|
Advanced Search Options
Case Laws
Showing 261 to 280 of 1687 Records
-
2023 (9) TMI 1427
Disallowance u/s 14A r.w.r. 8D - interest expenditure debited against the non-tonnage income - assessee has suo-moto made disallowance - when the income of assessee is taxed under the Tonnage tax Scheme whether there can be any disallowance u/s 14A of the Act despite assessee earning exempt income such as Dividend? - HELD THAT:- We find that identical issue arose in case of varun Shipping Limited [2011 (11) TMI 370 - ITAT MUMBAI] to hold that where the income of the assessee is assessed under Tonnage tax Scheme , no disallowance u/s 14A can be made. Therefore, AO and DRP are incorrect in apportioning interest expenditure and other expenditure, which are part of computation of tonnage tax computation of Total income.
AO and the learned DRP have considered the total interest expenditure of the Appellant Company aggregating Rs.153.64 crores, which includes the interest expenditure of the tonnage tax business of the Appellant of Rs.145.88 crores for computing the disallowance under Rule 8D(2)(ii), same is not correct.
Grounds of appeal concerning disallowance u/s 14 A rwr 8 D while computing normal computation of income to the file of the ld AO, assessee is directed to submit revised computation before ld Ao, The ld AO may examine the same and following our above directions and finding recompute the disallowance by :-
i. No disallowance of expense or interest should be made out of tonnage tax income computation
ii. As there is no interest expenditure liable for a disallowance as the own funds consisting of the share capital and reserves, are far more than the aggregate value of investments held by the company. No Interest disallowance should be made.
iii. The administrative expenses cannot exceed the actual expenditure incurred.
iv. Those investments on which no exempt dividend income was received by the Appellant during the year are to be excluded while computing the disallowance under Rule 8D(2)(iii).
Disallowance u/s. 14A while computing the book profit u/s. 115JB - This issue now stands covered in the favour of the assessee by the decision of the Tribunal in assessee’s own case in the earlier years whereas the Tribunal has followed the decision of the Special Bench in the case of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] wherein it was held that the computation under clause (f) of Explanation 1 to Section 115JB(2) is to be made without resorting to the computation as contemplated under Section 14A read with Rule 8D of the Income-tax Rules, 1962. Also in JSW ENERGY LTD. [2015 (5) TMI 823 - BOMBAY HIGH COURT] has also held that such adjustment is not permitted. Therefore adjustment to the book profit as computed u/s 115 JB of the act and further increasing it by disallowance computed u/s 14A rwr 8D is not warranted.
Taxation of the long-term capital gain at the rate of 20% as against the current rate of 10% while passing the assessment order u/s 143 (3) read with section 144C (13) - On hearing the parties, we find that the learned assessing officer should have charged the correct rate of tax on the long-term capital gain. The learned assessing officer is directed to do so. Ground of the appeal of the assessee is allowed.
Non granting tax credit while framing the assessment order - On hearing the parties, we direct the learned assessing officer to grant tax credit to the assessee of the above amount after proper verification. If the learned assessing officer finds that assessee is not entitled to any tax credit, he must give an opportunity to the assessee to explain the same and thereafter decide the issue.
TP Adjustment - arm’s-length price computation of the financial guarantee issued by the assessee - HELD THAT:- It is necessary to benchmark the international transaction by adopting the most appropriate method and also by showing comparable/comparability analysis.
For this assessment year, we find that the learned TPO and the learned DRP has repeated their own orders of earlier years i.e. assessment year 2008 – 09. Therefore, both these orders/directions are not in accordance with the transfer pricing provisions as they do not determine the arm’s-length price of the international transaction in accordance with the provisions of section 92C (3) of the act. Therefore, we disapprove both the above orders and directions.
Coming to the benchmarking analysis adopted by the assessee, we noted that assessee has made a suo moto adjustment considering 0.55% as arm’s-length price of the international transaction, despite the fact that, assessee has not charged any guarantee fees from its associated enterprises. For the purpose of benchmarking, the assessee adopted the comparable uncontrolled price method and considered the average corporate guarantee charges charged by the bankers to the assessee which is 0.56%. On that basis, the assessee has benchmarked these corporate guarantees at the rate of 0.55%.
