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Showing 21 to 40 of 1245 Records
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2022 (10) TMI 1226 - ORISSA HIGH COURT
Striking out the name of the company - HELD THAT:- The issue is covered by the decision in the case of LEKA CONSULTING SERVICES PRIVATE LIMITED VERSUS NATIONAL COMPANY LAW TRIBUNAL CUTTACK AND ANOTHER [2021 (12) TMI 1484 - ORISSA HIGH COURT] where it was held that Petitioner might approach the Tribunal to contend that impugned order be amended on the Tribunal not having allowed his client to adduce evidence of the company being in operation, in context of the report having said that his client may be put to strict proof. If the Tribunal is satisfied, it may amend impugned order.
Application disposed off.
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2022 (10) TMI 1225 - ITAT BANGALORE
TP Adjustment - comparable selection - Turnover filter should have an upper limit - HELD THAT:- Tribunal has excluded the comparable companies based on the upper turnover filter of Rs. 200 crores. In assessee's case from the table submitted, it is evident that the turnover all 10 comparable companies is more than Rs. 200 crores. Therefore respectfully following the M/S BORQS SOFTWARE SOLUTIONS PVT. LTD. case [2021 (10) TMI 1351 - ITAT BANGALORE] we hold that the companies having more than 200 crores turnover need to be excluded. We accordingly direct the TPO to exclude these companies while re-computing the ALP.
Inclusion of Akshay Software on the ground that the company has incurred significant foreign branch expenditure - remit the issue of to the AO/TPO to consider the comparability of this company afresh while recomputing the ALP.
Include I2T2 India Limited as a comparable while re-computing the ALP.
TPO rejected the inclusion of Evoke Technologies Ltd. on the basis that the financials of the company has also included the financials of the financial branch which is un-audited and therefore the data is unreliable - e notice that the coordinate Bench in the case of Mindteck India Ltd [2022 (6) TMI 1334 - ITAT BANGALORE] has considered the issue of inclusion of Evoke Technologies P. Ltd wherein held comparability of this company was remanded to the TPO for fresh consideration. We are of the view that the comparability of this company has to be remanded to the TPO for fresh consideration in the light of the decision brought to our notice as above
Addition made on account of receipt of fixed assets received free of cost/on loan basis - DRP has upheld the addition mainly on the ground that the assessee has not produced invoices and other relevant documents to substantiate that the assets have been received on loan basis/free of cost and also no evidence was produced that the assets have been returned to the lender - HELD THAT:- With regard to assets received from Quantum data International, the assessee had submitted before the DRP that the customs has wrongly recorded the assets received as replacement for defective assets imported earlier as assets received free of cost. This fact has not been considered or verified by the DRP - we remit the issue back to the AO to verify the invoices and other relevant documents that would substantiate the assessee's claim and decide the issue in accordance with law - This ground is allowed for statistical purposes.
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2022 (10) TMI 1224 - BOMBAY HIGH COURT
Seeking protection from arrest (anticipatory bail) for the alleged offence u/s. 132 of the Central and Maharashtra Goods and Services Tax Act - Availment of irregular ITC - whether the gravity and seriousness of the accusations would require custodial interrogation? - HELD THAT:- Admittedly, there is no final adjudication at the instance of the Department and all the documents required for the purpose of investigation, are already in possession of the respondent and not only this, a sum of Rs.2.22 crores has been paid to the Department though under protest, to establish the bonafides. The investigation being based on documents, the Department has failed to make out any case for custodial interrogation, particularly when the GST Portal has all the supporting documents including the sales and input invoices and even all books of accounts are also filed with the Ministry of Corporate Affairs. The investigation and inquiries are initiated in December 2021, but still there is no crystallization of the accusations barring the show cause notice being issued. In any case, even on conviction, the maximum punishment that would be imposed would be imprisonment upto five years.
The present case arises out of a tax dispute and the interest of the respondent no.1 can always be protected on the claim being adjudicated and the tax payer being directed to pay the tax. Moresoever, the offence under the GST Act, except with the limited exception of previous conviction are compoundable. Primarily, the GST is a revenue statute to collect the tax on every transaction of supply of goods or services or both and imposition of penalty is prima facie ancillary purpose of the statute.
