]held that all which is capable of acquisition at a cost would be included within the provisions pertaining to the head capital gains as opposed to assets in the acquisition of which no cost at all can be conceived.
Thus, the Hon’ble Bombay High Court held that since the cost of acquisition of the rights being transferred cannot be determined, the amount is not liable to capital gains tax.
We respectfully following Hon’ble Bombay High Court in the case of Sambhaji Nagar Co-op. Hsg. Society Ltd (supra) hold that consideration received for permitting the developer to use TDR/FSI rights on the land belonging to the assessee is not taxable as capital gains. Accordingly, we allowed the issue of assessee appeals in both the years. However, in the given facts and circumstances, we are of the view that assessibility of these receipts falls in AY 2004-05 and not in AY 2002-03. Accordingly, both the appeals of the assessee are allowed.
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2017 (8) TMI 1597
Reopening of assessment u/s 147 - ground not argued before the bench at the time of hearing - HELD THAT:- Assessee had raised the legal issue with respect to reopening U/s.147 of the Act, in its grounds of appeal, the same was not argued before the bench at the time of hearing. Therefore, the ground with respect to reopening was not considered. However, in the interest of justice, since the assessee has come up with the prayer before us for considering the ground with respect to reopening U/s.147 of the Act, we are of the considered view that a fair opportunity is to be provided to the assessee. Therefore, we hereby recall the order of the Tribunal for the limited purpose of adjudicating the ground with respect to reopening of assessment U/s.147 of the Act. The Registry is hereby directed to post the appeal for hearing in due course and intimate both the parties.
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2017 (8) TMI 1596
Disallowance of 10% of the hospitality expenses on adhoc basis in the hands of the assessee being a Corporate entity/ artificial person - HELD THAT:- Following decisions lay down the ratio that a company being an artificial person, there cannot be any personal element in expenses incurred by a company and subsequently, no disallowance in the hands of a company can be made u/s 37 of the Act. The addition, if any, can be made in the hands of a person (e.g. employee, directors etc.) receiving such benefits.
As relying on Sayaji Iron &Engg. Co [2001 (7) TMI 70 - GUJARAT HIGH COURT] , Ramkishin Textiles (P.) Ltd vs ITO [2011 (1) TMI 903 - ITAT MUMBAI], KSS LTD. (FORMERLY KNOWN AS K SERA SERA PRODUCTIONS LTD.) VERSUS DCIT RG 2 (3) (1) , MUMBAI [2015 (12) TMI 1784 - ITAT MUMBAI] we do not find any merit for the disallowance of 10% of the hospitality expenses on adhoc basis in the hands of the assessee being a Corporate entity/ artificial person. - Decided in favour of assessee.
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2017 (8) TMI 1595
TDS u/s 194C - Disallowance u/s 40(a)(ia) - assessee AOP had received contracts from third party which, in turn, was executed by the two members of AOP - Whether assignments of the work to the members as per the Memorandum of Understanding agreed upon is not equivalent to sub-contract and as such the assessee AOP was not liable to deduct tax at source out of the amount distributed amongst the members of the AOP in the agreed ratio of share - HELD THAT:- As decided in SHRADDHA & MAHALAXMI JOINT VENTURE (DONGARGAON WORK) [2014 (12) TMI 347 - ITAT PUNE] as relying on SWAPNALI RDS JOINT VENTURE [2014 (12) TMI 320 - ITAT PUNE] held that CIT(A) was justified in holding that in absence of any contract or sub-contract work by joint venture to its member companies, provisions of section 194C were not applicable for the purpose of TDS - The two corporate entities forming joint venture were already being assessed since A.Y. 2000-01 onwards on their respective shares and TDS apportionment certificates were also issued by the AO every year for these eight years including the current assessment year to enable them to claim the same - there was no Profit and Loss Account in the assessee’s case and there was no claim of any expenditure - there was no question of any disallowance under the provisions of section 40(a)(ia) - disallowance u/s. 40(a)(ia) made by the AO cannot be sustained - the finding of the CIT(A) cannot be interfered who has rightly held that there is no question of disallowance made u/s. 40(a)(ia) of the Act – Decided against revenue.
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2017 (8) TMI 1594
Issuance of F-forms - necessity for the Petitioner having to bifurcate the F forms arose as a result of the creation of the separate State of Telangana & Andhra Pradesh - HELD THAT:- Leave granted.
