Home Case Index All Cases Income Tax Section Wise 2024 2024 (11) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA Law of Competition PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 2 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 21 to 40 of 1457 Records

• 2024 (11) TMI 1438
  

  Challenge to orders of assessment - HELD THAT:- No grounds have been made as indicated in the order of the Hon'ble Apex Court in Assistant Commissioner of State Tax and others vs. Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT] where it was held that 'There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises.'

  Wwith liberty to the petitioner to approach the appellate authority by filing an appeal as provided under Section 107 of the Central Goods and Services Tax Act, 2017, these Writ Petitions are disposed of.

  ---

• 2024 (11) TMI 1437
  

  Levy of penalty u/s 43 of the Black money Act - non-reporting of assets/bank account/investment in schedule FA of the income tax return filed for the respective assessment years by the assessee - HELD THAT:- Admittedly, assessee did not disclose his foreign asset in particular Schedule, i.e., Schedule FA though the same was duly disclosed in the Schedule AL in the item ‘shares and securities’ in the Income tax return.

  Assessee had offered perquisite value of the foreign asset, i.e., ESOPs in his return of income which was subjected to tax by way of TDS. Further, in the course of impugned proceedings, assessee had offered all the details and explanations corroborated with documentary evidences in respect of foreign asset.

  Also, for Assessment Years 2020-21 and 2021-22, assessee had filed updated return u/s.139(8A) of the IT Act duly disclosing the details of foreign asset in Schedule FA.

  We also take note of the provisions of section 43 of the Act as well as the preamble to the said Act to understand the discretionary power vested with the AO for imposition of penalty vis-à-vis object sought to be achieved keeping in mind the legislative intent.

  The purpose of reporting requirement of foreign assets/income in Schedule FA of the Income tax return is for tracking and monitoring the investments held abroad by the residents of India. Preamble to the Act describes its objective to deal with problem of black money, i.e., undisclosed foreign income and assets.

  The said Act must not be invoked for punishing a technical /venial /bonafide breach of any statutory obligation and therefore bonafide actions of the tax payers must be excluded from the application of provisions of this stringent legislation. We draw our force from the decision of Hindustan Steel Ltd. [1969 (8) TMI 31 - SUPREME COURT]

  Admittedly it is not a case where foreign asset remained undisclosed in entirety and that there is any malafide intention or ulterior motive on the part of the assessee for not disclosing the same. Decided against revenue.

  ---

• 2024 (11) TMI 1436
  

  Challenge to the dual Show Cause Notices pertaining to the same tax period - HELD THAT:- It is found that in the SCN of 01 August 2024, the noticees are mentioned as M/s Hari Om Trading, M/s Hari Om Electricals and the writ petitioner herein. The SCN dated 03 August 2024 by the Additional Commissioner, however, places 24 entities on notice including the writ petitioner here whose name is mentioned at serial no.18.

  Petition disposed off.

  ---

• 2024 (11) TMI 1435
  

  Validity of the reassessment proceedings - Notice beyond period of four years - reason to believe or suspect - payments made towards car hire charges were disallowed as unjustified/unwarranted and in violation of fiduciary relationship between the trust and trustee - HELD THAT:- Reasons recorded do not spell out failure on the part of the Appellant to disclose fully and truly any material facts. In the contention advanced on behalf of the Appellant that specific query in relation to vehicle hiring charges was raised during the relevant assessment proceedings and in response to the same the Appellant had made disclosure of primary facts and furnished supporting documents during the assessment proceedings.

  We note that during the assessment proceedings the Appellant had filed letter giving justification regarding car hiring charges paid to Shri Deepak More for hiring of three vehicles. Appellant had also filed Vehicle Hiring Agreement.

  It is admitted position that reassessment proceedings have been initiated in the present case after the expiry of 4 years from the end of the relevant assessment year.

