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Showing 161 to 180 of 1635 Records
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2022 (3) TMI 1475
TDS u/s 195 - royalty / Fees for Technical Service (“FTS”) taxable under section 9(1)(vi)/(vii) - payments proposed to be made to Hyatt Chain Services Ltd., Hongkong (“HCSL”) for provision of centralised services i.e. advertisement, sales promotion and computerised reservation to the assessee amongst others - assessee is running a hotel under the name and style of Hyatt Regency as a franchise of Hyatt International Asia Pacific Limited known as Hyatt - whether the chain marketing services provided by HCSL to assessee falls within the scope of Explanation 2 to section 9(1)(vi) of the Act? - HELD THAT:- As per SOA the remittance to HCSL is made by the assessee in relation to centralised services provided by HCSL outside India for advisement, sales promotion and computer reservation. In our view, payments to HCSL are not made for consideration for any of the items (i) to (vi) enumerated in Explanation 2 to section 9(1)(vi).
There are numerous decisions wherein the issue relating to the nature of provision of centralised marketing services by way of advertising and computer reservation etc. rendered by one of the group of company particularly in the field of hospitality industry outside India has been considered. In the case of Director of Income Tax vs. Sheraton International Inc. [2009 (1) TMI 27 - DELHI HIGH COURT] wherein such type of service was under consideration, the Hon’ble Delhi High Court held that such services are neither royalty nor FTS as per the provisions of section 9 of the Act and accordingly not liable to tax in India.
Thus we hold that the payments made to the HSCL by the assessee are not in the nature of royalty under the provisions of section 9(1)(vi) of the Act and thus not chargeable to tax and not requiring the assesee to withhold any tax on such payments.
It is a settled position of law that under section 195 of the Act, tax is not required to be withheld on remittance made by the assessee in respect of the income of the payee which is not chargeable to tax under the provisions of the Act. In support, reliance is placed on the judgements of the Hon’ble Supreme Court in Transmission Corporation of A.P. Ltd. & Anr. [1999 (8) TMI 2 - SUPREME COURT] and GE India Technology Cen. (P) Ltd. [2010 (9) TMI 7 - SUPREME COURT]
Alternate argument that the payment for chain marketing services has been made to HSCL as reimbursement of the proportionate expenses incurred by HSCL on cost to cost basis and there was no element of income at all - We find force in the argument of the Ld. AR. The Hon’ble Delhi High Court in CIT vs. Expeditors International (India) (P.) Ltd. [2011 (12) TMI 104 - DELHI HIGH COURT] held that the assessee was not liable to withhold tax in respect of the reimbursement of global management expenses, communication uplink charges and other expenses made to its parent company located outside India.
Thus in our view, no income can be said to accrue or arise to HCSL in India making the assessee liable to withhold tax under section 195 of the Act. We accordingly uphold the order of the Ld. CIT(A) and reject the appeal of the Revenue.
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2022 (3) TMI 1474
Reopening of assessment u/s 147 - reason to believe - onus to prove - HELD THAT:- We are satisfied that the reasons recorded for reopening are purely based on change of opinion and not due to any failure on the part of petitioner to disclose any material fact.
AO says that the AO who did the original assessment proceedings under Section 143(3) of the Act added back only 1% of the total turnover/sales to the total income of the assessee instead of adding back 5%. This indicates clear change of opinion. Moreover, there is nothing to indicate why it should be 5%.
In the circumstances, we are satisfied that the notice and the impugned order has to be quashed and set aside. - Decided in favour of assessee.
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2022 (3) TMI 1473
Blocking of input tax credit - Principles of natural justice - HELD THAT:- If any liability is to be fixed with respect to payment of tax, it has to first start with issuance of a show cause notice under Section 73 or Section 74 of the Act as the case may be. Thereafter, full fledged assessment proceedings are to be undertaken wherein the assessee is given an opportunity of hearing and thereafter, the final order is passed - In the case on hand, it appears that although, the subject matter was unblocking of the ITC credit yet, the final liability has also been fixed.
The impugned communication dated 13.11.2020, Annexure – D, Page-25 is set aside, reserving the liberty for the respondents to initiate fresh proceedings in accordance with law so far as the alleged liability of the writ applicants under the Act is concerned - application disposed off.
