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Showing 181 to 200 of 1666 Records
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2017 (10) TMI 1489
Representation before appropriate authority of SEBI - Appellant states that in relation to the grievances made in the appeal, the appellant would make a fresh representation within a period of two weeks from today before the Securities and Exchange Board of India (“SEBI” for short).
HELD THAT;- If the appellant makes a representation within two weeks from today then the appropriate authority of SEBI shall consider the said representation and pass appropriate order thereon in accordance with law within a period of eight weeks from the date of receiving the representation.
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2017 (10) TMI 1488
TP Adjustment - Comparability - HELD THAT:- A higher product and functional similarity would strengthen the efficacy of the method in ascertaining a reliable ALP. Therefore, as far as possible, the comparables must be selected keeping in view the comparability factors as specified. Wide deviations in PLI must trigger further investigations/analysis
Operating Profit - The Operating Profit, for the purposes of TNMM, is the net profit of the Tested Party from the controlled transaction; and the net profit of Uncontrolled Comparable Enterprises from comparable uncontrolled transactions. The income and expenses of only operating nature are taken into account for working out the Operating Profit of the Tested Party from the controlled transaction. And the Operating Profit of the Uncontrolled Comparable Enterprises from comparable uncontrolled transactions is also worked out on similar basis.
Loss making Comparables - In Chryscapital Investment Advisors (India) Pvt. Ltd. vs. DCIT [2015 (4) TMI 949 - DELHI HIGH COURT] has held that ‘the mere fact that an entity makes high/extremely high profits/losses does not, ipso facto , lead to its exclusion from the list of comparables for the purposes of determination of ALP. In such circumstances, an enquiry under Rule 10B(3) ought to be carried out, to determine as to whether the material differences between the assessee and the said entity can be eliminated. Unless such differences cannot be eliminated, the entity should be included as a comparable.’
Current year vs. Multiple year data - Data of only the relevant year should be considered for comparison. This is what Rule 10B(4) prescribes. In order to analyze comparability of an uncontrolled transaction with an international transaction, data relating to the financial year in which the international transaction or specified domestic transaction has been entered into should be used. Proviso to Rule 10B(4) carves out the exception i.e. data relating to two years prior to such financial year may be considered if such data reveals facts which could have an influence on determination of transfer prices.
In Chryscapital Investment Advisors (India) Pvt. Ltd. vs. DCIT [2015 (4) TMI 949 - DELHI HIGH COURT] has held that while determining the comparability of transactions, multiple year data can only be included in the manner provided in Rule 10B(4) and thus, it is not open to assessee to rely upon previous year’s data as a general rule.
Related Party Transactions - In CIT v.Thyssen Krupp Industries India (P) Ltd. [2016 (4) TMI 88 - BOMBAY HIGH COURT] has held ‘applying consistent filter of 25% or less of related party transaction alone shall be considered comparable.’
Segmentation vs. Aggregation - In Aztec Software & Technology v. ACIT [2007 (7) TMI 50 - ITAT BANGALORE] it is held that ‘ALP to be determined on transaction by transaction basis and not on aggregate basis.’ It has been held in LG Soft India (P.) Ltd. DCIT [2014 (6) TMI 924 - ITAT BANGALORE] ) that in absence of segmental details, a company cannot be taken into account for comparability analysis.
Economic adjustments - If differences are so material that adjustment cannot be made then the company should be rejected. TNMM is more tolerant to minor functional and risk level differences. Certain significant risks like market risks, contract risks, credit and collection risks, infringement of intellectual property right etc. are material and can lead to major difference in the value of transaction.
Mean - It is the ‘Mean PLI of Comparable’ which is arrived at.
We set aside the order of the TPO/AO and direct the TPO/AO to make an assessment de novo after examining the said comparables in the light of our observations hereinbefore at para 6 and after giving reasonable opportunity of being heard to the assessee. We also direct the assessee to file the relevant documents/ evidence before the TPO/AO.
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2017 (10) TMI 1487
The National Company Law Appellate Tribunal, New Delhi dismissed the appeal as the appellant chose not to press it. No cost was awarded. Justices S.J. Mukhopadhaya and Bansi Lal Bhat presided over the case.