  As per Proviso to Section 147 of the Act, no action can be taken for reopening after four years unless the Assessing Officer has reason to believe that income has escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment.

  Since in the case before us in the reasons recorded there is nothing to indicate that reopening is sought on the ground of the failure on the part of the petitioner to disclose fully and truly material facts, the initiation of re-assessment proceedings under Section 147 of the Act cannot be sustained and is, therefore, held to be bad in law. Assessee appeal allowed.

  ---

• 2024 (11) TMI 1434
  

  Disallowance of the option u/s 115BAA for non-filing of Form 10-IC - genuine hardship of the petitioner -Rejection of the petition u/s 119(2)(b) to permit the petitioner to file Form 10-IC - HELD THAT:- Respondent Authority/Board has completely mis-directed itself in not-examining if the failure to consider the claim of option to discharge tax u/s 115BAA on the ground of failure on the fact of the petitioner to file Form 10-IC within the period stipulated u/s 115BAA would cause “genuine hardship” to the petitioner/assessee and thus it is desirable as expedient to permit the petitioner to file Form 10-IC in support of its option under Section 115BAA and deal with the same on merit.

  Rejection of the petition under Section 119(2)(b) to permit the petitioner to file Form 10-IC in support of its exercise of option under Section 115BAA of the Act would cause genuine hardship and it is desirable and expedient to permit the petitioner to file Form 10-IC in support of its claim / option under Section 115BAA of the Act and deal with such claim on merits in accordance with law.

  The impugned order is set-aside, the respondent shall keep the portal open to enable the petitioner to upload the Form 10-IC and the petitioner shall file the Form 10-IC within a period of four weeks from the date of receipt of a copy of this order, thereafter the respondent shall proceed to deal with the claim of the petitioner under Section 115BAA on merit.

  ---

• 2024 (11) TMI 1433
  

  Violation of principles of natural justice - SCN not recived in time - classification of imported goods - Tin Ingots - classifiable under Customs Tariff Heading (CTH) 80011090 or not - recovery of duty with interest and penalty - HELD THAT:- The appellant is right in his submission that the adjudication order has been passed in gross violation of principles of natural justice and only one date of hearing i.e. 25.06.2020 was given to the appellant. No show cause notice was served on the appellant and the same was given to them at the time of hearing is evident from the record of hearing.

  After service of the show cause notice no opportunity for any personal hearing was given to the appellant and the matter has been adjudicated, immediately after the expiry of the date given for making written submissions. It is settled principle in law that justice should not only be done in quasi judicial proceedings but should be apparent from the manner of conduct of proceedings. The submission of the appellant is agreed that the order has been passed in gross violation of principles of natural justice.

  There are no merits in the appeal filed by the revenue to the extent that interest amount should have been added to the duty short paid while imposition of penalty under Section 114A of the Act. Tribunal and even High Court has repeatedly emphasized that the word used in the section “or” and not “and”. In case of Sony sales Corporation 2021 (3) TMI 174 - KARNATAKA HIGH COURT] Hon’ble Karnataka high Court has held that 'From perusal of the relevant extract of Section 114A, it is evident that the language employed by the Legislature is plain and unambiguous and the provision contains a positive condition with regard to levy of penalty equal to duty or interest and does not contain any negative condition. The expression used is “or” which is disjunctive between duty or interest and further use of expression as the case may be clearly suggest that aforesaid provision refers to two different persons and two different situations viz., one in which a person will be liable to duty and in other he may be liable to pay interest only and provides that in both the situations the person liable to duty would be liable to penalty equal to duty and person liable to interest would be liable to penalty equal to interest.'

  Conclusion - i) There are errors in the computation of demand, specifically noting a repetition of a Bill of Entry number in the calculations. ii) The interest amount should not have been added to the duty short paid while imposing the penalty under Section 114A of the Act.

  The matter is remanded back to the Original Authority for fresh decision on merits and after following the principles of natural justice within a period of three months from receipt of this order - appeal allowed by way of remand.

