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Showing 21 to 40 of 1664 Records
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2022 (9) TMI 1646
Deduction u/s. 80P - interest earned from deposits kept with nationalised banks - contradictory judgements on the issue - HELD THAT:- Pune Benches of the Tribunal in Sureshdada Jain Nagari Sahakari Patsanstha Maryadit [2019 (4) TMI 682 - ITAT PUNE] decided the question of availability of deduction u/s 80P on interest income by noticing earlier case of Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit [2015 (8) TMI 1085 - ITAT PUNE] has allowed similar deduction. In the said case, the Tribunal discussed the contrary views expressed in Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] allowing deduction u/s. 80P on interest income and that of the Hon’ble Delhi High Court in Mantola Cooperative Thrift Credit Society Ltd. [2014 (9) TMI 833 - DELHI HIGH COURT] not allowing deduction u/s. 80P on interest income earned from banks.
Both the Hon’ble High Courts took into consideration the ratio laid down in the case of Totgar’s Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] No direct judgment from the Hon’ble jurisdictional High Court on the point having been pointed out, the Tribunal in Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit [2015 (8) TMI 1085 - ITAT PUNE] preferred to go with the view in favour of the assessee by the Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] Assessee appeal allowed.
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2022 (9) TMI 1645
Revision u/s 263 - assessee has failed to declare in 3CEB report the transactions with related parties - HELD THAT:- It is not a case of simpliciter invoking of revisional jurisdiction u/s 263 of the Act upon receiving of the reference. Thus, the preliminary exercise of examining the records by the PCIT and forming his own view after considering the records was carried out by the PCIT, before invoking jurisdiction u/s. 263. Therefore, the arguments of assessee that provisions of section 263 have been invoked merely on reference without consideration of records by the PCIT as envisaged under the provisions of sub-section (1) to section 263 is unfounded. Therefore, the said argument is rejected.
Transaction between M/s. Metallurgical Services and the assessee is a ‘specified domestic transaction’ and falls within the ambit of section 92BA(i) - The clause (i) to Section 92 BA has been omitted by the Finance Act, 2017 w.e.f. 01/04/2017 without any ‘Saving’ clause. Thus, the effect of said omission without ‘saving’ would be that it shall be deemed that the said clause never existed in the statute.
See Texports Overseas Pvt. Ltd. [2017 (12) TMI 1719 - ITAT BANGALORE] wherein as held that once a particular provision of section is omitted from the statute it shall be deemed to be omitted from its inception unless it is protected by Saving clause or a provision to make it clear that action taken or proceedings initiated under that provision or section would continue and would not be left on account of omission.
We find merit in this arguments of the assessee. Once, it is concluded that the transaction between assessee company and M/s. Metallurgical Services is not a specified domestic transaction, there is no question of reporting the same in Form 3CEB. The assessee succeeds on ground No.2 of the appeal.
Transaction between assessee and Exova (UK) Ltd. is not a transaction with “Associated Enterprises” as defined in Chapter-X of the Act, hence, the provisions of section 92B(1) of the Act are not attracted - The transaction of initial allotment of equity shares to Exova (UK) Ltd. was between two independent, unrelated entities. Hence, there was no obligation on the part of assessee to report said transaction in Form – 3CEB. It is after initial allotment of equity shares by assessee to Exova (UK) Ltd. (subject to shares holding as specified u/s.92A of the Act) that the entities would be covered by the definition of “Associated Enterprises” and any transaction between the said entities, thereafter would fall within the realm of Chapter –X of the Act. We find merit in ground No.3 of the appeal. The assessee succeeds on the same.
