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Showing 161 to 180 of 1564 Records
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2022 (12) TMI 1404
Inclusion of name of petitioner in the list of daily wages employee as Data Entry Operator in respondents' department taking into consideration the long services of petitioner from year 2004 to till date - petitioner submits that the petitioner has made a representation for the redressal of his grievance before the respondent no. 3, however, the same has not been considered - HELD THAT:- Considering the fact that the application of the petitioner is pending consideration before the respondent no. 3 and without entering into the merits of the case, the present petition is disposed off giving liberty to the petitioner to move a fresh application before the respondent no. 3 along with a copy of this order, which shall be decided in accordance with law with all expeditions preferably within a period of two months from the date of presentation of representation along with certified copy of this order.
While deciding the claim of the petitioner, the respondent no. 3 shall decide as to whether the persons similarly to the petitioner have been regularized or not.
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2022 (12) TMI 1403
Unaccounted job work received - CIT(A) restricting the addition made by the AO by estimating the profit @ 20% to 5% as net profit of the suppressed job work charges as income for the year under consideration - HELD THAT:- We find that the Ld. CIT(A) while restricting the addition to the extent of 5% of alleged unaccounted job work receipt followed by the decision of President Industries [1999 (4) TMI 8 - GUJARAT HIGH COURT] wherein it was held that “on the issue of suppression of said consideration only the addition to the extent of profit element may be made”.
We are also of the view that wherein there is no fool proof of evidence of unaccounted sales or independent material to substantiate such allegation, only profit element to avoid the possibility of revenue leakage is sufficient to meet the ends of justice and not the substantial part of the disputed transaction. Therefore, we are not inclined to enhance the disallowance of alleged unaccounted job work receipt by assessee. Hence, ground No.1 to 4 raised by Revenue are dismissed.
Disallowance in rectification order u/s 154 passed by Ld. CIT(A) in granting credit of additional income declared by assessee while filing return of income - CIT(A) on filing application under section 154 of the Act by assessee on account of additional business income, granted credit of such additional income. The ld CIT(A) thus, granted set of income, which was voluntarily offered by the assessee in response to notice under section 153A, to which the assessee is legally eligible. Thus, we do find any reasons for interference in the order passed by Ld. CIT(A). Hence, ground No.5 & 6 of Revenue’s appeal is dismissed.
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2022 (12) TMI 1402
Income deemed to accrue or arise in India - amount received by the assessee for providing management support services - scope of services performed under the MSA [Master Service Agreement] - Fee for Technical Services (FTS) - India-Belgium Double Taxation Avoidance Agreement (DTAA) - Assessee is a non-resident corporate entity incorporated under the laws of Belgium - HELD THAT:- The scope of services to be rendered under the agreement certainly does not indicate that they are anything other than managerial services as it aids and assists the customer for performing its day to day business activity.
Commissioner (Appeals) has partly accepted assessee’s claim and allowed benefit of 50% of the amount received to be fee for managerial services, that too, purely on estimate. This, in our view is without any basis.
Once the assessee was able to demonstrate that the amount received is in the nature of managerial services, it cannot be treated as FTS in view of the restrictive meaning of FTS under Article 13(4) of India-UK tax treaty, which specifically excludes managerial services. As regards the applicability of MFN clause and the restrictive provision of India-UK tax treaty, in our view, there cannot be any dispute as the Assessing Officer has accepted the legal position.
Whether 50% of the amount received can be treated as FTS under India- UK DTAA? - Article 13(4)(c) of India-UK tax treaty says that if in course of rendering services the service provider makes available technical, knowledge, experience, skill, knowhow, or processes etc then it can be regards as FTS. The expression ‘make available’ has not been defined either under the treaty provisions or under the Act.
The expression ‘make available’ has been judicially interpreted in various decisions. As per the ratio laid down ‘make available’ would mean imparting of technical knowledge, skill, knowhow, etc. which enables the recipient of service to apply such technical knowledge, experience, skill, knowhow etc. independently in exclusion of the owner of such technical knowledge, experience, skill, knowhow etc.