  ---

• 2024 (11) TMI 1432
  

  Direction to consider the representation for demand of justice within 30 days - HELD THAT:- The respondent No. 2 is directed to adjudicate the representation/notice for demand of justice (Annexure-6) dated 20.11.2024 considering the judgment passed in Pawan Meena [2024 (2) TMI 1519 - RAJASTHAN HIGH COURT] and circular dated 19.02.2024 passed by Chief Secretary, Rajasthan within a period of 30 days from passing of this order.

  Petition disposed off.

  ---

• 2024 (11) TMI 1431
  

  Addition made u/s. 68 - Bogus LTCG - HELD THAT:- Evidences furnished by the assessee to prove the purchase and sale of shares, payment made/received, entry/exit of shares in the demat account of the assessee etc., were not doubted with.

  Since the AO has not established that the assessee was involved in price rigging and further the AO did not find fault with any of the documents furnished by the assessee. Since we have held that the sale transactions of shares cannot be doubted with, the addition made by the AO with regard to estimated commission expenses is also liable to be deleted.

  We hold that the sale consideration received on sale of shares cannot be assessed as unexplained cash credit u/s. 68 of the Act and the long term capital gains declared by the assessee cannot be doubted with. Accordingly, we set aside the order passed by Ld. CIT (A) and direct the AO to delete - Decided in favour of assessee.

  ---

• 2024 (11) TMI 1430
  

  Disallowance of Input Tax Credit only on the ground that the claims have been lodged beyond the period prescribed under Section 16(4) of the GST Acts - HELD THAT:- The impugned order passed by the respondent dated 27.07.2024 is set aside. The learned assessing/adjudicating authority/respondent would re-do the assessment by taking into account the amendment referred supra. The petitioner may submit their objection by way of reply, within a period of three (3) weeks from the date of receipt of a copy of this order along with the amendment and other details. If any such reply is filed, the same shall be considered and orders shall be passed, after affording reasonable opportunity of personal hearing to the petitioner. In respect of other issues, if any, the impugned order shall remain undisturbed.

  Petition disposed off.

  ---

• 2024 (11) TMI 1429
  

  Imposition of costs on the petitioner management for seeking adjournments - refusal to grant further pass-overs or adjournments - HELD THAT:- Admittedly, the petitioner management is being represented by three authorized representatives before the Industrial Tribunal, out of whom one appeared before the Tribunal on 05.11.2024 in the first call and sought a pass-over, which was granted by the Tribunal. Thereafter in second call, two other authorized representatives joined the hearing through video conferencing and sought yet another pass-over on the ground that another matter of theirs was listed before this Court. The learned Tribunal found it not possible to grant another pass-over, so declined the request and after recording the chief examination of two witnesses, offered the witnesses to both representatives of the petitioner management for cross examination. Despite that, those two authorized representatives refused to cross examine the witnesses and sought adjournment.

  This is a classic case of efforts done by one of the litigants to protract the proceedings with the object of frustrating the other side so that the other side gives up. Such a conduct, especially in the industrial disputes, which involve extreme disparity of resources available to the rival litigants has to be deprecated. The petitioner management, despite facing such costs, again tried to derail the proceedings by seeking amendment of issues on 08.11.2024 in the dispute pending since the year 2009. That speaks volumes of their intention.

  It has been repeatedly observed and held that adjournments and pass-overs are not a matter of right of the counsel but only a courtesy extended by the Court. Since the witnesses were present, instead of adjourning the matter, the learned Tribunal wisely granted a pass-over and examined them in chief - the learned Industrial Tribunal adopted a perfectly justified approach by first granting pass-over so that the witnesses would not go unexamined and thereafter offered the witnesses for cross examination by the authorized representatives of the petitioner management and finally adjourning the matter with costs to be paid to the witnesses, who had wasted their day and were to come again.