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2022 (3) TMI 1472
Contempt proceedings - HELD THAT:- Learned counsel appearing for the complainant submit that order alleged to have been violated has since been complied. Placing his submission on record, contempt proceedings stands closed.
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2022 (3) TMI 1471
TP Adjustment - Arm’s Length Price adjustment for availing of corporate management service from the associated enterprises of the assessee - As argued assessee had produced all the documents to prove that the assessee had availed services from its AE’s, but the authorities below have not considered the materials available on record - HELD THAT:- In view of the above discussions and the orders of the Tribunal, we are incline to remit this issue in dispute to the file of AO/TPO to decide afresh after considering the documents submitted by the Assessee. It is needless to say that, it is the duty of the Assessee to prove that there was actual rendering of the services by AE’s to the assessee and the payment has been made to the AE’s itself for such services. The said issue shall be decided by the AO/TPO, after providing adequate opportunity to the assessee. Accordingly, the Grounds No. 1 to 1.4 are allowed for statistical purpose.
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2022 (3) TMI 1470
Income Assessment of the assessee under the head ‘income from profession’ - Assessing professional Gross receipts as salary income - expenses claimed against professional income - only objection AO to treat professional income received from the company under the head ‘income from salary’ is nature of services rendered by the assessee to the company - HELD THAT:- As per agreement between the parties, the assessee shall be designated as Managing Director, and he has been entrusted with work of day to day overall operations of the company. No doubt, the assessee is working as Managing Director and in-charge of day to day affairs of the company. But, what is required to be seen is whether a consultant can work as managing director or only a regular employee is entitled to work as managing director. In our considered view, there is no restriction under law for appointing consultant / professional as managing director of the company and to entrust day to day affairs of the company.
In our considered view, by profession, if he is competent enough to discharge his function, then the company may appoint any person to suitable post. Merely for the reason that the assessee had been designated as managing director, it cannot be said that professional fee received by the assessee for rendering professional services cannot be treated as salary, which is derived from employer and employee relationship. In this case, various details filed by the assessee undoubtedly proves that the assessee is engaged for rendering professional services in the company and same has been rightly considered for taxation.AO without appreciating facts simply assessed income of the assessee under the head ‘salary’. The learned CIT(A), without appreciating facts has simply sustained additions made by the AO. Hence, we set aside findings of the learned CIT(A) and direct the Assessing Officer to assess income of the assessee under the head ‘income from profession’ as claimed by the assessee and also allow expenses claimed against professional income.
Disallowance of interest paid against interest income - assessee has reported interest income under the head ‘income from other sources’ -assessee claimed that it has availed loan from HUF and paid interest and further, same has been deducted against interest received from deposits - HELD THAT:- As we find that the fact of set off of interest paid on loans borrowed from HUF against interest received is not forthcoming from the orders of the lower authorities. Further, on perusal of profit & loss account, the assessee has debited interest paid on loan from HUF to the profit & loss account. Therefore, it is very difficult to ascertain purpose of loan availed by the assessee, whether it was for making investments in fixed deposits or for business purpose of the assessee. If at all, the assessee has availed loan and made investments in fixed deposits, then interest paid on loan should be deducted against interest earned from fixed deposits, because there is direct nexus between income and expenses. If at all, the assessee availed loan from HUF for the purpose of business, then also it needs to be allowed as deduction, because the assessee has treated professional fees as income and thus, whatever expenditure including interest paid, if any, needs to be allowed as deduction. Therefore, the Assessing Officer is directed to verify claim of the assessee and allow the deduction accordingly.
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2022 (3) TMI 1469
TP Adjustment - markup to 5% computed by the Ld.AO on the net reimbursement of costs by the AE - AR submitted that assessee made payments to the 3rd party vendor’s towards these expenses and across charged to its group companies at cost without any element of markup - HELD THAT:- We note that identical issue arose before the Coordinate Bench of this Tribunal in assessee’s own case for A.Y. 2011-12 wherein the issue has been remanded to the Ld.AO, THUS we are of the view that the issue need to be remanded back to the Ld.AO to consider the claim in accordance with law. In the event the expenditure incurred, against which reimbursement is made by the AE, forms part of working capital adjustment, no further adjustment is warranted. We also note that there are receivables which are also being reimbursed by the AE which also needs to be subsumed in the working capital adjustment in order to escape the rigors of adjustments.
