|
Advanced Search Options
Case Laws
Showing 201 to 220 of 1589 Records
-
2022 (7) TMI 1390
TP Adjustment - comparable selection - As per ITAT Excel Infoways failed the diminishing revenue filter - HELD THAT:- This Court is of the view that the intent of Chapter X of the Act is to compute the income in relation to a controlled transaction between an assessee and its associated enterprise having regard to the arm’s length price in order to nullify the effect of transfer of income to a jurisdiction outside India, if any, in respect of the controlled transaction. The exercise of determining the arm’s length price in respect of international transactions between related enterprises is aimed at determining the price which would have been charged for products and services, as nearly as possible, if such international transactions were not controlled by virtue of their being executed between related parties.
The object of the exercise is to remove the effect of any influence on the prices or costs that may have been exerted on account of the international transactions being entered into between related parties. It is clear that for the exercise of determining the arm’s length price to be reliable, it is necessary that the controlled transactions be compared with uncontrolled transactions which are similar in all material aspects.
Since, in the present case Excel Infoways Pvt. Ltd. fails not only the service revenue from export/ITES filter of 75% insisted upon by the TPO but also the diminishing revenue filter as is apparent from the chart reproduced hereinabove, no interference is called for in the finding recorded by the Tribunal. No question of law arises for consideration.
-
2022 (7) TMI 1389
Disallowance u/s 36(1)(viia) - provision for bad and doubtful debts - HELD THAT:- We find that combination of this Bench in assessee’s own case for the A.Y. 2010-11 [2022 (5) TMI 856 - ITAT SURAT] has confirmed the order of Ld. CIT(A), thereby decided the appeal in favour of the assessee as held that the assessee is clearly eligible for the deduction under section 36(1)(viia) as it fulfilled the two condition that any provisions for bad and doubtful debts made by Co-operative bank is allowable if it does not exceed 7 ½ of total income (computed before making deduction under this clause under chapter VIA) and an amount not exceeding 10% of aggregate average advances made by rural branch.
AO has not doubted the number of rural branches as defined under section 36(1) (viia) (d)(ia) or the total of the advances made by rural branches of assessee-bank and the computation made in the prescribed manner.
As the provision for bad and doubtful debts against standard assets is covered in the main provisions of Sec. 36(1)(viia) of the IT Act, therefore, uphold the order of the CIT(A) who we find had rightly deleted the addition made by the A.O on the said count. Appeal of the revenue is dismissed.
-
2022 (7) TMI 1388
TP Adjustment - Validity of DPR orders - Admmision of additional grounds - as contended that the DRP has not considered the objections of the assessee and there was no discussion/finding given in respect of the objections raised by the assessee qua 'distribution segment', 'light processing segment', 'provision of research and engineering', 'provision of administrative services' and 'import of Rynaxpyr Technical' - HELD THAT:- We find merit in the contention of the assessee that before DRP the assessee had raised various objections, regarding 'light processing segment', 'distribution segment', 'provision of research and engineering', 'provision of administrative services' and 'import of Rynaxpyr Technical'. The assessee also filed additional evidences in support of its contention.
There is no discussion by the learned DRP in respect of additional evidences and the objections raised by the assessee before the DRP.
DR could not point out from the direction of learned DRP about the disposal of the additional grounds and submissions of the assessee company. During the course of hearing learned representatives of the parties stated that the matter may be remanded to the learned DRP for deciding the additional grounds. Therefore,we hereby set aside the impugned order and restore the issues to the learned DRP to decide the additional grounds raised by the assessee company and pass direction afresh in accordance with law. Grounds of appeal allowed for statistical purposes.
-
2022 (7) TMI 1387
Rectification application - MA Filed by the Revenue u/s 254(2) against the Tribunal order non deciding issues - HELD THAT:- First issue of interest on unpaid lease charges is considered and decided by Hon'ble ITAT . Similarly, the second issue allowance of lease rent is also considered decided by Hon'ble ITAT.
Allowance of NAA charges - contention the Department is correct as the said issue has not been decided by ITAT in the above order, and hence, the MA of the Department is allowed and order is to be re-called only to decide this ground no. 3 regarding NAA charges.