Therefore, there was no dispute with the method i.e. CUP method as well as the comparables selected as average corporate guarantee charges charged by the bankers. As average corporate guarantee charged by the bankers on the assessee is 0 .56%, is compared with the corporate guarantee issued by the assessee to the bankers on behalf of its associated enterprises, in any way cannot exceed 0.56%. Therefore, the adjustment made by the assessee is at maximum. Therefore, even otherwise, when the assessee has offered the income being adjustment of ALP of international transaction more than what it could have been in a worst-case scenario, no further adjustment can be made. Therefore, for this solitary reason we do not find that the method adopted by the assessee is improper and further for comparison, the assessee has selected maximum what could have been charged as corporate guarantee fees.
ALP determination of performance guarantee issued by the assessee - HELD THAT:- As the international transaction is required to be benchmarked for each financial/assessment year, we are of the view that the issue of performance guarantee which is a financial guarantee with risk mitigation, should also be benchmarked as it involves financial risk on the assessee.
However, we are also conscious of the fact that assessee has made us you a Moto adjustment with respect to the financial guarantee of 0.55% of the outstanding guarantees. These performance guarantees in the nature of financial guarantees needs to be benchmarked, which can be remunerated at less than that rate. As in the case of financial guarantees without any security, the assessee has offered SUO Moto disallowance of 0.55% as guarantee. In addition, here the assessee has adequate security and therefore the benchmarking of this performance guarantee needs to be substantially lower than pure financial guarantees. Thus the rates adopted by the learned TPO and the learned dispute resolution panel are not at all relevant and are exorbitant high without any basis. Therefore, those rates are already rejected by us.
Non-taxability of bad debts written back and an insurance claim received during the year but pertaining to the years prior to the tonnage tax scheme applicability to the assessee directed by the learned dispute resolution panel to be not taxable - HELD THAT:- We find that the logic and reason given by the learned assessing officer for separately taxing the above income is unjustified in view of the fact that had there been a bad debt arising out of the sale made by the assessee prior to the tonnage tax regime would have been allowed to the assessee as a deduction separately or not. Clear-cut answer is no. Therefore similarly, the bad debts of earlier if written back during the year cannot also be taxed when the income of the assessee is required to be computed under the tonnage tax scheme.
As claimed by assessee, issue is covered in favour of assessee by earlier decision; however, we decide this issue based on clear provision of law itself. Accordingly we do not find any infirmity in the direction of the learned dispute resolution panel directing the AO to not to include the bad debts written back and insurance claim received separately as income of the assessee. Accordingly, ground number 1 and 2 of the appeal of the AO are dismissed.
Direction of DRP of not taxing the forfeiture of the warrants u/s 41 (1) - HELD THAT:- The fact shows that assessee Company had on August 09, 2007, allotted 50,05,000 convertible warrants to certain Promoters and Non Executive Directors, pursuant to the resolution passed by the shareholders at their meeting held on July 26, 2007, at a price of Rs. 312.75 per share. Each warrant was convertible into one Equity Share of the face value of Rs. 10/-, at the option of the warrant holders, at any time prior to expiry of 18 months from the date of allotment of the warrants. Out of the 50,05,000 warrants, 10,000 warrants were converted into Equity Shares. Due to the unfavorable market conditions, which did not justify conversion of warrants, the balance 49,95,000 warrants were not converted. Accordingly the said warrants stood cancelled and the amount being the amount received upfront from the warrant holders @ Rs. 32/- has been forfeited and credited to capital reserve. The issue is squarely covered in favour of the assessee by the decision of the honourable Supreme Court in case of CIT versus Mahindra and Mahindra Ltd [2018 (5) TMI 358 - SUPREME COURT].Thus, we do not find any infirmity in the direction of the learned dispute resolution panel. Accordingly, ground number 3 of the appeal of the learned AO is dismissed.