The order passed by the Addl. Sessions Judge, Mumbai, rejecting the Anticipatory Bail Application, perfunctory in nature as except recording that the nature of offence being economic one, the same is rejected. A balance has to be struck between the principle of liberty and the right of the Department to investigate. The learned Judge has recorded a prima facie finding that the applicants are actively involved in the act of availing ITC without actual movement of goods or services, and therefore, the protection is denied. There is no discussion about the need for custodial interrogation of the applicant and whether the custody would be warranted when the offence is punishable with an imprisonment of less than 7 years.
In the event of their arrest, the Applicant no.1 Narendra Amrutlal Patel and applicant no.2 Ashok Girdharilal Mewani shall be released on bail on furnishing P.R. bond to the extent of Rs.50,000/- each with one or more sureties of the like amount and other conditions imposed - application allowed.
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2022 (10) TMI 1223 - ITAT CHENNAI
Condonation of delay of 380 days in filing of the appeal before the Tribunal - eligible reasons for delay - HELD THAT:- In a case, where, for the reasons beyond the control of the petitioner, the appeal could not be filed, then the Courts are well equipped with power to condone the delay, if the petitioner explains the delay in filing of the appeal with a reasonable cause. However, there is no law or mandate in the Act, to condone the delay in each and every case. But, it depends upon facts of each case and the reasons given by the parties for condonation of delay. Therefore, one has to go by the facts of its own case and the reasons given by the petitioner for condonation of delay.
In this case, on perusal of reasons given by the assessee for delay in filing of the appeal, we find that although it appears, the assessee is not deriving any benefit by not filing the appeal within the due date prescribed under the Act, but, from contents of petition filed by the assessee, we could easily make out a case that the assessee has made an afterthought to file the appeal against the order of the CIT(A). Therefore, in our considered view, for these vague reasons, such huge delay of 380 days in filing of the appeal, cannot be condoned.
We are of the considered view that the assessee has failed to make out a prima facie case for condonation of delay of 380 days in filing of the appeal before the Tribunal. Further, the reasons given by the assessee in the affidavit does not come under reasonable cause as prescribed under the Act, for condonation of delay. Decided against assessee.
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2022 (10) TMI 1222 - APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI
Benami transaction - Beneficial owner of property - Provisional attachment order - scope of Amendment Act of 2016 - Amendment to Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - HELD THAT:- The issue raised in these petitions is squarely covered by the judgment of this Court in Union of India & Anr. vs. Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT] as held Section 2 (9) (A) and Section 2 (9) (C) are substantive provisions creating the offence of benami transaction. These two provisions are significantly and substantially wider than the definition of benami transaction under Section 2 (a) of the unamended 1988 Act. Therefore, Section 2 (9) (A) and Section 2 (9) (C) can only have effect prospectively. Central Government has notified the date of coming into force of the Amendment Act of 2016 as 01.11.2016. Therefore, these two provisions cannot be applied to a transaction which took place prior to 01.11.2016.
As petitioners contends that review of the said judgment is pending.
Since as of now the issue stands covered by the judgment in the case of Ganpati Dealcom Pvt. Ltd.(supra), we dismiss these special leave petitions for the same reasons and ground.
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2022 (10) TMI 1221 - ANDHRA PRADESH HIGH COURT
Withdrawal of permission for export of non-basmati rice by notification dated 15.10.2007 - subsequent withdrawal of notification - case of the petitioners is that the abrupt change in the policy is arbitrary and highhanded, affecting the vested rights of the petitioners and as such requires to be set aside - HELD THAT:- The 2nd respondent having accepted, in principle, the requirement of protecting the persons who had already acted on the existing policy, could not have restricted the protection to only the three categories mentioned in the impugned notification. As can be seen in the present case, the petitioners in all the three cases, acting on the basis of the existing policy, had entered into contracts with third parties outside India and had also procured the broken rice necessary to execute such contracts, even before the policy was changed.
Prima of facie, a case is definitely made out for the petitioners to be allowed to export the broken rice which has already been procured by them and which is presently stored at various ware houses, even before 08.09.2022.
In the circumstances, there shall be an interim direction to the respondents to permit the petitioners to export the broken rice stored by the petitioners at the ware houses before 08.09.2022 - Post on 27.10.2022, for counter.