-
2022 (7) TMI 1386
Revision u/s 263 - As per CIT derivative loss could not be adjusted against the income computed u/s 44AD - HELD THAT:- As assessee invited our attention to the paper-book to submit that show-cause notices were served by the AO during the assessment proceedings wherein the queries were raised regarding the adjustment of derivative loss against the income declared u/s 44AD of the Act which were duly replied and the relevant evidences in support of the claim were also furnished.
AO having satisfied with the reply and explanation submitted by the assessee passed the assessment order accepting the adjustment/set off of derivative loss against business income of the assessee.As submitted that even otherwise there is no bar under the Income Tax Act for setting off of derivative loss against business income.
DR could not rebut the above contention of assessee. No justification on the part of the ld. PCIT to exercise his revision jurisdiction u/s 263 - Appeal of the assessee stands allowed.
-
2022 (7) TMI 1385
Disallowance u/s 143(1)(a) - deduction u/s 80P - whether the adjustment/disallowance can be made under Section 143(1)(a) or not? - HELD THAT:- As decided in AA520 VEERAPPAMPALAYAM PRIMARY AGRICULTURAL COOPERATIVE CREDIT SOCIETY LIMITED [2021 (4) TMI 1169 - MADRAS HIGH COURT] scope of an 'intimation' under section 143(1)(a) of the Act, extends to the making of adjustments based upon errors apparent from the return of income and patent from the record, Thus to say that the scope of 'incorrect claim' should be circumscribed and restricted by the Explanation which employs the term 'entry' would, not be correct and the provision must be given full and unfettered play. The explanation cannot curtail or restrict the main thrust or scope of the provision and due weightage as well as meaning has to be attributed to the purposes of section 143(1)(a) - we reject the contention raised by the assessee that the disallowance cannot be made under Section 143(1)(a) of the Act.
Deduction u/s 80P - Belated filing of return - Assessee is eligible to claim deduction u/s 80P even if he has filed the return of income belatedly. Respectfully following the case THE CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. [2016 (4) TMI 826 - KERALA HIGH COURT] we hold that the assessee is eligible for deduction u/s 80P of the Act.
-
2022 (7) TMI 1384
Levy of penalty - expiry of the e-way bill which was expired on 2nd August, 2021 at 11.59 p.m. and the vehicle in question was intercepted at 6.45 p.m. on 3rd August, 2021 - HELD THAT:- Learned advocate appearing for the respondents could not make out any case against the petitioners that there was any deliberate or willful intention of the petitioners to avoid and evade the tax and he opposes this writ petition on the ground of availability of alternative remedy.
In view of the facts and circumstances of the case which appears from record, this writ petition is disposed of by setting aside the aforesaid impugned order of the appellate authority and adjudicating authority and as a consequence, petitioners will be entitled to get the refund of the penalty in question subject to compliance of legal formalities.
Petition disposed off.
-
2022 (7) TMI 1383
Effect of violation of the condition provided in the advertisement that the application has to be in the language for which the candidates want to attempt the question paper - what is the effect of using different language in the application form than the OMR sheet? - HELD THAT:- In the present case, more than 11,000 posts were advertised for filling up of the posts of Constables in the RPF. Though the number of candidates who appeared in response to such advertisement is not available, but generally, it is a matter of common experience that candidates much more than the posts advertised are the aspirants for such posts. The condition that language in the application form shall be used for the purposes of OMR examination is for the reason that in case any dispute arises in respect of identity of the candidate, the same can be verified from the two handwritings. Still further, the question papers are required to be set up in the languages other than Hindi and English as well. The applications in different languages were to be sent to different Nodal Officers in Gorakhpur, Kolkata, Bhubaneshwar and Chennai. Still further, the OMR answer sheet is bilingual, in Hindi and English, but it would be in some other language if a candidate has chosen a language other than English or Hindi.