In the facts of the present appeal, admittedly, except some general observations of the Departmental Authorities that the assessee has made available technical knowledge, skill, experience, knowhow, etc. there is no material on record to demonstrate such fact. The make available condition of Article 13(4)(c) of India-UK tax treaty has not been satisfied. In any case of the matter, attribution of 50% of the receipts to the alleged consultancy services is purely on estimate and without any reasonable basis. Thus delete the addition sustained by learned Commissioner (Appeals). Appeal of assessee allowed.
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2022 (12) TMI 1401
Recovery proceedings - attachment of bank accounts of the Petitioner with the Second Respondent as a recovery measure for implementation of the Order in DIN & Letter - HELD THAT:- This Court by separate order dated [2022 (12) TMI 1400 - MADRAS HIGH COURT ] has set aside the Order in DIN & Letter passed by the First Respondent and remitted the matter back for fresh decision, which has to be completed by 28.02.2023. Having regard to the aforesaid order passed, it is made clear that if the First Respondent does not pass any order by 28.02.2023, the impugned orders of attachment of bank accounts of the Petitioner with the Second Respondent, shall stand vacated from that date onwards.
Writ Petitions are disposed on the aforesaid terms
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2022 (12) TMI 1400
Stay of demand - financial stringency faced by an assessment and the balance of convenience in the matter constitute the 'trinity', so to say, and are indispensable in consideration of a stay petition by the authority.
HELD THAT:- It is apparent from the impugned order that while requiring the Petitioner to pay 20% of the disputed payment by 19.10.2022, his request for stay of the demand has been rejected without even awaiting compliance of the aforesaid requirement, which vitiates the entire proceedings.
In such circumstances, the impugned order in DIN & Letter which cannot be sustained, is set aside and the matter is remitted to the First Respondent to be decided afresh taking note of what has been stated supra. It shall be incumbent upon the First Respondent to deal with each of the contentions raised including additional submissions said to have been made on 12.12.2022 and pass a reasoned order on merits
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2022 (12) TMI 1399
Revision u/s 263 - cash deposits unexplained - As per CIT AO granted relief to the assessee without making inquiries into the claim that assessee has made specified bank notes (SBN) cash deposits in specified demonetization period - HELD THAT:- The assessee provided the details with date of sales, name of customers, address of customers, description of sales gross weight of jewellery, diamond weight and amount utilized on such sales. We find that assessee also provided sales made in the month of October, 2016 VAT returns, filed before VAT authority under statutory obligation, copy of VAT return of the month of October and November, 2016. The assessee also furnished cash book, sale book for the month of October and November, 2016, wherein stock register showing the entries of sales and names and complete address of the customers to whom cash sales were made. The assessee stated that there is no scope of any doubt that assessee has furnished names and addresses of such customers, sales invoices, statutory VAT return.
AO made addition of 10% of the total cash deposit during the month of October and November 2016. On the basis of aforesaid factual discussions and on the basis of details called for by AO, we find that the Assessing Officer after calling the details of cash deposit, while making addition of 10% of cash deposit of Rs. 77.00 lacs, being income component, which is a reasonable addition. The addition made by assessing officer is plausible and legally sustainable view, which cannot be branded as erroneous.
The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, is nothing but change of opinion. It is settled position in law that no revision of assessment order is permissible on mere change of opinion.
AO took reasonable, plausible and legally sustainable view, which cannot be branded as erroneous. There is no doubt that while accepting the claim in the assessment, there may be some loss of revenue, tax can be levied only with the authority of law, and every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue unless the view adopted by assessing officer permissible in law.
Once the assessing officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the assessing officer is unsustainable in law. Grounds raised by the assessee is allowed.