In the meantime, there shall be stay of the impugned judgment passed by the High Court of Delhi.
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2017 (8) TMI 1593
Maintainability of petition - territorial jurisdiction - Whether this Court has territorial jurisdiction to entertain these writ petitions? - HELD THAT:- This Court, carefully perused the writ petitions filed by the writ petitioners and also the objections raised by the learned Additional Solicitor General and also the oral arguments advanced by the respective counsel for the petitioners and catena of decisions cited on either side and the written arguments submitted by the respective counsel, the FIR filed by the respondent CBI, the search warrant issued by the Special Court and the notices issued by the respondent CBI under Section 41-A(1) r/w.41(1)(b) Cr.PC - this Court hears the writ petitions on the question of maintainability alone, with regard to preliminary issue as to whether this Court has got territorial jurisdiction to entertain these writ petitions.
Whether the territorial jurisdiction can be decided as preliminary issue? - HELD THAT:- This Court has territorial jurisdiction to entertain the writ petitions.
Whether the Doctrine of Forum convenience is applicable to this case? - HELD THAT:- This Court is not entertaining these writ petitions, for the reason that this Court is inclined to adopt the doctrine of forum convenience, that being so no prejudice would be caused to the petitioners and also they are having an alternative remedy to approach the Delhi High Court for the very same relief, which has superintendence power over the Special Court for CBI Cases at New Delhi which is within its jurisdiction. In this case, though the writ petitions are maintainable and this Court has territorial jurisdiction, however, in the interest of justice and in order to avoid conflicting view, in case any one of the party approaches before the Delhi High Court or Bombay High Court for the very same relief, this Court is inclined to adopt the doctrine of forum convenience - this Court is not inclined to invoke its extraordinary discretionary power to entertain these writ petitions before this Court. All the points raised are answered accordingly.
The Registry is directed to return all the papers filed before this Court to the parties for enabling them to approach the Delhi High Court, which has superintendence power over the Special Court for CBI Cases at New Delhi which is within its jurisdiction.
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2017 (8) TMI 1592
Condonation of delay of 780 days in filing appeal - sufficient reasons present for condonation - HELD THAT:- The delay was about 780 days. The appeal before the Tribunal was under Section 35B of the Act. Though sub-section (3) of Section 35B prescribes it period of limitation of 3 months, sub-section (5) gives a discretion for the Tribunal to condone the delay. No outer limit is prescribed, curtailing the power of Tribunal to condone the delay beyond a period.
There was sufficient cause for the appellant for the delay - Therefore, the question of law is answered in favour of the appellant and the appeal is allowed and the delay in filing the appeal before the Tribunal is condoned.
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2017 (8) TMI 1591
Rectification u/s. 154 - AO has held that interest granted to the assessee u/s. 244A of the Act is liable to be taxed under Article 22 of Indo-Australia DTAA and accordingly raised demand upon the assessee - HELD THAT:- Special Bench has held in the case of Clough Engineering Ltd. [2011 (5) TMI 562 - ITAT, DELHI] that interest on income tax refund is taxable under Article 11 of the DTAA. The Revenue has originally deducted TDS on the interest granted u/s. 244A of the Act at the rate prescribed under Article 11 of DTAA, which is correct as per the decision rendered by the Special bench. Further the Coordinate Bench has held in the case of Principal Life-International Emerging Markets Separate Account [2014 (11) TMI 984 - ITAT MUMBAI] that question as to whether interest on income tax refund is liable to tax under Article 11 or Article 23 of DTAA was a debatable one. The facts of the said decision shall squarely apply to the facts of the present case also. Hence there is merit in the contentions of the assessee both on merits and on legal point.
We hold that rectification order passed by the Assessing Officer is beyond the scope of provisions of section 154. Accordingly, we are of the view that the learned CIT(A) was not justified in confirming the order passed by the Assessing Officer u/s. 154 of the Act. Accordingly, we quash the orders passed by the tax authorities on this issue. Appeal filed by the assessee is allowed.
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2017 (8) TMI 1590
Insolvency & Bankruptcy Code - whether filing of “a copy of certificate from the “Financial Institution” maintaining accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the 'Corporate Debtor' as prescribed under clause (c) of sub-section 3 of Section 9 of the 'I & B Code' is mandatory or directory? - it was held that The argument that the foreign companies having no office in India or no account in India with any “Financial Institution” will suffer in recovering the debt from Corporate Debtor cannot be accepted as apart from the 'I & B Code', there are other provisions of recovery like suit which can be preferred by any person.