The answer sheets have to be in the language chosen by the candidate in the application form. It is well settled that if a particular procedure in filling up the application form is prescribed, the application form should be filled up following that procedure alone. This was enunciated by Privy Council in the NAZIR AHMAD VERSUS KING EMPEROR (NO. 2) [1936 (6) TMI 11 - PRIVY COUNCIL], wherein it was held that that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
Similarly, this Court in MUNICIPAL CORPORATION OF GREATER MUMBAI (MCGM) VERSUS ABHILASH LAL & ORS. [2019 (11) TMI 844 - SUPREME COURT] and OPTO CIRCUIT INDIA LTD. VERSUS AXIS BANK & OTHERS [2021 (2) TMI 117 - SUPREME COURT] has followed the said principle. Since the advertisement contemplated the manner of filling up of the application form and also the attempting of the answer sheets, it has to be done in the manner so prescribed. Therefore, the reasoning given by the Division Bench of the High Court that on account of lapse of time, the writ petitioner might have attempted the answer sheet in a different language is not justified as the use of different language itself disentitles the writ petitioner from any indulgence in exercise of the power of judicial review.
Since the writ petitioner has used different language for filling up of the application form and the OMR answer book, therefore, his candidature was rightly rejected by the appellants.
The order passed by the High Court cannot be sustained in law, the same is set aside. The writ petition is dismissed.
-
2022 (7) TMI 1382
TP Adjustment - comparable selection - SDS segment - exclude Bhilwara Infotechnology Ltd. From the final set of comparables for software development services segment - HELD THAT:- CIT(A) holds that this company earns its entire revenue from software and its related segment from the domestic market. The extract of the annual report clearly specifies that “Software Development Services (SDS) segment is 100% domestic. Therefore, this company was rightly removed as a comparable in the software development service segment by the ld. CIT(A). Ground No. 2 of the Revenue’s appeal is dismissed.
Inclusion of Aspire Systems (India) Pvt. Ltd. in the final set of comparables for software development services segment - CIT(A) has directed exclusion of this company - As in view of the judgment of Hon’ble Jurisdictional High Court in the case of PCIT Vs. J.P. Morgaon India (P) Ltd. [2019 (1) TMI 1274 - BOMBAY HIGH COURT] this company was excluded from the final list of comparable companies. Considering the totality of the facts and circumstances, the finding of the ld. CIT(A) does not call for any interference and the same is upheld.
IT Enabled Services segment - Revenue wants exclusion of Jindal Intellicom Ltd., from the final set of comparables in IT Enabled Services segment - We find that the view taken by the learned T.P.O is taken to reject this company from the list of comparable due to foreign exchange less than 75%. In the case of this company, its export turnover ratio is 70.80% and it cannot be said that there is only a minor deviation from the percentage of filter of 75% as applied by the ld. T.P.O. Therefore, in the given facts and circumstances the reliance placed by the assessee on the decision of Mercer Consulting [2016 (8) TMI 1163 - PUNJAB AND HARYANA HIGH COURT] is misplaced. Even going by spirit by the aforesaid decision what is minor deviation and what is major deviation, it all depends on the facts of each case. In our considered view in this case, failure regarding export filter at 70.8% instead of 75% is not a minor deviation. Therefore, we uphold the order of the T.P.O directing rejection of this company as comparable. Ground No. 4 of the Revenue is allowed.
Excluding MPS Ltd. from the final set of comparables for ITes segment - MPS Limited is functionally different from that of the assessee company in more-so that high end activities of MPS Ltd is akin to IT services and not ITes - we direct the AO/TPO to exclude MPS Limited from final list of comparable companies.
M/s. Domex E-Data Pvt. Ltd., CES Ltd. and Manipal Digital Systems Pvt. Ltd. deselected from the final set of comparables as dissimilar with regard to ITes segment
Exclusion of One Touch Solutions (India) Pvt. Ltd.- It has been analysed by the ld. CIT(A) that this company is into ITES activity and therefore, it is included as comparable in the final set of comparables. Taking the totality of the facts and circumstances and the functional spectrum of the assessee, we are in conformity with the view taken by the ld. CIT(A) and we uphold the inclusion of this company in the final set of comparables in respect of the assessee.
