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Showing 161 to 180 of 1957 Records
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2018 (11) TMI 1800 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD
Permission for withdrawal of petition filed by the financial creditor U/s 7 of the I & B Code - HELD THAT:- Application is allowed permitting withdrawal of petition - petition dismissed as withdrawn.
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2018 (11) TMI 1799 - KARNATAKA HIGH COURT
Exemption u/s 10A - organizational change - assessee has split-up and reconstructed the business already in existence; that the new business has been formed out of the plant and machinery previously used for the purpose - HELD THAT:- Since the instant appeal arises out of the order passed by the Tribunal, which is affirmed by this Court, this appeal too is to be disposed of. The substantial question of law is answered in favour of the assessee and against the Revenue by following the earlier orders of this Court in M/S. L.G. SOFT INDIA PRIVATE LIMITED [2018 (11) TMI 1787 - KARNATAKA HIGH COURT]
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2018 (11) TMI 1798 - ITAT CHENNAI
Damages for remittance of Pension Fund Trust paid - damages paid by the assessee for the delayed payments of contribution is not compensatory but damages in the nature of penalty - HELD THAT:- Furnishing a copy of interest rate declared by Pension Fund accumulation since 1952 to 2014, the AR submitted that since the AO has already decided the nature of this payment i.e., the damages paid by it in assessment year 2011-12, is compensatory in nature, this appeal may be allowed.
We heard the rival submissions and find merit in the submissions made by the ld. AR, supra, and hence, do not find any merit in the submission of the Revenue. The appeal grounds of the Revenue are dismissed.
MACT provisions to the loss - HELD THAT:- It is clear that the facts and circumstances associated with this is issue neither brought out by the AO nor by the CIT(A). In the facts and circumstances, we deem it fit to remit this issue back to the AO for a fresh examination. The assessee shall lay relevant materials in support of its contention before the AO and comply with the requirements of the AO in accordance with law. AO is free to conduct appropriate enquiry as deemed fit, but he shall furnish adequate opportunity to the assesssee on the material etc to be used against it and decide the matter in accordance with law.
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2018 (11) TMI 1797 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI-III, NEW DELHI
Sanction of Amalgamation Scheme - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- Presently in the instant case, in relation to valuation,the shares of the Transferee Company being the only asset held by the transferor companies, apart from cash and bank balance in the Transferor Companies, the adoption of value of the said shares held in the transferee company for the valuation of shares of the Transferor Companies is only reasonable and proper. In this connection the Valuation Report of M/s.SSPA& Co., Chartered Accountant, a Fairness Opinion of M/S. Fortress Capital Management Services Pvt. Ltd being a Merchant Banker has also been obtained and produced in terms of the relevant clause in the Listing Agreement before this Tribunal and prior to it before SEBI as well, which had approved in principle subject to compliance as already seen of the Scheme coming up for sanction and which was also asserted by the Counsel for SEBI present before the Tribunal during the proceedings.
The equity shares of the listed public company i.e. Transferee Company are not proposed to be transferred and shall be held by the existing promoters held by them previously through the Transferor Companies 1 and 2, by virtue of the Scheme through the Irrevocable Family Trust - It is seen that based on the queries raised by SEBI as well as subsequent amendments, respective Trust Deeds clearly shows that the shares are sought to be retained within the family as it was done previously as well prior to such transfers and not otherwise as sought to be portrayed by the Income Tax.
If the Tribunal is inclined to sanction the Scheme, then protection be afforded at the very least to the Income Tax in relation to the transactions preceding and subsequent to the sanction and their being no serious objections to it on the part of petitioner companies which is also reflected in the rejoinder filed by them to the reply filed of the Income Tax Department and also taking into consideration the clauses contained in the Scheme in relation to liability to tax and also as insisted upon by the Income Tax - the petition stands allowed and the scheme of amalgamation is sanctioned.
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2018 (11) TMI 1796 - KARNATAKA HIGH COURT
Penalty u/s 271(1)(c) - defective notice - Non specification of charge - HELD THAT:- Substantial question of law is covered by the Judgment of this Court in the case of COMMISSIONER OF INCOME-TAX AND ANOTHER v. MANJUNATHA COTTON AND GINNING FACTORY & OTHERS [2013 (7) TMI 620 - KARNATAKA HIGH COURT] wherein the said question of law was held in favour of the assessee and against the revenue. It was held that the notice under Section 274 of the Act should specifically state with regard to the concealment or for furnishing of incorrect particulars of income. In view of the answer to the substantial question of law the appeal is disposed off.