Claim of depreciation on goodwill acquired under slump sale agreement - PCIT has disallowed depreciation on Goodwill merely on surmises and conjectures. In so far as the issue of depreciation on Goodwill is concerned, the Hon’ble Apex Court in the case of CIT vs. Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] has held that Goodwill is an asset under Explanation 3(b)(as applicable to assessment year under appeal) to section 32(1) of the Act and thus, depreciation on Goodwill is allowable. Undisputedly, in the present case the Goodwill has arisen on slump sale of business by partnership firm to the assessee. The said transaction of purchase of business was on mutually agreed terms and conditions.
this issue was considered and examined by the Assessing Officer during the assessment proceedings. Thus, after examining the issue the Assessing Officer formed an opinion and accepted assessee’s claim of depreciation on Goodwill. The PCIT has erred in invoking provisions of Explanation 2 (a) &(b) to section 263 of the Act. We further observe that while deciding this issue of depreciation on Goodwill, the PCIT on one hand gave a conclusive finding that the Goodwill claimed by the assessee is merely an illusory entry in the books of account and, therefore, no depreciation as claimed can be allowed to the assessee, on the other hand PCIT set aside the issue back to the Assessing Officer to examine the facts involved in the light of observations made. The PCIT in fact has given a specific finding on the issue, without examining the assessee’s claim of depreciation. Ground No.4 of the appeal, ergo, the same is allowed.
PCIT has overstepped in exercising his revisional jurisdiction u/s. 263 of the Act. The two mandatory conditions to be satisfied for exercising revisional powers i.e. the order passed by Assessing Officer should be (i) erroneous and (ii) prejudicial to the interest of Revenue are not concurrently fulfilled in the instant case - Assessee appeal allowed.
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2022 (9) TMI 1644
Disallowance of interest for delayed payment of taxes - DRP confirmed the same by relying on the decision of Chennai Properties & Investment Ltd. [1998 (4) TMI 89 - MADRAS HIGH COURT] wherein it was held that the amount of TDS was not an amount of expenditure - HELD THAT:- The amount not deducted and remitted has the character of tax and has to be remitted to the state and could not be utilized by the assessee for its own business. Therefore, the interest so paid would not be business expenditure for the assessee. Since Ld. DRP has followed the decision of jurisdictional High Court, we find no reason to interfere in the same. This ground stand dismissed.
Disallowance of depreciation on UPS - assessee claimed depreciation on UPS system @60% considering the same to be part of computer block - rejecting the same, Ld. AO restricted the depreciation to 15% and made addition also confirmed by DRP - HELD THAT:- We are of the considered opinion that UPS is an integral part of computer system and would be eligible for same rate of depreciation as is applicable to computer system. The various decisions of Tribunal have taken the same view. Considering the same, we direct Ld. AO to grant the depreciation as claimed by the assessee.
TP Adjustment of administration and support services fees paid to Associated Enterprises (AE) - HELD THAT:- It could be seen that the assessee has paid aggregate administrative fees of Rs.1003.58 Lacs to Danish Entity as well as Singapore Entity. The substantial fees of Rs.884.44 Lacs has been paid to Danish entity which has been settled under MAP @50% adjustment. The fees paid to Singapore entity is Rs.119.14 Lacs and the nature of the services is the same. Therefore, in our considered opinion, the same approach, as settled in MAP for Danish entity would be applicable for the fees paid to Singapore entity also. Therefore, we direct Ld. AO to restrict the adjustment to the extent of 50% of Rs.119.14 Lacs and re-compute the income of the assessee. We order so.
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2022 (9) TMI 1643
Reversal of judgment and decree of dismissal of suit passed by the learned trial Court, the original Defendant - refusal to grant permanent injunction - unregistered agreement to sell - HELD THAT:- Having conscious of the fact that the Plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the Plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the Plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the Plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the Defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court.
The Plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The Plaintiff cannot get the relief by clever drafting.
Both, the learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the Plaintiff as against the Defendant and dismissing the counter-claim filed by the original Defendant - The impugned judgment and order passed by the High Court, confirming the judgment and decree passed by the first appellate Court and the judgment and decree passed by the first appellate Court decreeing the suit for permanent injunction and dismissing the counter-claim of the Defendant are unsustainable and the same deserve to be quashed and set aside and the judgment and decree passed by the learned trial Court dismissing the suit filed by the Plaintiff for permanent injunction and allowing the counter-claim of the Defendant deserves to be restored.