Restricting the minimum alternate tax credit set of as per the provisions of section 115JAA - HELD THAT:- Assessee is directed to file requisite documents in support of the claim. The Ld.AO shall verify the details and consider the claim in accordance with law.
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2022 (3) TMI 1468
TP Adjustment - arm’s length price adjustment (ALP) in respect of provision for software development services - TPO rejected the CPM method and adopted Transactional Net Margin Method (TNMM) - as submitted TPO erred in recommending the said ALP adjustment and the Dispute Resolution Panel erred in confirming the said ALP adjustment - HELD THAT:- We are of the considered view that the reasons, for which internal TNMM is rejected, as a most appropriate method (MAM), are not really correct and convincing. The disclaimer by the auditor with respect to “information and explanation provided to us (i.e. the auditor)” is too common a disclaimer which is almost a standard practice, and, in any case, there is no specific information that is sought to be disclaimed vis-à-vis it’s authenticity. It is not a clear as to which is the figure with respect to authenticity of which learned TPO had doubts.
It was open to TPO to ask a specific question and deal with the reply thereto, or to at least point out which is the information in respect of which he had issues. This disclaimer may raise a bonafide doubt but that cannot be reason enough to reject the segmental accounts as a whole. Rejecting the internal TNMM on the basis of such a sweeping generalization cannot meet a judicial approval.
Similarly, the segmental accounts showing different PLIs in different segments, i.e. 13.79%-153.9% as against 8.01%-9.44%, cannot be reason enough to reject the segmental accounts. Having said that, the observations regarding “allocation of expenses have been arbitrarily done resulting in skewed result”, need to be examined on merits by calling for further explanations of the assessee and taking a call on those explanations in a fair and reasonable manner in accordance with the law and by giving yet another opportunity of hearing we are thus of the considered view that while we must uphold the plea of the assessee in principle, we should remit the matter to the assessment stage so that the matter may be examined afresh, in the terms indicated above.
The limited purpose of adjudicating upon the expense allocation basis, and if no defects are found in the same, the internal TNMM will have to be accepted. In any other case, however, all contentions will remain open. With these observations the matter stands restored to the file of the AO. As the matter is remitted to the assessment stage for this short reason alone, all other issues raised in the appeal are academic and infructuous as now.
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2022 (3) TMI 1467
TP Adjustment - adjustment/addition on account of AMP - Rule of consistency - HELD THAT:- We find from the various details furnished by the assessee including the TPO appeal effect order for AY 2015-16 that adjustment was made on protective basis and adjustment was made on substantive basis by the TPO - We find, after the various submissions made by the assessee, the DRP considered the entire facts and circumstances of the matter in exhaustive details and deleted both substantive and protective addition.
TPO has already passed the order giving effect to the order of the DRP and, in the final order passed by the TPO, no adjustment on account of AMP has been made, the details of which have already been reproduced in the preceding paragraph. Therefore, in view of the rule of consistency from AY 2009-10 to 2015-16 and considering the fact that the assessee had the same business model and the facts and circumstances of the matter for the impugned assessment year are the same, we set aside the order of the AO/TPO/DRP and direct the AO/TPO to delete the addition.
Assessee has also raised various sub-grounds challenging the order of DRP in sustaining the TP addition made by the AO/TPO. Since we have deleted the addition by following the Rule of consistency in assessee’s own case for earlier years under similar facts and the business model remaining the same, the other sub-grounds are not being adjudicated being academic in nature. The first issue raised by the assessee in the grounds of appeal are accordingly allowed.