Consequently, the penalty imposed by the assessing authority is set aside for all the relevant years. - Decided in favour of assessee.
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2018 (11) TMI 1795 - ITAT DELHI
Disallowance u/s 40a (ia) - short deduction of tds - default u/s 201 - HELD THAT:- In the case of CIT vs. S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] had held that in case of any shortfall due to any difference of opinion as to the taxability of any item or nature of payments falling under the various TDS provisions, the assessee can be declared to be the assessee in default u/s 201 of the Act but no disallowance can be made by invoking provisions of section 40a(ia).
The Hon’ble High Court of Calcutta observed that the provisions of section 40a(ia) have two limbs; one is where, inter alia, the assessee has to deduct tax and second where after deducting tax, inter alia, the assessee has to pay the same into government account. The Hon’ble High Court of Calcutta went to observe that there was nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction and further, section 40a(ia) refers only to the duty to deduct tax and pay to government account. Undisputedly, in the present appeal also, there is no allegation that the tax deducted was not paid into the government account and the only fault of the assessee is the failure on its part to deduct tax at the prescribed rate. This, as per the judgement of the Hon’ble High Court of Calcutta, does not attract disallowance u/s 40a (ia) of the Act. - Decided in favour of assessee.
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2018 (11) TMI 1794 - ITAT BENGALURU
Eligibility of deduction u/s 80IA - strengthening of existing road - disallowance relating to existing four lanes 28 km to 67kms - HELD THAT:- Assessee is operating and maintaining the already existing road for which the assessee is entitled to annuity along with the annuity for developing, maintaining and operating the other part of the road.
With regard to the argument of the assessee that the service lane was developed by the assessee pursuant to the agreement we have considered opinion definition of service road and main lane as mentioned in Schedule D to agreement, are different and laying down of the service lane cannot be entitled the assessee to claim the benefit of laying down of the new infrastructure. we do not find that the benefit of maintenance and creation of service road can be given to the assessee.
The nature of activity which was undertaken by the assessee as we had understood from scope of work (supra) was only of maintaining and operating of the existing four lanes 28 km to 67kms. If we allow this kind of activity to fall with the ambit of Section 80IA, it will not be in consonance with the aims and objects for which this section has been introduced.
There is a distinction between the widening of the existing road by constructing additional lanes as part of the highways project vis-a-vis, improving, maintaining, refurbishing the existing road. Circular No.4 of 2010 of the CBDT only provides the scope of section 80IA to include within its ambit the widening of the existing road, but the road which exists or the infrastructure which is existing cannot form part of the development of the infrastructure because the infrastructure which is already developed is incapable of being developed again. Hence the assessee is not entitled to any relief pertain to disallowance relating to existing four lanes 28 km to 67kms.
CIT (A) has granted adhoc benefit of 25% to the assessee - We’re not able to comprehend the basis of arriving at the figure of 50% or 25% . There is no rational for the lower authorities to estimate the revenue in respect to the infrastructure already in place, specially under the circumstances when the records are available with the NHAI, which had granted the entity and contract of the assessee. In the result the working done by both the lower authorities were without any basis and was done on adhoc basis in our view both the authorities should have called the record from the NHAI and thereafter decided the matter.
We deem it appropriate to remand the matter to the CIT (A) with the following direction. With the direction to call records from National Highways Authority of India pertaining to fixing of annuity and find out :
a) What was the basis of fixing annuity with respect to strengthening of existing 4 lane and
b) What was the basis for fixing the annuity for the second category namely laying down 4 lanes after widening the existing 2 lanes to 4 lanes as per the agreement.
Based on the above exercise and reply if any received from the assessee , the Commissioner is to decide the deduction which the assessee is entitled in respect of widening of Road for the project 67 kms to 121 kms . However in respect of the annuity actually relatable to the first category namely maintenance and operation of existing four lane of 28 to 67 kms the assessee would not be entitled for any deduction Needless to say that the above said exercise shall be done by the CIT (A) after giving the notice and after examining the objection of the assessee. In the result ground no 3-4 of assessee are allowed for statistical purposes.