The impugned judgment and order dated 10.12.2019 passed by the High Court dismissing Second Appeal No. 330/2001, confirming the judgment and decree passed by the first appellate Court and the judgment and decree dated 29.01.2001 passed by the first appellate Court decreeing the suit for permanent injunction in favour of the original Plaintiff and dismissing the counter-claim of the Defendant are hereby quashed and set aside - Appeal allowed.
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2022 (9) TMI 1642
Power to pass Refund order - application for modification of order [2022 (8) TMI 1553 - ORISSA HIGH COURT] - HELD THAT:- As stated in this application that pursuant to the aforementioned order, AO has already passed an order. But he has observed that he has no power to order refund.
As clarified that the refund will be made by the Central Board of Direct Taxes (CBDT) to the Petitioner within a period of two weeks from the date of receipt of this order. The application is disposed of.
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2022 (9) TMI 1641
Disallowance of brokerage expenses and advertisement expenses - whether the said expenditure claimed by the assessee in the profit and loss account should be capitalized to work in progress or should be allowed in the year in which such expenditure has been incurred and debited to the profit and loss account?
HELD THAT:- As per Accounting Standard 16 relating to Borrowings, interest on borrowings which is used for acquiring an asset can only be capitalized. Interests on other borrowings have to be treated as revenue expense. Since, there was no identifiable Asset purchased by Adrika Developers, it was not possible to capitalize the interest. Proviso to Section 36(l)(iii) will apply only when borrowing is for acquiring a specific Asset and not for general business purpose.
Interest cost which pertains to project Dosti Imperia have been capitalized by the assessee. The amount of interest of Rs 15.04 crore did not pertain to any asset, therefore the same has not been capitalized. The Hon’ble Bombay High Court in the case of CIT v Lokhandwala Construction Inds. Ltd [2003 (1) TMI 93 - BOMBAY HIGH COURT] it was held that deduction of interest u/s 36(l)(iii) was allowable when capital was borrowed for obtaining stock in trade and not fixed Asset.
CIT (A) has already held that advance was given for commercial expediency and M/s Adrika Developers Pvt. Ltd. is a subsidiary of assessee. If the loan was given on account of commercial expediency, then the interest expenses has to be allowed as business expenditure. It has been pointed out before us by Ld. Counsel that in AY 2011-12 to 2013-14, the interest expenditure on this loan has been allowed. Otherwise also, the aforesaid observation in the finding of CIT (A) as noted above is factual and legally correct, therefore the same is confirmed. Appeal filed by the revenue is dismissed.
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2022 (9) TMI 1640
Addition in respect of unrealized interest on borrower accounts classified as non-performing accounts under RBI directions - AO rejected the claim of the assessee that exceptions should be provided as per RBI guidelines and accordingly he added the amount being the interest on NPA/NPI not recognized by the assessee as income in view of RBI guidelines ignoring the provision of section 43D read with rule 6 EA of rules - HELD THAT:- We find that identical issue has been adjudicated by the Tribunal in the case of the assessee for A.Y. 2008-09 [2020 (2) TMI 1350 - ITAT MUMBAI] held that where the AO has not contested that the policy adopted by the assessee is not in accordance with RBI guidelines, the incidence of taxation of interest on bad and doubtful debts will be either when the same is credited to the profit and loss account for the year or in the year in which it is actually received. Mere crediting of the interest to a reserve cannot be said to be an incidence by which the said interest could be charged to tax. Hence, we delete the addition of interest income and allow this issue of assessee's appeal.
Addition in respect of recovery of bad debts written off in earlier years - assessee claimed that amount was not claimed as deduction u/s 36(1)(vii) of the Act and therefore the subsequent recovery is not taxable u/s 41(1) - HELD THAT:- As decided in case of the state Bank of India for A.Y. 2008-09 [2020 (2) TMI 1350 - ITAT MUMBAI] has in principle accepted the contention of the assessee that if no claim has been made for bad debt written off u/s 36(1)(vii) of the Act in respect of the amount in dispute, then no addition could have been made u/s 41(1) of the Act, however matter has been restored to the file of the Ld. A.O. for verification of the claim of the assessee.