  Conclusion - i) Adjournments and pass-overs are not a matter of right of the counsel but only a courtesy extended by the Court. ii) Judicial efficiency and the timely resolution of disputes take precedence over accommodating repeated adjournment requests, especially in cases with significant delays.

  The impugned order is upheld and the petition is dismissed with further costs of Rs. 20,000/- to be deposited by petitioner with DHCLSC within one week.

  ---

• 2024 (11) TMI 1428
  

  Denial of Foreign Tax Credit u/s 90 - claim denied for want of filing of requisite Form 67 along with return of income - HELD THAT:- We find that the issue of foreign tax credit is covered in assessee’s favor by the decision of this Tribunal in the case of ITO vs. Smt. Chengam Durga [2024 (4) TMI 1227 - ITAT CHENNAI] considering the decision of Duraiswamy Kumaraswamy [2023 (11) TMI 1000 - MADRAS HIGH COURT] held that filing of this form in terms of Rule 128 was only directory in nature. The rule is only for the implementation of the provisions of the act and it would always be directory in nature.

  Thus, we direct Ld. CIT(A) to grant impugned Foreign Tax Credit to the assessee after verifying Form No.67.

  ---

• 2024 (11) TMI 1427
  

  Provisional attachment under Section 83 of the CGST/GGST Act - time limitation - HELD THAT:- As per Sub-section (2) of Section 83 of the Central Goods and Services Tax Act, 2017/Gujarat Goods and Services Tax Act, 2017/, the life of the provisional attachment is for one year only and therefore, the petition has become infructuous in view of the fact that the impugned orders are passed in the month of October, 2023.

  The petition is accordingly disposed of having become infructuous.

  ---

• 2024 (11) TMI 1426
  

  Benefit of exemption u/s 80G(5) rejected - assessee Society runs a college and is also generating surplus out of fees charged from students to provide education - assessee’s application u/s 12AA of the IT Act was granted and is continuing in operation - HELD THAT:- As decided in HIRALAL BHAGWATI [2000 (4) TMI 14 - GUJARAT HIGH COURT] once the registration under Section 12A(a) of the IT Act is granted, the grant of benefit u/s 80G of the IT Act cannot be denied.

  In view of the decision rendered in Hiralal Bhagwati [2000 (4) TMI 14 - GUJARAT HIGH COURT] approved by the Supreme Court in Surat City Gymkhana’s case [2008 (4) TMI 16 - SUPREME COURT] we have no hesitation to hold that since the respondent assessee stands registered as charitable institution u/s 12AA the only corollary is, its application u/s 80G(5) also deserves to be allowed which the learned ITAT has rightly noticed to be the correct legal position and directed the CIT(E) to grant approval to the assessee under Section 80G(5). Decided in favour of assessee.

  ---

• 2024 (11) TMI 1425
  

  Grant of exemption/approval to the assessee u/s 80G(5) - assessee is not established only for charitable purposes, but also established for religious purposes - ITAT allowed the appeal holding that the respondent assessee was granted registration under Section 12AA - HELD THAT:- It is not in dispute that the assessee’s application u/s 12AA of the IT Act was granted and is continuing in operation and that is the basis which has persuaded the ITAT to accept the appeal of the assessee and direct the CIT(E) to grant approval u/s 80G of the IT Act.

  The issue involved herein is no longer res integra and stands decided in the matter of Hiralal Bhagwati [2000 (4) TMI 14 - GUJARAT HIGH COURT] and that has been approved to be the correct law by a decision of Surat City Gymkhana [2008 (4) TMI 16 - SUPREME COURT]

  In Hiralal Bhagwati [2000 (4) TMI 14 - GUJARAT HIGH COURT] application of the assessee therein for exemption under Section 80G of the IT Act was rejected and the competent authority refused to grant exemption which the assessee challenged before the Gujarat High Court and the Gujarat High Court, considering the case of the assessee therein, held that once the registration u/s 12A(a) of the IT Act is granted, the grant of benefit under Section 80G cannot be denied. Decided in favour of assessee.

