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Showing 341 to 360 of 1466 Records

• 2021 (10) TMI 1127
  

  CENVAT Credit - duty paying documents - denial of credit on the strength of invoices issued by its Head Office as ISD on the ground that the said input service credit was availed on the basis of photocopy of the certificate issued by the Banks in favour of Head Office (ISD) - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- There is no dispute about the receipt of services inasmuch as the appellant has duly received the services from Bank and that payment of the Banking charges for loan processing and upfront fee have been duly made since not disputed in the impugned orders. It is also seen that the order passed by the authorities below have travelled beyond the allegations made in the SCN. When no dispute was made by the adjudicating authority with regard to the photocopies of documents, the objection raised by the Ld. Commissioner (Appeals) is not justified when, in-principle, he has agreed with the service eligibility under Rule 2(l) of the Credit Rules and the fact that receipt of Banking service is not in dispute. Hence, there are no reason to deny the credit and hence, the appeal is liable to succeed.

  Time Limitation - HELD THAT:- SCN has been issued in June 2014 by invoking extended period of limitation. Apart from the general aversion, there is no evidence to show that credit has been wrongly availed by way of fraud or suppression when the credit amount availed by the appellant has been duly disclosed in the periodical returns filed with the Department.

  Appeal allowed - decided in favor of appellant.

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• 2021 (10) TMI 1126
  

  Maintainability of petition - availability of alternative remedy of appeal - Revisional/re-assessment orders - escapement of turnover - wrong availment of Input Tax Credit - reasonable opportunity to show cause provided or not - HELD THAT:- This Court is clear in its mind that personal hearing is not statutorily imperative for a legal drill i.e., assessment of escaped turnover/wrong availment of 'Input Tax Credit' (ITC). This is owing to the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched.

  The expression 'a reasonable opportunity to show cause against such order' occurring in the proviso has been explained by this Court in a detailed and elaborate order in STATE BANK OF INDIA OFFICER'S ASSOCIATION (CC) – SBIOA VERSUS THE ASSISTANT COMMISSIONER (ST) [2019 (9) TMI 698 - MADRAS HIGH COURT]. This Court is informed that this order has not been reported in any law journal. Therefore, this Court deems it appropriate to give case number and date of order for the benefit of all concerned.

  In the present case, there is no disputation or disagreement that the writ petitioner has been given an opportunity of personal hearing vide communication dated 11.02.2021, but the writ petitioner did not respond/avail the same. Therefore, the only grievance of the writ petitioner is, mismatch ought to have been examined by the Assessing Officer though the writ petitioner has not responded. However, learned Revenue counsel points out that it would have been examined if the dealer/writ petitioner had responded - There is no disputation or disagreement before this Court that alternate remedy against impugned orders is available to writ petitioner-dealer by way of statutory appeal under Section 51 of TNVAT Act.

  The campaign against impugned orders in writ jurisdiction in the captioned main writ petitions fail. However, it is made clear that it is open to the writ petitioner to avail alternate remedy under Section 51 of TNVAT Act, if the writ petitioner chooses to do so, subject to limitation and pre-deposit conditions set out therein, i.e., if the writ petitioner satisfies these conditions and takes alternate remedy route i.e., statutory appeal, the Appellate Authority shall deal with the appeals on its own merits and in accordance with law, uninfluenced by any of the observations made in this order.

  The sequitur that follows from the narrative discussion and dispositive reasoning set out thus far is captioned writ petitions fail and the same deserve to be dismissed albeit preserving the rights of the writ petitioner to pursue alternate remedy subject to pre-deposit and limitation conditions - Petition dismissed.

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• 2021 (10) TMI 1125
  

  Undisclosed income - amounts have been advanced to Prakash Ladhani outside the books of account - assessee submitted that it has withdrawn money from United Bank of India and the same was deposited with Bank of India - As per AO the amount was given to Shri Prakash Ladhani and it would also fall under the category of deemed dividend within the meaning of section 2(22)(e) CIT-A deleted the addition - HELD THAT:- We notice that the transactions relating to imprest account, withdrawal from United Bank of India and deposit into Bank of India have been routed through the books of account. As submitted by assessee, the imprest account was fastened between cash withdrawal from United Bank of India and deposit into Bank of India in order to have control over these transactions. We notice that the imprest account is created as conduit between the bank transactions.

  We notice that the Ld. CIT(A) has examined the books of account which has also been confronted before the A.O. CIT(A) has also recorded a finding that all the transactions are duly recorded in the books of account. When all the transactions have been routed through the books of accounts, the question of undisclosed income will not arise. Hence we are of the view that the AO has made the impugned addition on surmises and conjectures only and accordingly, in the facts and circumstances of the case, we do not find any infirmity in the decision rendered by Ld. CIT(A) in deleting this addition in both the years.- Decided in favour of assessee.