Disallowance u/s 14A r.w.r. 8D(2)(iii) - A.O. noted that assessee in the revised return of income filed has suo moto made disallowance of 0.5% of average investment generating exempt income and thus assessee itself has accepted the provisions of section 14A of the Act read with rule 8D of the rules - HELD THAT:- We find that Ld. CIT (A) after considering the submission of the assessee and decision of the Hon’ble Bombay High Court in the case of HDFC Ltd (supra) [2016 (3) TMI 755 - BOMBAY HIGH COURT] held that AO has not brought anything on record to prove that interest bearing funds have been utilized for making investments. As discussed above, the Hon'ble Bombay High Court in the case of HDFC Bank Ltd has held that once the issue is settled by it in the case of HDFC Bank Ltd, there is now no need for the assessee to establish with evidence that amounts which have been invested in the tax free securities have come out of interest free funds available with it. This is because once the assessee is possessed of interest free funds sufficient to make the investment in tax free securities; it is presumed that it has been paid for out of the interest free funds.
Disallowance u/s 14A read with rule 8D(2)(iii) of the rules, is restored to the file of the Ld. A.O. for fresh computation in view of the finding in the case of Maxopp investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] and decision of Era Infrastructure P. (Ltd.) [2022 (7) TMI 1093 - DELHI HIGH COURT] The ground No. 3 of the appeal of the assessee is accordingly allowed for statistical purposes.
Disallowance for interest paid on Innovative Perpetual Debt Instruments (IPDI Bonds) - We set aside the finding of the Ld. CIT (A) on the issue in dispute and direct the Ld. A.O. to delete the disallowance of interest which was made u/s 36(1)(iii).
Disallowance of interest on securities (difference between accrual and due method) - HELD THAT:- The relevant finding of the Tribunal on the issue in dispute for A.Y.2008-09 [2020 (2) TMI 1350 - ITAT MUMBAI] this ground of appeal is covered in favour of the assessee vide the aforementioned orders of the Tribunal and Bombay High Court. The right to receive interest on securities arises on due date only, which falls after the accounting year and, accordingly, it cannot be taxed in the accounting year itself. Hence, we decide this issue in favour of assessee and accordingly, this ground of Revenue's appeal is dismissed.
Addition of broken period Interest expenses to be deleted.
Addition for the loss on revaluation of investment/provision for amortization of premium paid on securities held –HTM category - HELD THAT:- As decided in A.Y.2005-06 [2022 (3) TMI 1187 - ITAT MUMBAI] we find no scope to interfere into the findings returned by the Ld. CIT (A) by holding the securities as stock in trade and loss on revaluation as revenue expenditure.
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2022 (9) TMI 1639
Seeking grant of Regular Bail - dispute on account of purchase of iron rods and billing against that purchase - offences u/s 120-B, 420, 467, 468, 471 IPC (Section 201 IPC and 132 of GST Act, 2017 added later on) - HELD THAT:- The investigation in the present case is complete; no recovery is to be made; challan stands presented; and conclusion of the trial is likely to take time; petitioners are granted bail on furnishing surety bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate concerned.
The present petition stands allowed.
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2022 (9) TMI 1638
Denial of registration u/s 12AA - assessee society has not carried out any charitable activity for public at large and established for a particular Community and almost objects are for the benefit of a particular community - main objects of the society are for the benefit of “Kanya Kubj Samaj”, which is a subcommunity in the Brahmin Community belonging to Kanya Kubj Gotra - HELD THAT:- Hon'ble Rajasthan High Court in the case of CIT Vs. Vijay Vargiya Charitable Trust [2015 (2) TMI 671 - RAJASTHAN HIGH COURT]. has categorically held that at the time of granting registration, the objects of the Trust for which it was formed, is only to be looked into and the CIT’s satisfaction about genuineness of activities of the Trust was not criteria as the Trust was just commencing activities. Hence the issue regarding satisfaction or genuineness of the activities of the trust is not a matter to be looked into at the time of granting registration u/s 12AA of the Act.
Invoking provision of section 13(1)(b) - Where the Trust attracts section 13 (1)(b) of the Act and therefore, not entitle to the claim of deduction u/s 11 and 12 of the Act is a matter of concern only at the time of assessment proceedings.