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2018 (11) TMI 1793 - ITAT BENGALURU
TP Adjustment - Comparable selection - selection of comparables by the TPO and also challenges appropriateness of RPT filter of more than 25% of sales - HELD THAT:- Comparability of M/s.Universal Print Systems Ltd. - As decided in M/s.CGI Information Systems & Management Consultants Pvt.Ltd. [2018 (4) TMI 1755 - ITAT BANGALORE] none of the objections raised by the Assessee in this regard about lack of information about allied services performed by die pre-press BPO segment of this company and the break-up of the revenue from such allied services have been dealt with specifically by the TPO or DRP. Since the comparability of this company is being remanded to be TPO for consideration of adjustments as mentioned above, the objection with regard to functional comparability should also be looked into by the TPO in the remand proceedings on the basis of materials which he may gather u/s. 133(6) of the Act, The Assessee should be given opportunity of being heard by the TPO before the issue is decided by the TPO - we remand this comparable to the file of the TPO/AO for fresh adjudication on the above lines.
TCS E Service Ltd. - Since the appellant company is into low end BPO, it cannot be compared with KPO service provider.
BNR Udyog Ltd - this company passes RPT filter as well as income from providing ITES being more than 75% of its revenue, this company has to be regarded as comparable company. No other arguments were advanced for exclusion of this company. Hence this company is held to be comparable with that of the Assessee.
Excel Infoways Ltd - The contention as regards employee cost filter, nothing was shown to us that the findings of the TPO or Hon'ble DRP are contrary to the material on record. However, as regards diminishing revenue filter, this filter was never applied by the TPO, needless to say application of new filter is not permissible at a later stage. This comparable deleted from the list of comparables on the ground that it is engaged in the business of software testing, verification and validation of software.
Working capital adjustment - HELD THAT:- We find merit in the contention of the learned AR of the assessee as there was no need for making any negative working capital adjustment as held in the case of NTT DATA India Enterprise Application Services (P.) Ltd. vs. Asst.CIT [2015 (1) TMI 604 - ITAT HYDERABAD]
Risk adjustment - HELD THAT:- As regards risk adjustment, we find that this issue was not raised before the TPO. It is only before Hon'ble DRP, a claim was made towards risk adjustment. Written submissions were filed before Hon'ble DRP. Hon'ble DRP held that no accurate adjustment can be made in this case. Even before Hon'ble DRP, no working of risk adjustment was furnished. We do not find any reason to interfere with the findings of the Hon'ble DRP.
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2018 (11) TMI 1792 - KERALA HIGH COURT
Revision u/s 263 - Gross profit addition - HELD THAT:- There can be no doubt that so long as the view taken by the AO is a possible view, the same ought not to be interfered with by the Commissioner under Section 263 of the Act merely on the ground that there is another possible view of the matter. Permitting exercise of revisional power in a situation where two views are possible, would really amount to conferring some kind of an appellate power in the revisional authority. This is a course of action that must be desisted from. The calculation of the Gross Profit was made by the AO, and the assessee agreed to the additions made. We are, therefore, of the view that the changes suggested by the CIT invoking the revisional jurisdiction under Section 263 of the Act is not sustainable.
Penalty u/s 271(1)(c) - conscious attempt on the part of the assessee to destroy accounts - only consequent to the survey that the assessee had filed return of income and shown an additional income of ₹ 23 lakhs - HELD THAT:- Section 271(1)(c) of the Act imposes strict liability on the assessee for concealment of income. There is no doubt that in the instant case, there was concealment by the assessee. The mere fact that he had consented to the additions made would not exonerate the assessee from the liability to pay penalty. The penalty has been reduced to 200% by the Tribunal. We do not intend to interfere with that finding of the Tribunal.
Question of law raised pertaining to the assessment proceedings is answered in favour of the assessee; and that of imposition of penalty is answered in favour of the Revenue and against the assessee.