-
2023 (9) TMI 1426
Classification of service - Commercial or Industrial Construction Service or not - contract with M/s. Indian Oil Corporation Ltd., for construction of Dykes, Internal Roads and other civil miscellaneous works at the marketing terminals - period from July 2006 to March 2007 - HELD THAT:- This very Bench in the assessee’s own case in Final Order No. 41989 of 2017 dated 07.09.2017 had occasion to analyse an identical issue, wherein, this Bench having observed thus After hearing both sides we find that the period involved in the case is from September 2004 to June 2006. That the issue being a works contract whether subject to service tax prior to 1.6.2007 has been settled by the judgment of the Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. We also note that the coordinate Bench in the case of M/S C.C.L. PRODUCTS (INDIA) LTD. VERSUS THE COMMISSIONER. C.C. E&ST, GUNTUR [2016 (10) TMI 832 - CESTAT HYDERABAD], in a similar matter had set aside the demand relying upon the judgment of the Hon’ble Supreme Court on identical set of facts.
There are no change in the facts nor has the Revenue made out any case to suggest that the service rendered by the appellant was not under works contract and hence, there are no justifiable reasons to deviate from the view expressed by this Bench in the appellant’s own case for a different period.
There is no liability to pay tax under “Commercial or Industrial Construction Service” during the period under dispute which is prior to 01.06.2007, for which reason the impugned order deserves to be set aside - The appeal stands allowed.
-
2023 (9) TMI 1425
Jurisdiction - power to issue SCN - HELD THAT:- As and by way of ad-interim relief, the impugned Order dated 23rd February, 2023 is stayed, however, liberty to the Respondents to make an application for vacating the said order in the event the Respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT].
-
2023 (9) TMI 1424
Issues Involved:
The judgment involves the cancellation of anticipatory bail granted to the petitioner by the learned Additional Sessions Judge, Patiala House Court, New Delhi.
Details of the Judgment:
Issue 1: Anticipatory Bail Cancellation
In the present petition, the petitioner challenges the order dated 29th August, 2023, which revoked the anticipatory bail granted to the petitioner on 21st December, 2022. The High Court has issued notice on the matter, and the counsel for the respondent has accepted the notice. A Status Report is to be filed, and the case is listed for hearing on 21st September, 2023. The High Court has directed that no coercive action shall be taken against the petitioner until the next hearing, provided the petitioner cooperates with the investigation as directed by the Investigation Officer.
This judgment addresses the crucial issue of the cancellation of anticipatory bail and sets out the timeline and conditions for further proceedings, ensuring that the petitioner's rights are protected during the investigation process.
-
2023 (9) TMI 1423
Bogus LTCG - exemption u/s 10(38) - HELD THAT:- This Court is of the view that the following substantial questions of law require consideration:
I) Whether the learned Tribunal has rightly accepted the claim of the assessee as per law regarding exemption under Section 10(38) with respect to alleged income under the head “Long Term Capital Gain” on sale of shares of penny stock by ignoring the admission by their group before the Income Tax Authority that complete tax would be paid on the bogus LTCG claimed by the group subsequent to survey operation under Section 133 A ?
II) Whether the learned Tribunal has rightly dismissed the appeal of the revenue with the observation that as the sale of shares were effected through recognized stock exchange and STT had been paid at the time of transfer, therefore it cannot be held as bogus?
List this matter on 9th October, 2023 for final hearing.
-
2023 (9) TMI 1422
Exemption u/s 11 - application of assessee for final registration u/s 12AA/12A(1)(ac)(iii) rejected - HELD THAT:- We find that only a single opportunity has given by the ld. CIT(E) to the assessee to present its case. The time period of issue of notice/letter and the date of fixing of hearing was very short. The proper opportunity in this case has not been granted by the ld. CIT(E) to the assessee. In view of this, the impugned order of the CIT(E) is set aside and the matter is restored to the file of the CIT(E) for decision afresh on the application of assessee for final registration u/s 12AA/12A(1)(ac)(iii) of the Act.
