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Showing 201 to 220 of 1529 Records
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2022 (6) TMI 1329
Income deemed to accrue or arise in India - Applicable rate of taxation - retrospective insertion to Explanation to Section 90 - Assessee claim for the benefit of the non-discrimination clause of the India-Korea Double Taxation Avoidance Agreement (‘DTAA’) -taxing the Appellant’s income @ 40% (plus surcharge and education cess) or at rate applicable to a resident taxpayer - levy of the income tax on the assessee company at a rate higher than the domestic companies - HELD THAT:- We hold that the applicable rate of taxation, under the Income Tax Act 1961, for the assessee company cannot be read down in the light of the provisions of a double taxation avoidance agreement, as is the specific mandate of Explanation 1 to Section 90 or even on the first principles without the benefit of this Explanation.
As for the mention, in paragraph 7 of the Bank of Tokyo Mitsubishi decision [2019 (8) TMI 895 - CALCUTTA HIGH COURT] of some clarification issued by the CBDT with respect to ABN Amro Bank, even if that be so, it is only elementary that Section 119(1)(a) does not visualize issuance of a circular “so as to require any income-tax authority to make a particular assessment or to dispose of a particular assessment in a particular manner”, and, therefore, such a clarification will not have any bearing on cases other than ABN Amro Bank, or the legally binding force of Section 119. In any event, even going by the observations made by the Hon’ble High Court, this communication was issued prior to 24th November 1997 – much before the retrospective insertion of Explanation 1 to Section 90 took place. With the amendment in law and with this significant change in the legal position, even if there is an old circular, issued in the context of pre-amendment law, it will not hold good any longer. Nothing, therefore, turns on the said communication either, and, in any event, even this communication has not been sighted before us.
We are of the considered view that the plea of the assessee is, therefore, devoid of any sustainable merits. We reject the plea of the assessee, and decline to interfere in the matter.
Deductibility of Interest paid by the Appellant to its Head Office - AO/DRP disallowing interest paid by the Appellant to its head office - HELD THAT:- The short reason for which the impugned disallowance is made is that the payment by an entity to itself, i.e. by its permanent establishment to the head office, and, therefore, it is an inadmissible deduction. What this approach overlooks is that this theory of tax neutrality vis-à-vis intra-company payments and incomes, whatever be its relevance or irrelevance in the cross-border situations, finds its support from judicial precedents in the cases of Sir Kikabhai Premchand [1953 (10) TMI 5 - SUPREME COURT] and Betts Hartley Huett & Co Ltd [1978 (4) TMI 58 - CALCUTTA HIGH COURT] is in the context of the computation of profits under the Income Tax Act. This theory would not, therefore, extend to the computation of profits attributable to a permanent establishment under the scheme of the tax treaties.
The five-member bench decision, in the case of Sumitomo Mitsui Banking Corp [2012 (4) TMI 80 - ITAT MUMBAI] recognizes this position and specifically states that “the position under the domestic law, as emanating from the above judicial precedents is that one cannot make profit out of himself”, and in the lights of the corollaries to this position, declined the applicability of this theory in the treaty situation. There is no other reason assigned in this case in support of the disallowance of interest paid by the PE to the head office or the GE. For this short reason alone, therefore, the impugned interest disallowance must be deleted.
The computations of profits attributable to the PE are to be computed on the basis of this hypothetical independence of the PE from its GE, and, to that extent, the profit neutrality theory of intra-company transactions will not come into play - though the assessee had initially raised a grievance against the taxability of interest received from its head office, when the appeal came up for hearing before us, this plea was abandoned even as there was a five-member bench decision, in support of the assessee, on that point. The assessee has claimed a deduction for interest paid by the PE to GE, and included in its taxable income, interest received by the PE from its GE. That is what, in our humble understanding and for the reasons set out above, the computation of profits of the PE, under the scheme of the tax treaties, envisages. In view of these discussions, and bearing in mind the entirety of the case, we hold that the disallowance of interest is not sustainable in law. Assessing Officer is directed to delete the same.