As decided in Barkate Saifiyah Society [1993 (11) TMI 13 - GUJARAT HIGH COURT]has held that the provisions of section 13(1)(b) will apply only to the Trust which are purely for charitable purposes. If the assessee Trust has objects in both charitable and religious in nature, in such Trust, Section 13(1)(b) is not applicable. On perusal of the bye-laws of the assessee society it is evident that the assessee society has charitable as well as religious objects, therefore, squarely covered by the judgment of the Hon’ble Gujarat High Court in the case of Barkate Saifiyah Society (supra).
Thus we are of the considered opinion that registration to the assessee trust cannot be denied on the basis of observation of the CIT(E) as mentioned herein above. Decided in favour of assessee.
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2022 (9) TMI 1637
Rejecting application for registration u/s 12A - assessee society is doing no charitable activities - assessee society is established for a particular community and almost objects are for the benefit of a particular community and carried out activities for the benefit of Satnami Samaj, which is a society publishing a magazine in every month in the name of “Satnami Sandesh” - HELD THAT:- Regarding duties of CIT(E) to be performed with respect to procedure for registration u/s 12AA(1)(a) and (b) Hon'ble Rajasthan High Court in the case of CIT Vs. Vijay Vargiya Charitable Trust [2015 (2) TMI 671 - RAJASTHAN HIGH COURT] has categorically held that at the time of granting registration, the objects of the Trust for which it was formed, is only to be looked into and the CIT’s satisfaction about genuineness of activities of the Trust was not criteria as the Trust was just commencing activities. Hence the issue regarding satisfaction or genuineness of the activities of the trust is not a matter to be looked into at the time of granting registration u/s 12AA of the Act.
Invoking provision of section 13(1)(b) coordinate bench of the ITAT Raipur in the case of Shree Vimalnath Jain Swetamber Mandir Trust [2019 (1) TMI 1129 - ITAT RAIPUR] has given the finding by respectfully following the observation in the case of Kul Foundation [2015 (2) TMI 323 - ITAT PUNE] has held that where the conditions of section 13(1)(b) is attracted so to denying exemption u/s 11 and 12 of the Act is a matter to be looked into by the AO at the time of assessment proceedings.
Thus, where the Trust attracts section 13 (1)(b) of the Act and therefore, not entitle to the claim of deduction u/s 11 and 12 of the Act is a matter of concern only at the time of assessment proceedings.
As in the case of Barkate Saifiyah Society, [1993 (11) TMI 13 - GUJARAT HIGH COURT] has held that the provisions of section 13(1)(b) will apply only to the Trust which are purely for charitable purposes. If the assessee Trust has objects in both charitable and religious in nature, in such Trust, Section 13(1)(b) is not applicable. On perusal of the bye-laws of the assessee society it is evident that the assessee society has charitable as well as religious objects, therefore, squarely covered by the judgment of Barkate Saifiyah Society [1993 (11) TMI 13 - GUJARAT HIGH COURT]
Thus we are of the considered opinion that registration to the assessee trust cannot be denied on the basis of observation of the CIT(E) - Assessee appeal allowed.
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2022 (9) TMI 1636
Assessment u/s 153A - Addition u/s 68 - incriminating material found in the course of search or not? - HELD THAT:- We are of the considered view that the regular books of accounts maintained by the assessee in tally software, now being referred by the Revenue, to justify the impugned addition did not constitute incriminating material unearthed during the search.
We are of the considered view that, the additions / disallowances made in the unabated AYs by the AO u/s 68 of the Act on account of unsecured loans, interest incurred thereon, and the alleged notional commission expense incurred for procurement of such loan, were not backed by any incriminating material found as a result of search, and therefore the AO is directed to delete the same.
Even in respect of the disallowances made out of several expenses viz., labour charges, professional fees, brokerage, compensation expenses etc., it is noted that the same was disallowed only on the premise that the details were not submitted before the AO or they were insufficient. It is therefore noted that, none of these additions/disallowances were based on any incriminating material or evidence found in the course of search. CIT, DR was also not able to point out the relevant incriminating material or evidence based on which the impugned additions were made by the AO.