Addition on account of sundry creditors - HELD THAT:- Hon’ble Punjab & Haryana High Court in the case of Kulwinder Singh, [2017 (7) TMI 957 - PUNJAB AND HARYANA HIGH COURT] has held that provisions of section 68 are not attracted to amount representing purchase made on credits.Hon’ble Allahabad High Court in the case of Zazsons Export Ltd. [2017 (5) TMI 1222 - ALLAHABAD HIGH COURT] has held that credit purchases reflected in the books of account of the assessee of raw hide from petty dealers even if not confirmed would not mean that it was concealed income or deemed income of the assessee, which could be subjected to tax under section 68 when there was no dispute as to trade practice that payment in respect of purchase of raw hide was made subsequently.
In view of the above discussion and considering the fact that the assessee has given sufficient details regarding the details of sundry creditors, no such disallowance has been made by the AO in the orders passed u/s 143(3) in the subsequent two years and inaction by the AO to reply to the various reminders of the DRP for submission of the remand report, we are of the considered opinion that the addition made on account of increase in sundry creditors is not justified. Further, as mentioned earlier, the provisions of section 68 cannot be attracted to amount representing purchase made on credits or outstandings payable. In view of the above discussion, we set aside the order of the AO and direct him to delete the addition. The second issue raised by the assessee in the grounds of appeal are accordingly allowed
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2022 (3) TMI 1466
Validity of Reopening of assessment u/s 147 - jurisdiction of ITO who issued the notice u/s 148 - jurisdiction will be that of DC/AC or ITO - HELD THAT:- We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, ITO, Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1), Mumbai and it was not feasible to migrate the PAN having returned of income exceeding Rs. 30 lakhs to the charge of DCIT, Circle 12(3)(1), Mumbai, as the time available with the ITO 12(3)(1) was too short to migrate the PAN after obtaining administrative approval from the higher authorities by 31st March, 2019.
The notice u/s 148 of the Act is jurisdictional notice and any inherent defect therein is not curable. In the facts of the case, notice having been issued by an officer who had no jurisdiction over the Petitioner, such notice in our view, has not been issued validly and is issued without authority in law.
No hesitation in setting aside the notice.
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2022 (3) TMI 1465
Recovery of excess amount paid - treating the period of training as a period of leave permissible to him/her in easy equal installments - whether the three years Nursing Course by the in-service candidates could not be treated as a period on deputation and be treated only on leave? - HELD THAT:- In the present case, the order passed by the learned Single Judge has been set aside by the Division Bench of the High Court and therefore by applying Section 144 CPC also, the amount paid pursuant to the order passed by the learned Single Judge which has been set aside by the Division Bench is required to be refunded/returned by the original writ petitioners.
In the facts and circumstances of the case, the Division Bench of the High Court is absolutely justified in reserving liberty in favour of the State to recover the amount paid in excess to the original writ petitioners. It is required to be noted that even while reserving liberty to recover the amount paid in excess, the Division Bench has observed that the same be recovered in easy equal installments.
The Division Bench of the High Court has not committed any error in reserving liberty in favour of the State to recover the amount paid in excess to the original writ petitioners. However, at the same time, considering the prayer made on behalf of the original writ petitioners to recover the amount in easy equal installments, we direct that whatever amount is paid in excess to the original writ petitioners, pursuant to the order passed by the learned Single Judge, be recovered from the original writ petitioners in thirty-six equal monthly installments, to be deducted from their salary commencing from April, 2022.
Appeal disposed off.
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2022 (3) TMI 1464
Deduction u/s 80JJ(AA) - payments made to the employees hired by the Assessee in the previous year - scope of amendment of the year 2018 - requirement of being a workman in terms of Section 2(s) of the I.D.Act - What is required is for a person to be employed for a period of 300 days continuously?
HC held that that the same is more an explanatory amendment or a clarificatory amendment which clarifies the methodology of applying Section 80JJ-AA of the Act. If the submission of Sri. K.V.Aravind is accepted, then no employer/assessee would be able to fulfil the requirement of employing its labour/assessee prior to 5th June of that assessment year so as to claim the benefit of Section 80JJ-AA. Such a narrow and pedantic approach is impermissible. Software engineer being workman having satisfied the period of 300 days, the assessee is entitled to claim deduction under Section 80JJAA.
As argued that the High Court has erred in observing and holding that the amendment of the year 2018 can be said to be curative and/or clarificatory. It is submitted that the High Court has erred in applying the amendment of the year 2018 retrospectively. It is also the case on behalf of the ASG that, being an exemption provision, the same has to be construed strictly and literally.