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2018 (11) TMI 1791 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Non-refund of deposit - Section 447 of Companies Act, 2013 - it is averred that the petitioner approached police authorities namely Noida Police as well as Delhi Police as also has approached the Consumer Forum namely Hon'ble National Consumer Disputes Redressal Commission (NCDRC) in the month of July, 2015 under the provisions of Consumer Protection Act for the refund of the amount and the said complaint is pending - HELD THAT:- The petitioner had sought for refund of money in a sum of ₹ 48,99,223/- virtually based on the same cause of action as pleaded before this Tribunal in relation to this petition. In addition it is also seen that as between the parties there are several pending cases either slapped by the petitioner against R 1-4 or other way round against the respondents and a separate list has also been given by R 1-4 in their written submissions filed as Annexure A-3.
Without going into the legal issues raised herein whether the amount advanced against the property which has already been constructed at the time of making advance payment by the petitioner and having been appropriated by R-1 against the property agreed to be sold and whether the same constitutes a deposit, we find that there are numerous proceedings pending as against the parties initiated by each other consideration by this Tribunal will result only in multiplicity of proceedings as between the parties before various forums which is required to be eschewed and in the said circumstances this petition is dismissed but without cost.
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2018 (11) TMI 1790 - ITAT KOLKATA
Foreign exchange fluctuations on Foreign Currency Convertible Bonds (FCCB) - whether the foreign exchange fluctuation gain/loss on foreign currency loan borrowed to acquire indigenous fixed assets and/or imported fixed assets is chargeable to income tax or is not allowable as a revenue loss? - HELD THAT:- We hold that such exchange gain or loss is on capital account and hence it is neither taxable nor a deduction from profits can be allowed on the same. The Ld. Senior Counsel, Mr. J.P. Khaitan was fair enough to submit that the revenue’s ground for the Assessment Year 2009-10 has to be allowed in view of this legal position.
We reverse the order of the ld. First Appellate Authority and uphold the finding of the Assessing Officer for the Assessment Year 2009-10 that the assessee is not eligible for claim of deduction on account of exchange fluctuation loss. Similarly, the exchange fluctuation gain for the Assessment Year 2010 -11, cannot be brought to tax as the same is on capital account, by applying the same principles of law. This claim of the assessee can be entertained by the ITAT in view of the judgment of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. vs Commissioner Of Income Tax [1996 (12) TMI 7 - SUPREME COURT]. Hence this additional ground of the assessee is allowed.
Disallowance of foreign exchange loss - HELD THAT:- We find that this issue is covered in favour of the assessee by the decision of the ITAT, Kolkata ‘B’ Bench of the Tribunal in the case of Hindustan Gum & Chemicals Pvt. Ltd. [2017 (3) TMI 1173 - ITAT KOLKATA].
Applicability of Section 40(a)(i) - HELD THAT:- Gains/loss is on capital account and no deduction is admissible for the Assessment Year 2009-10, the question of disallowance u/s 40(a)(i) of the Act, does not arise.
Allowability of the claim of the assessee for deduction of premium payable on redemption of FCCB bonds - HELD THAT:- Liability is not a contingent liability. Deduction is liable on yearly basis as the liability accrues on time basis. The Hon’ble Calcutta High Court in the case of National Engg. Industries Ltd. v. Commissioner of Income-tax [1998 (9) TMI 65 - CALCUTTA HIGH COURT] is relied in this regard. The Hon’ble Supreme Court in the case of Madras Industrial Investment Corpn. Ltd. [1997 (4) TMI 5 - SUPREME COURT] laid down the principle that, deduction should be allowed on pro-rata basis over the terms of the bond. Applying the propositions of law in these case-law to the facts of this case, we hold that the deduction in question is allowable.
Applicability of provision of Section 40(a)(i) same is not applicable as only a provision has been claimed as a deduction during the year. The provisions relating to tax deduction at source apply only in the year of redemption. On the issue of applicability of Section 43A of the Act, the assessee submits that the imported assets were put to use by March 31st, 2008. The pro-rata premium for the period up to 31st March, 2008, was capitalized by the assessee. The premium relating to the period after the imported assets were put to use did not form part of the actual cost. Hence Section 43A of the Act, does not apply.
Disallowance u/s 14A r.w.r. 8D(2)(ii) - HELD THAT:- No disallowance can be made u/s 14A r.w.r. 8D(2)(ii) of the Rules, as the presumption is that interest free funds have been utilized for making investments. These principles were laid down by the Hon’ble Bombay High Court in the case of CIT vs. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT]. The Jurisdictional High Court in the case of Principal Commissioner Of Income vs Rasoi Limited, [2017 (2) TMI 863 - CALCUTTA HIGH COURT] took the same view.
