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Showing 161 to 180 of 1551 Records
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2024 (2) TMI 1391
Commission of murder - challenge to order of conviction of the High Court and praying for a declaration of innocence - reason to disbelieve the evidence - whether the High Court was correct in reversing the order of acquittal of the Trial Court and thereby convicting the accused persons under Section 302 IPC? - HELD THAT:- It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
The explanation as to how PW-3 spent the entire intervening night of 28- 29.06.1997 is missing from the chain of circumstances. The statement that he was simply sitting at the bus stand for the entire night, while Marthandappa was dead and PW-4 was severely injured and unconscious, fails to inspire confidence. More so, when the entire reason for hiding behind the bushes was the fear of life. Despite such fear, PW-3 did not choose to inform the police out-post, on the way from Devpura to Aidbhavi, and rather, he kept on sitting at the Devpura bus stop. He also admitted that his relatives were residing around 4 km from the place of incident at Nagara.
The circumstances in this case are far from conclusive and a conclusion of guilt could not be drawn from them. To sustain a conviction, the Court must form the view that the accused “must have” committed the offence, and not “may have”. As noted in Sharad Birdichand Sarda [1984 (7) TMI 401 - SUPREME COURT], the distinction between “may have” and “must have” is a legal distinction and not merely a grammatical one.
The High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Even on a fresh appreciation of evidence, we find ourselves unable to agree with the findings of the High Court. Accordingly, the impugned order and judgment are set aside - Appeal disposed off.
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2024 (2) TMI 1390
Tribunal dismissing the Income Tax Appeal filed by the petitioner for non-prosecution - HELD THAT:- The said appeal was dismissed way back on 24.10.2016 by the Tribunal. The petitioner after three years from the date of dismissal of the appeal for non-prosecution filed miscellaneous petition on 9.4.2019 before the Tribunal praying for recalling of order dated 24.10.2016 and requesting the Tribunal to decide the appeal on merits.
The said application came to be rejected, vide order dated 23.8.2019 in Ext. P6, on the ground that the Tribunal does not have the power to condone the delay in filing the miscellaneous application, inasmuch as the limitation period for filing miscellaneous application was six months and the application was filed with a delay of more than three years. The petitioner thereafter has approached this Court by filing this writ petition on 19.3.2020.
Though it is true that under Rule 24 of the Income Tax (Appellate) Tribunal Rules, 1963, the Tribunal is required to decide the appeal on merits even when the party is not appearing or is not representing. But, considering the facts as narrated above, that the petitioner had committed gross delay and latches in filing the miscellaneous application and thereafter approaching this Court by filing this writ petition, I do not find that the writ petition is maintainable and the same is dismissed.
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2024 (2) TMI 1389
Ex-parte order passed on the assessee u/s 147 r.w.s. 144 - HELD THAT:- Assessee is a senior citizen aged 65. Considering the age and education background as well as the procedure under the faceless regime coupled with the fact that notice issued during the course of assessment proceedings were not served as per the prescribed mode, we are of the view that the ex-parte order passed on the assessee under section 147 r.w.s. 144 of the Act is to be condoned.
Dismissal of appeal due to non-payment of advance tax u/s 249(4)(b) - AR submitted that assessee’s total income is only Rs.13,296/- and therefore there is no question of payment of “admitted tax”, hence, section 249 of the Act cannot be invoked - Assessee submitted that he is not liable for long-term capital gains since the property sold was agricultural land. Assessee has also placed on record the computation of statement of total income - HELD THAT:- On perusal of the same, it is seen that the total income for the relevant Assessment Year of assessee is Rs.13,296/-. Therefore, there is no question of payment of admitted tax. In view of the above, section 249(4) of the Act cannot be invoked to dismiss the appeal of the assessee.