HELD THAT:- Issue notice, returnable on 29.04.2022.
Dasti, in addition, is permitted.
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2022 (3) TMI 1463
TP Adjustment - transaction of ‘Payment for Corporate Guarantee Fees’ - international transaction or not? - TPO treated ‘Provision of Corporate Guarantee’ as a shareholder’s functions - HELD THAT:- TPO/AO/CIT(A) considered the provision of corporate guarantee only as a shareholder’s function being not in the nature of any service rendered by the A.E. and thus no payment was required to be paid to the A.E. As the TPO/AO rejected the combined benchmarking analysis conducted by the assessee and did not consider the said transaction as an international transaction, as claimed by the assessee, and benchmarked the same accordingly, we are of the view that matter be remanded to TPO only to benchmark the transaction of ‘Payment for Corporate Guarantee Fees’ as an international transaction.
As in the present case, TPO/AO wrongly treated ‘Provision of Corporate Guarantee’ as a shareholder’s functions instead of treating the same as an international transaction under the provisions of Explanation (i) to section 92B of the Act and accordingly computed the ALP of the same at NIL. This is not a case where TPO computed the ALP by applying incorrect benchmarking method. Rather, in the present case, the TPO/AO erred in characterisation of the transaction resulting in erroneous conclusion and benchmarking. It is also not been disputed by the assessee that ‘‘Payment for Corporate Guarantee Fees’ is an international transaction as per Explanation (i) to section 92B of the Act. Thus, in view of the settled legal position and also the relevant statutory provisions, we deem it appropriate to restore the matter to the TPO/AO only to benchmark the transaction of ‘Payment for Corporate Guarantee Fees’ after considering the same as an international transaction. Needless to mention that before passing the order the AO/TPO shall grant opportunity of hearing to the assessee.
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2022 (3) TMI 1462
Adoption - whether the children of the adapted family can claim any right or share in the properties of the biological family of the father of the plaintiffs? - Rejection of plaint of the plaintiffs under Order- Rule-11(a) and (d) r/w Sec.151 of CPC - HELD THAT:- It is well settled law that, under Order VII Rule 11 of CPC, the plaint has to be rejected only on the basis of the averments made in the plaint without referring to the written statement filed by the defendant or any documents.
In this case, by reading the plaint averments, it is clear that one Venkatappa and his wife Smt.Maremma had no issues and they adopted the father of the plaintiffs i.e. Bheemappa @ Bhima Reddy by way of a registered document styled as ‘Dattu Sweekara Dastaveju’ vide document No.127/1942-43 which is registered before the Sub-Registrar’s Office, Ballari. The effect of the adoption is, an adopted child shall be deemed to be child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. The adoption has the effect of transferring the adopted boy from his natural family into the adoptive family. It confers upon the adoptee the same rights and privileges in the family of the adopter as the legitimate son. All the suit schedule properties have been purchased through the registered sale deed after 28.08.1942. Since all the suit schedule properties have been purchased after plaintiffs’ father went in adoption on 28.08.1942, it is clear that adoption under Mitakshara law has the effect of transplanting the adopted boy from his natural family into the family of his adoptive father.
The father of the plaintiffs has no right, title over the suit schedule property. After taking adoption of the father of the plaintiffs, then only the plaintiffs are born, hence, the children of the adapted family cannot claim any right or share in the properties of the biological family of the father of the plaintiffs. Hence, the suit filed by the plaintiffs is not maintainable.
It is also relevant to mention that, when there is no cause of action arose to file the suit, if the claim made in the suit is barred by any law, under such circumstance, the plaint of the plaintiffs shall have to be rejected under the provision of Order VII Rule 11(a) and (d) of CPC at any stage of the proceeding. By reading the entire plaint averments, it does not give rise to any cause of action for the relief prayed - The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage.
The conclusion arrived at by the trial Court rejecting the plaint under Order 7 Rule 11 of CPC is correct. Though, while giving the finding, the trial Court has referred to the written statement and the documents produced by the defendant, which the trial Court was not supposed to rely, the appellate Court has the power to correct the same. By going through the averments of the plaint, it is very clear that the suit is barred by law and the plaint does not disclose any cause of action for the relief prayed.