  ---

• 2024 (11) TMI 1424
  

  Disallowance of claim of deduction of expenditure against the unaccounted cash receipts from sale of spent solvents / scrap -appellant and other companies have historically incurred an average of 11% of their turnover on salary and wages, considering the disposal of such hazardous material associated with risk and challenges, CIT(A) has directed the AO to allow 10% of the gross amount realized on sale of spent solvent and scrap for the A.Y. 2015-16 as handling expenses - HELD THAT:- Respectfully, following the decision of the ITAT Hyderabad Benches in the case of MSN Pharmachem Private Limited [2024 (11) TMI 499 - ITAT HYDERABAD] we direct the AO to allow 60% of the receipts as expenditure against unaccounted cash receipts from sale of spent solvents / scrap and sustain 40% of addition towards unaccounted sale of spent solvents and scrap. Appeal of assessee is partly allowed.

  ---

• 2024 (11) TMI 1423
  

  Challenge to SCN issued under the provisions of Section 74 of the CGST/SGST Acts - cause of action for invoking Section 74 of the CGST/SGST Acts exists or not - HELD THAT:- Having regard to the directions issued by this Court in Ext. P3, this writ petition will stand disposed of directing that the contention that the show cause notice (at least in part) pertains to a separate entity belonging to the husband of the petitioner with separate registration number and also the objection raised by the petitioner against the invocation of Section 74 of the CGST/SGST Acts will be considered as a preliminary issue and an order shall be passed with regard to the same before proceeding to adjudicate the other issues in the show cause notice.

  Petition disposed off.

  ---

• 2024 (11) TMI 1422
  

  Addition u/s 69C - note book was seized containing the ledger account titled “Adsure” as pertained to the payment made both in cash and cheque/RTGS to Shri Ravindra K Adsure, the legal advisor of the assessee-company - HELD THAT:- We find that out of four transactions reflected on the same page in the ledger account, we find transactions recorded on 16.09.2016 and 29.08.2016 of Rs. 3,00000/- each totaling to Rs. 6,00,000/- were repetitive entries bearing the same bank details and cheque details and the transactions of Rs.3,00000/ was already recorded in the regular books of the assessee. No infirmity in the decision of ld. CIT(A) in deleting the addition.

  Addition u/s 68 - assessee failed to establish the creditworthiness of the lendor - CIT(A) deleted the impugned addition holding that assessee has submitted confirmation of ledger account, ITR, ROC particulars and also stated that said entity was having substantial long term borrowings as well as advances given and only on the basis of such financial statement it would be inappropriate to hold that loan amount was not genuine - HELD THAT:- AO has not brought any material on record to disprove the genuineness of the loan amount. Further, on the basis of submission of the ld. Counsel, we consider that the impugned addition was made in nonabated assessment year on the basis of financial statement of the assessee without demonstrating any incriminating document found and seized during the course of search. Therefore, such addition is not sustainable following the decision of Abhisar Buildwell Private Limited [2023 (4) TMI 1056 - SUPREME COURT]. No infirmity in the decision of ld. CIT(A) in deleting the addition.

  Disallowance of interest on loan amount is not sustainable and we have sustained the action of ld. CIT(A) in deleting the impugned quantum addition of loan.

  Addition u/s 37(1) - HELD THAT:- AO had made disallowance of purchase expenses on estimation basis and the AO had not brought any relevant material on record to prove that in fact the expenditure claimed were nongenuine. On the submission of the assessee, we find that the impugned assessment was non-abated assessment and no incriminating material was found and seized on the impugned issue of disallowance of expenditure. Therefore, the same is not sustainable as held in the case of Abhisar Buildwell Private Limited [2023 (4) TMI 1056 - SUPREME COURT]

  Addition u/s 69C - assessee had also paid commission on the disallowed 2% of purchases - CIT(A) has deleted the estimated addition of commission amount holding that purchases on the basis of which disallowance made were considered as genuine purchases - HELD THAT:- Since, we have already sustained the action of the ld. CIT(A) in deleting the addition of such purchases as discussed supra in this order and further found that addition was not based on any incriminating document found and seized pertaining to the year under consideration as the same was non-abated assessment year.