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• 2021 (10) TMI 1124
  

  Seeking a direction to upload the Form GST TRAN-1 within extended timeline - HELD THAT:- Identical issue decided in the case of M/S RATEK PHEON FRICTION TECHNOLOGIES PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER AND 2 OTHERS AND M/S MODERN PLYWOOD CENTRE, M/S ALLIED AGENCIES VERSUS UNION OF INDIA AND 5 OTHERS [2021 (9) TMI 1042 - ALLAHABAD HIGH COURT] where it was held that if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws) - thus, there is no hesitation in observing that a reasonable opportunity ought to have been granted to all “registered persons”/taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2.

  Petition is allowed.

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• 2021 (10) TMI 1123
  

  Seeking a direction to upload the Form GST TRAN-1 within extended timeline - HELD THAT:- Identical issue decided in the case of M/S RATEK PHEON FRICTION TECHNOLOGIES PRIVATE LIMITED VERSUS PRINCIPAL COMMISSIONER AND 2 OTHERS AND M/S MODERN PLYWOOD CENTRE, M/S ALLIED AGENCIES VERSUS UNION OF INDIA AND 5 OTHERS [2021 (9) TMI 1042 - ALLAHABAD HIGH COURT] where it was held that if the respondents had offered a functional system, the State could not have deprived the petitioners of transition credit of CENVAT and ITC (under the repealed laws) - thus, there is no hesitation in observing that a reasonable opportunity ought to have been granted to all “registered persons”/taxpayers to submit/revise/re-revise electronically their Form GST TRAN-1/TRAN-2.

  Petition is allowed.

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• 2021 (10) TMI 1122
  

  GST Fraud - Misuse of Aadhar and PAN cards of writ petitioner - offence of issuing invoice without supply of goods in violation of TN-GST, C-GST Acts and rules thereunder - levy of penalty u/s 122(1)(ii) of TNGST and CGST Acts - HELD THAT:- This Court is of the view that owing to the nature of the stand taken by the writ petitioner and owing to this Court noticing that a criminal complaint has been lodged by the writ petitioner and investigation is under-way, it would only be appropriate to set aside the impugned order without expressing any view or opinion on the merits of the matter, leaving it open to respondents to proceed afresh either against writ petitioner or any other entity or person depending on the outcome of investigation that is under-way qua alleged misuse of writ petitioner's Aadhar and PAN cards to obtain a fake registration.

  In the light of writ petitioner having demonstrated her bona fides by lodging an FIR, it is only appropriate that an order as on the lines alluded to supra is made.

  Impugned order being made by first respondent and consequential order being order dated 23.07.2021 made by second respondent are set aside solely on the ground that alleged misuse of writ petitioner's Aadhar and PAN Cards and obtaining of fraudulent registration is under investigation - it is made clear that no opinion or view on the merits of the matter has been expressed in this order.

  Petition disposed off.

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• 2021 (10) TMI 1121
  

  Permission to carry forward unutilised CENVAT credit of duty paid under Central Excise Act, 1944 as well as the Input Tax Credit under VAT Act of the respective States - HELD THAT:- The issue decided in the case of UNION OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, THROUGH ITS SECRETARY (REVENUE) VERSUS M/S ASAID PAINTS LIMITED [2021 (3) TMI 953 - KARNATAKA HIGH COURT] where it was held that the respondents-assessees are permitted to file/revise TRAN-1 either electronically or manually on or before 31.03.2021.

  Appeal dismissed.

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• 2021 (10) TMI 1120
  

  Input Tax Credit - option to pay GST at concessional rate availed - other indirect expenses incurred for the purpose of business such as rent, commission, professional fees, telephone etc. - N/N. 8/2018- Central Tax (Rate) dated 25/01/2018 - HELD THAT:- From a reading of the said notification it is seen that the concessional rate under the notification shall not apply, if the supplier of such goods has availed input tax credit as defined in clause (63) of section 2 of the Central Goods and Services Tax Act, 2017, CENVAT as defined in CENVAT Credit Rules, 2004 or the input tax credit of Value Added Tax or any other taxes paid, on such goods. In other words, since the applicant has been availing the benefit of the said notification and paying GST at a concessional rate, they shall not avail Input Tax Credit.

  Other issues are withdrawn by the applicant - application disposed off.