Having regard to the above facts, in our considered opinion therefore, the additions impugned before us in the assessment order passed u/s 153A/143(3) by the AO were not supported or backed by any incriminating material found or seized in the course of search and therefore these additions made in the unabated AY 2010-11 was legally impermissible. Hence, we set aside the order of the lower authorities below and allow this ground of the assessee and direct the AO to delete the additions made in the assessment order. Decided in favour of assessee.
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2022 (9) TMI 1635
Notification of eco-sensitive zone (ESZs) around National Parks - Diversion of forest land for construction - HELD THAT:- The Notification dated 05.12.2016 in respect of Sanjay Gandhi National Park as well as the Notification dated 14.10.2021 in respect of Thane Flamingo Creek Sanctuary have been issued after following the entire procedure as prescribed under the law.
Application allowed.
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2022 (9) TMI 1634
Royalty receipts - payments from the Indian distributor/resellers towards the sale of software license and consideration towards ancillary support - HELD THAT:- Similar issue in the assessee’s own case stands adjudicated [2022 (2) TMI 820 - ITAT DELHI] No. 6064/Del/2017 wherein held the quarrel /is squarely covered in favour of the assessee and against the Revenue by the decision of Engineering Analysis Center of Excellence Pvt. Ltd [2021 (3) TMI 138 - SUPREME COURT] held that the amounts paid by resident Indian end-users/distributors to nonresident computers. manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the pay of royalty for the use of copyright in the computer software, and that same does not give rise to any income taxable in India, as a result of the persons referred to in section 195 were not liable to deduct any TDS under section 195. Thus no right in copy right is being transferred and accordingly, consideration received by the assessee cannot be brought to tax as per India - USA DTAA. Appeal of assessee allowed.
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2022 (9) TMI 1633
Wilful defaulter - delayed intimation of order of Identification Committee - alternative remedy of approaching Review Committee in terms of the Master Circular on Wilful Defaulters dated 01st July, 2015 issued by Reserve Bank of India - enlargement of time to avail the said remedy - HELD THAT:- It emerges that Petitioner’s resignation from directorship of MBIL is not a disputed fact. Petitioner was not a party to the proceedings before DRT is also uncontroverted. Thus, there is an error in the list published on Respondent No. 2’s website. Accordingly, Respondent Bank is directed to send an intimation to Respondent No. 2 for updating the said list by deleting the name of Petitioner from the list of directors/ suit filed accounts defaulters within a period of two weeks from today. Respondent No. 2 shall then update the list forthwith.
With respect to order dated 19th August, 2022, the Court has not expressed any opinion thereon, and all rights and contentions of the parties are left open - the time period for approaching the Review Committee is enlarged by a period of 15 days from today.
Petition disposed off.
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2022 (9) TMI 1632
TDS u/s 195 - Royalty - amounts paid by the concerned persons resident in India to non-resident, foreign software suppliers - Whether constitutes as taxable income deemed to accrue in India u/s 9(1)(vi) - interest u/s 234B - HELD THAT:- First question of law urged in the present appeal is covered by the decision of the Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd.[2021 (3) TMI 138 - SUPREME COURT].
Interest u/s 234B - ITAT has erred in holding that no interest u/s 234B shall be levied in case the assessee has any income chargeable to tax in India and if the same is subject to withholding to tax, without appreaciating that the obligation of the assesseee to pay advance tax is independent of the obligation of the payer to deduct tax at source and such obligation of the assessee continues u/s 190 and 191 of the Act, even in case of non-deduction at source by the payer.
Assessee ,who appears on advance notice, has handed over a copy of an assessment order u/s 254 read with Section 143(3) of the Act passed in pursuance to the impugned order. The same is taken on record. The relevant portion of the said order reads as under:-
“6. As the fact matrix over the years remains the same and in view of the decision of the Hon'ble Supreme Court in the company own's case for A.Y. 2008-09 and A.Y. 2012-13, the income declared by the assessee in ITR is accepted and assessed accordingly. Assessed at NIL income. Necessary forms are being issued.”