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2022 (10) TMI 1220 - ITAT DELHI
Assessment of trust - Unverifiable donation - unverifiable/ bogus contribution to corpus fund - addition made by AO by invoking the provisions of section 68 and section 115 BBC - CIT(A) deleted addition accepting genuineness and creditworthiness of the of the donors - HELD THAT:- CIT(A) while deleting the addition has noted that if a person receives donation and maintains the record of identity and address of the donors and then such donation cannot be considered to be anonymous donation as defined in subsection (3) of Section 115BBC of the I.T. Act, 1961. He further held that requirement of Section 115BBC is not at par with onus on the assessee-trust casted under section 68 i.e., to prove creditworthiness of the donors. He has given a finding that since the assessee-trust has maintained and disclosed name and address of the donors during the assessment proceedings and which were accepted by the A.O. in the original assessment order, therefore, the provisions of Section 115BBC would not be applicable to the facts of the case.
CIT(A) further noted that details of the names and addresses of the donors has not been proved to be wrong or those persons have not donated to the assessee-trust. He, therefore, held that for these reasons also the donation received by the assessee-trust cannot be considered to be anonymous donation by virtue of sub-section (3) of Section 115BBC of the I.T. Act, 1961. Before us, no fallacy in the findings of the CIT(A) has been pointed out by the Revenue. In such a situation, we find no reason to interfere with the order of the Ld. CIT(A) and thus, the grounds raised by the Revenue are dismissed.
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2022 (10) TMI 1219 - MADRAS HIGH COURT
Violation of principles of natural justice - petitioner claim nor dealt in proper manner - rejection of request for refund - HELD THAT:- The petitioner's claim has not been dealt with in a proper manner. The detailed contentions raised by the petitioner in the refund claim have not been specifically adverted to or discussed in light of either the CC Rules or Section 172(7)(b), specifically referred to in the refund application.
Moreover, the petitioner ought to have heard in person prior to the impugned order having been passed, which has not been done despite the petitioner having, at para 13 of the refund claim, specifically sought an opportunity of personal hearing prior to disposal of the application. The impugned order is thus set aside and remanded for de novo hearing and disposal, in accordance with law.
The officer in the remand proceedings shall test the eligibility of the petitioner to the credit at the outset and render a categoric finding in this regard. The provisions of Section 142 shall thereafter be applied to determine the refund sought. Such exercise shall be completed within a period of eight weeks from date of receipt of this order.
Petition disposed off.
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2022 (10) TMI 1218 - ITAT MUMBAI
Estimation of income - bogus purchases - HELD THAT:- As in respect of bogus purchases the assessee had not produced an supporting documents in the form of delivery challan, lorry receipt stock register in support of such purchases, therefore we don’t find any reason to interfere in the decision of ld. CIT(A) in restricting such purchases to the extent of 12.5% of the purchase amount.
We restrict the addition in respect of purchases made from Abishek Enterprises also to the extent of 12.5% of such purchases.
Sundry creditors even during remand report proceedings the assessee has failed to make any compliance in spite of opportunity provided by the ld. CIT(A). The assessee had failed to furnish the confirmation from the sundry creditors. These facts demonstrate that the assessee had failed to furnish even basic document like confirmation from the creditors before the lower authorities, therefore, we don’t find any reason to interfere in the decision of ld. CIT(A).
Disallowance out of household expenses and other miscellaneous expenses we find that the A.O has not substantiate the reason for such disallowance with relevant break up and defect in the nature of detail submitted by the assessee during the course of assessment proceedings, therefore, we consider that decision of ld. CIT(A) in sustaining these addition is not justified. Accordingly, we direct the A.O to delete the addition on account of low household withdrawal and on account of discrepancy in expenses.
Appeal of the assessee is partly allowed.
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2022 (10) TMI 1217 - AUTHORITY FOR ADVANCE RULING, PUNJAB
Levy of GST - prepayment premium to be charged by PFC, New Delhi for prepayment of loans - HELD THAT:- The Central Board of Indirect Taxes and Customs (CBIC) has issued two Circulars - one Circular No. 102/21/2019-GST dated 28.06.2019 clarifying the “issue of applicability of additional/penal interest” and other Circular No. 178/10/2022-GST dated 03.08.2022 regarding 'GST applicability of liquidation damages, compensation and penalty arising out of breach of contract or other provisions of law”.