Whether the said interest paid by the PE to GE (i.e. PE-GE interest) can be taxed in the hands of the assessee company as income of the GE, as has been done by the Assessing Officer? - It may perhaps be too much to contend that the taxability of PE-GE interest receipt is required to be considered on the basis of the domestic law provisions, but even this discussion seems entirely academic in the light of our finding, as above, that an internal charge for the PE profit attribution does not amount to taxable income in the hands of the GE anyway. Be that as it may, having decided this aspect of the matter on the treaty principles so far as taxability of PE-GE interest in the hands of the GE is concerned, we need not examine that aspect any further. In our considered view, for the detailed reasons set out in this order, dehors this theory of tax neutrality for intra-GE transactions also, this PE-GE interest is not taxable in the hands of the assessee. Of course, we have reached the same destination by following a different path but then as long as reach the same destination, our traversing through a different path does not really matter at all.
We uphold the plea of the assessee that the interest paid by the PE to the GE cannot be brought to tax in the hands of the assessee company, even though it is to be allowed as a deduction in the computation of profits attributable to the permanent establishment. The Assessing Officer is directed to grant the relief accordingly. The assessee has already offered to tax the interest income received from its head office, and there is no surviving dispute in respect of the same.
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2022 (6) TMI 1328
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantor to Corporate Debtor - section 95 of IBC - HELD THAT:- On the conjoint reading of the provisions show that Rule 10 of IBBI (application to Adjudicating Authority for Insolvency Resolution Process or Personal Guarantor to Corporate Debtor) Rules 2019, prescribed the procedure for filing of the application and documents under Chapter-III and Part-III of the application and as per the Rule 10 of the Adjudicating Authority Rules, the provisions of the NCLT Rules are applicable. The provisions referred to Rule 10 are relate to the presentation of the petition or appeal.
On conjoint reading of the provisions shows that neither in Section 94 nor in Section 95, the word filing is referred. Rather in both the Sections 94 & 95, the word submitting an application is mentioned. The debtor or the creditor under Section 94 & 95 respectively may apply either personally or through Resolution Professional for initiating the Insolvency Resolution Process by submitting an application - in terms of the Section 96 of the IBC, 2016, when an application is filed under Section 94 & 95, an interim moratorium shall commence on the date of the application in relation to all the debts and shall cease to an effect on the date of admission of such application.
Petition admitted - moratorium declared.
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2022 (6) TMI 1327
Addition on account of jewellery found in the search premises of the assessee - HELD THAT:- On consideration of the rival submissions of the parties, we are of the opinion that in the interest of justice and fair play, the matter should be restored back to the file of the AO to verify the veracity of the claims made by the assessee who shall produce evidence which were not available with him during the course of assessment proceedings for the purposes of verification. The Ld. AO shall also consider the claim of the assessee taking into account the CBDT Instruction No. 1916 dated 11.05.1994 and decide the issue afresh after giving reasonable opportunity of hearing to the assessee.
Addition u/s 69A on account of cash found during search - HELD THAT:- Right from the stage of search, the case of the assessee has been that the family withdraws Rs. 40,000/- every month for meeting house-hold expenses and the cash found in search is accumulation of savings. Moreover, documentary evidence of bank statement showing withdrawal of cash of Rs. 1,00,000/- by the assessee and Rs. 1,50,000/- by his wife on 20.04.2012 just few days before search on 09.05.2012 was placed on record. There is no adverse finding that the said withdrawals of cash was utilised for any specific purpose and that nothing was available out of the said withdrawal of cash. We are, therefore, inclined to hold that the source of cash available at the time of search has been satisfactorily explained by the assessee and delete the impugned addition.
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2022 (6) TMI 1326
Seeking approval of the Resolution Plan - Section 30(6) and Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The requirements under section 31(1) of the Code are satisfied in the present case. In para 4 of Form H, the Resolution Professional has certified that the Resolution Plan complies with all the provisions of the Insolvency and Bankruptcy Code, 2016 (Code), the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) and does not contravene any of the provisions of the law for the time being in force.
It is declared that whatever reliefs and concessions entitled by the Resolution Applicant by virtue of the approval of the Plan, as per the application of I&B Code, 2016 and any other applicable Laws are entitled by it - the moratorium order passed by this Adjudicating Authority under Section 14 of the Code on 08.04.2019 in the main C.P. shall cease to have effect.