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2022 (12) TMI 1398
Ex-parte order passed by ITAT - assessee is seeking recall of the order - assessee submitted that due to death of his Aunty i.e. close relative, he was busy in her funeral and post funeral ceremonies and therefore he could neither appear before the Tribunal not could intimate to the assessee for seeking adjournment in the case - HELD THAT:- According to us, the reasons advanced by the assessee are one of the sufficient cause for his non-appearance. As the submission on the behalf of the assessee have not been considered by the Tribunal, therefore, in the interest of the justice and in view of Rule 24 of the ITAT Rules, 1963, the appeals of the assessee are recalled for hearing. The Registry is directed to fix the appeal in due course and intimate the parties accordingly.
Miscellaneous Applications filed by the assessee are allowed.
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2022 (12) TMI 1397
Income deemed to accrue or arise in India - Treating the fabrication charges received as fees for technical services - taxed the same under section 9(1)(vii) of the I.T. Act read with Article-12(4)(a) of the DTAA between India and Singapore - HELD THAT:- As decided in assessee own case [2022 (7) TMI 1396 - ITAT MUMBAI] the fact that an arrangement regarding situs of entities providing different facilities, in connection with a transaction of the multinational group, is done in a tax-efficient manner, cannot be reason enough to disregard the arrangement.
We are satisfied that so far as the income of the assessee from the refurbishing of the bushes is concerned, it is not taxable in India as the provisions of Article 12(3) cannot be invoked in this case, and that, so far as the provisions of Article 12(4)(a) are concerned, these provisions cannot be invoked as the assessee has not rendered these services in connection with the services “for which a payment described is received” by the assessee. Thus delete the impugned addition The assessee gets the relief accordingly. - Decided in favour of assessee.
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2022 (12) TMI 1396
Income deemed to accrue or arise in India - agency PE - both the authorities treated the assessee as DAPE [Dependent Agent Permanent Establishment] - nature of the business activities carried out by the assessee and subsidiary of the assessee viz. Krones India Pvt. Ltd. (“KIPL”) - HELD THAT:- For an enterprise to be considered as habitually securing orders wholly or almost wholly for the other enterprise, it is essential that the enterprise frequently accepts orders on behalf of the other enterprise or habitually represents to persons offering to buy goods or merchandise that acceptance of an order by such enterprise constitutes the agreement of the other enterprise to supply goods or merchandise under the terms and conditions specified in the order and further the other enterprise takes actions that give purchasers the basis for a reasonable belief that such person has authority to bind the other enterprise.
We are of the considered view that KIPL is only undertaking marketing enterprise and contracts are finalized by the assessee and signed by the assessee outside India. Therefore, KIPL cannot be said to be habitually securing and concluding order on behalf of the assessee.
KIPL maintains stock inventory and economically dependent on the assessee - The agreement with KIPL is effective from 2007 and we are in Assessment Year 2011-12 which means that no adverse view has been taken by the Revenue in the past and we have been told by the ld. counsel for the assessee that no adverse view has been taken by the Revenue after the present assessment.
Though the AO has heavily relied upon the TP Study Report of KIPL, but has not brought any evidence on record that KIPL has habitually secured orders for the assessee. None of the customers have been examined by the Assessing Officer though the customers from India include renowned organizations like Nestle, Coco Cola, Pepsico etc.
Considering all we are of the considered view that the observations made in the TP Study Report of KIPL regarding scope of its business activities do not result in holding KIPL as DAPE of the assessee and further, since KIPL has been remunerated by the assessee for commission activities on arm’s length basis, no further attribution is required in lieu of law laid down by the Hon'ble Supreme Court in the case of Morgan Stanley [2007 (7) TMI 201 - SUPREME COURT]
We, accordingly, hold that pursuant to the specific exclusion of independent agent under Article 5(5) of the DTAA, the case o the assessee falls outside the scope of PE. We, accordingly, direct the Assessing Officer to delete the impugned addition. Appeal of the assessee is allowed.