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2017 (10) TMI 1486
Maintainability of application - initiation of CIRP - Service of notice - case of petitioner is that notice under sub-section (1) of Section 8 was not issued by the Operational Creditor but through its lawyer/ advocate - principles of natural justice - HELD THAT:- The issue is covered by the decision in the case of UTTAM GALVA STEELS LIMITED VERSUS DF DEUTSCHE FORFAIT AG & ANT. [2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that the notice issued by the lawyer on behalf of the Respondents can not be treated as a notice under section 8 of the I&B Code and for that the petition under section 9 at the instance of the Respondents against the Appellant was not maintainable.
The present case is covered by the decision in Uttam Galva Steels Limited - In this circumstances, we have no other option but to set aside the impugned order.
The application preferred by Respondent under Section 9 of the I&B Code, 2016 is dismissed.
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2017 (10) TMI 1485
TP Adjustment - exclusion of Mold-Tek Technologies Ltd. which provides engineering design, detailing services, website design services etc. - HELD THAT:- The assessee provides back-office research services in the IT Sector.
Being a pure question of fact, the findings of the ITAT, in the opinion of this Court, cannot be looked into or faulted under Section 260A of the Income Tax Act.
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2017 (10) TMI 1484
The Supreme Court of India in 2017 (10) TMI 1484 - SC Order, with judges Mr. Ranjan Gogoi, Mr. Abhay Manohar Sapre, Mr. Navin Sinha, heard the appellant's counsel, condoned delay, granted exemption from filing certified copy of the order, allowed taking on record additional documents, and issued notice, tagging with Civil Appeal No.7393 of 2009.
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2017 (10) TMI 1483
CENVAT Credit - input services - outdoor catering service received inside its factory for supply of food to its employees - HELD THAT:- The learned Commissioner have misdirected himself by reading the word ‘employees’ instead of the word ‘employee’ in the exclusion clause C, thus the impugned order is erroneous and vitiated. Further, the learned Commissioner have refused to follow the order of this Tribunal. On similar facts and circumstances and on this ground also the impugned order is fit to be set aside.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1482
Fee payable to the Interim Resolution Professional - HELD THAT:- There are no ground to interfere with the impugned order whereby the fee of the Interim Resolution Professional has been fixed.
Review/rectification of order - HELD THAT:- The said application is not maintainable in this appeal. In absence of any error apparent on the face of the record and in absence of any new facts brought to our notice, the question of reviewing the order does not arise.
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2017 (10) TMI 1481
Denial of exemption u/s.54B - investment beyond the period of due date for filing return of income as specified u/s.139(1) but within the date specified u/s. 139(4) - HELD THAT:- The Hon'ble Punjab & Haryana High Court in another case CIT Vs. Jagtar Singh Chawla [2013 (4) TMI 499 - PUNJAB AND HARYANA HIGH COURT] following the ratio laid down in the case of Rajesh Kumar Jalan [2006 (8) TMI 126 - GAUHATI HIGH COURT] allowed assessee’s claim of exemption u/s. 54F where the assessee paid substantial amount of sale consideration for residential house within extended period of filing return of income u/s. 139(4) of the Act.
The provision of sub section (2) of Section 54, provision of sub section (2) of section 54B and provisions of sub section (4) of Section 54F are perimeteria. The judgments on which the ld. AR has placed reliance are rendered with reference to claim of exemption u/s. 54/54F. Since provisions of sub section (2) of section 54 and 54B and (4) of section 54F are identical, therefore, ratio laid down by the various Hon'ble High Courts would apply to provisions of section 54B (2) as well. Thus, we find merit in ground No. 1 raised by the assessee in appeal and the same is accepted. The assessee is eligible to claim exemption u/s. 54B in respect of investment made towards purchase of agriculture land within the time limit for filing return of income specified under section 139(4).
Levy of interest u/s. 234B and 234C - HELD THAT:- Since, ground no. 1 raised by the assessee has been allowed and it has been contended that interest u/s. 234B and 234C has been levied in respect of disallowance of exemption u/s. 54B, we deem it appropriate to remit the issue back to the file of Assessing Officer to grant consequential relief to the assessee, in line with the relief granted to the assessee by us.
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2017 (10) TMI 1480
Period of limitation for filing refund claim of SAD - Notification No.102/2007 Cus - it was contended that sale of the exempted goods is thus a precondition and until that is complied, refund cannot be obtained.