The appellate Court under Section 96 of CPC can exercise the power to prevent abuse of process of any Court or otherwise to secure the ends of justice - appeal dismissed.
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2022 (3) TMI 1461
Transfer pricing adjustment made in respect of both “Software development Segment” and “ITES Segment” - Comparable selection - HELD THAT:- Larsen & Toubro Infotech Ltd, Persistent Systems Ltd and Tech Mahindra Ltd (seg. - Admittedly, the turnover of above said companies are far higher than that of the assessee company. Further the assessee falls under the category of companies having turnover of less than Rs.200 crores, where as the above said companies are having turnover of more than Rs.200 crores. Accordingly, following the above cited decision of the co-ordinate bench, we direct exclusion of above said three companies.
Negative working capital adjustment - We direct the AO/TPO not to make negative working capital adjustment in the hands of the assessee.
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2022 (3) TMI 1460
TP Adjustment - selection of MAM - Resale Price Method (‘RPM’) as the most appropriate method - DRP recording the following held that TNMM is the most appropriate method - HELD THAT:- Each assessment years is independent assessment year and what is applicable in one assessment year cannot be applied to another assessment year unless there is same set of facts and circumstances. It is also to be noted that in the assessment year 2012-13 and 2013-14, the appellant had adopted the aggregation of the transaction pertaining to the receipt of management support services with the purchase of trading of goods. Though the appellant had clearly stated in TP study that RPM is MAM for purchase of trading, however due to aggregation of the international transactions, it adopted TNMM to benchmark purchase of trading of goods. Thus, it is clearly evident that the appellant’s FAR is constant as for as purchase of Trading of Goods is concerned since the inception and there is no departure by the appellant for adoption/selection of RPM as MAM for the purchase for trading of goods.
Therefore, in our considered view, since, there is no transaction of management service in the assessment year under consideration i.e Assessment Year 2017-18 unlike in the other Assessment Years, we hold that in the assessment year under consideration RPM is the MAM and the same has to be applied. Accordingly the said ground urged by the Assessee deserves to be allowed.
Since we have agreed with application of RPM method as MAM to determine the ALP of the international transaction for AY in consideration, we remit all other grounds raised before us to the file of AO/TPO for fresh consideration after giving opportunity to the Assessee.
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2022 (3) TMI 1459
TP Adjustment - Payment of interest on trade credits - Arms length price of international transaction of payment of interest on trade credits to its AE - ALP determined by ld TPO at Rs Nil - HELD THAT:- We find that the transaction of outstanding payable by the assessee to non- AE is a separate international transaction in terms of provisions of explanation [1] [c] of section 92 B - There are no reasons to hold that above transaction is interlinked with other transactions and therefore should be aggregated - LD TPO holding so found that there is an internal CUP available as for capital-financing assessee is paying interest to AE and not paying any interest to NON AE.
Mostly, Internal CUP would provide highly accurate results. In this case, the difference in credit period is a differentiating factor only for the purposes of purchase transaction. For capital financing , the moment the credit period is over, both the outstanding of AE as well as NON AE stands at Par.
We note that assessee has submitted before the learned CIT (A) that the facts noted by the learned TPO that in past also the assessee has not paid any interest is incorrect.
Submission made before him clearly shows that for Assessment Year 2010-11, the assessee has paid ₹1,92,146/-, for Assessment Year 2011-12 ₹15,02,059/- for Assessment Year 2012-13 ₹29,79,359/- and for Assessment Year 2013-14 ₹27,82,845/-. However, that does not make any difference in benchmarking international transaction of current AY. Benchmarking of Payment of interest on outstanding beyond credit period to AE is also not impacted by the margins earned by the assessee or consideration of working capital adjustment. In view of the above facts, we uphold benchmarking made by Transfer Pricing Officer of the above payment interest at Rs. Nil. Accordingly, the grounds of the appeal assessee are dismissed.