Application allowed.
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2022 (6) TMI 1325
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As relying on VISION FINSTOCK LTD [2016 (7) TMI 603 - ITAT AHMEDABAD] restrict the disallowance made by the Assessing Officer under Section 14A read with Rule 8D and sustained by the learned CIT(A) to Rs.50,000/- being the exempt income actually earned by the assessee in the year under consideration. In the result, the appeal of the Revenue is dismissed while the appeal of the assessee is partly allowed.
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2022 (6) TMI 1324
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - disbursal against the consideration for the time value of money - financial debt or not - existence of debt and dispute or not - HELD THAT:- As per sub-section (7) of Section 5 of the Code, only such creditor could be the 'financial creditor' of the corporate debtor to whom a 'financial debt' is owed by the corporate debtor; and, as per sub-section (8) of Section 5 of the Code, the key requirement of a financial debt is 'disbursal against the consideration for the time value of money', which includes the events or modes of disbursement as enumerated in sub-clauses (a) to (i) of Section 5(8) of the code.
The corporate debtor has explained the nature of the transaction and the financial creditor failed to produce the adequate evidence/documents in the form of financial statements or otherwise to prove that it owns financial debt against the corporate debtor. In this summary enquiry, we cannot enter into the correctness of assertion of the applicant to establish the alleged loan amount as financial debt - the evidence as produced by the applicant are not satisfactory to prove the nature of claim as financial debt and cannot be safely relied on.
Since the present application has been filed under Section 7 of the IBC, therefore, it can be said that the applicant claimed that a decree is a financial debt irrespective of its genesis i.e., the substratum on which the decree is adjudicated and became due but when we shall read the definition of claim, debt, financial debt and financial creditor then we find that the decree is not included as an financial Debt unless the claim on which decree is adjudicated is a financial debt, of course definition of Creditor include decree holder but definition of financial debt does not include any decree holder without ascertaining the true nature of the claim basis on which decree is adjudicated.
This Authority is not a forum for recovery of amount and we are clearly of the view that the applicant is utilizing the process of IBC to facilitate recovery whereas the primary focus of IBC is to ensure revival and continuation of the corporate debtor, and to protect it from corporate death.
This Tribunal keeping in mind the entire conspectus of the attendant facts and circumstances of the instant case in a holistic fashion comes to a resultant conclusion that the decree passed by the Hon'ble High Court of Delhi cannot come in the purview of the definition of the financial debt - Application dismissed.
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2022 (6) TMI 1323
Unexplained expenditure - difference in narration in the bank account - details of which were found in the Cash Transaction Record maintained in an excel sheet by Shri Ashok Sharma, which was found and seized during the search in the case of the Indiabulls Group - HELD THAT:- We find that there are identical expenditure which are held to be unexplained expenditure for seven years which has been deleted by CIT (A). As also the claim of the assessee that the transactions have already been offered as income before the settlement commission.
CIT (A) deleted this addition for the reason that the amount has already been considered in income of the assessee and other entities before the settlement commission. In view of this, we do not find any infirmity in the order of the learned CIT (A) in deleting the addition. Merely because the order of the settlement commission has been challenged before the Hon'ble High Court, unless that order is reversed, we do not find any infirmity in the order of the learned CIT (A). Accordingly, ground no. 1 to 3 of the appeal is dismissed.
Allowability of deduction of education cess - HELD THAT:- We find that in view of amendment by introduction of explanation 3 inserted by Finance Act, 2022 with retrospective effect from 1st April, 2005, assessee is not entitled for deduction of education cess. Accordingly, grounds of the appeal is allowed.
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2022 (6) TMI 1322
Reopening of assessment u/s 147 - reassessment proceedings on the basis of PAN/AIR information that the assessee has sold immovable property during F.Y. 2008- 09 - HELD THAT:- Assessee has successfully demonstrate that PAN No. BAHPS3364R and filed return of income for A.Y. 2009-10 on 18.02.2010 whereas the Assessing Officer in the reasons recorded for reopening the assessment stated that no return has been filed by assessee. This shows casual approach of Assessing Officer in initiating reassessment proceedings on the basis of incomplete details regarding filing of ITR by assessee for A.Y. 2009-10.