Final registration u/s 80G - Application for final registration was to be filed within six months from the commencement of its activities - final registration denied as delay on the part of the assessee in filing application in the prescribed form for grant of final registration under Clause (iii) of 1st Proviso to section 80G(5) - HELD THAT:- The assessee was granted provisional approval on 30.11.2022 only, and within a few days i.e. on 03.12.2022, the assessee applied for final registration u/s Clause (iii) of 1st Proviso to section 80G(5) of the Act. Though the assessee might have commenced its activities prior to grant of provisional registration but that does not mean that the assessee in that event will be precluded from applying for final registration even after the grant of provisional registration. The assessee as per statutory provision could not have directly applied for final registration without grant of provisional registration. The aforesaid proviso, therefore, is to be read as that after the grant of provisional registration, if the assessee has not commenced its activities, he may apply for registration within six months of the commencement of its activities or within the six months prior to the expiry of the period of provisional approval, whichever is earlier.
In any case, the assessee is eligible to apply for final registration only after the grant of provisional approval. Therefore, we hold that there is no delay on the part of the assessee in filing application in the prescribed form for grant of final registration under Clause (iii) of 1st Proviso to section 80G(5) of the Act. However, since we have restored the matter to the ld. CIT(E) for decision afresh on merits on the application for final registration u/s 12A of the Act and since the registration u/s 80G(5) is dependent upon the registration u/s 12A of the Act, therefore, the application of the assessee for registration u/s 80G(5) is also restored to the ld. CIT(E) subject to the observations made above.
Both the appeals of the assessee are treated as allowed for statistical purposes.
-
2023 (9) TMI 1421
Rejection of application for transfer of the proceeding to the Ahmedabad Bench of the same Tribunal - HELD THAT:- The matter has reached final stage of hearing in the Tribunal at Hyderabad. That appears to be the main reason for which the Principal Bench of the Tribunal has rejected the petitioner’s transfer application. We do not find any flaw in such reasoning. In such circumstances, we decline to invoke our jurisdiction under Article 136 of the Constitution of India in the present matter.
The special leave petition is, accordingly, dismissed.
-
2023 (9) TMI 1420
Assessment u/s 153A - Addition u/s 68 - argument of the ld. A.R. that there is no seized material to sustain addition while framing u/s 153A - HELD THAT:- We are of the opinion that in case of completed assessment/unabated assessment, in absence of any incriminating material, no addition can be made by the AO and the ld. AO has no jurisdiction to reopen the completed assessment. For this proposition, we place reliance on the judgement of jurisdictional High Court in the case of Delhi International Airport Pvt. Ltd [2021 (11) TMI 928 - KARNATAKA HIGH COURT] and Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT]
Addition u/s 68 - Admittedly, in this case, there was no seized material suggesting these additions. This has been shown by assessee in its balance sheet filed by assessee before ld. AO and also it is also admitted fact that an amount of Rs. 64,72,071/- shown as opening balance as on 1.4.2008 and there was increase of Rs. 39,85,184/- in capital account of the assessee. The contention of the ld. D.R. is that this income has been received by the assessee in the assessment year under consideration and same to be taxed. In our opinion, opening capital account balance as on 1.4.2008 cannot be taxed in the assessment year under consideration though it was received in the assessment year under consideration as the TDS for the same has been made in the earlier assessment year, which shows the amount accrued in earlier assessment years.
Regarding the balance amount of Rs. 39,85,184/-, in our opinion, since the assessee has admitted that he is not able to explain the year in which it was received or accrued and voluntarily offered as income in the assessment year 2009-10, being so, we have no hesitation in sustaining this addition of Rs. 39,85,184/-.
Addition of payment of consultancy charges - invoices provided by the assessee do not indicate the nature of services availed - assessee claimed expenditure as hewants to develop a big residential project by entering into Joint Development Agreement with Manyata Developers in the area Seegehalli and in order to develop a detailed project report and mobilise the funds from various financial institutions, assessee incurred this expenditure and the TDS also made on this expenditure. However, the AO doubted availing the services and payment for those services - HELD THAT:- AO has not carried out any enquiry in this regard. When he disbelieved the contention of the assessee, the burden cast upon the AO to carry out necessary enquiry to suggest that the claim of expenditure by assessee is bogus. The rejection of this expenditure as not incurred by assessee is only on surmises and conjectures, which cannot be upheld. More so, there was no material in the hands of AO to suggest that this expenditure is of bogus nature. Hence, we are not in a position to uphold the orders of the lower authorities. Accordingly, we reverse the order of the lower authorities and allow the ground of assessee.