-
2022 (7) TMI 1381
Addition u/s 68 - cash deposits made during demonetization period in all the bank accounts - HELD THAT:- It is an undisputed fact accepted by both the AO and the CIT(A) that the cash receipts are nothing but sale proceeds in the business of the assessee.
The addition is made for the deposit of SBN during demonetization period on the ground that the cash sales is inflated by the assessee. The amount of sales which is not disputed is already offered to tax by the assessee by reflecting the same in the trading / P&L Account. This fact is not doubted by the lower authorities. In that case, if the cash deposits are added under section 68 of the Act, then it would result in taxing the impugned amount twice, once as a sales income and secondly as an addition under section 68 - As in the case of PCIT Vs. Singhal Exim Pvt. Ltd. [2021 (2) TMI 1061 - DELHI HIGH COURT] on similar issue took the view that the addition under section 68 of the Act is contradictory to the stand taken while accepting the business income and that the amount in question have already been charged to the income of the assessee, cannot be taxed again under section 68 of the Act.
Also in the case of CIT Vs. Devi Prasad Viswanath Prasad [1968 (8) TMI 5 - SUPREME COURT] on the issue of additions under section 68 held that “It is for the assessee to prove that even if the cash receipts represents income, it is income from a source, which has already been taxed.” Applying this ratio, in our view, the assessee has discharged the onus by offering the sales for taxation and therefore the same income cannot be taxed again - addition made under section 68 of the Act cannot be sustained and is therefore deleted. This ground is allowed in favour of the assessee.
Addition made u/s 69C - deduction towards housing loan interest - AO concluded that there is no source for the repayment of housing loan for the assessee and hence treated an amount which the AO arrived at from the housing loan statement as unexplained expenditure u/s 69C - Addition upheld by the CIT(A) on the ground that majority of the loan is repaid in cash and the genuineness of the funds used for repayment has not been proved by the assessee - HELD THAT:- From the perusal of the cash book, it is also noticed that the assessee is having sufficient cash balance generated out of cash sales as on the date of repayment of the loan. In view of the above discussion of facts, we are of the considered view that the assessee is having sufficient source explaining the repayment of housing loan and therefore delete the addition made under section 69C of the Act as unexplained expenditure. This ground of the assessee is allowed.
-
2022 (7) TMI 1380
TCS u/s 206C(1) - default for not collecting tax at source on sale of scrap - assessee had not submitted Form 27C comprising of the buyer's declaration to the Commissioner of Income-tax in time - HELD THAT:- As perused the material on record in the case of Siyaram Metal Udyog (P.) Ltd. 2018 (5) TMI 1093 - GUJARAT HIGH COURT] AO made addition on the ground that the assessee had breached section 206C of the Income-tax Act, 1961 in case of sale of scrap and that the assessee had not submitted Form 27C comprising of the buyer's declaration to the Commissioner of Income-tax in time. The Tribunal held that there is no dispute about the fact that the assessee has belatedly submitted relevant Form No. 27C collected from its buyers. The same were placed on record before the Assessing Officer itself who declined to accept the same in view of delay in submission thereof. There is no issue qua genuineness of these Forms. Thus, the Gujarat High Court held that addition with the aid of section 206C could not be made.
In the case of CIT vs. Chhaganbhai K Sanghani [2018 (5) TMI 1093 - GUJARAT HIGH COURT] held that where in case of assessee, a dealer in scrap, AO levied interest and tax in terms of section 206C(7) on account of non-collection of tax source, in view of fact that asssessee had submitted certificates provided by buyers under sub-section (1A) if section 206C before appellate authorities, impugned order passed by A.O. was to be set aside
Further, in the case of Chandmal Sancheti [2016 (8) TMI 952 - ITAT JAIPUR] held that no time limit is provided in section 206C(1A) to make a declaration in Form 27 collected from buyers; hence delay in filing declaration shall not be ground to deny benefit of declaration to assessee. In light of the above judicial precedents on the subject, in the interests of justice, we are restoring the matter to the file of the Ld. Assessing Officer to decide the issue de novo after giving due opportunity of hearing to the assessee to present his case on merits. Appeal of the assessee is allowed for statistical purposes.