The Circular No. 102/21/2019-GST dated 28.06.2019 clarifies doubts regarding admissibility of GST on additional/penal interest on the overdue loan i.e. whether it would be exempt from GST in terms of SI. No. 27 of notification No. 12/2017-Ccntral Tax (Rate) dated 28th June 2017 or such penal interest would be treated as consideration for liquidated damages [amounting to a separate taxable supply of services under GST covered under entry 5(e) of Schedule II of the Central Goods and Services Tax Act, 2017.
On the other hand, the Circular No. 102/21/2019-GST dated 28.06.2019 in para 7.1.6. has analysed the situation where some banks charge pre-payment penalty if the borrower wishes to repay the loan before the maturity of the loan period and clarified that, such amounts paid for acceptance of late payment, early termination of lease or for pre-payment of loan or the amounts forfeited on cancellation of service by the customer as contemplated by the contract as part of commercial terms agreed to by the parties, constitute consideration for the supply of a facility, namely, of acceptance of late payment, early termination of a lease agreement, of prepayment of loan. Therefore, such payments, even though they may be referred to as fine or penalty, are actually payments that amount to consideration for supply, and are subject to GST, in cases where such supply is taxable.
In the present case of the applicant the applicant has simply stated that the PFC has raised the demand of prepayment premium of Rs. 16,85,71,429/-. It is not clear as to whether the prepayment premium includes “additional/penal interest” or “pre-payment penalty”. As the “additional/penal interest” is in the nature of Interest whereas the “prepayment penalty” is in the nature of fine/penalty - in case the consideration is represented by penal interest for prepayment of loan amount the same shall be exempted from payment of GST in terms of SI. No. 27 of notification No. 12/2017-Central Tax (Rate) dated the 28.06.2017.
Hence, it can be seen that, in both the conditions i.e. whether the prepayment premium includes “additional/penal interest or pre payment penalty”, there shall not be any GST on the prepayment premium to charged by PFC, New Delhi for pre-payment of loan under CGST Act, 2017.
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2022 (10) TMI 1216 - SECURITIES APPELLATE TRIBUNAL MUMBAI (LB)
Power of SEBI to initiation action against Chartered Accountant (CA) / Auditor of the company - Professional negligence by Auditor/CA - IPO proceeds were utilized for the objects other than those mentioned in the prospectus - Sebi alleged actual utilization of IPO proceeds was significantly different from the certificate issued by the appellants and the utilization certificate did not carry any qualification even though the appellants had access to bank statements and books of accounts of the Company - Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - HELD THAT:- AO has only established that the appellants have falsely certified the Unqualified Utilization Certificate. There is no finding that the appellants were party to preparation of false and fabricated accounts. There is no finding that the appellants had manipulated the books of accounts with knowledge and intention in the absence of which the appellants cannot be accused of fraud.
There is also no finding by the AO on collusion with the Company in the absence of which the charge of aiding and abetting the Company cannot be sustained. It is an admitted fact that the appellants had qualified the annual accounts on the matter of utilization of funds of the IPO and such a qualification is mentioned in the Annual Report which is in the public domain. In absence of a finding that there was deceit or inducement, the appellants can only be held guilty for professional lapse or negligence for which the appropriate authority to take action is ICAI. SEBI has already made a complaint to the ICAI in the instant case and ICAI is holding an inquiry against the appellants.
Section 12(A)(a) & (b) of SEBI Act is not applicable to the appellants as they are not dealing in securities. Further, in absence of proof of fraud, connivance, deceit or manipulation Section 12(c) of SEBI Act and Regulation (3) and (4) of PFUTP Regulations are not applicable.Thus, for the reasons stated aforesaid, the impugned order cannot be sustained and is set aside.
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2022 (10) TMI 1215 - ITAT RAIPUR
Revision u/s 263 - Validity of reopening of assessment u/s 147 - notice issued beyond period of four years - as per CIT transactions of receipt of share capital and share premium not enquired by AO - HELD THAT:- Concluded assessment of the assessee for AY 2011-12 that was earlier framed u/s 143(3), as observed by us hereinabove could not have been reopened by the AO vide Notice u/s 148 i.e, after expiry of four years from the end of the relevant assessment year.
Admittedly, as the AO vide his order passed under Sec. 143(3) r.w.s 147, had accepted the assessee’s returned income, therefore, as stated by the ld. AR and, rightly so, there was no occasion much the less any justification for the assessee to have carried the order of reassessment any further in appeal.