In this situation and in view of proposition rendered by ITAT, Delhi in the case of Shri Jagat Singh [2018 (9) TMI 1776 - ITAT DELHI] we are compelled to hold that reassessment proceedings u/s 147 of the Act and notice u/s 148 of the Act is issued without application of mind by AO on the basis of incomplete information without any verification of the facts then it amounts to omission on the part of AO in complying with the mandatory requirement of Section 147 & 148 - Consequently, reassessment order and of consequent proceedings and orders become bad in law.
Assessment order passed u/s 147/144 of the Act is not sustainable being bad in law thus the same is quashed. Accordingly, the legal ground No.1 and 2 of assessee are allowed.
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2022 (6) TMI 1321
Revision u/s 263 - as per CIT AO did not make any prudent enquiry in respect of the difference in the valuation of current assets and current liabilities shown in the balance sheet as on 31.3.2008 vis-à-vis the same shown in the cash flow statement filed before the Assessing Officer - whether assessment as validly reopened by the AO? - As per assessee what the AO could not do u/s.147 of the Act could not be done in the guise of revision proceedings u/s.263 - HELD THAT:- When the details were before the AO and the AO has not adjudicated on the issue when such glaring difference are there, especially when he has made valid reopening, it cannot be said that the AO did not have power to go into the said issue as pointed out by ld CIT DR. A reading of section 147 of the Act shows that the word used in section 147 “or any other allowance or deduction for such assessment year”.
It also used the words “ assess or reassess such income or recompute the loss or the depreciation allowance”. In the present case, the difference between the cash flow statement and balance sheet was very much available to the AO to be processed in the reopened assessment.
Failure on the part of the AO to examine the same and form an opinion on the issue established that, when the difference was so glaring, has clearly made the order erroneous and consequently prejudicial to the interest of the revenue. This being so, as the AO has not applied his mind to the information that has been supplied by the assessee nor he has considered such information nor formed an opinion in respect of such information, the ld CIT, Bhubaneswar was right in invoking his powers u/s.263 of the Act in revising the assessment order passed u/s.143(3)/147 of the Act dated 30.3.2013 in the case of the assessee.
A query was raised to ld AR as to what happened to the consequential order passed in pursuance to order u/s.263 of the Act, to which, ld AR submitted that consequential order has been passed and the appeal had been filed to the ld CIT(A). The ld CIT(A) has dismissed the same exparte. Further appeal had been filed to the Tribunal and the Tribunal had also exparte restored the issue back to the file of ld CIT(A).
A very interesting fact on this issue established that even before the CIT(A), the appeal was dismissed for non-compliance. The Tribunal in the interest of natural justice had restored the issue to the file of the ld CIT(A) so that the assessee could be granted the opportunity to substantiate its case. This clearly shows that the assessee is not interested in showing the reconciliation but is attempting to use technical reasons to avoid the responsibility. Appeal of the assessee stands dismissed.
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2022 (6) TMI 1320
Sanction of Scheme of Arrangement - seeking issuance of directions for dispensation of the meeting of Equity Shareholders of Transferor Company 1, Transferor Company 2 and Transferee Company and directions for dispensation of meeting of Unsecured Creditors of Transferor Company 1, Transferor Company 2 and Transferee Company - HELD THAT:- In view of the settled law, is empowered to dispense with the meeting of shareholders if they have given their consent. Further, in view of Section 230(9) of the Companies Act, 2013, the Tribunal is empowered to dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety percent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement.
Various directions with regard to holding, convening and dispensing with various meetings issued - application disposed off.
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2022 (6) TMI 1319
Reopening of assessment u/s 147 - validity of notice issued u/s 148A(b) - HELD THAT:- This Court is of the view that the Revenue by asking the Petitioner-Assessee to respond to the aforesaid vague show cause notice was virtually asking the Petitioner to search for ‘a needle in a haystack’.