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2022 (12) TMI 1395
Late filing fee u/s 234E - intimation u/s 200A - whether late fee and consequential interest could be levied in respect of the TDS statements relating to the period prior to 01/06/2015? - HELD THAT:- There is no dispute that the period covered under all these appeals are prior to 01/06/2015. It is also not in dispute that after noticing the decisions of the Hon'ble Gujarat High Court [2017 (7) TMI 458 - GUJARAT HIGH COURT] Hon'ble Karnataka High Court ([2016 (9) TMI 964 - KARNATAKA HIGH COURT]), and many other decisions of the Co-ordinate Benches of the Tribunal, the Delhi Bench of the Tribunal in the case of Supreme Brahmaputra (JV) [2020 (9) TMI 289 - ITAT DELHI] held that when there are conflicting decisions of various Hon'ble High Courts, in the absence of any view taken by the jurisdictional High Court, while following the decision of the Hon'ble Apex Court in the case of Vegetable Products Ltd.,[1973 (1) TMI 1 - SUPREME COURT] the view in consonance with the plea of the accused has to be taken.
Thus we hold that the issue is in favour of the assessee and direct the learned Assessing Officer to delete the addition made under section 234E of the Act.
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2022 (12) TMI 1394
Levy of Entry Tax - scheduled goods imported from outside the territory of India - Section 3 of the Odisha Entry Tax Act, 1999 - levy of penalty u/s10(2) of the Act - Whether levy under Section 3 of the Odisha Entry Tax Act, 1999 is attracted on scheduled goods imported from outside the territory of India? - HELD THAT:- The issue now stands settled in STATE OF KERALA AND OTHERS VERSUS FR. WILLIAM FERNANDEZ ETC. ETC. [2017 (10) TMI 491 - SUPREME COURT] where it was held that We thus do not find any substance in the submission of the learned counsel for the petitioner that entry tax legislation is not covered by Entry 52 List II. - the Court declines to frame question as urged.
Whether in the facts and circumstances of the case levy of penalty U/s.10(2) of the Act is warranted? - HELD THAT:- With the legal position having been settled only in October 2017, most of the Dealers-Assessees were under bona fide impression that Entry Tax would not payable on goods imported into India. Therefore, it could reasonably be contended that till such time there was no willful or deliberate attempt by the Dealer-Assessee to waive payment of Entry Tax.
The Court notes that under Section 10 (2) of the OET Act, there is an element of discretion in the Assessing Authority to levy penalty where the escapement or under assessment of tax “is without any reasonable cause.” Since the Court is satisfied that the non-payment of Entry Tax on imported goods by the Petitioner, cannot be said to be without reasonable basis, the Court is of the view that in the present case the levy of penalty was not justified.
The question is accordingly answered in the negative i.e., in favour of the Petitioner and against the Department. The impugned Assessment order in so far as it imposes penalty on the Petitioner is hereby set aside - Revision petition allowed.
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2022 (12) TMI 1393
Levy of penalty equal to two times of tax assessed under Section 43-(2) of the OVAT Act - absence of observation by the Assessing authority that the underassessment tax is without any reasonable cause - Whether, the facts and circumstances of the case, the Division Bench-II, Odisha Sales Tax Tribunal, Cuttack, is right in law to hold Section-43 provides for best judgment assessment, whose part and parcel is imposition of penalty. If the use of word “may” is liberally used then the purpose of escape assessment under VAT regime would disappear? - HELD THAT:- It is seen that in the assessment order dated 5th February, 2013 while raising a demand on the basis ‘erroneous claim of Input Tax Credit (ITC)’, the Sales Tax Officer (STO), Ganjam-I Circle, Berhampur proceeded to impose penalty under Section 43(2) of the Odisha Value Added Tax Act, 2004 (OVAT Act) without actually coming to any conclusion that ITC with differential tax wrongly availed by the Petitioner-Assessee was “without reasonable cause”.
As far as present case is concerned, the assessment order of the Assessing Officer does not record the satisfaction of the Assessing Officer that wrongful availment of ITC by the Petitioner was “without reasonable cause”. Thus, the essential component of Section 43(2) of the OVAT Act for attracting the penalty, viz., the satisfaction of the Assessing Officer that the escapement of tax was without reasonable cause, is absent in the present case.