Thus when the impugned order of reassessment under Sec. 143(3) r.w.s 147, in itself had been passed on the basis of invalid assumption of jurisdiction by the AO, and thus, is invalid and bereft of any force of law, therefore, the same could not have been revised by the Pr. CIT under Sec.263 of the Act.
Admittedly, we have accepted the aforesaid claim of the assessee that the AO as per the mandate of the “1st proviso” to Sec. 147 the Act had invalidly assumed jurisdiction and reopened the concluded assessment of the assessee beyond the prescribed time period available for doing so i.e upto 31.03.2016.
Whether or not the validity of the order passed by the AO under Sec. 143(3) r.w.s 147,could for the very first time in the course of the present appellate proceedings before us be taken as a basis by the assessee for assailing the sustainability of the order passed by the Pr. CIT under Sec. 263? - There is substance in the claim of the ld. AR that as the proceedings before the Pr. CIT u/s 263 of the Act, dated 27.03.2021 are in the nature of collateral proceedings, therefore, the assessee could in the course of appellate proceedings which in turn originates from the order passed u/s 263 of the Act, dated 27.03,2021 challenge the validity of the impugned assessment order passed by the A.O u/s. 143(3) r.w.s.147, dated 30.12.2018. The aforesaid contention of the ld. A.R that the illegality/invalidity of an order passed in the primary proceedings can be challenged in the course of the collateral proceedings finds support from the order of a coordinate bench of the Tribunal i.e ITAT, Mumbai in the case of Westlife Development Ltd. [2016 (6) TMI 1208 - ITAT MUMBAI]. It was, inter alia, observed by the tribunal that an assessee can challenge the validity of an order passed u/s.263 of the Act on the ground that the impugned assessment order was non-est. Indulgence of the tribunal in the said case was sought by the assessee for adjudicating the following issues (as culled out from the order).
Thus as the order of reassessment under Sec.143(3) r.w.s 147 in itself had been passed on the basis of invalid assumption of jurisdiction by the AO, therefore, as claimed by the assessee and, rightly so, the same could not have been revised by the Pr. CIT under Sec. 263 of the Act. Accordingly, we herein quash the order passed by the Pr. CIT under Sec. 263 for want of valid assumption of jurisdiction. Decided in favour of assessee.
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2022 (10) TMI 1214 - ITAT CHENNAI
Levy of fees u/s 234E - late filing of quarterly TDS returns for Quarter-2 to Quarter-4 - intimation u/s 200A - levy of fees u/s 234E for any period prior to 01/06/2015 - HELD THAT:- We find that a view favorable to the assessee has been taken by Hon’ble High Court of Kerala in recent decision titled as United Metals [2021 (12) TMI 1349 - KERALA HIGH COURT] following its earlier decision in Sarala Memorial Hospital V/s UOI [2018 (12) TMI 1818 - KERALA HIGH COURT] which is stated to have attained finality.
Similar view favorable to assessee has been taken by Chennai Tribunal in its recent decision titled as M/s DRG Rexine Inc. V/s ACIT [2022 (2) TMI 1404 - ITAT CHENNAI] following the case law of Fatehraj Singhvi V/s UOI [2016 (9) TMI 964 - KARNATAKA HIGH COURT] Admittedly, there is no decision by Hon’ble High Court of Madras. In such a case, an analogy could be drawn from the decision of Hon’ble Supreme Court in CIT V/s Vegetable products Ltd. [1973 (1) TMI 1 - SUPREME COURT] for the conclusion that in case of two reasonable constructions of taxing statutes, the one that favors the assessee must be adopted.
Respectfully following the same, we would hold that a view favorable to the assessee was to be adopted and therefore, the levy of fees u/s 234E for any period prior to 01/06/2015 would not be sustainable in the eyes of law. We order so. In the result, the fees levied by TDS officer u/s 234E for Financial Years 2013-14 & 2014-15 could not be sustained.
Thus we direct CPC / Ld. AO to delete the impugned fees levied u/s 234E for various quarters and re-compute the outstanding demand against the assessee. Decided in favour of assessee.