Revenue now states that the Respondent shall supply all the relevant material documents and information in its possession, the impugned order passed u/s 149A(d) as well as the notice issued u/s 148 are set aside with a direction to the Respondent-Revenue to issue a supplementary notice in pursuance to the initial notice issued u/s 148A(b) within three weeks enclosing all the relevant/incriminating information/material/documents. The Petitioner shall file its response to the said supplementary notice within three weeks.
AO is directed to pass a fresh order u/s 148A(d) in accordance with law within six weeks thereafter. With the aforesaid directions, present writ petition along with pending application stands disposed of.
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2022 (6) TMI 1318
Disallowing credit of TDS deducted by the employer but not deposited to Government Account - HELD THAT:- We find that the assessee filed an appeal before CIT(A) on 28.06.2018. The appeal of the assessee was transferred to NFAC in term of notification of CBDT dated 25.09.2020. The ld. CIT(A)/NFAC passed the order on 08/09/2021. CIT(A)/NFAC passed its order on the basis of details of intimation U/s 143(1) of the Act and the statement of fact was pleaded by assessee in Form 35 (the appeal filed the ld. CIT(A)/NFAC).
Before us, assessee has furnished a copy of Form 26-AS for the financial year under consideration. On perusal of copy of entry in Form 26AS, we find that there are certain tax credit shown in Form 26AS, therefore, we restore the case to the file of Assessing Officer/CPC to verify the facts and grant the credit/set off of tax shown in Form 26AS and passed the speaking order in accordance with law.
AO is directed to grant reasonable opportunity to the assessee before passing the order. The assessee is also directed to provide all necessary information and evidence including the copy of Form-26AS to the AO. The AO is also directed to consider the decision of Kartik Vijaysinh Soanvane [2021 (11) TMI 682 - GUJARAT HIGH COURT] and pass the order in accordance with law. In the result, the ground of appeal raised by the assessee is allowed for statistical purposes. In the result, the appeal of the assessee is allowed for statistical purpose.
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2022 (6) TMI 1317
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - enforcement of guarantee by the creditors - Whether the Applicants qualify as a financial creditor in terms of provisions of the Code of the Corporate Debtor? - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor is obliged to reimburse and indemnify the founder promoter (including the Applicants herein) on fulfilment of two conditions, first, enforcement of guarantee and second due to enforcement of such guarantee any loss is suffered by the founder promoters. In an instant matter, Vistra ITCL (India) Ltd. formerly known as IL&FS Trust Company Limited through demand certificate dated 17.03.2018 to the Applicants had demanded to pay an amount of Rs. 9147.88 crore under the Deed of Guarantee/Deed of Personal Guarantee, within 3(three) days. Also, through letter dated 21.03.2018, Vistra ITCL called upon the pledgors of 14,51,04,995 shares (including Applicant in IA 257/2021) to pay an amount of Rs. 9131 crores with interest of Rs. 11.80 crore within 5 days.
Neither the Applicants had denied in its rejoinder nor placed any document to establish that the Applicants had made any payment to any of the lenders against whom guarantee has been given under Deed of Guarantee/Deed of personal Guarantee nor the Applicants has placed on record any document showing sale of equity shares pledged with the lenders. Thus, it is established that the Applicants had not suffered any loss due to enforcement of guarantee by the creditors since 2018.
It is a settled law that liability of surety is co-extensive with that of the principal debtor. In case the creditor enforces its right against the guarantor and the guarantor disburses due amount to the creditor, such disbursement, amounts to repayment of loan on behalf of the principal debtor and the guarantor steps into the shoes of the creditor - if there is no encashment of debt on account of enforcement of guarantee, it cannot be said that there is disbursement of debt to the Corporate Debtor, which is an essential condition to fall under the definition of financial debt. As in the instant case there is neither encashment nor sale of pledged shares. Thus, there is no disbursement of debt by the Applicants to the Corporate Debtor to fall under the category to have created any financial debt - Applicants do not qualify as financial creditors of the Corporate Debtor in terms of provisions of the Code.
The claim of the Applicants do not fall under the definition of financial debt - appeal rejected.