Deduction u/s 36(1)(iii) - assessee explained that the said claim was made as the borrowed funds were used for the purpose of business - AO noticed that the assessee has given huge advances to sister concerns and related parties and the assessee has not explained the need for borrowed funds and held that assessee is not entitled for deduction u/s 36(1)(iii) - HELD THAT:- As assessee has used the money borrowed for acquisition of property at Singapore. However, there was another term loan availed from Vysya Co-operative Bank on which assessee paid the interest in this assessment year under consideration. The assessee is not able to explain the purpose of borrowing that term loan.
Assessee made interest free advance to various parties, namely M/s. Embassy Services Pvt. Ltd., Manyata Developer Pvt. Ltd., Reddy Veeranna, Reddy Snehalata and Sundry advances. The assessee is not able to explain the sources to make interest free advance to these parties. Hence, it should be considered that assessee has used the borrowed funds from Vysya Co-operative Bank to advance these parties on which assessee claimed interest in its profit & loss account in the assessment yar under consideration at Rs. 34,80,353/-, which cannot be allowed u/s 36(1)(iii) of the Act, since the loan has been borrowed for the purpose of business and not satisfy the conditions laid down in section 36(1)(iii) of the Act. Accordingly, the disallowance made by the lower authorities is justified. This ground of appeal of the assessee is dismissed.
Levy of interest u/s 234A & 234B - In our opinion, this ground is consequential and mandatory in nature and is to be charged accordingly. This ground is dismissed. However, the assessee is at liberty to seek waiver before DG/CCIT, if so advised.
-
2023 (9) TMI 1419
Classification of goods - Whether specific entry no.35 of Schedule-IV do not cover the 'Argon Carbon Dioxide, Oxygen, Hydrogen, Carbon gases as "Other non metals? - HELD THAT:- It is quite apparent that gases involved in the products in question are individually covered under Entry No. 35 of Part B of Schedule IV to the RVAT Act.
Whether a combination/mixture of these gases, which are individually covered, can be ousted from the said Entry? - HELD THAT:- It cannot be emphasized enough that in indirect tax matters, long standing classification cannot be disturbed merely on personal opinion/knowledge. The revenue has to discharge its burden to prove that the change in classification is warranted and necessary by adducing cogent and corroborating evidence. Mere assertion or personal opinion, even of the Commissioner, without any supporting evidence is of no use or value. Since the revenue has not discharged its burden to show that the products in question, i.e. mixture of the gases which are individually covered under Entry No. 35 ('Industrial Inputs'), would not be covered in the broad Entry No. 35 of Part B ('Industrial Inputs') of Schedule IV to the RVAT Act, the levy of additional tax and interest cannot be sustained.
The question of law framed have to be answered in favour of the petitioner- assessee and against the respondent-revenue.
All STR allowed.
-
2023 (9) TMI 1418
Rectification u/s 254 - recall the impugned order [2022 (4) TMI 1058 - ITAT MUMBAI] dated 23.03.2022 in ITA No. 1034 & 1035/M/2010 and ITA No.2041/M/2010 to rectify the mistake apparent on record - as argued Tribunal has not considered the decision rendered in case of CIT-9 Vs. M/s. Indo American Jewellery Ltd [2013 (1) TMI 804 - BOMBAY HIGH COURT] while deciding the ground No.2 raised by the Assessee for not charging interest while extending credits to its USA-Associated Enterprises for payment of sale consideration of qua which addition has been made by AO/TPO which was required to be deleted by the Tribunal - HELD THAT:- As in the interest of justice application under consideration is being decided on merits. When the issue raised by the assessee by virtue of the ground No.2 has already been dealt with in the decision rendered by Hon’ble Bombay High Court in case of M/s. Indo American Jewellery Ltd. (supra), but the same has not been considered by the co-ordinate bench while passing the order is certainly a mistake apparent on record.