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2022 (10) TMI 1213 - CESTAT MUMBAI
Recovery of CENVAT Credit alongwith interest and penalty - input services - outward freight charges in case where the goods are removed from the factory for delivery on for destination basis - place of removal - failure to discharge burden of proof on the part of assessee - HELD THAT:- In terms of the decision in COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT] the point where transfer of ownership in goods from seller to buyer occurs is the place of removal for the purpose of Section 4 of the Central Excise Act, 1944 and all the expenses incurred upto that point become the part of the transaction/ assessable value for the purpose of levy of cenvat duty. In case of the FOR destination sale admittedly the transfer in property in the goods would happen at the point of the delivery of the goods and all expenses till that point would be includible in the transaction value, i.e. freight charges upto that point are includible in the assessable value determined under Section 4 - Admittedly appellant had paid duty including the freight charges upto the point of delivery at the destination. That being so the point of delivery is the place of removal for the purpose of determination of eligibility to CENVAT Credit in respect of the GTA Services received by the appellant.
From the question framed itself it is quite evident that bench has referred the matter without considering the clarification issued by the Board in 2018. Since the clarification issued by the Board goes to the root of the matter and clarifies the conditions wherein the benefit of credit needs to be allowed following the decision of the Apex Court in the case of Roofit Cement, the decision is sub-silentio and cannot be treated as binding precedent.
Appeal allowed.
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2022 (10) TMI 1212 - ANDHRA PRADESH HIGH COURT
Principles of natural justice - writ petitioner has not availed the opportunity given by 1st respondent and the impugned revision is well within the purview of the relevant laws - HELD THAT:- Having regard to the contention of the petitioner that he has additional material to be submitted and also having regard to the legal and factual objections against the suo moto revision undertaken by 1st respondent raised in this writ petition, in the interests of justice, it is deemed apposite that an opportunity should be given to the petitioner for making submissions as against the impugned revision sought to be made by 1st respondent.
The matter is remitted back to 1st respondent with a direction to issue a notice to the petitioner fixing the date for hearing well in advance, in which case, the petitioner shall appear with his documents, if any.
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2022 (10) TMI 1211 - ITAT KOLKATA
Revision u/s 263 - CIT has gone through the record and formed an opinion that during demonetisation period, there was abnormal increase in cash deposit as compared to average rate of cash deposit during pre-demonetisation period - HELD THAT:- The case of the assessee is that it has made sufficient withdrawals starting from 19.10.2016 out of its C.C. facility. The withdrawal before the demonetisation was declared was about Rs.1,35,00,000/-. If it was not used in purchases, then it has to be re-deposited. The abnormal circumstance of high deposit is the reason that such currency could not be retained at home, it has to be sent to the Bank during the given period of time.
This fact has not been properly taken note by the ld. CIT while exercising the power u/s 263 - AO has made a due enquiry on this issue during the assessment proceedings.
Commissioner failed to give any plausible reason as to why he did not agree with the opinion of AO and as to how the assessment order is erroneous by simply observing that the assessment order is erroneous is not justifiable action. It has to be demonstrated as how it is erroneous, which has caused a prejudice to the revenue CIT totally failed in this area. No hesitation to quash the impugned order. We allow the appeal of the assessee.
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2022 (10) TMI 1210 - DELHI HIGH COURT
Grant of extension of interim bail - HELD THAT:- A bare perusal of order in RAJ SINGH GEHLOT VERSUS DIRECTORATE OF ENFORCEMENT [2022 (9) TMI 1522 - SC ORDER] passed by the Hon’ble Supreme Court of India reflects that interim protection granted by the High Court has been directed to continue and there does not appear to be any ambiguity in this regard.
Thus, no further clarification in this regard is required from this Court as no observations appear to have been expressed by the Hon’ble Supreme Court of India in respect of order dated 28.09.2022 regarding evaluation of the medical condition of the respondent by the Medical Board of Dr.RML Hospital. The same was made to ensure that the protection on medical grounds is not misused in any manner.
The petitioner shall be at liberty to get the respondent examined from the Medical Board, Dr.RML Hospital at Max Hospital, wherein respondent is admitted, subject to orders of the Hon’ble Supreme Court of India - petition disposed off.