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2022 (6) TMI 1316
Levy of penalty u/s.271(1)(b) - absence in the initial period before the ld. AO - In the course of re-assessment proceedings though initially the assessee did not secure its presence in person or through her authorised representative before the ld. AO, finally appeared before the ld. AO in person and even furnished a statement u/s.131 of the Act before the ld. AO by filing the requisite details - HELD THAT:- The assessee explained before the ld. AO that she got married during the course of re-assessment proceedings and that she was under the confusion as to who was handling her income tax matters i.e. whether it is being handled by her father or by her in-laws. In view of this confusion, there was some absence in the initial period before the ld. AO but later on once the confusion was resolved, she started appearing in person before the ld. AO and furnished all the requisite details that were called for. Ultimately, the assessment was completed u/s.143(3) of the Act by the ld. AO, which goes to prove that the earlier absence of the assessee has been duly condoned by him
No penalty u/s.271(1)(b) of the Act could be levied when an assessment has been completed u/s.143(3) of the Act, wherein the ld. AO is deemed to have condoned the absence of the assessee or his authorised representative on earlier occasions when subsequently, the details were furnished by him and the assessments were ultimately completed u/s.143(3) of the Act. Hence, we deem it fit that this is not a fit case for levy of penalty u/s.271(1)(b) of the Act. We direct the ld. AO to delete the said penalty. Accordingly, the grounds raised by the assessee are allowed.
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2022 (6) TMI 1315
Deduction u/s 80IA for its unit at Silvassa - 10th year of commercial production - Addition on the ground that AY 2008-09 is the eleventh (11th) year of such a claim, whereas according to assessee AY 2008-09 is the tenth (10th) year of claim u/s 80IA of the Act and therefore it is a legitimate claim - HELD THAT:- We note that as per Section 80IA of the Act, for the first five years, the assessee was entitled to claim 100% deduction and for the rest of the five years, the assessee can claim deduction only 30% of the profits from the eligible unit. Thus since the assessee’s first year of claim was in A.Y.1999-2000, the assessee got upto A.Y.2003-04 (five years from AY.1999-2000) 100% deduction (refer page no. 102 of the P.B) and thereafter the assessee received only 30% deduction from AY. 2004-05 deduction u/s 80IA of the Act for Silvassa Unit was granted by the AO at 30% to the tune of Rs.48,31,672/-. And for A.Y.2007-08 i.e. 9th year, the assessee received 30% deduction which is evident from the page 106 of the paper book.
We find that 10th consecutive year as per the assessment years framed by AO’s as referred to (supra) is A.Y.2008-09, since the first year of deduction u/s 80IA of the Act in respect of profits for Silvassa Unit was for A.Y.1999-2000 and ten (10) year has to be reckoned from that year, so AY 2008-09 is the tenth year and therefore, the AO erred in holding that the assessee is not entitled for deduction u/s 80IA of the Act because AY 2008-09 is the 11th years.
We find that the AO had erred in denying the claim of deduction u/s 80IA of the Act for A.Y.2008-09 and likewise the Ld. CIT(A) also erred in denying the claim of the assessee. Therefore, we are inclined to allow the claim of the assessee u/s 80IA of the Act and direct the AO to allow the claim. Ground no. 1 is allowed.
Recomputation of the profits of the eligible unit at Silvassa at the reduced amount - reallocation of various expenses on turnover basis (as against on actual basis and partly on turnover basis) - HELD THAT:- As shown by the Ld. AR that the allocation was based on turnover of the lubes sales of respective plants. Thus, we note that the AO was wrong to observe that the expenses were allocated more to the non-eligible unit at Thane and expenses were lesser allocated to the eligible unit (Silvassa Unit) which occasioned the AO to allocate more expenses to Silvassa Unit. We note that the total expenses were to the tune of Rs.9,645.84 crores out of which Rs.5,237.93 crores pertained to the non 80IA Unit (Thane) and Rs.4,264.70 crores pertained to the 80IA Unit at Silvassa. Thus, it is seen that the expenses incurred by the assessee for Thane unit was 54.3% and 44% to the Silvassa Unit. Therefore, we are of the considered opinion that the AO erred in re-allocating the expenses and thus reducing the 80IA of the Act profits shown for the unit at Silvassa. Therefore, on the facts and circumstances we direct the AO to accept the computation of profit of the eligible unit at Silvassa as made by assessee and allow deduction accordingly.