We also place reliance on the Order of the Tribunal in the case of Annapoorneshwari Investment [2019 (8) TMI 921 - ITAT BANGALORE] wherein it has been held that in terms of section 249(4)(a) of the Act, stipulation as to payment of tax ante filing of first appeal is only directory and not mandatory, where appeal is filed without payment of tax but subsequently required amount of tax is paid, appeal shall be admitted on making payment of tax and taken up for hearing on merits.
In the present case, as mentioned earlier, we find assessee had not declared any admitted tax. On the facts of the instant case, assessee had claimed the receipt is for sale of agricultural land and not liable for capital gains. Since assessment has been completed under section 147 r.w.s. 144 of the Act, we are of the view that the matter needs to be examined afresh by the AO. Accordingly, the issues raised in this appeal are restored to the files of the AO. Assessee is directed to cooperate with the Revenue and shall not seek unnecessary adjournment in the matter. The AO is directed to afford reasonable opportunity of hearing to the assessee. Appeal filed by the assessee is allowed for statistical purposes.
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2024 (2) TMI 1388
Disallowance for the payments to contractors for loading, unloading and packaging - main plank of AO’s action was that these labour suppliers are either bogus or ex-employees of the assessee that these persons were not found at their respective addresses - CIT(A) deleted addition - HELD THAT:- CIT (A) in his order has given a finding that during the remand proceedings, 5 out of 6 contractors were produced before the AO and statements of these contractors were recorded by the AO. All of them confirmed that they have provided labour to the assessee company for packing and loading of finished product - As before the ld. CIT (A), assessee produced the sixth contractor whose statement was also recorded. In his statement, he confirmed to have supplied labor for packing, loading and unloading.
Another plank of AO is that the employee of the assessee company used to withdraw cash from the contractor’s bank account. CIT (A) has noted that he has perused the banks accounts and the entries of withdrawal were self. Therefore, he held that cash withdrawn by the contractors and the contractors during the statement accepted that the employee of the assessee company used to accompany him at the time of withdrawal of cash from the bank and cash used to be carried in company’s vehicle and this arrangement was used to ensure for the payment distributed to labourers hired for the work of the company.
Another plank of the AO is that these contractors are ex-employees of the assessee company. It has been submitted that this fact has been accepted. For this explanation, the assessee submitted that for continuous supply of labour, only reliable and known person can be deployed.
Another plank of AO is that in the computer of the assessee, bills of these contractors were found. It has been submitted that all the contractors have prepared the bills at the premise of the assessee as these contractors were only supplying labour and did not have separate infrastructure. CIT (A) has also found that the salary and wages per kg. production is in the range of 10% to 25% of other industries and there was no adverse findings in this regard in the assessment order. Furthermore, books have not been rejected. Decided in favour of assessee.
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2024 (2) TMI 1387
Levy of penalty u/s 112(b) of the Customs Act, 1962 - smuggling of foreign origin cigarette of ‘Benson and Hedges’ brand into the country - appellant failed to remain present and plead the case - HELD THAT:- The sufficient opportunities had been given to the appellant, and more specifically on 10.05.2022, 15.03.2023, 27.07.2023 and 18.12.2023 for the appellant to be present and plead his case. Even today, none had appeared for the appellant. Thus, it is very clear that the appellant is not interested in pursuing the legal remedy despite he being aware of the proceedings before the Tribunal as they had appeared earlier on two occasions before the Tribunal. Hence, the case is taken up on merits of the case and with the consent provided by the learned AR for the Revenue.
This is a case of smuggling of foreign origin cigarettes along with cosmetics totally valued at Rs. 1,10,77,667/- and the appellant was one of the noticee for having participated in the said smuggling activity. It is also found that the personal hearing opportunities have been given by the original authority to the appellant on 20.08.2018, 22.11.2018 and 3.12.2018 and decided the issue on merits. In view of the detailed examination of the case, role played by the appellant and the decision taken by the learned Commissioner of Customs (Preventive), Mumbai, there are no grounds for entertaining the appeal of the appellant for setting aside the impugned order.
The impugned order is upheld - appeal dismissed.