-
2022 (7) TMI 1379
Deduction u/s.80P(2)(a)(i) - interest income from the Associated Members - HELD THAT:- As per decision of The Principal Commissioner of Income Tax, Salem Vs. M/s.S-1308, Ammapet Primary Agricultural Co-operative Bank Ltd [2019 (1) TMI 116 - MADRAS HIGH COURT] and in the decision of the Hon’ble Supreme Court in the case of Mavilayi Service Co-operative Bank Limited vs. Commissioner of Income Tax, Calicut [2021 (1) TMI 488 - SUPREME COURT]
Respectfully following the same, we direct the AO to allow the claim of deduction u/s.80P(2)(a)(i) of the Act on the interest income from the Associated Members. Thus, this issue in the Assessee’s appeal is allowed.
Interest as deduction u/s.80P(2)(a)(i) in regard to the interest income earned from deposits made with the Cooperative Bank - whether the interest earned by the Assessee is from the Co-operative Bank which is governed and registered under the Tamilnadu Co-operative Societies Act, 1983 or as to whether it is governed by the Reserve Bank of India holding banking license under the Banking Regulations Act, 1949? - HELD THAT:-This fact is not coming out of the order of the AO or of the CIT (Appeals). Hence, this issue is remanded back to the file of the Assessing Officer who will verify as to whether the Assessee has earned interest from the Co-operative Banks governed by the Reserve Bank of India holding banking license under the Banking Regulations Act, 1949 or as to whether it is governed by the Tamilnadu Co-operative Societies Act, 1983, the Assessing Officer will verify the facts and will decide accordingly. Thus, the appeal of the Assessee is partly allowed as indicated above.
-
2022 (7) TMI 1378
Assessment u/s 153A - Whether no incriminating material was found during the course of search? - HELD THAT:- No material found during search pertaining to M/s KGN Industries Ltd. has been placed on record. The Revenue has not placed on record any incriminating material which was found as a result of the search conducted on the assesee herein. It is also the contention of the assessee that there was no surrender by her unlike Sh. Madho Gopal Agarwal and she, therefore, specifically disputed that any notice under Section 153A of the Act could have been initiated against her. The said facts are not disputed by the counsel for the Revenue.
On the date of search, admittedly, the assessment with respect to the AY under consideration 2011-12 admittedly stood completed. Since no assessment was pending for the relevant AY 2011-12 on the date of search and no incriminating material was found during the course of search, the issue is covered in favour of the assessee by the judgment of this Court in the case of Commissioner of Income Tax v. Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT] and Principal CIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] - No substantial questions of law.
-
2022 (7) TMI 1377
TP Adjustment - comparable selection - HELD THAT:- Assessee has been characterised to be a limited risk distributor and the captive service provider in respect of Business support service segment, thus companies functionally dissimilar with that of assessee need to be deselected.
Addition of AMP expenses - international transaction - HELD THAT:- Directing the Ld.AO to delete the adjustment made on account of AMP expenses by treating it as separate international transaction.
Incorrect computation of margin - HELD THAT:- We direct the Ld.TPO to verify the correct margins of the comparables while computing the operating margin used for determining the ALP. Assessee is directed to furnish relevant information in support of the same.
Working Capital Adjustment not granted while computing the margins - HELD THAT:- DRP may be correct in denying working adjustment due to unavailability required data, however there is no merit in observations of DRP/TPO as supported by CIR DR, in denying working capital adjustment due to absence of details for working out adjustments in comparable companies chosen. If we appreciate the argument advanced by Ld.CIT.DR, there would remain no comparables for the purpose of comparability analysis to determine ALP of an international transaction, and this would be fatal to entire exercise of transfer pricing analysis.