Keeping in view the aforesaid fact that the assessee has now been assessed at nil income, this Court is of the view that the issue of interest under Section 234B of the Act is infructuous.
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2022 (9) TMI 1631
Late fees u/s.234E - delay in furnishing the statements for quarters prior to 01-06-2015 - HELD THAT:- Section 200A deals with processing of statements of tax deducted at source. Clause (c) of section 200A(1) was inserted by the Finance Act 2015 w.e.f. 01-06-2015 providing for the levy of fee u/s.234E of the Act.
In that view of the matter, such fee u/s.234E can be levied only for the default committed after 01-06-2015 and not prior to that. Olari Little Flower Kuries Pvt. Ltd. , [2022 (2) TMI 1061 - KERALAHIGH COURT] has affirmed the non-imposition of fee for the period prior to 01-06-2015. Similar view has been taken in Jiji Varghese [2022 (3) TMI 1291 - KERALA HIGH COURT] holding that no fee u/s 234E can be imposed for the periods of the respective A.Ys. prior to June 1, 2015. Decided in favour of assessee.
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2022 (9) TMI 1630
Maintainability of appeal on low tax effect - remand report reduced the additions, reducing tax liability thereto - HELD THAT:- In view of the fact that the tax liability by virtue of deletion of the additions under the remand order would be less than Rs.1,00,00,000/- appeal would not be maintainable as per Circular No.17/2019 and appeal would have to be therefore dismissed.
Also pertinent to state here that assuming that this appeal of the department is to be allowed and the matter is remanded to the Tribunal, even then the subject matter of the appeal would Rs.50,00,000/- and that would also be lesser in Monetary limits than prescribed in Circular No.17/2019. No useful purpose would be served as the tax effect in this case would be below Rs.50,00,000/-.
It is to be stated here that if the additions disallowed by the Appellate Authority on the basis of the remand order is taken into consideration and the return of Rs.1,19,35,208/- is taken into consideration, the tax liability on the said sum would actually be less than Rs.50,00,000/- and the appeal before the Appellate Authority cannot be maintained.
We find that the appeals filed by the Department does not deserve acceptance. Accordingly, both the appeals are dismissed in accordance with Circular No.17/2019.
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2022 (9) TMI 1629
Unexplained sales - non establish the true sales figures and not submitted sales bills and vouchers and quantitative details - AO submitted that in absence of proper sales invoices and quantitative details, financial results of assessee do not have authenticity, necessitating to invoke section 145(3) and thereby reject the books of accounts and estimate taxable income of assessee -
AR submitted that the decision of Badri Prasad Bhagwandas [1994 (10) TMI 268 - MADRAS HIGH COURT] is plainly distinguishable and hence not applicable to the assessee at all as such decision was given in relation to AY 1976-77 when the facts were entirely different. Ld. AR submitted that at that time, the excise policy of Govt. was totally different. There was no control of the Government over the sales price and the Licensee was free to sale liquor to customers at the price as per his will, but now the situation has totally changed. Now, State Government has issued excise policy for sale of liquor, according to which there is a price band of fixed MSP (Minimum selling price) and MRP (Maximum retail price). This policy is effective since 15.01.2008 / 15.01.2009 and the assessee has filed a copy of Gazette to Ld. CIT(A), which is very clear from appeal-order passed by Ld. CIT(A) itself. Now as per new policy, a retailer cannot charge more than MRP from customer.
HELD THAT:- As assessee has duly filed a copy of the gazette to demonstrate the new excise policy to Ld. CIT(A). On a careful reading of the order of Ld. CIT(A), we find that the Ld. CIT(A) has considered the submissions of assessee at length and after a careful consideration, came to accept that the decision in Badri Prasad Bhagwandas (supra) is not applicable to assessee. We further observe that the Ld. DR representing the revenue could not rebut the findings of Ld. CIT(A) with respect to non-applicability of the decision. Decided against revenue.