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2024 (2) TMI 1386
Levy of penalty u/s 271(1)(c) - Estimation of income on bogus purchases - whether the penalty is proposed to be levied for 'Concealment of income' or 'Furnishing inaccurate particulars of income'? - HELD THAT:- It is admitted position that ultimately disallowance of restricted on estimation basis. It is settled law under the income tax proceedings that no penalty is leviable on the addition restricted on estimation basis. Similar view was taken by this combination in Yogendra Raj U Sanghvi . [2023 (10) TMI 1395 - ITAT SURAT] and in Nazar Impex [2022 (7) TMI 119 - ITAT SURAT].Thus, following the similar principle, the penalty levied u/s 271(1)(c) of the Act will not survive. Decided in favour of assessee.
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2024 (2) TMI 1385
Territorial jurisdiction of the court in a Writ Petition - lack of territorial jurisdiction of Kerela high Court - seeking direction to lift the attachment of his its Bank Account - HELD THAT:- The petitioner is an assessee within the jurisdiction of the 3rd respondent –AO, Ward No.I, Ootty. The petitioner is a resident of Nilgiris District in Tamilnadu. The petitioner has filed this writ petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India on the ground that the petitioner has Bank Account in Wayanad and, therefore, this Court has jurisdiction.
This Court would not have territorial jurisdiction on the basis of the fact that the petitioner's Bank account is in Wayanad, Kerala. The cause of action, if any, has arisen as a result of the assessment order in Ext.P1, against which the petitioner has filed appeal and stay petition.
Therefore, this writ petition is dismissed on the ground of lack of territorial jurisdiction of this Court.
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2024 (2) TMI 1384
TDS u/s 195 - commission paid to foreign agent - assessee, after receiving export orders from the agents stationed outside the territory of India, exports its products outside India, for which services of agents, the assessee paid commission - assessee paid commission to those parties, who were the residents of country where the India had entered into DTAA - HELD THAT:- We note that there is no dispute that the services for which commission has given by assessee were rendered by non-resident agents outside India [i.e. for procuring export orders from customer outside India]. The payment to such non-resident agents are made outside India on account of sale percentage and that the non-resident does not have any geographical or Permanent Establishment in India.
As noted that Tax Treaty exists with the country of residents of nonresident, i.e, residents of non-resident, residents of Italy, France, Greece & Lebanon.
AR has drawn our attention to the order of this Tribunal in assessee’s own case for AY. 2010-11 and AY. 2012- 13 [2019 (5) TMI 2010 - ITAT MUMBAI] and brought to our notice that in those years, the Ld. CIT(A) had examined the agreements with the non-resident agents which disclosed that the foreign agents procured export order from foreign customers based on the price agreed by the assessee; and based on the export orders procured by the Agents, assessee fixed percentage of commission to the agent at the FOB value of the invoice and foreign currency after the fully payment has been received from the foreign customers.
Thus as noted that nature of services rendered by non-residents agent was for procuring export order of products of assessee and the payments made by assessee to them are in the nature of commission which was specifically mentioned in the agreement. In the light of the aforesaid facts/agreement between assessee and foreign agents for earlier years in assessee’s own case, on this issue Tribunal upheld the action of Ld. CIT(A) as held that commission earned by non-resident agent who carried on the business of selling Indian goods outside India cannot be said to have deemed to be income which has accrued or arise in India. Decided against revenue.
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2024 (2) TMI 1383
TDS u/s 194LBC - payments made to the ‘Originator’ as Excess Interest Spread (EIS) - Appellant was established as a securitization trust/special purpose distinct entity engaged, inter alia, in acquisition of loan portfolio from the financial institutions (‘Originator’) - HELD THAT:- On perusal of the MRR Guidelines, we are of the view that in cases where the MRR commitment is met via any other permissible alternative, the originator cannot be regarded as an ‘Investor’ since the Originator does not hold any investment in the special purpose distinct vehicle/securitization trust.