Moreover, in the connected [2022 (4) TMI 1058 - ITAT MUMBAI] ITA No.1035/M/2010, MA filed on the same ground has already been allowed vide order dated 13.04.2023. So to decide the issue once for all and to further curtail the multiplicity of litigation, order passed by the co-ordinate Bench of the Tribunal is hereby recalled to decide afresh after providing opportunity of being heard to the assessee.
-
2023 (9) TMI 1417
Liability of service tax - advertising services - HELD THAT:- It becomes pertinent to note that the engagement of the sub-contractors was solely for the purposes of discharge of its contractual obligations. The sub-contractors had not undertaken the work at the behest of the principal party which had awarded the contract to the petitioner.
The appeal fails and shall stand dismissed.
-
2023 (9) TMI 1416
Seeking release of the applicant on bail - Money Laundering - proceeds of crime - large scale financial loss bunglings - loss irregularities - misappropriation of MGNREGS funds - HELD THAT:- The aforesaid application was disposed off directing that if the applicant appear before the trial court within three weeks from the date of the order and apply for bail, the same shall be decided in view of the law laid down by the Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT].
The applicant has not availed the aforesaid remedy and he has not appeared before the trial court in spite of a non bailable warrant being in existence since prior of 11.08.2023.
The applicant is not entitled to be receive discretion of this Court by granting the him pre arrest bail - this anticipatory bail application stands rejected.
-
2023 (9) TMI 1415
Addition on account of cash deposits in bank account of HDFC Bank - unexplained investment u/s.69A - HELD THAT:- We note that the details of contra-entry/ cancelled cheques, are there in the bank statement and the AO could have examined these contra-entries suo moto while making the assessment, however the AO has failed to do so. Therefore, just to file a summary of the same bank statement, (which was available in the file the AO), by the assessee, before the Bench, in the form of contraentry (cheque dishonour), is not an additional evidence, as these contra-entries / (cheque dishonour) details were available in the bank statement, which could be examined by the Assessing Officer, during the assessment stage. Therefore, I note that the details of contra-entry/ cancelled cheques were on the file of the Assessing Officer, hence the second inning should not be given to the assessing officer to examine the same facts again.
We note that the total credit in the bank statement, after eliminating contra-entries, comes to Rs.23,24,831/-. Therefore, to meet the end of justice an addition at the rate of 5% on total credit in the bank statement may be a reasonable addition in the hands of the assessee. For this, we rely on the judgment of Smt. Krushangi Keyur Bhagat vs ITO [2018 (9) TMI 2093 - ITAT SURAT] wherein the Tribunal sustained the addition at the rate of 5% of total deposits.
-
2023 (9) TMI 1414
Second bail application for grant of anticipatory bail - illegally earned the money and purchased the property in the name of his wife - HELD THAT:- Since the matter is related to the economic offences containing property worth Rs.1,55,87,861/-, the applicant cannot be released under the provisions of anticipatory bail and therefore, anticipatory bail application filed under Section 438 of the Cr.P.C is hereby dismissed.
-
2023 (9) TMI 1413
Jurisdiction - power of DRI to issue the impugned SCN - It is contended that such an action on the part of the DRI would be contrary to the binding decision of law laid down by the Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] - HELD THAT:- Reliance placed in the case of KULODAY PLASTOMERS PVT. LTD., THROUGH SHRI. RAMSWAROOP GUPTA VERSUS THE UNION OF INDIA, THROUGH ITS SECRETARY, MINISTRY OF FINANCE & ORS. [2023 (8) TMI 1397 - BOMBAY HIGH COURT] where it was held that We may also observe that insofar as the legal contentions as raised by the Petitioner in regard to the interpretation Section 97 of the Finance Act is concerned, as to whether any authority/power is vested with the designated officer to issue show cause notice, can also be gone into in the adjudication of the proceedings of the show cause notice.