HELD THAT:- Leave granted.
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2017 (10) TMI 1479
Doctrine of merger - Scope of SCN - case of appellant is that the department has raised the fresh penalty which was not in the original orders passed by the department - HELD THAT:- For the period under consideration, the matter finally had reached to the Hon’ble Supreme Court where all the orders were merged in the order passed by the Hon’ble Supreme Court as per the doctrine of merger. If any issue was not contested or raised, the same cannot be raised again before the Tribunal - However, the appellant is always at the liberty to raise the issue before the Supreme Court by way of Interim Application, if advised so.
Appeal disposed off.
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2017 (10) TMI 1478
Grant of anticipatory bail - misappropriation of food-grains meant for public distribution - Offences under Section 408 of the Indian Penal Code, 1860 read with Sections 3 and 7 of the Essential Commodities Act, 1955 - HELD THAT:- In case there is no cooperation on the part of the appellant for the completion of the investigation, it will be open to the respondent to approach the Sessions Court, Gondia, Maharashtra in which case the Sessions Court having regard to the materials already collected by the IO, if so satisfied that the custodial interrogation of the appellant is still required for completion of the investigation, will be free to pass appropriate orders.
Appeal disposed off.
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2017 (10) TMI 1477
Deemed dividend under Section 2(22) (e) - Addition on account of advance given to Gulam Farroq Ansari which was accepted by the assessee during the search that the amount was paid out of books - - HELD THAT:- Trade advances, which are in the nature of commercial transactions would not fall within the ambit of the word 'advance' in section 2(22)( e) of the Act
As per clause 10 the purchaser was free to do the development work on the land and was also free to sell the same to any third-party for which the assessee had no objection. In view of these facts, it cannot be said that it was a loan or an advance to the assessee. The contents of the sale agreements are very much clear that it was a clear cut agreement of sale. No contrary facts or decision was brought to our notice by either side and more specifically the Revenue. In view of these facts, we are not in agreement with the conclusion drawn in the assessment order and affirm the stand of the learned CIT (A ) in accepting the claim of the assessee, resultantly, there is no merit in the appeal of the Revenue.
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2017 (10) TMI 1476
Validity of assessment order - assessment year 2004-05 - petitioner received pre-assessment notice, they have not filed objections, therefore the Revenue would have been justified in confirming the proposal in the revision notice - HELD THAT:- Apart from that, the impugned assessment order has been passed solely guided by the 'D3' report formulated by the Enforcement Wing Officers. Even in the para wise comments furnished by the learned Special Government Pleader by the respondent vide letter dated 02. 02. 2007, the same stand has been taken stating that the petitioner accepted the suppression before the Enforcement Wing. The Assessing Officer being an independent authority cannot be boundover by a 'D3' proposal. Thus, the impugned assessment order is completely flawed for the above errors.
Penalty - HELD THAT:- The respondent has levied penalty on the ground of misuse of Form XVII. The petitioner filed an application under Section 55 of the TNGST Act to rectify the assessment order. This has been rejected by order dated 11. 10. 2006, stating that the machineries were not installed. Hence, the misuse of Form XVII occurred only during the assessment year 2004-05 and levy of tax and penalty under Section 23 of the TNGST Act is in accordance with law.
The matter is remanded to the respondent for fresh consideration - petition allowed.
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2017 (10) TMI 1475
Addition on account of LTCG - addition not as per report of DVO by holding that the reference made by AO to the DVO u/s 55A - addition on account of cost of acquisition of assets sold by the assessee, on which long term capital gains was declared - HELD THAT:- Hon’ble Bombay High Court in CIT Vs. Puja Prints [2014 (1) TMI 764 - BOMBAY HIGH COURT] is that reference could be made to the Departmental Valuation Officer only when the value adopted by the assessee was less than the fair market value. In case the value adopted by the assessee of any property was more than the fair market value as determined by the DVO, then such invocation of provisions of section 55A(a) of the Act was held to be not justified. Reference was also made to the amendment to section 55A(a) of the Act in 2012, wherein for the words “is less than the fair market value” was substituted by the words “is at variance with its fair market value”, was held to be clarificatory and it was categorically held that where the amendment was made effective only from 01.07.2012; the Parliament has not given retrospective effect to the amendment. The Hon’ble High Court thus, held that the law to be applied in the facts of the present case was the section as existing during the period relevant to assessment year 2006-07.