The issue is answered in the negative, i.e., in favour of the Petitioner and against the Department and the impugned order of the Tribunal and the corresponding orders of the First Appellate Authority and the Assessing Officer levying penalty on the Petitioner under Section 43 (2) of the OVAT Act are hereby set aside - application disposed off.
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2022 (12) TMI 1392
Seeking grant of Regular Bail - applicant-petitioner had never co-operated with the investigation and was, in fact, declared absconder - HELD THAT:- We are not entering into any of the questions for the reason that we have taken up the matter for consideration for a limited purpose of correcting the obvious errors in the order dated 07.12.2022 and for putting the records straight while, at the same time, maintaining the spirit of the order as passed by us.
We again make it clear that we have not made any comments on the merits of the case and, obviously, it would be expected of the Trial Court to consider the matter dispassionately and uninfluenced by any of the observations occurring in the order impugned or in the present order by us.
Application disposed off.
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2022 (12) TMI 1391
Prayer for adjournment declined - petitioner seeking adjournment due to personal difficulty of the instructing counsel - HELD THAT:- After having heard learned counsel for the petitioner and having perused the material placed on record, we are unable to find any infirmity in the impugned order dated 18.12.2018, whereby the High Court declined the prayer of pre-arrest bail of the petitioner - On being queried if any of the principal accused person had been granted the concession of pre-arrest bail in these matters, inter alia, involving the offences under Sections 3/4 of the Prevention of Money Laundering Act, the learned counsel for the petitioner frankly answered in the negative.
In any case, so far the impugned orders are concerned, we are satisfied that the High Court has rightly declined the prayer for pre-arrest bail of the petitioner, particularly looking to the nature of accusations. The grant of bail or even pre-arrest bail to any other accused will not enure to the benefit of the petitioner so far as the prayer for pre-arrest bail is concerned. Therefore, these petitions are required to be dismissed.
However, taking note of the overall circumstances, including that the petitioner is a lady in about 58 years of age, we deem it appropriate to provide that if the petitioner surrenders within a week from today and applies for regular bail, her bail plea may be considered by the Trial Court expeditiously and in priority. The interim protection granted to the petitioner shall continue for a period a period of one week or until the bail plea of the petitioner is considered by the Trial Court, whichever be the earlier.
Petition dismissed.
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2022 (12) TMI 1390
Condonation of delay of 449 days in filing the appeal before the Tribunal - HELD THAT:- Reasons given by the assessee in the affidavit does not come under reasonable cause for condonation of delay, as prescribed under the Act and thus, we reject the petition filed by the assessee for condonation of delay. The case law relied on by assessee in the case of Collector, Land Acquisition vs. MST. Katiji & Ors.[1987 (2) TMI 61 - SUPREME COURT] has no application to the facts of the present case. Since we have rejected the petition for condonation of delay of 449 days in filing the appeal before the Tribunal, the appeal filed by the assessee is not maintainable and accordingly, the appeal filed by the assessee is dismissed.
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2022 (12) TMI 1389
Revision u/s 263 - deduction u/s 54 EC beyond the stipulated period of six months - final payment was received on 24.12.2015 and the REC Bonds were purchased by the assessee on 30.06.2016 hence the statutory time limit has been exceeded - HELD THAT:- No case has been made out for exercise of power. The Revisionary Authority has held it to be a case where proper enquiries were not carried out and direction has been given to the AO to pass a fresh order after making necessary enquiries/investigation.
Considering the replies on the queries raised based on the documents relied upon the AO has taken a plausible view on the facts. The Ld. PCIT, on the other hand, has not taken into consideration the full facts and has failed to bring out the error in the order and has also not cared to address the legal position as to why the interpretation given by the AO to the six month period can be said to be incorrect. On the other hand we find that the interpretation given by the ld. PCIT that the six month period should be interpreted on a day to-day basis instead of British Calendar month i.e. last date of the month is unsustainable in view of the legal position addressed earlier in this order. Thus, on a perusal of the material available on record, on the other hand find that the AO before passing of the order has made full and adequate enquiries on these issues. Accordingly, we find that the order passed by the ld. PCIT on this issue cannot be sustained.