In our view, an originator can also be ‘Investor’ provided such originator makes investment in the special purpose distinct vehicle/securitization Trust by subscribing to PTC or other securities/instruments. However, it is admitted that in the present case the Originator has neither subscribed to PTCs nor had made any other investment. MRR has been maintained via cash collateral and in the form of collateralising of excess receivables. Therefore, the decision of Vivriti Cibus [2023 (12) TMI 806 - ITAT MUMBAI] wherein Tribunal had deleted the demand raised upon the assessee u/s 201(1A) of the Act for non-compliance with the provision of Section 194LBC and held that Appellant was not under obligation to withhold tax from payment of EIS to the Originator. Assessee appeal allowed.
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2024 (2) TMI 1382
Validity of Assessment u/s 144C as exceeded the statutory limitation period - order passed evidently beyond the 30 day period as prescribed - HELD THAT:- As decided in LOUIS DREYFUS COMPANY INDIA PRIVATE LIMITED [2024 (3) TMI 62 - DELHI HIGH COURT] in terms of sub-section (13) of Section 144C of the Act, the AO is mandated to complete the assessment “in conformity with the directions” as framed by the DRP. That very provision commands the AO to complete the assessment within one month from the end of the month in which such a direction is received.
Undisputedly, the DRP had framed its directions in terms of the order dated 16 December 2021. A final order of assessment ultimately came to be framed on 26 March 2022 and thus evidently beyond the 30 day period as prescribed.
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2024 (2) TMI 1381
Validity of Revision proceedings u/s 263 - period of limitation - whether the period of limitation for passing u/s 263 has to be reckoned from the date of original assessment order or from the date of reassessment order? - HELD THAT:- As decided in Industrial Development Bank of India Ltd. [2023 (6) TMI 1047 - SUPREME COURT] once an Order of Assessment is re-opened, the previous order of assessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of re-assessment is distinct and different, the entire proceedings of assessment would be deemed to have been re-opened.
Meaning thereby, only in a case where the issues before the Commissioner at the time of exercising powers u/s 263 of the Act relate to the subject matter of re-assessment, the limitation would start from the date of Re-assessment Order. However, if the subject matter of the re-assessment is distinct and different, in that case the relevant date for the purpose of determination of period of limitation for exercising powers u/s 263 of the Act would be the date of the original Assessment Order.”
Thus for the purposes of exercising powers u/s 263 the period of limitation for passing the order has to be reckoned from the date of original assessment order and not from the date of reassessment order. Decided in favour of assessee.
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2024 (2) TMI 1380
Seeking grant of bail - Money Laundering - proceeds of crime - bail sought on medical grounds - Compliance with Section 45 of the Prevention of Money-Laundering Act, 2002 - the petitioner with deliberate intention tactfully layered the proceeds of crime to the third party entities as well as his educational trust, hiding the illicit origin without any economic rationale at the books of accounts of HCCPL - HELD THAT:- A careful perusal of the materials, including the statement of witnesses recorded under Section 50 of the Act and the other materials collected in the form of documents, prima facie shows complicity of the petitioner in the alleged offences. The conditions specified under Section 45 of the Act are mandatory while considering, the bail plea of the petitioner. This Court is required to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and he is not likely to commit any offence while on bail. As per Section 24 of the Act, in the case of a person charged with the offence of money-laundering under Section 3, the Authority/Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in moneylaundering.
The conditions enumerated in Section 45 of the Act are to be complied with even in respect of an application for bail under Section 439 Cr.PC in view of the overriding effect given to the Act over the other loss for the time being in force, under Section 71 of the Act.
The Bail Application stands dismissed.
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2024 (2) TMI 1379
Demand of bribe - Dismissal of application of the petitioner to summon relevant documents under Section 91 of Cr.P.C. - Relevance and necessity of documents for cross-examination - Stage of trial for invoking Section 91 Cr.P.C. - HELD THAT:- This Court notes that in the instant case, the petitioner herein had first moved an application under Section 91 of the Cr.P.C and vide order dated 17.12.2018 the application was allowed and relevant documents were to be supplied to the petitioner. After that vide order dated 15.04.2019, learned Trial Court had directed the CBI to accompany the petitioner to the concerned Court and mark the relevant documents required by the petitioner and to supply the same to him after applying for the certified copies of the same. Thereafter, again petitioner preferred a second application under Section 91 Cr.P.C seeking summoning of relevant documents to cross examine the complainant.