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2022 (10) TMI 1209 - ITAT MUMBAI
Short TDS credit granted - tax had not been deducted by the deductor in the relevant year, therefore, the claim of the assessee for TDS was not acceptable - difference in the amount of TDS credit as per Form 26AS and amount claimed by the assessee in its return of income - CIT(A) had dismissed the appeal of the asssesse stating difference is due to the fact that the assessee’s client had booked the expenses in the same financial year in which the assessee had recognized the income, however assessee’s client had deducted tax while making payment in the subsequent financial year as a result of which the said tax was included in the TDS return of the subsequent financial year - HELD THAT:- CIT(A) has not adjudicated the claim of the assessee in accordance with the provisions of Sec. 199 r.w.rule 37BA(3) of the I.T. Rules, 1962 and also not taken into consideration the decision of ITAT in the case of the asessee itself.
As gone through the decision of the ITAT, in the case of the assessee itself [2020 (2) TMI 21 - ITAT MUMBAI], it is observed that the ITAT has decided the issue in fovour of the assessee in accordance with the provisions of Sec. 199 r.w.rule 37BA(3) of the Act.
The point of time at which the benefit of TDS is to be given, is governed by sub-rule (3) of Rule 37BA, which unequivocally provides through clause (i) that the ‘credit for tax deducted at source and paid to the Central Government, shall be given for the assessment year for which such income is assessable‟. It is, ergo, abundantly clear from the mandate of Rule 37BA(3)(i) that the benefit of TDS is to be given for the assessment year for which the corresponding income is assessable. As income on which tax was deducted at source, is patently assessable in the year under consideration, we hold that the benefit of the TDS should also be allowed in the same year, namely, the year under consideration. Appeal of assessee allowed.
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2022 (10) TMI 1208 - ITAT MUMBAI
Beneficial provisions of the India - Mauritius DTAA in respect of STCG - setting off the brought forward Short/Long Term Capital Losses with the current year Short/Long Term Capital Gains as exempted as per India Mauritius DTAA - whether relevant Articles of the DTAA has to be taken on the net taxable income calculated after giving effect to all the provisions of the IT Act including Section 74 as argued by revenue? - HELD THAT:- Tribunal in the case of Goldman Sachs Investments (Mauritius) Ltd. [2020 (9) TMI 1049 - ITAT MUMBAI] rejected the aforesaid contention of the Revenue holding that the Assessee was entitled to claim benefit of Article 13(4) of DTAA in respect of the entire current year Short/Long Term Capital Gains (without setting of the Brought Forward Short/Long Term Capital Gains).
The Tribunal also permitted carry forward of the Brought Forward Short/Long Term Capital Gains to the subsequent assessment years holding that the Short/Long Term Capital Loss permitted to be carried forward in a previous assessment could not be reviewed in the assessment proceedings of a subsequent assessment year.
Thus we find merit in the contention of Assessee that all the issues raised by the Revenue in the present appeal stand decided in favour of the Assessee.
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2022 (10) TMI 1207 - ITAT SURAT
Revision u/s 263 - Bogus purchases and commission payment - notice u/s 133(6) was issued for confirmation of the parties and that no confirmation, bank account and income tax return from all parties were furnished - HELD THAT:- We find that during the assessment, AO vide his specific notice dated 24.06.2016, called the record of purchases as well as commission expenses. The assessee vide its reply dated 08.07.2016, furnished complete details about the purchases as well as commission payment. We find that the reply of assessee in response to show cause notices of purchases and commission payment is duly acknowledged by AO. As recorded above, the AO has not made any reference about such enquiries or reply received by him on both the issues.
We find that in reply to show cause notice, the assessee filed details reply, inter alia contending therein that the purchases from the parties are genuine. Assessee furnished bank statement, tax invoices and leger account of the parties. Similarly, for the commission expenses, the assessee furnished the details of both the parties. We find that out of four parties, three parties are located at distant places. CIT has not disputed the existence of the parties, nor the payment against the purchases or the commissions paid or the evidences filed by the assessee to substantiate the purchases or commissions paid is bogus.
When commission was paid through account payee cheques on account of sales canvassed by the parties, was not bogus payment.
Considering the legal view taken on commission payment and the expenses incurred on purchased and coupled with the facts that the assessing officer during the assessing made sufficient inquires and took a reasonable view on both the issue, so view taken/ adopted by the assessing officer cannot be considered as erroneous view.
Once the assessing officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the assessing officer is unsustainable in law. Hence, the grounds of appeal raised by the assessee are allowed.
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