HELD THAT:- There is no merit in the present appeal - appeal dismissed.
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2017 (8) TMI 1589
Grant of Leave - Clause 12 of the Letters Patent - leave sought was declined on the ground that the court did not have any jurisdiction to entertain the suit; not on the ground of territoriality but in view of an express prohibition on civil courts by a statute - HELD THAT:- When a statute commands that a court shall not have jurisdiction to entertain a class of actions, it is obligatory on the part of the court to ensure that it does not act in derogation of such statutory command whenever the matter first receives the attention of any judge of the court. That there is a practice in this court that when leave is not sought under Clause 12 of the Letters Patent, the plaint may be presented before the Master and it may get admitted without any inquiry as to its maintainability, cannot dilute the responsibility of a judge being presented a plaint to ascertain whether the suit is ex facie prohibited from being received. Ideally, the Master should also undertake the same exercise and, if in doubt, refer the matter to the judge in chambers - If the practice in a particular court is for the action to be routinely filed in the department and not immediately receive the attention of a judge, such practise must be amended and, till such time that the practice continues, it would be the duty of the judge seeing the plaint or the petition or the like for the first time to apply his mind to the bar.
In view of the nature of the prohibition imposed on a civil court by the uncompromising wording of Section 34 of the Act of 2002, the approach adopted by the trial court in the instant case cannot be faulted. The contention of the appellants on the first count fails and it is held that a bar of the kind envisaged in Section 34 of the said Act obliges the court to ascertain whether the action brought before it falls foul of such provision and such assessment may be made suo motu and at the earliest stage when any judge in such court has due occasion to look into the same.
Whether Section 34 of the said Act prohibited the receipt of the suit in the manner in which it was presented? - HELD THAT:- he present suit was maintainable at the time that it was presented for admission and leave under Clause 12 of the Letters Patent was sought: not because any of the reliefs claimed in such suit is incapable of being granted by a DRT or DRAT; but only because at the time of such institution, no DRT or DRAT was empowered by or under the Act of 2002 to determine any part of the subject-matter of the suit. Though a relief for specific performance of the settlement agreement has been carried in the plaint and, ordinarily, a DRT or DRAT may not have the authority to consider or grant a relief for specific performance of an agreement, the nature of the agreement of which specific performance has been sought herein is one that is capable of being indirectly granted by the DRT or DRAT if a petition in such regard were to be carried by these appellants to such forum upon any measure being taken by the respondent Trust under Section 13(4) of the Act.
Desirability of judicial precedents being cited in a judgment or order without such authorities being brought to the notice of the parties - HELD THAT:- Viewed from the perspective of a party against whom a decision is made on the basis of a judicial precedent not referred to in course of the arguments, it would amount to a breach of the most elementary canons of natural justice. It is possible that the perspective in which a judicial precedent is read or understood may be altered upon a party to the action having a chance to explain the same or being afforded an opportunity to bring any other authority to bear on the issue.
Indeed, the miscarriage of justice that may be occasioned by a judgment referring to judicial authorities without such precedents being brought to the notice of the parties or the party likely to be affected thereby, is evident from the judgment and order impugned - It is, therefore, held that it is generally undesirable that judicial precedents be referred to or made the basis for any finding in a judgment without the attention of the parties represented before the court first being drawn to them.
Application disposed off.
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2017 (8) TMI 1588
Deduction u/s 80IA - claim of the assessee for the value of the goods or services - HELD THAT:- The value adopted by the Assessee be it value as per independent third party trading transactions or as per Power Exchange (IEX etc.) or any other independent transaction (for the relevant period and which has taken place in the relevant area where the eligible unit is located) constitute ‘market value’ in terms of explanation to Section 80IA(8);
The value at which State Grid has sold power to the Cement Unit of the Assessee (average annual landed cost) also constitute ‘market value’ in terms of explanation to Section 80IA(8) but the value at which State Grid or third party has purchased power from the Power Unit of the Assessee, which represents its power which is sold when not required by the Cement Unit, does not constitute ‘market value’ in terms of 16 explanation to Section 80IA(8). It is the ‘principle’ and not the ‘quantum’ which is deciding factor;
Where a basket of ‘market values’ are available for the relevant period and relevant geographical area where the eligible unit is situated, the assessee has discretion to adopt any one of them as market value; and
If the value adopted by the assessee is ‘market value’ as explained above, it is not permissible for Revenue to recompute the profits & gains of the eligible unit by substituting the said value (as adopted by the Assesse) by any other ‘market value’. - Decided in favour of the assessee.