This court observes that establishing the necessity of presenting documents is sin qua non for the petitioners to facilitate the further adjudication of the case. In the instant case, the petitioner does not contend that specific documents, crucial for the prosecution's assertion of its case beyond reasonable doubt, have not been disclosed. Instead, the petitioner seeks reference to another case purportedly filed against the complainant. In the court's assessment, at this juncture when the Trial is at the stage of prosecution evidence, the petitioner has not successfully demonstrated to the satisfaction of this court why these documents are pertinent for examination at this stage.
This Court is of the opinion that right of the petitioner to move an appropriate application before the competent court to summon documents be reserved and the documents which the petitioner wishes to rely upon can be summoned at the stage of defence evidence in accordance with law. At this stage, this Court finds no ground to interfere with the impugned order dated 16.11.2019 passed by learned Special Judge, Rouse Avenue Court, New Delhi.
Petition dismissed.
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2024 (2) TMI 1378
Deduction u/s 80P - interest income earned from Scheduled Banks and Co-operative Banks - HELD THAT:- On identical facts, the Bangalore Bench of the Tribunal in the case of Canara Bank Staff Credit Co-operative Societies Ltd [2023 (10) TMI 1350 - ITAT BANGALORE] had restored the matter to the AO to examine whether the amounts invested with the Co-operative Banks are out of compulsion under the Karnataka Co-operative Societies Act and the relevant Rules. It was further held by the Tribunal that if the investments are out of compulsion under the Act and the relevant Rules, the interest income received out of the investment made under such compulsion would be liable to be taxed as ‘income from business’ which would entail the benefit of deduction under section 80P(2)(a)(i) of the Act.
In the event it is found that assessee is not entitled to get the benefit under section 80P(2)(a)(i) of the Act, the AO shall also examine whether it is entitled to deduction u/s 80P(2)(d) of the Act in light of the recent judgment of Kerala State Co-operative Agricultural Rural Development [2023 (9) TMI 761 - SUPREME COURT] - Appeal filed by the assessee is allowed for statistical purposes.
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2024 (2) TMI 1377
TP adjustment on account of payment of fees for time and billing software - TPO held the payment made by the Assessee to its AE is unwarranted and treated the arm's length price (ALP) of the captioned international transaction at NIL - HE;D THAT:- Similar issue was considered by the coordinate bench in the case of assessee’s own case in the AY 2008-09 [2020 (8) TMI 172 - ITAT MUMBAI] as held TPO/AO has arrived at the ALP by not adopting any of the methods prescribed u/s 92C of the Act in respect of (i) payment of license fees for time and billing software, (ii) payment of regional administration and regional co-ordination cost allocation and (iii) payment of information technology cost allocation - we are of the considered view that the ratio laid down in Lever India Exports Ltd [2017 (2) TMI 120 - BOMBAY HIGH COURT], Merck Ltd. [2016 (8) TMI 561 - BOMBAY HIGH COURT] Johnson & Johnson Ltd.[2017 (3) TMI 1520 - BOMBAY HIGH COURT] and Kodak India Pvt .Ltd [2016 (7) TMI 677 - BOMBAY HIGH COURT] mentioned hereinabove is squarely applicable to the facts of the case. Therefore, following the same we are inclined to allow the grounds Nos. 1 and 3 raised by the assessee.