  Addition made u/s 69C by treating the addition as duplicate addition - HELD THAT:- AO has made the double addition on the basis of similar entries appearing in the journal of entries and also appearing in the ledger account of the S.B. International. Considering the above facts and findings, we do not find any reason to interfere in the finding of ld. CIT(A) in deleting addition.

  Double addition - As repetitive addition of the same transaction which were reported once in ledger account and also in the journal entries not allowed.

  Unexplained expenditure u/s 69C - payment to various foreign entities in USD - CIT(A) deleted the addition in absence of any evidence - HELD THAT:- We do not find any evidence which demonstrate that impugned transactions between the foreign parties were carried out on behalf of the assessee. AO had also not brought any material on record to substantiate that such payment by the foreign party to the other foreign party was made on or behalf of the assesse. Therefore, we do not find any reason to interfere in the decision of Ld.CIT(A).

  Addition of cash generated in taking accommodation entries by inflating expenses is utilized in making payment towards unexplained expenditure - HELD THAT:- On perusal of material placed on record we find that there is clear entries of receipt appeared on the left side and entries of payment reflected on the right side of the journal in Annexure A-39. Therefore, we consider that ld. CIT(A) has rightly allowed the set off after co-relating the transactions as discussed.

  Treating expenses as non-genuine and disallowed the same u/s 37(1) - HELD THAT:- We find that the assessing officer had not brought any material on record to substantiate that in fact the aforesaid expenditure was non-genuine expenditure. Further, the AO has not carried out any enquiry with any of the party to controvert the submission of the assessee and to disprove the genuineness of the transactions.

  Addition on the basis of statement of Shri Jiten Pujari - assessee pointed out that all the third parties have retracted their statement after the search therefore the same have no evidential value unless based on seized document co-related with the assessee - HELD THAT:- We have discussed the nature of additions and the relevant seized documents showing systematic maintaining of ledger account along with journal entries recorded with narrations as per annexure A-39, A41 and A-42 of the seized documents before arriving at the conclusion on the different issues therefore we do not find any merit in this ground of appeal of assessee since we have considered the sustainability of addition based on the seized document co-related with the assessee. Accordingly, this ground of appeal of assessee is dismissed.

  Assessment u/s 143(3) r.w.s. 153C completed without any incriminating document being found during the course of search - Addition of loan taken from M/s. Malvika Herbo Pharma Pvt. Ltd. was made u/s 68 on the basis of information available in the assessment record and information filed by the assessee - HELD THAT:- we find merit in the submission of the Ld. Counsel that the said transaction was carried out through banking channel as evident from the details mentioned at page 7A of annexure A-41 with relevant details of amount, cheque no. and submission made on the point that that same was duly recorded in the books of the assessee. Therefore, the action of the assessing officer in treating the same as cash credit is not justified we direct the assessing officer to delete the addition u/s 68.

  Unexplained payment to the aforesaid parties in USD - HELD THAT:- We find that the AO had not made any enquiry to ascertain the truth of the fact to prove that foreign parties had made payment to the other parties in USD on behalf of the assessee, therefore, we consider that ld. CIT(A) is not justified in sustaining the addition in contrary to his findings on the foreign payment issue in other cases as discussed supra in this order without establishing the fact that payment has been made actually on behalf of the assessee by one foreign party to other foreign party. Accordingly, this ground of appeal of the assessee is allowed.