Capital Gain issue which has also been addressed by the Revisionary Authority in the impugned order, we find that it is an arbitrary order wherein the Revisionary Authority has not even cared to issue any Show Cause Notice to the assessee. We further find that on this issue also, the AO as per material available on record had enquired into the issues and thereafter passed the order. Accordingly, we find that the impugned order deserves to be quashed.
We are of the view where on facts evidenced from the nature of queries raised, the reply available thereon, a plausible view is taken by the AO then in such circumstance a vested right is created in favour of the assessee. The Revisionary Authority referring necessarily to the assessment records available has to demonstrate in the order itself that the order passed is an unsustainable order necessitating the resort to the powers vested by Section 263 of the Act. The powers vested u/s 263 of the Act are not to be exercised merely because the powers are so vested. For unsettling a vested right accrued to the assessee by the passing of a valid order it is necessary and incumbent upon the Revisionary Authority to set out the error and the prejudice caused by the assessment order. The Revisionary Authority necessarily needs to see the records as available to the AO. The order cannot be passed on mere whims and fancies.
The impugned order on a consideration of the peculiar facts and circumstances of the present case for the reasons herein above is quashed and the appeal of the assessee is allowed.
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2022 (12) TMI 1388
Withholding the amount qua which refund is sought - grievance of the petitioner/assessee is that despite intimation concerning refund being received via communication the amount mentioned therein along with the applicable interest has not been remitted - HELD THAT:- Respondents accepts notice on behalf of the respondents/revenue. He in particular, will place before us the record disclosing the reasons for withholding the amount qua which refund is sought.
In case the instructions are received to resist the petition, a counter affidavit will be filed before the next date of hearing. List the matter on 03.02.2023.
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2022 (12) TMI 1387
Fixed place PE/dependent agent PE - Existence or otherwise of a Permanent Establishment (PE) in India - attribution of profit to the PE - assessee is a non-resident corporate entity incorporated in Singapore - HELD THAT:- As decided in own case [2022 (5) TMI 674 - ITAT DELHI] issues arising for consideration are squarely covered by the decision of the Tribunal in assessee’s own case in assessment year 2017-18, respectfully following the same, we hold that the assessee had no PE in India. Decided in favour of assessee.
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2022 (12) TMI 1386
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is evident that the debt is due and payable and default has occurred. The present application is complete in terms of Section 7(5) of the Code and is within limitation. The applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. In light of the facts and records the present application is admitted and CIRP is ordered to be initiated against corporate debtor.
As a consequence of the application being admitted in terms of Section 7(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1) shall follow in relation to the Corporate debtor, prohibiting actions as per clauses (a) to (d) of Section 14(1) of the Code.
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2022 (12) TMI 1385
Recovery proceedings - want of conversion of leasehold right to ownership so as to enable dealing with the land for liquidating demands outstanding against the estate of Nanu Ram Agrawalla, since deceased - HELD THAT:- Clients seek conversion of lease hold to ownership. His clients are entitled to such conversion under the Act and the Rules. The fee for conversion stands deposited. In spite thereof, by impugned communication dated 20th February, 2019, the application for conversion was rejected as at this stage.
Rejection purportedly at this stage is on allegation of his clients being involved in which subsequently there has been clarification that the property is not subject matter thereof. Furthermore, his clients have income tax dues and if the property is converted to ownership, recovery of those dues by sale of the property is likely to fetch better consideration.
Learned advocate appears on behalf of Revenue and opposes the writ petition. He submits, his client has filed counter. Additional Government Advocate appears on behalf of State and prays for adjournment to obtain instructions.
List for hearing and disposal on 4th January, 2023.
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