Provisions of regional coordination services - Comparability - assessee has benchmarked this transaction selecting Nine (9) comparables out of which Transfer Pricing Officer has selected four (4) comparables and rejected other comparables in particular Vatika Marketing Limited as this comparable has earned Income from reality Commission which is like broking income. Assessees do not have any such activity - HELD THAT:- As at the time of proceedings before Ld. DRP the assessee has filed annual reports of this comparable substantiating the reasons for selecting this comparable in their study. Since Ld. DRP has not considered the above submissions and not given a clear finding in this regard. In our considered view, this issue may be analysed afresh by the TPO - we remit this issue back to the file of TPO to consider the additional submissions/documents made by the assessee - Ground No. 2 is allowed for statistical purpose.
Short granting interest u/s 244A - HELD THAT:- We observe from the record that identical issue has been considered by the coordinate bench of this Tribunal in the case of M/s. Small Industries [2017 (9) TMI 1971 - ITAT MUMBAI] the issue raised by the assessee is allowed with the direction that the Assessing Officer may consider extending the benefit to the assessee upto the date of actual receipt of refund. Accordingly, Ground No. 5 raised by the assessee is allowed.
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2024 (2) TMI 1376
Prayer for stay against demand - second round of petition - order of demand has been stayed subject to depositing 10% of the demand - In the second round of writ petition, petitioner now submits that the authorities have again committed patent illegality and perversity and acted with arbitrariness in deciding the petitioner’s application.
HELD THAT:- When the petitioner approached this Court by filing a writ petition earlier, this Court found that there was no proper application of mind and the authority, treating itself to be bound by administrative instructions, abdicated its judicial functions while deciding the matter. That prompted this Court to direct the authorities to re-consider the matter. We have gone through the order which has been passed by the authority while considering and disposing off the prayer for stay. The order refers to the material on record, the case of the petitioner, submissions followed by the order with regard to stay of recovery of demand, subject to payment of 10% of the demand.
In our view, the authority having jurisdiction, has passed a brief order, keeping in view that it is only deciding the stay application and not the merits of the case. The argument of learned counsel for the petitioner that various figures and details which were given by him have not received consideration, does not merit acceptance. At this stage of consideration of stay application, the authority is not expected to go deep into the matter as if it is deciding the appeal finally. We find that the authority has not restricted the relief of 20% but has granted stay subject to deposit of only 10% of the demand. The demand is based on order of assessment. The matter is in appeal. It is a tax matter and a party cannot, as a right, claim that merely because he files an appeal, the demand should be stayed.
It is well settled legal position that while entertaining a writ petition, the writ Court would not reassess the material on record and record its own findings of fact in substitution of what has been recorded. Further, if it is a case arising out of an order on stay application, the scope of judicial review is further restricted. It is not a case where the stay application has been decided without hearing the petitioner.
In the absence of there being any procedural impropriety affecting the order on stay application, we are not inclined to interfere with the order. The grievance that in some other case absolute stay was granted, cannot be accepted. No parity could be claimed in the matter of stay. Every case has its own facts and circumstances.
The petitioner’s claim that even before deciding the stay application, the case ought to be mandatorily referred to High Pitched Scrutiny Assessment Committee, does not impress us. It is always open for the appellate authority to take recourse to the procedure as embodied in circular dated 23.04.2022 and at appropriate stage the step of referring the matter to the High Pitched Scrutiny Assessment Committee could be taken by the appellate authority. We would not say any further on this aspect as the authority is yet to take decision on the merits of the appeal.
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2024 (2) TMI 1375
GST regime - Goods for manufacture and export - export obligation - Whether vide impugned Order-in-Appeal the Commissioner (Appeals) have rightly rejected the refund of CVD + SAD paid for regularisation of Advance License (Import License), which have been deposited after 01.07.2017 in relation to imports prior to 01.07.2017 - HELD THAT:- We find that the payment of CVD and SAD subsequently during the GST regime, for the imports made under advance authorisation prior to 30.06.2017 is not disputed. It is also not disputed that the Appellant have paid the CVD and SAD during the period August 2018 to March 2019, by way of regularisation of the shortfall in fulfilment of export obligation. We find that Section 142(3) read with 142(5) of the GST act, provides that every claim for refund by any person before, on or after the appointed day, for refund of any amount of Cenvat credit/duty/tax/interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him, shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provision of sub-section (2) of section 11B of the Central Excise Act (unjust enrichment).