Regarding comparable companies, one has to fall back upon only on information available in public domain. If that information is insufficient, it is beyond the power of the assessee to produce correct information about comparable companies. Revenue on the other hand has sufficient powers u/s.133(6) to compel production of required details from comparable companies. If this power is not exercised to find to get information required, then it is no defense to say that Assessee has not furnished required details to deny any adjustment on account of working capital differences. Therefore this objection of DRP is not sustainable. Therefore in, endeavor should be made to bring in comparable companies for the purpose of broad comparison and working capital adjustment claimed by Assessee should be analysed, keeping in mind, OECD guidelines.
Based on the above discussions, and respectfully following decision of coordinate Bench of this Tribunal in the case of Huawei Technologies India (P.) Ltd. [2018 (10) TMI 1796 - ITAT BANGALORE] we direct working capital adjustment to be computed and to allow as per actual, after considering exclusion/inclusion of comparable companies in the final set of comparables as discussed hereinabove.
Ground raised by assessee stands allowed.
-
2022 (7) TMI 1376
Disallowance of interest on TDS payments - allowable as deduction u/s 37(1) - HELD THAT:- Co-ordinate Bench of ITAT Bangalore in the case of Jindal Aluminimum Limited [2021 (8) TMI 1181 - ITAT BANGALORE] having similar facts where interest on TDS is held as ineligible business expenditure.
Hence, we have no hesitation to hold that interest payment on late payment of TDS is not eligible business expenditure for deduction and it is not compensatory in nature. Payment of interest on late deposit of TDS levied u/s 201(1A) is neither an expenditure only and exclusively incurred for the purpose of the business and therefore the same is not allowable as deduction u/s 37(1) of the Act. Disallowance made by the AO is hereby confirmed. The ground of appeal is dismissed.
Travelling & Conveyance expenses and depreciation on vehicles & insurance expenses - The expenses claimed consist of small/petty cash amounts and self made vouchers are not fully verifiable and the personal element of expenses by use of vehicles by directors and staff members cannot be ruled out - HELD THAT:- AO has made adhoc disallowance of Rs.1,00,000/- by stating that vouchers of expenses are not fully verifiable and the personal elements of expenses by use of vehicles by Directors and staff members cannot be ruled out. In the appellate proceedings the assessee has not produced any evidences to rebut the finding of the AO. The expenses are incurred in cash which are not fully verifiable and probability of personal nature in these expenses cannot be ruled out. A.O. has made a reasonable disallowance by the appellant. Disallowance made by the AO is hereby confirmed. Hence, the ground of appeal is dismissed.
-
2022 (7) TMI 1375
Income deemed to accrue or arise in India - royalty income received in India as taxable u/s 5(2) of the Act and alternatively taxable as Royalty Income under Section 9(1)(i) of the Act and Article 12(3) of the India-USA DTAA as well - Business profit attributable to the PE of the assessee in India - Royalty received by the assessee from Warner Bros Picture India Ltd in pursuance to the agreement for distribution and exhibition of the films in India - HELD THAT:- As it is an admitted position that issue stood squarely covered in assessee’s favour by the lead decision of this Tribunal in assessee’s own case for the A.Y. 2006-07[2011 (12) TMI 195 - ITAT MUMBAI] wherein it is held As rightly held by the CIT (A) even if income arises to the Non-Resident due to the business connection in India, the income accruing or arising out of such business connection can only be taxed to the extent of the activities attributed to permanent establishment. In this case, the assessee does not have any permanent establishment in India. Since the Indian company who obtained the rights is acting independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industries Ltd vs. Director of Income Tax [2007 (1) TMI 91 - SUPREME COURT] that incomes arising to a Non-Resident cannot be taxed as business income in India, without a PE. As the assessee does not have any permanent establishment in India, the incomes arising outside Indian Territories cannot be brought to tax. Therefore, there is no need to differ from the findings of the CIT (A) and accordingly the Revenue Appeal is dismissed.