Disallowance of the claim of deduction u/s 80-IA in respect of windmills installed at different locations - HELD THAT:- As relying on HERCULES HOISTS LTD. [2015 (5) TMI 825 - BOMBAY HIGH COURT] since the earlier year losses of the windmills were absorbed during those years and no losses were carried forward, for the initial year, the AO/Ld. CIT(A) erred in denying the claim. Therefore, we hold that the profits earned during the A.Y.2008-09 from the four (4) windmills would be entitled for deduction and the AO is directed to allow it as per law.
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2022 (6) TMI 1314
Seeking directions on the Respondent to resolve the claim of the Applicant - contention raised by the Learned Counsel for the Applicant as per the latest list of creditors as on 20.01.2020, that the claim submitted by the Applicant herein was shown as 'under verification' and hence no amounts were paid to the Applicant under the Resolution Plan - HELD THAT:- In the present case, it is seen that the Resolution Plan in respect of the Corporate Debtor was approved by this Tribunal on 20.01.2020. The present Application is filed before this Tribunal on 29.07.2021. Further, it is also seen a contingency fund to the tune of Rs. 7 Crore was kept in the Resolution Plan for a period of 6 months from the date of approval of the Resolution Plan. The said 6 months expired on 20.07.2020 and admittedly the present Application is filed before this Tribunal only on 29.07.2021.
The relief as sought by the Applicant cannot be granted, in terms of the Judgment rendered by the Hon'ble Supreme Court in the matter of Ghanashyam Mishi a and sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited & Ors. [2021 (4) TMI 613 - SUPREME COURT] where it was held that once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.
Application dismissed.
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2022 (6) TMI 1313
Income accrued in India - Addition treating the entire income of the assessee from technical handling as taxable in India after allowing 5% of ad hoc allowance for expenses - HELD THAT:- Upon careful consideration, we note that Hon’ble Delhi High Court in the case of the assessee for assessment years 2004-05 to 2008-09 [2017 (2) TMI 157 - DELHI HIGH COURT] answered the question of law Whether profits of the assessee from providing technical services to other airlines is covered by Article 8(1) and 8(4) of the Double Taxation Avoidance Agreement between India and Germany and by Article 8(1) and 8(3) of Double Taxation Avoidance Agreement between India and Netherland against the Revenue and in favour of the assessee.
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2022 (6) TMI 1312
Validity of Look Out Circular (LOC) issued against her by the Bureau of Immigration, Ministry of Home Affairs, Govt. of India - right to travel abroad is enshrined in Art.21 of the Constitution of India - HELD THAT:- In the instant case, the respondents No.3&4 would prevent the petitioner from going to Australia on the basis of LOC dt.28.12.2021 issued at the instance of respondent No.2-Bank by the Bureau of Immigration (Ministry of Home Affairs, Govt. of India) - It is not in dispute that the copy of the same was never furnished to the petitioner till it was filed for the first time by respondent No.2 along with its written response in Court.
The respondent 1,3 and 4 have not followed fair, just and reasonable procedure to deprive the petitioner of her fundamental right to travel abroad as they have not followed the principles of natural justice and did not even supply a copy of the LOC to petitioner inspite of her request to do so.
When there is admittedly not even an FIR registered against the petitioner, and there is no question of her being ‘accused’ of any noncognizable offence, no LOC could have been issued by respondent No.3 to detain the petitioner. At best, the respondent No.3 could have only given information to respondent No.2 about the arrival/departure of the petitioner according to the OM dt. 22.02.2021 - no exceptional case or any adverse effect on the economic interest of India has been made out either in the original request dt. 28.12.2021 made by respondent No.2 to respondent No.3 or in the reply/affidavits and recourse could not have been taken for a coercive process like issuance of LOC.
The quantum of the alleged default by the borrower by itself cannot be the basis for seeking issuance of an extreme process like an LOC for restricting the personal liberty of the petitioner to travel outside the country without something more. The OM itself does not draw any line about the quantum of default by a borrower to a financial institution which would be considered detrimental to the sovereignty or integrity of India or to the economic interest of India and a quantum of default which would not fall in the said category - merely because the word ‘public’ is used in the exception clause in the OM, it does not elevate a mere default to an exceptional plane. It cannot be said that the departure of the petitioner from the country would adversely impact the economy of the ‘country as a whole’ and de-stabilize the ‘entire economy’ of the country.