Now, coming to the facts of the present case, the year under reference is assessment year 2009-10 and since the amendment was made effective from 01.07.2012 and the Hon’ble High Court has held that law which is to be applied in such cases is as existing during assessment year 2009-10, then the preamended provisions of section 55A(a) of the Act are to be applied. In such scenario, there is no merit in the order of Assessing Officer in adopting the cost of acquisition as on 01.04.1981 at the value less than the value shown by the assessee, which in turn, is based on the report of the approved Valuer. - Decided against revenue.
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2017 (10) TMI 1474
Deduction u/s. 80IA - whether windmill installed at different places constitutes separate undertaking for the purpose of computing the deduction u/s. 80IA(4)(iii) ? - HELD THAT:- As decided in own case [2015 (12) TMI 896 - ITAT PUNE] relied on the decision of Coordinate Bench of the Tribunal in the case of J-Sons Foundry Pvt. Ltd Vs. DCIT [2013 (1) TMI 778 - ITAT PUNE] for A.Yrs. 2007-08 and 2008-09 [2013 (1) TMI 778 - ITAT PUNE] while granting relief to the assessee in appeal for the A.Yrs. 2007-08 to 2010-11. It is now a settled legal proposition that “every unit constitute a separate undertaking engaged in the eligible business and losses from one unit cannot be set off against the profit of another unit engaged in the same business for the purpose of computing the deduction u/s 80IA.” Therefore, we are of the opinion that order of the CIT(A) on this issue is fair and reasonable and it does not call for any interference. Accordingly, ground No. 2 raised by the Revenue is dismissed.
‘Initial assessment year’ - HELD THAT:- he initial assessment year for the assessee for claiming deduction u/s.80IA (4) r.w.s (5) is the issue adjudicated by the Tribunal in favour of the assessee. While granting relief in para 65 of the Tribunal order, the Tribunal relied on the decision of Coordinate Bench of the Tribunal in the case of Poonawala Estate Stud & Agro Farm Pvt. Ltd. [2010 (9) TMI 1080 - ITAT PUNE] and also Velayudhaswamy Spinning Mills Pvt. Ltd [2010 (3) TMI 860 - MADRAS HIGH COURT] . As such, Ld. DR could not bring any contrary decision on the issue under consideration. Thus, the initial assessment year constitutes the assessment year in which the deduction u/s.80IA of the Act is first claimed by the assessee after exercising his option as per the provisions of Section 80IA(2) of the Act. Therefore, we are of the opinion that the relief granted by the CIT(A) on this issue does not require any interference. Accordingly, ground No.3 raised by the Revenue is dismissed.
Rate of depreciation applicable to the electricity fittings of the windmill - HELD THAT:- This is a case where the Assessing Officer allowed depreciation at the rate of 10% on electricity fittings used for windmill. In the appeal, the CIT(A) decided the issue in favour of assessee allowing depreciation at the rate of 80%. In doing so, he relied on decision in the case of Poonawala Estate Stud & Agro Farm Pvt. Ltd. [2010 (9) TMI 1080 - ITAT PUNE] . Considering all, CIT(A) granted relief to the assessee for A.Yrs. 2007-08 to 2010-11. In our opinion, decision of CIT(A) is fair and reasonable and same does not require any interference. Ground No.4 raised by the Revenue is accordingly dismissed.
Additional depreciation on generation of electricity - HELD THAT:- It is the decided issue that the generation of electricity by windmill amounts to production of article or a thing and therefore, the present assessee is entitled for additional depreciation as per Section 32(1) (ia) of the Act. In view of these findings, we are of the opinion that assessee is entitled to relief on the issue of additional depreciation. To that extent, the order of CIT(A) stands reversed and in favour of the assessee
Rate of depreciation applicable to temporary approached road and fencing - AO allowed the depreciation at the rate of 10% only and CIT-A allowed depreciation at the higher rate of 80% as they are used for windmill - HELD THAT:- It is the finding of the Tribunal in assessee’s own case(supra.) that 10% is the depreciation rate applicable to the electrical fittings. Considering the above settled nature of the issue at the level of the Tribunal as informed by assessee, we are of the view that the ground raised by the assessee is to be dismissed.