Estimation of sales and profits - It is an admitted fact by assessee that the sales-invoices and quantitative details are not maintained. Hence, suffice it to say, this is a significant lapse by assessee which makes the books of account incomplete, warranting rejection of books u/s 145(3). Therefore, we do not find any infirmity in the action of Ld. AO. Having said so, we now have to confine ourselves to the computation of profit of the business carried on by assessee. In this regard, we find weightage in the submission of assessee that the maximum possible sales of the year can be computed by using MRP.
Thus, we find that the sales of assessee is acceptable and there is no serious problem in the expenditure side too. Hence, we do not find any infirmity in the order of Ld. CIT(A) whereby Ld. CIT(A) has accepted the book-results of assessee and deleted the addition made by Ld. AO. Being so, we are persuaded to uphold the action of Ld. CIT(A) and inclined to dismiss Ground No. 1 raised by revenue.
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2022 (9) TMI 1628
Principle of double jeopardy - Revocation of suspension of CHA licence - completion of proceeding if initiated under Regulation 22 of the CHALR, 2004 within 3 months - mis-declaration in shipping bill - HELD THAT:- The principle of double jeopardy, be that enforceable under Article 20 Clause 2 of the Indian Constitution or Section 300 of the Code of Criminal Procedure, 1973 would only be taken as a shield against completion of trial or prosecution that resulted in conviction or acquittal, so as to prevent a subsequent trial or prosecution but it has no application to different trials or parallel proceedings in different forms for the same set of facts.
In the instant case the proceeding against the Appellant was not concluded at the first instance within the time limit prescribed for such completion got over. Therefore, the protection available under double jeopardy, though can only be extended by Constitutional Courts, would not come to the rescue of the present Appellant since the first proceeding had not been completed but was aborted.
When there is a clear finding of the CESTAT that in such an event of noncompletion of the proceedings under CHALR, the order of suspension of CHA licence of the Appellant would stand revoked and it was revoked also by the Commissioner of Customs on 26.04.2012. But keeping such revocation a conditional one till the outcome of inquiry being contemplated under Regulation 22 of CHALR, 2004, that is found absent in the order of CESTAT passed on dated 15.12.2011 is arbitrary has beyond the competency of the Commissioner of Customs.
The order passed by the Pr. Commissioner of Customs passed under Regulation 27 of CHALR, 2004 in revoking the CHA License of the Appellant and forfeiting the security deposit is hereby set aside - Appeal allowed.
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2022 (9) TMI 1627
Seeking grant of regular bail - illegal diversion of funds - housing projects not completed - HELD THAT:- It may be observed that more than 450 victims await for the possession of the housing units, which were agreed to be delivered within a period of 36 months along with an additional grace period of 6 months since 2014 to 2016. It is important to keep in perspective as to the reasons for the non-construction/development activities not being undertaken at the project sites to evaluate the role of the petitioner despite approval of the building plans by the competent authority in 2011 and approval of revised layout plan in 2014. Mere partial completion of the projects cannot absolve the functionaries as it cannot be ignored that the site was ultimately abandoned on account of illegal diversion of funds, which were required to be used for the purpose of completion of projects.
Merely because the petitioner may not have been a Director at the relevant time when the bookings were made, as claimed, does not absolve the petitioner of his responsibility as the funds were diverted with his active role and were within his knowledge. The fact that the accused has been in custody since 26.04.2019 and the trial is likely to take some time cannot be the sole governing factors for releasing the accused on bail, at this stage.
The petitioner in the light of the evidence on record cannot claim that he was unaware of the transactions and was not responsible for the affairs of the company at the relevant time and, as such, it does not appear to be a case of vicarious liability, as claimed by the learned counsel for the petitioner - it has been held in NIMMAGADDA PRASAD VERSUS CENTRAL BUREAU OF INVESTIGATION [2013 (5) TMI 920 - SUPREME COURT], that economic offences constitute a class apart which need to be visited with a different approach in the matter of bail.
Considering the nature of evidence on record, grave allegations of siphoning of funds and the fact that the innocent home buyers stand duped, the case is not fit for grant of bail, at this stage. The possibility of the accused jumping the bail also cannot be ruled out.
Application dismissed.
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