Further from a conjoint reading of subsection (3) (5) and (8A) of Section 142 of the CGST Act it is evident than that an assessee is entitled to claim refund of CVD and SAD paid after the appointed day, under the existing law, and such claim has to be disposed of according to the provisions of the existing law. As the Appellant was admittedly entitled to Cenvat credit of the said amount of Rs. 3,28,75,733/-, which is now no longer available due to implementation of GST regime, it is held that they are entitled to refund of the said amount.
Thus, we allow this appeal and set aside the impugned order. Appeal allowed
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2024 (2) TMI 1374
Condonation of delay - delay of 39 days days in filling appeal before ITAT - scope of "sufficient cause" for delay - HELD THAT:- In the present case, the delay of 39 days cannot be simply condoned on the basis of the unsubstantiated claim of the assessee. In fact, the conduct of the assessee before the A.O and the CIT(Appeals) clearly evidences his disregard for the process of law, which, we find, he had carried forward before me by preferring the appeal beyond a period of 39 days after the lapse of the stipulated time period.
Also, as observed in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeals the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring the captioned appeal, therefore, decline to condone the delay of 39 days and, thus, without adverting to the merits of the case dismiss appeal of the assessee as barred by limitation. Assessee appeal dismissed.
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2024 (2) TMI 1373
Disallowing adjustment u/s 143(1)(a)(iv) r.w.s. 36(1)(va) - delayed remittance of employees' contributions to Employee State Insurance (ESI) and Provident Fund (PF) - ITAT as relying on decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] held that based upon such delayed deposits, no adjustments or deductions could be claimed - assessee submitted that Checkmate Services Pvt. Ltd. (Supra) was a matter where the assessment was made u/s 143(3) of the IT Act and not under Section 143(1)(a) as in the present case.
HELD THAT:- The fact that the assessment order in Checkmate Services Pvt. Ltd. (supra) was incidentally under Section 143(3) and the assessment order in the present case is under Section 143(1)(a) of the IT Act, makes no difference to the principle involved in this matter. The ITAT decision does not discuss why this circumstance constitutes a distinguishing feature based on which the ratio of Checkmate Services Pvt. Ltd. (supra) could be departed from.
Checkmate Services Pvt. Ltd. (Supra) holds that the deductions can be claimed or adjustments can be made under section 141(1)(a)(iv), read with Section 36(1)(va) only when the employer deposits the contributions in the employees' accounts on or before the due date prescribed under the Employees Provident Fund /Employees State Insurance Act. In this case, admittedly, the contributions were deposited in the employees' accounts beyond the due date. The circumstance that the assessment order was made under Section 143(1)(a) of the IT Act can make no difference - Decided against assessee.
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2024 (2) TMI 1372
Income taxable in India or not - taxability of the salary paid by the Indian company to a non-resident - incomes deemed to accrue or arise in India as assessee is a non-resident - HELD THAT:- As per the provision of Section 9 (1)(ii), the income earned under head “Salaries” is taxable in India “if it is earned” in India. The explanation issued for removal of doubts declares that ‘salaries if it is earned’ meets services rendered in India.
In the instant case the assessee neither had any rest period nor leave period which is preceded and succeeded by the services rendered outside India. Since, the assessee has rendered services outside India, the salary cannot be taxable in India.
As per the definition the salary paid or the advances received are to be included in the total income of the person when the salary becomes due.
From the concurrent reading of Section 5 dealing with scope of total income, Section 15 dealing with computation of total income under the head salary and chargeability thereof and Section 9 dealing with income arising or accruing in India with reference to the salaries and the services rendered in India, we hold that no taxability arises on the salary/allowances received by the assessee since the assessee is a non-resident and has rendered services outside India. Decided in favour of assessee.
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9911796707