Respondents waive service - So far as interim reliefs are concerned, the show cause notice is pending adjudication.
-
2023 (9) TMI 1412
Doctrine of forum non-convenience - Territorial Jurisdiction - discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach - HELD THAT:- There is no doubt that a fraction of the cause of action does arise within the territorial jurisdiction of this court as the petitioner's society is registered at Delhi and Head Offices of some of the respondents are also situated within the territorial jurisdiction of this court. However, taking into consideration the fact that the area of operation of the petitioner-Society concerning the dispute in hand, is within the territorial jurisdiction of the Patna High Court; the loan facility was also availed within the territorial jurisdiction of the Patna High Court; the security to the loan i.e., the mortgage loan of the petitioner falls under the jurisdiction of the Patna High Court; the destruction of the school building as a result of natural calamity which led the petitioner claiming his right to restructure the debt took place within the jurisdiction of the Patna High Court, therefore, this court is not inclined to entertain the instant petition.
The law with regard to the discretionary power of the High Court to not entertain matter on the ground of doctrine of forum non-convenience is settled by the Hon'ble Supreme Court in the case of KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT]. It was held that the court is not obliged to entertain cases where even a small part of the cause of action arises within its territorial jurisdiction, as the same cannot be construed to be determinative factor which may compel the court to decide the case. The doctrine of forum convenience in appropriate cases, entitles the court to exercise its discretionary jurisdiction and refuse to entertain such cases.
The Division Bench of this court in the case of Sachin Hindurao Waze vs UOI and Ors. has relied upon the above-mentioned judgements and has laid down two elements which have to be considered by any court while accepting jurisdiction to decide a writ petition under Article 226 of the Constitution of India. Firstly, if any part of the cause of action arises within its territorial jurisdiction; and secondly if the said court is the forum convenience.
On the perusal of the above discussion, it is settled that the court has discretionary power under Article 226 of the Constitution of India to entertain or refuse to entertain writ petition in cases where the petitioner has alternative and more appropriate and convenient High Court to approach. It is also settled that if only a part of cause of action arises in the territorial jurisdiction of the court, then the court is not obliged to entertain the matter if the court is of opinion that it is not the forum conveniens.
To determine material, essential or integral part of the cause of action, it is the substance of the matter that becomes relevant. In the instant case, all important events, have taken place outside territorial jurisdiction of this court. The petitioner is not incapacitated to approach the jurisdictional High Court - When admittedly a major part of cause of action arises within the territorial jurisdiction of a different High Court and only a minuscule cause of action arises within the jurisdiction of this court, the doctrine of forum non-conveniens will have full application. The said doctrine also assumes significance when the petitioner has an adequate alternative forum.
This court is not inclined to entertain the instant petition. The same is accordingly dismissed.
-
2023 (9) TMI 1411
Violation of principles of natural justice - challenge to impugned SCN, u/s 73(1) of the CGST Act, 2017 without making any response/reply to the SCN - HELD THAT:- This writ petition is disposed of by directing the petitioners to file reply to the aforesaid impugned show-cause notice within seven days from date and the respondent adjudicating authority concerned shall consider and dispose of the aforesaid reply/objection to the impugned show-cause notice in accordance with law and by passing a reasoned and speaking order and after taking into consideration the aforesaid judgement of the Division Bench of this Court in the case of SUNCRAFT ENERGY PRIVATE LIMITED AND ANOTHER VERSUS THE ASSISTANT COMMISSIONER, STATE TAX, BALLYGUNGE CHARGE AND OTHERS [2023 (8) TMI 174 - CALCUTTA HIGH COURT] and by giving an opportunity of personal hearing to the petitioners or its authorised representatives, within a period of four weeks from the date of receipt of such reply/objection.
Petition disposed off.