Sale proceeds received by the company from the sale of Certified Emission Reduction (CER) pertaining to Carbon Credit - revenue or capital receipts - HELD THAT:- In view of the decision rendered by the Supreme Court in Vodafone International [2012 (1) TMI 52 - SUPREME COURT] it has to be taken as capital account and it cannot be taxed under the Income Tax Act since it was taxable under direct tax
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2017 (8) TMI 1587
Jurisdiction of High Court - scope of criminal investigation - investigation of a criminal proceeding - Section 482 Code of Criminal Procedure - HELD THAT:- Taking into account the fact that the inquiry was conducted pursuant to the order of the High Court to unravel the truth surrounding the lodging of the F.I.R. and was not a step in the investigative process which, in any case, has been interdicted by the High Court by the impugned order, we do not consider it prudent to come to one conclusion or the other with regard to the said findings. However the findings of the inquiry would clearly indicate that a large volume of material facts surrounding the lodging of the F.I.R. and its authenticity needs to be investigated and the truth unravelled. But this is what has been interdicted by the High Court - In the above situation, we find ourselves unable to agree with the view taken by the High Court.
The F.I.R. in question should be fully investigated in accordance with law and thereafter further legal consequences as may be warranted should be allowed to take effect.
Order of High Court set aside - appeal disposed off.
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2017 (8) TMI 1586
Depreciation on buses - as assessee company engaged in the business of transportation of passengers and is registered under the Motor Vehicle Act, which clarifies the buses used for the transporting and carrying passengers, therefore eligible for depreciation at 30% instead of 15 % and even otherwise definition of (contract carriage) and (stage carriage) as per section 2(3) & 2(29) of the Motor Vehicle Act, 1963 was extracted to infer that the buses used in the transportation business were hired by the passengers, thus, entitling the buses for a higher rate of deprecation - HELD THAT:- Stage Carriage” is defined in Sec.2(29) of The M.V. Act - ‘Stage carriage’ means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stage of the journey.”
As in the instant cases, the buses are registered under the Motor Vehicle Act, 1939 as ‘stage carriage’ or “ contract carriage” and even other wise the judgment of High Court of Kerala in the case of Balkrishna Transports [1996 (9) TMI 13 - KERALA HIGH COURT]
Consideration of the "definition" of the Motor Vehicles Act, 1939 as well as perusal of the judgment and submissions of the parties, we do not have any hesitation to hold that Public Transport carries the passenger may be for one stop or more than that may be for smaller which can be limited or even otherwise certainly there is implied contract between passenger and the buses owner for "hire" and in our considered opinion, it cannot be said that the passenger individually or passengers jointly do not have any contract with the bus owner while carrying on journey, hence, the submissions of the Revenue Department does not sound good to the extent that the Ld. CIT(A) erred in holding that there is no difference between hiring out the vehicle for a specified period & for a consideration and letting the passenger travel in a vehicle on payment of charges ignoring that a passenger traveling in a bus purchases only right to travel between fixed points as per terms and conditions of the transporter. - Decided against revenue.
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2017 (8) TMI 1585
TP Adjustment - Comparable selection - taking TNMM as the most appropriate method (MAM) - HELD THAT:- Exclusion of companies from the list of comparables on account of it failing to satisfy the filter of 75% revenues to be from software development services revenue
The assessee company, a subsidiary of Microsoft Corporation, USA, is a captive provider of software research and development services to its Associated Enterprises (AEs) for a remuneration of cost plus mark up of 15% , thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Working capital computation - HELD THAT:- Following the decision of the co-ordinate bench of this Tribunal in the ease of Moog Controls (India) (P.) Lid. [2015 (11) TMI 1719 - ITAT BANGALORE] , we direct the TPO/AO to allow the actual adjustment towards the differences in working capital position between the assessee and the companies in the final set of comparables.
Charging of interest u/s 234B and 234D - HELD THAT:- The charging of interest is consequential and mandatory and the AO has no discretion in the matter. This proposition has been upheld by the Hon'ble Apex Court in the case of CIT v. Anjum M.H. Ghaswala [2001 (10) TMI 4 - SUPREME COURT] and we therefore uphold the action of the AO in charging the said interest.
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