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2018 (11) TMI 1789 - MADRAS HIGH COURT
Grant of Statutory Bail - modification of condition of bail - Section 167(2) of Cr.P.C. - misappropriation of funds by inducing the defacto complainant on part with money - HELD THAT:- The petitioner was arrested and remanded to judicial custody on 06.07.2018. Since the respondent did not filed the charge sheet, the Court below enlarged the petitioner on statutory bail, as per the procedure contemplated under Section 167(2) Cr.P.C. While granting bail, the learned Magistrate imposed condition that the petitioner shall deposit a sum of ₹ 5 crores to the credit of Crime No. 453 of 2017, on the file of the respondent police - the only condition can be imposed, while granting anticipatory bail under Section 167(2) Cr.P.C. is that the accused persons shall be released on bail if he is prepared to and does furnish bail. Apart from that no other requirement is necessary for grant of statutory bail as per Section 167(2) Cr.P.C.
In the case on hand, admittedly, the charge sheet has not been filed by the respondent police. Therefore the petitioner is entitled to be released on statutory bail under Section 167(2) Cr.P.C. When it being so, the right to be released under Section 167(2) Cr.P.C. is an indefeasible right and such a right cannot be extinguished by imposition of onerous conditions.
The condition imposed that the petitioner shall deposit a sum of ₹ 5 crores to the credit of Crime No. 453 of 2017, is set aside - petition allowed.
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2018 (11) TMI 1788 - ITAT PUNE
Addition on account of difference in Long Term Capital Gain declared by the assessee - AO after considering the DVO’s valuation report - difference between actual sale consideration declared by the assessee and the fair market value determined by the DVO is approximately 9.43% - HELD THAT:- In the present case, since difference between the value declared by the assessee and the value determined by the DVO is less than 10%, no addition in respect of Long Term Capital Gains is warranted. The findings of Commissioner of Income Tax (Appeals) on this issue are accordingly, set aside and the appeal of assessee is allowed.
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2018 (11) TMI 1787 - KARNATAKA HIGH COURT
Exemption u/s 10A - organizational change - assessee has split-up and reconstructed the business already in existence; that the new business has been formed out of the plant and machinery previously used for the purpose - HELD THAT:- Admittedly the Unit has been functioning ever since the year 1996-97. This is the 8th Year of operation of the assessee. It is only this year there has been a disallowance by the Assessing Officer under Section 10A of the Act.
Distinction as sought to be made therein is that in terms of Sub-section (1) of Section 10B of the Act, tax holiday period should be continuous and consecutive; that the period of ten years is referable to the undertaking and therefore, the transfer or change of the undertaking will not alter or increase the tax holiday period Of ten years. Therefore, the contention of the Revenue that if there is change of undertaking, tax holiday would stand restricted may not be correct. In so doing the earlier orders in case of Heartland KG Information Ltd. [2013 (9) TMI 375 - MADRAS HIGH COURT] And Sonata Software Ltd. [2012 (4) TMI 99 - BOMBAY HIGH COURT] were affirmed - Decided against revenue.
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2018 (11) TMI 1786 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH BENCH
Liquidation of Corporate Debtor - section 33 (1) (b), (i), (ii), (iii) and 33 (2) of the Code - HELD THAT:- The decision to liquidate the corporate debtor was taken by 100% voting share in the 7th meeting of the CoC held on 11-8-2018 - When the matter was listed on 01-11-2018, the applicant-resolution professional was directed to file the consent form of the resolution professional in terms of section 34 (1) of the I & B Code, 2016. In compliance with said order, the applicant has filed the consent form vide diary No. 4670, dated 29-11-2018. Mr.Ashish Aggarwal, resolution professional has filed the written consent as at Annexure RP-1, dated 20-11-2018 giving all the particulars as required in form AA, which is to be furnished by the resolution professional at the time of his appointment. It is stated that there are no proceedings pending with the IBBI or the Insolvency Professional Agency.
We order the liquidation of the corporate debtor Kochar Overseas Private Limited and appoint Mr.Ashish Aggarwal, registered Resolution Professional as the Liquidator for the purposes of liquidation of the corporate debtor, in terms of section 33(2) of the Code. His appointment will take effect from the date of receipt of copy of this order.