-
2023 (9) TMI 1410
Deduction u/s 80P(2)(d) - interest received from another cooperative society engaged in banking activities - whether the assessee being co-operative society be denied benefit of section 80P(2)(d) of the Act on interest received from another cooperative society engaged in banking activities? - HELD THAT:- CIT(A) has rightly passed the order as held Circular of CBDT cannot override the provisions of the Act of Parliament. Even the careful reading of the Circular No. 6 of CBDT make it clear that exemption is withdrawn with respect to Regional Rural Banks are not eligible for deduction under section 80P of the Income-tax Act, 1961 from the assessment year 2007-08 onwards, and not the co-operative societies. The assessee before us is the cooperative society and not the Regional Rural Bank. Therefore, considering the provisions of section 22 of Regional Rural Bank Act, wherein the status of the banks established are of the co-operative society the assessee is entitled for the exemption on the interest earned on the deposits. Decided in favour of assesee.
-
2023 (9) TMI 1409
Jurisdiction of income- tax authorities to issue notice u/s 143(2) - ACIT or ITO - Validity of assessment framed by the A.O being ACIT Circle 29, Kolkata - as argued returned income of the assessee was less than Rs. 30,00,000/- the jurisdiction to issue notice u/s 143(2) and to frame the assessment u/s 143(3) was lying with the ITO - HELD THAT:- As decided in Shivam Finance [2023 (6) TMI 1341 - ITAT KOLKATA] it is a settled position of law that for carrying out an assessment proceedings u/s. 143(3) of the Act, statutory requirement of serving a valid notice u/s. 143(2) of the Act is a must and in absence of which the subsequent proceedings become invalid. In the present case before us, it is a fact that assessee has reported total income which exceeds the threshold prescribed in the CBDT Instruction no. 1/2011 read with revised monetary limit for issuing notice by ITO/DCs/ACs.
Through this instruction, it stated that in case of metro cities, in case of corporate declared income above Rs. 30 lakh, the jurisdiction of such corporate assessee will lie with the DCs/ ACs. It is not in dispute that as on the date of selecting the case for scrutiny, the very basis for having jurisdiction over the assessee is the returned income which was more than Rs. 30 lakhs and the same was lying with the DCs/ACs but the notice u/s. 143(2) of the Act has been issued by ITO, Ward 49(1), Kolkata. It is true that subsequently the assessment has been framed by ACIT, Circ1e-49, Kolkata but the point in dispute is that on the date of issuing a notice u/s. 143(2) of the Act, whether the ITO, Ward-49(1), Kolkata was having a valid jurisdiction to issue such notice u/s. 143(2) of the Act. We find that Hon'ble jurisdictional High Court in the recent judgment in the case of PCIT Vs. Shree Shoppers Ltd. [2023 (3) TMI 1432 - CALCUTTA HIGH COURT] has decided identical issue in favour of the assessee.
-
2023 (9) TMI 1408
Validity of assessment order passed manually without mentioning DIN in its body - HELD THAT:- As assessment order and its computation sheet have been passed manually and all the three documents namely, the assessment order, computation sheet and notice of demand u/s. 156, do not contain DIN in their body, as the relevant box is left blank.
Further, an intimation has been sent about DIN in respect of the impugned assessment order which is much later, after the date of assessment order. Fact in this respect is that assessment order is dated 22.04.2022 and the intimation letter about the DIN is dated 18.01.2023 which has been issued on 08.02.2023.
As relying on BRANDIX MAURITIUS HOLDINGS LTD. [2023 (4) TMI 579 - DELHI HIGH COURT], ASHOK COMMERCIAL ENTERPRISES [2023 (9) TMI 335 - BOMBAY HIGH COURT] and TATA MEDICAL CENTRE TRUST [2022 (7) TMI 1334 - ITAT KOLKATA] we hold that the impugned assessment order is invalid and is deemed to have never been issued as per para 4 of the CBDT Circular since it is not in conformity with the same.
In respect of observation of registry about the inordinate delay in filing of the present appeal before the Tribunal, the reasons stated by the assessee are directly linked to the issue relating to DIN and its intimation to the assessee by which the assessment order was made available to it, only on 16.03.2023. Considering this fact, we condone the delay as observed by the registry. Accordingly, ground no. 1 taken by the assessee is allowed.
............
|
9911796707