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2022 (3) TMI 1458
Seeking grant of bail - conspiracy - sham agreement entered into with an intention to defraud and cheat Yes Bank Ltd - Bail Application has been dismissed mainly on the ground that the Applicant is involved in committing economic offence and the fact that he has repaid the outstanding amount, is not sufficient to wipe out the criminal liability - HELD THAT:- In the instant case, the FIR was registered on 12/03/2020. The Applicant has reported to the Investigating Officer as and when called and co-operated throughout in the Investigation. Upon completion of the investigation, charge sheet has been filed on 08/10/2021. The Investigating Officer did not find it necessary to arrest the accused during the course of investigation. Hence, in terms of the clarification given by the Hon’ble Supreme Court, it is not necessary to detain the Applicant in custody pending trial, particularly considering the fact that the trial is not likely to conclude in near future, in view of large pendency of cases.
The Applicant who is facing trial in Special Case No.101233 of 2021 pending on the file of Special Judge (CBI), Greater Bombay, is ordered to be released on bail on furnishing PR bond in the sum of Rs. 2,00,000/- with one or two solvent sureties in the like amount - Application allowed.
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2022 (3) TMI 1457
Seeking grant of bail - petitioner is the master mind and cheated innocent people or not - offence under Sections 406,419, 420, 467, 468, and 471 IPC - HELD THAT:- We are of the considered view that the petitioner is entitled to be released on bail as charges have been framed and there is no likelihood of the trial being completed soon. Also, there is no dispute that the other accused have been released on bail. The apprehension of the prosecution about the petitioner fleeing from justice or making himself scarce during the course of trial, can be taken care of by imposing conditions.
We direct the release of the petitioner on bail subject to the satisfaction of the trial Court. In addition, the petitioner is directed to deposit his passport and report to the Rani Bagh Police Station, Delhi in the 1st week of every month.
SLP disposed off.
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2022 (3) TMI 1456
Revision u/s 263 by CIT - disallowance of amount u/s 35 and claim debited towards advertisement in the Profit & Loss A/c, as prior period expenses, which deserves to be disallowed - HELD THAT:- As on perusal of the observations and finding/direction given by the Ld. PCIT shows that no examination and verification has been done by the Ld. PCIT before arriving at the consideration of holding assessment order being erroneous in so far as it is prejudicial to the interest of the revenue.
PCIT in the present case has not carried out any enquiry of his own and has merely set aside the assessment to the file of the AO to re-examine the issue of claim of advertisement expenses alleged to be held as prior period expenses. Therefore, it is contrary to the guidelines as mandated in the Hon'ble Delhi High Court decision in the case of ITO v. DG Housing Projects Ltd. [2012 (3) TMI 227 - DELHI HIGH COURT]. Accordingly, the consideration arrived at by the Ld. PCIT invoking provisions of section 263 is not justified and cannot be sustained under the facts and circumstances of the present case.
We find that Ld. PCIT has taken note of the amendment made in section 263 w.e.f. 01.06.2015. This amendment relates to Explanation 2 inserted in section 263 of the Act. The co-ordinate bench has dealt with Explanation 2 as inserted by the Finance Act, 2015 in the case of Narayan Tatu Rane v. Income Tax Officer [2016 (5) TMI 1162 - ITAT MUMBAI] to hold that the said Explanation cannot be said to have overridden the law as interpreted by the Hon'ble Delhi High Court in DG Housing Projects Ltd (supra), according to which the Ld. PCIT has to conduct an enquiry and verification to establish and show that the assessment order is unsustainable in law. Also further held that the intention of the legislature could not have been to enable the Ld. PCIT to find fault with each and every assessment order, without conducting any enquiry or verification in order to establish that the assessment order is not sustainable in law, since such an interpretation will lead to unending litigation and there would not be any point of finality in the legal proceedings. The opinion of the Ld. PCIT referred to in section 263 of the Act has to be understood as legal and judicious opinion and not arbitrary opinion.
On the two issues considered by the Ld. PCIT in the impugned order, no action u/s 263 of the Act is justifiable which cannot be sustained under the facts and circumstances of the present case and judicial precedents dealt herein above. We, therefore, quash the impugned order u/s 263 of the Act and allow the grounds raised by the assessee.
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9911796707