  ---

• 2024 (11) TMI 1421
  

  Challenge to N/N. 09/ 2023-Central Tax dated 31.03.2023, as well as Notification dated 56/ 2023-Central Tax dated 28.12.2023 - Extension of time limit for passing order under Section 73(10) of CGST Act - HELD THAT:- Let counter affidavits be filed by all the respondents within six weeks. Rejoinder, if any, be filed within two weeks thereafter.

  List on 25.02.2025.

  ---

• 2024 (11) TMI 1420
  

  Maintainability of petition - availability of alternative remedy - Denial of input tax credit on invoices issued by various registered persons - HELD THAT:- In ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT], the Hon’ble Supreme Court observed that when the writ petitioner has statutory alternative remedy available and do not avail such remedy within the statutory period as prescribed, the writ Court should exercise self-restrain and not entertain such writ petition.

  As there is an alternative remedy available to the petitioner in the present case, the writ petition is disposed of by directing the petitioners to prefer an appeal before the proper forum.

  Petition disposed off.

  ---

• 2024 (11) TMI 1419
  

  TP adjustment towards international transactions - interest on the loans given is waived by the assessee though the loans charged with 3M EURIBOR + 3.5% p.a (3.66%) interest - HELD THAT:- Assessee's plea of the assessee is that the assessee had sufficient own money to give interestfree advances to its subsidiaries and due to commercial expediency, loan was advanced to them and so it is allowable is acceptable in principle.

  We find that similar issue had come up in the assessee’s own case for earlier assessment years [especially for AY 201011] and the Tribunal had set aside the issue to the file of the AO to verify the actual surplus funds available with the assessee and also to verify whether assessee had borrowed loan and whether there was nexus between the borrowed loan and advance given by the assessee to the AEs at Germany.

  Since the factual scenario on this issue are similar to that of the AY 2010-11, 2011-12 & 2013-14, matter needs to be reconsidered.

  Corporate guarantee given to the AE - TPO noted that the assessee company has provided corporate guarantee on behalf of its AE and since, no guarantee fee has been collected from its AE, he was of the opinion that 1.5% of the value of the corporate guarantee should be adjusted - HELD THAT:- We concur with the TPO’s order that this is an international transaction, but upward adjustment is now covered in favour of the assessee by the decision of Redington (India) Ltd. [2020 (12) TMI 516 - MADRAS HIGH COURT] and Everest Kanto Cylinder Ltd, [2015 (5) TMI 395 - BOMBAY HIGH COURT] therefore, we direct the AO to restrict adjustment @0.5% of the guarantee value.

  Nature of expenditure - disallowance of software expenses as revenue expenditure - HELD THAT:- In the light of the above orders of the Tribunal in the assessee’s own case as well as in AY 2013-14, we note that the assessee’s case as far as total software expenditure in this year is concerned is noted to be on account of annual- licence fee, which issue was set aside back to the file of the AO to verify the nature of expenditure, thus we set-aside the impugned order on this issue back to the file of the AO to verify the nature of expenditure.

  Amortization of capital expenditure (lease hold land) - HELD THAT:- Issue is set aside back to the AO and we direct the AO to consider whether the premium paid for grant of leasehold rights is eligible for depreciation after hearing the assessee.

  Disallowance of foreign exchange fluctuation loss - HELD THAT:-In the present case, we note that Forex loss was to the tune of Rs.86.33 lakhs which was on actual payment of loan on the realization date i.e., on date of actual repayment of loan, which was taken for purchasing domestic assets. Therefore, it needs to be allowed as Revenue expenditure u/s.37 of the Act and is not hit by sec.43A of the Act, which is only when assessee has acquired imported assets; and since, we have noted that assessee has taken External Commercial Borrowings (ECB) for acquiring “indigenous assets” and not for acquisition of imported assets, disallowance made by the AO u/s.43A of the Act was erroneous and respectfully following the ratio of case of M/s.Wipro Finance Ltd. [2022 (4) TMI 694 - SUPREME COURT] we allow the claim of the assessee.