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2018 (11) TMI 1785 - ITAT CHENNAI
Disallowance u/s 14A - assessee challenged disallowance under section 14A of the Act r.w. Rule 8D - HELD THAT:- In this case, the assessee has not demonstrated that the investments have been made out of only its surplus funds and moreover, the assessee has not established that the borrowed funds have been utilized for the purpose of investments at any stage. Admittedly, in this case, the dividend income earned by the assessee was ₹.27,22,973/- whereas, the disallowance of expenditure worked out by the Assessing Officer goes manifold to the extent of ₹.1,08,15,631/-. The window for disallowance indicated in section 14A of the Act was only to the extent of disallowing expenditure incurred by the assessee in relation to the tax exempt income.
In a recent judgement in the case of Maxopp Investment Ltd. & Ors [2018 (3) TMI 805 - SUPREME COURT] restricting the disallowance to the quantum of exempt income. Thus, the ld. CIT(A) has rightly restricted the disallowance to the extent of exempt income earned by the assessee.
As long as an exempt income was earned, the expenditure incurred as attributable to earning such exempt income, had to be disallowed under section 14A of the Act. Thus, the ground raised by the assessee stands dismissed.
Additon made on account of employees’ contribution to ESI & PF - AO treated the delayed payments representing employees contribution towards PF/ESI as income of the assessee and brought to tax under section 2(24)(x) r.w.s. 36(1)(va) - HELD THAT:- In this case, it is not disputed by the Revenue that the assessee has not paid the employees’ contribution received by it before the due date of filing of the income tax return as specified under section 43B of the Act. Various Courts including the Hon’ble Jurisdictional High Court in the case of CIT v. Industrial Security and Intelligence India Pvt. Ltd. [2015 (7) TMI 1063 - MADRAS HIGH COURT] held that there can be no deemed addition under section 36(1)(va) r.w.s. 2(24)(x) of the Act, if the impugned amount has been paid before the due date of filing of the return. The ld. DR could not controvert the above decision of the Hon’ble Jurisdictional High Court. Just because the Department has not accepted the above decision and preferred Review Petition, we cannot take a different view, other than the view taken by the Hon’ble Madras High Court, which is binding on the Tribunal. We sustain the order of the ld. CIT(A) in deleting the addition - Decided against revenue.
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2018 (11) TMI 1784 - ITAT KOLKATA
MAT u/s. 115JB - Addition made on account of MAT proceedings - HELD THAT:- As decided in own case [2016 (1) TMI 135 - ITAT KOLKATA] provisions of section 115JB are not applicable in the case of the assessee bank and further held that the amendment brought in section 115JB read with Explanation 3 thereon by the Finance Act 2012 is applicable only with effect from Asst Year 2013-14 onwards in line with the Notes to Clauses of Finance Act 2012 . - Decided in favour of assessee.
Disallowance of expenses - HELD THAT:- Heard both and perused the material available on record. We find that the CIT(A) by following Rule of Consistency as followed in assessee’s own case for AY 2011-12 deleted the addition.
Disallowance made on account of ATM machine charges - HELD THAT:- As decided in own case we find that the issuance of ATM Cum Debit Cards to the customers of the assessee bank is part of the business activity of the assessee and there is no enduring benefit to the assessee out of incurring this expenditure. CIT(A) had observed that in the past the department had been accepting this expenditure as a revenue expenditure and we find no change in facts and circumstances of the case for the year under appeal with regard to the impugned issue warranting the department to take Cl different stand. Though the principle of res judicata does not apply to income tax proceedings, in our opinion the principle of consistency cannot be given a go bye. Reliance in this regard is placed en the decision of the Hon'ble Apex Court in the case of Radhasaomi Satsang [1991 (11) TMI 2 - SUPREME COURT]. Hence, we find no infirmity in the" order of the Ld. CIT (A).