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2017 (10) TMI 1473
Addition of unexplained cash credit u/s 68 - identity, creditworthiness or genuineness of transaction with BMPL - CIT-A deleted the addition - HELD THAT:- CIT(A) has passed a reasoned order by duly considering the facts surrounding the issue and also by applying the principles laid down in various decisions relied upon by him. I notice that the Ld CIT(A) has taken note of the fact that the transactions carried on by M/s BMPL were found to be genuine in its hand.
In the instant case, the AO has made the impugned addition only on the reasoning that M/s BMPL was giving only accommodation loan entries. Since the transactions carried on by M/s BMPL were found to be genuine, the reasoning given by the AO fails. Accordingly CIT(A) has deleted the addition on proper reasoning and hence no reason to interfere with the order passed by him on this issue. - Decided against revenue
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2017 (10) TMI 1472
TDS u/s 195 - import of Software Licenses - AO treated the same as royalty payments in terms of sec. 9(1 )(iv) - overriding provisions of DTAA - HELD THAT:- There is no dispute that the present issue is covered against the assessee by the judgment of CIT vs. Samsung Electronics Co. Ltd. [2011 (10) TMI 195 - KARNATAKA HIGH COURT] and assessee has merely cited these two judgments rendered in the case of WIPRO Ltd. . [2010 (8) TMI 1053 - KARNATAKA HIGH COURT] and [2015 (10) TMI 826 - KARNATAKA HIGH COURT] and no other argument was made to the effect that this issue is not covered against the assessee by this judgment of Hon’ble Karnataka High Court rendered in the case of CIT vs. Samsung Electronics Co. Ltd. (Supra). Since, these two judgments cited by him are not applicable as per above discussion; we respectfully follow the judgment of Hon’ble Karnataka High Court rendered in the case of CIT vs. Samsung Electronics Co. Ltd. (Supra) and decline to interfere in the order of CIT (A). - Decided against assessee.
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2017 (10) TMI 1471
TPA - benefit of +/-5% range - HELD THAT:- On hearing both the parties on this issue, we direct the AO to give the effect to the adjustments eventually confirmed by the Tribunal and work out the range and decide the issue as per law. Accordingly, Ground No.13 raised by the assessee is allowed for statistical purposes.
Incorrect computation of Transfer Pricing Adjustment’ to the manufacturing activity - assessee submitted that the manufacturing activity of the assessee consists of the sales and purchases involving international transactions with AEs and Non-AEs and AO/TPO/DRP erroneously benchmarked the transactions with the AE at the entity level ignoring the fact that the transactions with AEs are required to be benchmarked adopting the basis of proportionality - HELD THAT:- The principle of proportionality against Entity level benchmarking is approved in assessee’s own case in various years. Considering the settled nature of the issue by the orders of the Tribunal in assessee's own previous years we are of the view that Ground No.10 raised by the assessee is required to be allowed in favour of the assessee to maintain consistency and judicial discipline.
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2017 (10) TMI 1470
TP Adjustment - correctness of aggregation approach in benchmarking international transactions - HELD THAT:- Tribunal discussed the TP guidelines relating to aggregation of international transactions before granting relief to the assessee. The Tribunal also discussed ICAI guidelines on this issue before approving the aggregation approach of the assessee. Considering the covered nature of the issue, we are of the opinion that the issue in the present case is squarely covered and in favour of the assessee. Therefore, the grounds raised by the Revenue are dismissed.
Provision for warranty - HELD THAT:- It is evident that the claim of the assessee on account of warranty provision is allowed by the Tribunal in assessee’s own case in the A.Y. 2003-04. Ld. Departmental Representative has not brought anything on record to controvert the above finding of the Tribunal. Therefore, we find that the order of CIT(A) is in tune with the decision of the Tribunal.
Addition of “bad debts” - HELD THAT:- We find that the DRP has not appreciated the fact that the assessee complied with the condition of writing off of the debts in the books of account of the assessee as irrecoverable. They made an elaborate discussion distinguishing the Supreme Court judgment in the case of T.R.F. Ltd Vs. CIT [2010 (2) TMI 211 - SUPREME COURT] . In our view, the decision of DRP is required to be reversed on this issue considering the binding of judgments of Hon'ble Supreme Court (supra) read with Section 36(1)(vii) of the Act. - Appeal of the assessee is allowed.
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