  Re-statement of foreign currency loan - assessee had claimed deduction towards foreign exchange loss on re-statement of foreign currency loan taken towards acquisition of capital assets which was disallowed by the AO stating that since such expenditure was towards acquisition of capital assets, it is in the nature of capital expenditure - HELD THAT:- We find force in the submission of Ld AR in the light of Hon'ble Supreme Court ratio in Woodward Governor India P Ltd [2009 (4) TMI 4 - SUPREME COURT] and note that the assessee has claimed as deduction towards foreign exchange loss on restatement of foreign currency loan (on 31st March) which was undisputedly taken towards acquisition of indigenous assets; and assessee as per AS-11 has rightly shown the same (forex loss) in the P & L A/c; and therefore is allowable as revenue deduction, and we order accordingly.

  Interest on diverted funds - HELD THAT:- AR brought to our notice that the assessee had profit after tax to the tune of Rs.13,532.24 Lakhs and its net worth was Rs.85,896.55 Lakhs and the loan given to the sister concern is only to the tune of Rs.11,90,30,000/-.

  Therefore, applying the ratio in the case of CIT (LTU) v. Reliance Industries [2019 (1) TMI 757 - SUPREME COURT] it can be safely presumed that assessee had sufficient own funds, and that advances/loans were given to M/s.SFIL from the interest free funds (own funds) available with the assessee and not from the interest bearing funds (mixed fund of both) and rely on the decision of Hotel Savera [1997 (11) TMI 37 - MADRAS HIGH COURT] and also Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] Thus, we direct deletion of addition.

  Mistake in recording Dividend Distribution Tax (DDT) paid - HELD THAT:- AO has erred in giving credit fir DDT only for Rs.3,46,58,640/- as against actual DDT remittance of Rs.5,73,96,200/- which according to assessee was available in on-line tax credit statement i.e., Form 26AS. Thus, we set aside this issue back to the file of AO for verification and if the assessee’s contention is found to be correct to grant credit accordingly.

  Mistake in computing interest u/s.234A - HELD THAT:- Since we find that this issue was not raised by the assessee before the AO, hence, there was no occasion for him to look into the merits of such claim. Therefore, we admit this ground and remit it back to the file of the AO for de novo adjudication.

  Deduction u/s.35(2AB) - non-approval of expenditure by the DSIR - HELD THAT:- For the relevant year under consideration i.e., AY 2016-17 i.e., F.Y 2015-16, the prescribed authority (DSIR) was not required to quantify the expenditure for events taking place before 30.06.2016 and it was only w.e.f 01.07.2016 (AY 2017-18) it is mandated to do so. Therefore, the assessee’s contention that non-approval of expenditure to the tune of balance amount of Rs.7,33,404/- claimed by the DSIR could not have entitled the assessee to make the claim and the AO ought to have disallowe and therefore, we are unable to accept action of the AO/DRP and direct the AO to allow deduction on the same ratio held for AY 2013-14.

  Disallowance u/s.43B - HELD THAT:- This issue has been decided against the assessee by the Hon'ble Supreme Court in the case of Union of India & Ors Vs. Exide Industries [2020 (4) TMI 792 - SUPREME COURT] wherein it was held that leave salary is to be claimed based on date of actual payment as per section 43B. Hence, this issue is found to be covered against assessee and therefore, we dismiss this ground of appeal of the assessee.

  Disallowance u/s.14A - Assessee suo-motu disallowed amount on exempt income earned - HELD THAT:- We direct the AO to compute disallowance under Rule 8D(2)(iii) by only considering the investment which yielded exempt income (dividend) and not other investments.

  Levying interest u/s.234D - As argued interest u/s.234D is leviable on the whole or excess amount so refunded i.e., refund of tax excluding interest, if any granted. This may be verified by the AO and pass orders accordingly.

  ---

123456........ 73