Addition u/s 14A r.w.r. 8D - HELD THAT:- We find that the CIT(A) correctly by placing reliance in the order of this Tribunal in assessee’s own case for AY 2009-10 [2016 (1) TMI 135 - ITAT KOLKATA]deleted the disallowance made under Rule 8D(2)(ii) and confirmed the disallowance made under Rule 8D(2)(iii) - Decided against revenue
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2018 (11) TMI 1783 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - debt due and payable or not - HELD THAT:- The amount due to the Applicant from the Respondent is in respect of services including employment. Therefore, the amount claimed by the Applicant from the Respondent is operational debt within the meaning of Section 5, sub-section (21) of the Code. The operational debt is due to the Applicant. Therefore, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code - That the amount is due from the Respondent to the Applicant. Respondent is a Company registered under the Companies Act. Therefore, Respondent is a Corporate Debtor within the meaning of sub-section (8) of Section 3 of the Code.
The application is complete and deserves to be admitted - petition admitted - moratorium declared.
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2018 (11) TMI 1782 - ITAT DELHI
TP Adjustment - Selection of MAM - TNMM OR CUP - TPO has rejected TNMM as the Most Appropriate Method (MAM) to benchmark its international transactions qua payment of royalty and applied CUP method - Fee for receipt of technical support services and royalty - HELD THAT:- Applying the law laid down in CIT vs. EKL Appliances Ltd. [2012 (4) TMI 346 - DELHI HIGH COURT] and the fact that the Revenue has been applying TNMM approach on year to year basis in case of the taxpayer but, during the year under assessment, the TPO has abruptly applied the CUP method without assigning any reason, and the TPO has decided the issue by sitting on the armchair of the businessman/taxpayer by applying the benefit test which is not permissible, and the fact that payment of royalty and product development fee are intrinsically interlinked with the productions and sales and can only be decided under TNMM, this issue is required to be set aside to the TPO to decide afresh after providing an opportunity of being heard to the taxpayer.
Comparable selection - Munjal Showa Ltd. as a valid comparable - HELD THAT:- TPO retained this comparable on the ground that it is engaged into manufacturing of auto parts - it is admitted fact on the file that the taxpayer has not contested this comparable before TPO by filing TP study. When we examine the order passed by DRP though it is discussed that the assessee is in initial year of production so its base and scale of operation is quite low whereas the comparable companies selected in the transfer pricing study in relation to the manufacturing segment are into manufacturing of auto components for years ranging from 31 years to 51 years and discussed the same in tabulated form but retained the Munjal Showa Ltd. as a valid comparable.
Even during the course of arguments before the Tribunal, the taxpayer has not come up with financials of Munjal Showa Ltd. In the given circumstances, we deem it fit to remand this issue to ld. TPO to decide afresh.
Bosch Chasis Systems India - It is the settled principle of law laid down by Hon’ble Delhi High Court in Mckinsey Knowledge Centre case [2015 (3) TMI 1226 - DELHI HIGH COURT] that a comparable cannot be rejected merely on the ground of having different financial year in case annual result can be reasonably extrapolated. Moreover, the ld. TPO was empowered enough to call for the complete data u/s 133 of the Act to reach at the logical conclusion. So, in these circumstances, we remand this issue to the TPO directing him to decide afresh - Appeal allowed for statistical purposes.
Capacity utilization adjustment - HELD THAT:- When we examine the order passed by the ld. DRP of the order, it is recorded that complete data for claiming capacity utilization adjustment by the taxpayer has not been brought on record, so in these circumstances, we have no option except to remand this issue back to the TPO to decide afresh on providing complete data by its taxpayer to substantiate the claim for capacity utilization adjustment and after providing an opportunity of being heard to the taxpayer.
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2018 (11) TMI 1781 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - the Adjudicating Authority is only to be satisfied that the default has occurred and that the ‘Corporate Debtor’ is entitled to point out that the default has not occurred in the sense that the debt is not due - HELD THAT:- This Bench is of the view that promoters cannot stall the initiation of CIRP against the Corporate Debtor, if the debt and default are proved. Hence both the applications are dismissed.
The new addition is that the Corporate Debtor is ready to settle this matter for a sum of ₹ 31 crores on the basis of the value of the security available with the Petitioner. Since the previous OTS proposal (₹ 51 crores approx) which was much more than the present offering of ₹ 31 crores was already rejected by the Petitioner, there is no point in giving any credence to this proposal - The existence of debt and default is the sole criteria for admission of petition under Section 7 as discussed supra. The existence of debt and default is proved beyond any doubt in this case.
Petition admitted - moratorium declared.
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