There has been non-application of mind by respondent No.3 while issuing LOC dt. 28.12.2021 against the petitioner, and mechanically it appears to have been issued without there being any material to show that the petitioner would fall in the category of a person against whom an LOC is permitted to be issued by the guidelines framed in that regard by respondent No.1 - Merely looking at the quantum of loss caused to a banker, it cannot be presumed that there was a fraud committed by the borrower/guarantor, moreso when no criminal case alleging fraud has even been filed against the borrower/guarantor. Suspicion cannot take the place of proof.
The action of the respondent No.2-Bank in seeking issuance of an LOC to prevent the petitioner from leaving the country on the ground that she was a guarantor to respondent No.5’s loan and there was more than Rs.100 crores owed to respondent no.2, is arbitrary, illegal and violative of Article 21 of the Constitution of India - LOC issued by respondents No.1, 3 & 4 against the petitioner at the instance of respondent No.2 is set aside - Petition allowed.
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2022 (6) TMI 1311
Detention order - illicit drug trafficking/smugglig - narcotic drugs - seizure of 92 gm brown sugar (Heroin) and 7600 nos yaba tablets - non application of mind or not - failure on the part of the detaining authority to supply material documents prevented the petitioner from making effective representation against the grounds of detention or not - HELD THAT:- There is no legal requirement that every document mentioned in the detention order shall have to be invariably supplied to the detenue. Court is required to examine as to whether copies of the documents which formed the foundation of the detention order were supplied to the detenue so as to enable him to make an effective representation against the order of his detention. Unless the detenue can show as to how he was prejudiced by non-supply of a particular document, the detenue cannot gain any benefit merely by agitating that a document mentioned in the detention order was not supplied to him. It is not necessary to supply each and every document which have been referred to in the detention order merely for the purpose of narration of facts.
The contextual facts of the given case depict that the detenue, who used to run his hotel business allegedly stored huge quantity of NDPS in his dwelling house near the railway station at Agartala. On 05.11.2019 police conducted raid in his dwelling house and recovered 7600 yaba tablets in 38 packets and 92 gms of brown sugar from his possession - It emerges from the record that the detenue put his signature on the said document in acknowledgment of the receipt of the letter. Communication dated 28.06.2021 of SDPO, Amtali which was forwarded by the SP, West to the Director General of Police has also been referred to in the said communication dated 14.07.2021. Apparently the said communication dated 28.06.2021 was also received by the detenue. In acknowledgement of the receipt of the documents he also put his signature on the said document. The record also goes to show that all papers in connection with the pending criminal cases were also served on the detenue. Therefore, the contention of the learned counsel of the petitioner that the proposal received from the DGP was not served on the detenue does not gain ground.
The order reflects the anxiety of the detaining authority to prevent the petitioner from getting any further opportunity in smuggling narcotic drugs and psychotropic substances and such anxiety was generated from the past conduct and antecedents of the petitioner - the constitutional safeguards provided under Article 22(5) of the Constitution has been observed by the detaining authority by indicating to the detenue the grounds of his detention and providing him full opportunities of making an effective representation against the order of detention.
Petition dismissed.
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2022 (6) TMI 1310
Validity of reopening of assessment u/s 147 - order issued u/s 148A(d) - Whether at this stage of notice under Section 148, writ Court should venture into the merits of the controversy when AO is yet to frame assessment/reassemment in discharge of statutory duty casted upon him under Section 147 of the Act ? - HELD THAT:- The consistent view is that where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such a pre-mature stage. Moreover it is not a case where from bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of order under Section 148A(d) is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. By now it is well settled that there is vexed distinction between jurisdictional error and error of law/fact within jurisdiction. For rectification of errors statutory remedy has been provided.
We find that there is no reason to warrant interference by this Court in exercise of the jurisdiction under Article 226/227 of the Constitution of India at this intermediate stage when the proceedings initiated are yet to be concluded by a statutory authority. Hence the writ petition stands dismissed.
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