-
2022 (7) TMI 1374
Order of acquittal passed on a scrutiny of evidence before it by the District and Sessions Judge, got overturned by the impugned judgment of the Division Bench of the High Court of Delhi - existence of motive along with the recovery made under Section 27 of the Indian Evidence Act - HELD THAT:- Having accepted the views of the trial Court holding that the last seen theory has not been proved, a conviction cannot be rendered on the basis of evidence, which was rejected qua motive, through the mouth of PW2. The trial Court gave its reasons for rejecting the evidence of PW2. It had the advantage of seeing and assessing the demeanor of this witness, which the High Court did not have. PW2 has stated that there was a money transaction which led to a dispute between the accused and the deceased and that he had assured the appellant that it would be repaid. This also occurred few days before the date of occurrence. When we deal with a case of circumstantial evidence, as aforesaid, motive assumes significance. Though, the motive may pale into insignificance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence.
There is no sufficient link to come to the irresistible conclusion pointing the guilt only to the appellant.
Much reliance has been made on the recoveries made. When the observation Mahazar was prepared along with the sketch and the inquest conducted, admittedly, scores of persons were present. No independent witness was made to sign and the evidence on behalf of the prosecution that they did not volunteer to do so, cannot be accepted. A witness may not come forward to adduce evidence at times when asked to act as an eyewitness. However, when a large number of persons were available near the dead body, it is incomprehensible as to how all of them refused to sign the documents prepared by the police - the trial Court rightly doubted the recovery under Section 27 of the Act. There was no need to take PW2 and thereafter make him to sign. There are a lot of contradictions in the evidence rendered. PW2 has stated that many persons were available at the time of the recovery, but no statement has been obtained from any of them. PW11, the Head Constable says that the Investigating Officer PW14, did not ask any neighbor to join the investigation. PW8, who is the Sub-Inspector of Police has deposed that none was forthcoming. A similar statement was also made by the Investigating Officer.
The report of the Ballistic Expert is obviously a scientific evidence in the nature of an opinion. It is required to use this evidence along with the other substantive piece of evidence available. The report is inconclusive with respect to the firearm belonging to the appellant being used for committing the offence - there are no perversity in it and the law presumes double presumption in favour of the accused after a due adjudication by the trial Court.
Appeal allowed.
-
2022 (7) TMI 1373
Proceedings under section 147 r.w.s 143(3) - Assessee submits at the outset that he neither wishes to press for his cross-objection nor his main cross appeal anymore subject to the condition that he is granted liberty to raise all factual as well as legal issues in the departmental appeal hereinabove in light of Peter Vaz [2021 (4) TMI 605 - BOMBAY HIGH COURT]
The Revenue is equally fair in not opposing the assessee's forging withdrawal subject to all just exceptions. Faced with this situation, we dismiss the assessee's above Cross Objection.
-
2022 (7) TMI 1372
TP Adjustment - comparable selection - HELD THAT:- As relying on ZYNGA GAME NETWORK INDIA PVT. LTD [2021 (4) TMI 208 - ITAT BANGALORE] we direct Ld. AO/TPO to exclude Tata Elxi Ltd (Seg.), Mindtree Ltd., Larsen and Toubro Infotech Ltd., RS Software (India) Ltd., Persistent Systems Ltd., Nihilent Technologies Ltd., Infosys Ltd., Cybage software Pvt.Ltd. for having high turnover as compared to a captive service provider like assessee. Accordingly, we direct the Ld.AO to exclude the above comparables from the final list.
Batchmaster Software Pvt. Ltd. and DCIS DOT COM Solutions India Pvt. Ltd. - As submitted by the Ld.AR that in respect of the above three comparables, the Ld.TPO has not considered the functions performed and has cherry picked the comparables without going through the actual functions and annual reports. We are therefore directing these comparables to be reconsidered by the Ld.AO/TPO based on the annual reports.
TPO shall consider these comparables after verifying the FAR of these comparables with that of assessee. Accordingly, Batchmaster Software Pvt. Ltd., DCIS DOT COM Solutions India Pvt. Ltd. and Evoke Technologies Ltd. for denovo consideration to Ld.AO/TPO.
Sagarsoft (India) Ltd and Akshay Software Technologies Ltd - We note that above two comparables has not been verified by the Ld.AO/TPO in detail. We are therefore remanding these comparables also to the Ld.AO/TPO for a denovo verification.
Working Capital Adjustment - This Bench referred to decision of Special Bench of this Tribunal in case of Instrumentation Corpn. Ltd. [2016 (7) TMI 760 - ITAT KOLKATA] held that outstanding sum of invoices is akin to loan advanced by assessee to foreign AE., hence it is an international transaction as per explanation to section 92 B of the Act. Alternatively, it also argued that in TNMM, working capital adjustment subsumes sundry creditors. In such situation computing interest on outstanding receivables as loans and advances to associated enterprise would amount to double taxation.
As relying on ORANGE BUSINESS SERVICES INDIA SOLUTIONS PVT. LTD. [2018 (2) TMI 1151 - ITAT DELHI]e deem it appropriate to set aside this issue to Ld.AO/TPO for deciding it in conformity with the above referred judgment. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in accordance with law.
Foreign exchange loss treated by the Ld.TPO as operating in nature both in the hands of the assessee as well as comparables - HELD THAT:- As submitted by the Ld.AR that the foreign exchange losses did not arise out of the revenue transactions and the assessee who were due to the yearend restatement advance received from the AE. As we are remanding the issue of notional interest computed by the Ld.TPO for denovo verification, this ground also deserves to be reverified along with Ground nos. 7 – 9. Both these issues are inter related to each other.
-
2022 (7) TMI 1371
Principles of natural justice - refusal of grant of time for filing reply on the first date of hearing - whether a Corporate Debtor can pray for time for filing the reply on the first date of hearing? - HELD THAT:- Even though Rules are silent on whether a Corporate Debtor can pray for time for filing the reply on the first date of hearing, the Court has to adopt a procedure with the consonance of principles of natural justice. The order passed by Adjudicating Authority on the first date of hearing, rejecting the request of the Appellant to grant some time to file reply, is in violation of the principles of natural justice and deserves to be set-aside. Order of Adjudicating Authority admitting the Application has serious consequences, hence, the Tribunal ought to have given opportunity to the Corporate Debtor to file a reply.
The procedure, which is to be adopted by the Tribunal has to be in consonance with the rules of natural justice and equity as required by the rules itself. Unless, it is held that due to non-filing of the reply before the date of hearing by the Corporate Debtor, the Adjudicating Authority is obliged to decide the application under Section 7, the Adjudicating Authority has ample jurisdiction to consider any request for reasonable time by a Corporate Debtor for filing a reply. The Tribunal is fully entitle to grant time for filing a reply asked for by the Corporate Debtor on the first date of hearing. Rejecting the request of the Corporate Debtor on the very first day for grant of time to file a reply, cannot be said to be in consonance with the principles of natural justice. There can be no dispute that in appropriate case, if the Adjudicating Authority is satisfied that the Corporate Debtor is deliberately delaying the matter, the request for grant of any further time to file a reply can be refused - But present is not a case where it can be said that Corporate Debtor was delaying the disposal of the case, since 29.03.2022 was the first date of hearing as indicated in the notice served on the Corporate Debtor on 07.03.2022.
Whether fourteen days’ time prescribed for the Adjudicating Authority to pass the order is ‘directory’ or ‘mandatory’? - HELD THAT:- The Appellate Tribunal has held the said provision as ‘directory’. However, Appellate Tribunal held proviso to sub-section (5) of Section 7 or proviso to sub-section (5) of Section 9 and Section 10 (4) to remove the defect within seven days as mandatory, and on failure, application is fit to be rejected - Adjudicating Authority did not grant reasonable opportunity to the Corporate Debtor to file its reply as is envisaged by Rule 37 of the NCLT Rules and rejecting the request of the Corporate Debtor for time to file reply on the very first day of hearing is denial of principles of natural justice. We, thus, are of the view that order impugned cannot be sustained.
Appellant – Corporate Debtor should be allowed time to file a reply, so as to obviate any further delay in proceedings before the Adjudicating Authority. We, thus, allow two weeks’ time to the Appellant to file a reply before the Adjudicating Authority. The Financial Creditor shall also be entitled to file its rejoinder within two weeks thereafter, if so advised.
Appeal allowed.
............
|
9911796707