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• 2021 (10) TMI 1119
  

  Scope of Advance Ruling application - Classification of services - Works contract services - Krishna Bhima stabilization project - recipient of services - to be classified under sub-clause (vii) of serial no 3 of Heading 9954 (construction of service) substituted by way of Notification No 31/2017-Central tax (Rate) dated 13th Oct 2017 as amended to original notification 11/2017 - Central Tax (Rate)? - HELD THAT:- This authority is governed by the provisions of Chapter XVII of CGST ACT and the relevant Sections are 95 to 98, 102, 103, 104 and 105. As per Section 95, the term 'advance ruling' means a decision provided by this authority to an applicant on matters or questions specified in sub-section 2 of Section 97, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant.

  Section 95 of the CGST Act, 2017 allows this authority to decide the matter in respect of supply of goods or services or both, undertaken or proposed to be undertaken by the applicant. The applicant has not undertaken the supply in the subject case. Rather, the applicant is a recipient of impugned services in the subject case. The impugned transactions are not in relation to the supply of goods or services or both undertaken or proposed to be undertaken by the applicant and therefore, the subject application cannot be admitted as per the provisions of Section 95 of the GST Act. Hence without discussing the merits of the case, the subject application is rejected as not being maintainable.

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• 2021 (10) TMI 1118
  

  Taxable services or exempt services - mixed supply of services to MCGM by the applicant - Toyota Innova or Equivalent Vehicles (6 Seater) registered in Tourist Category with All India Tourist Permit provided for Carrying Covid 19 Patients for Medical Treatment - HELD THAT:- Even though the applicant has submitted that the subject supplies would fall under no. 6 of twelfth schedule article 243W of the constitution i.e. “Public health, no evidence or documents have been submitted to substantiate their claims for exemption. Further, the only ‘SERVICE PURCHASE ORDER', submitted by the applicant mentions the description of service as “Adv for ambulance like Innova covid 19”. The applicant has not submitted that they have provided ambulance service for the covid patients. Neither have they submitted anything on record to show that the Innova vehicles supplied by them have been converted into ambulances or registered as such, nor have they submitted proof of having transported only covid 19 patients for medical treatment. Further, the vehicles are not registered with RTO for the use as the Ambulance and they are registered as tourist vehicles.

  It is also observed that, in its Circular No. 51/25/2018-GST dated 31/07/2018 the Central Government clarified that the service tax exemption at Sr. No. 25 (a) of Notification No. 25/2012 dated 20/06/2012 (ST Notification) has been substantially, continued under GST vide Sr No. 3 and 3A of the Exemption Notification. Sr. No. 25(a) of the ST notification under the erstwhile service tax laws, exempted “services provided to the Government, a local authority or a governmental authority by way of water supply, public health, sanitation, conservancy, solid waste management or slum improvement and up-gradation.”

  The said supply does not satisfy the provisions of Entry No 3 of Notification no. 12/2017-C.T. (Rate) dated 28th June, 2017 as amended and therefore cannot be treated as exempted. Therefore the same is liable to tax under the Notification No. 11/2017-C.T. (Rate) dated 28th June 2017, as amended.

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• 2021 (10) TMI 1117
  

  Input Tax Credit - inputs/input services procured by the applicant to implement the promotional scheme under the name 'Buy n Fly' - Section 16 read with Section 17 of the CGST Act, 2017 and TNGST Act, 2017 - HELD THAT:- The promotional scheme, 'Buy n Fly' is a scheme launched in the furtherance of business and the goods/services procured as a reward to the scheme are those procured in furtherance of business. The applicant has furnished the Tax Invoice for such purchases and it is seen that, the Invoice is raised on them only. The Prima facie conditions under Section 16 stands fulfilled.

  Section 17(5) of the GST Act, gives the situations wherein, even when such goods/services are procured for furtherance of business, the tax paid thereon are not available as Input Tax Credit. The said section starts with 'Non obstante clause', 'Notwithstanding anything contained in sub section (1) of section 16', which indicates that the provisions under Section 17(5) prevails over section 16(1) of the Act. Section 17(5)(g) above, restricts the ITC on the goods/services procured for personal consumption, even if those goods/services are procured in the furtherance of business. 'Personal Consumption' is not defined in the GST Law - the claim that the cost of these goods/services are accounted under sales promotion account, the expenses under which are considered to arrive at the cost of the product is immaterial and the argument does not hold, in as much as the credit of taxes paid on the goods/services for personal consumption is explicitly restricted. The fact of who pays for the goods and services here is irrelevant to the usage of the said goods and services. The goods and services are used by the retailers and hence are for personal consumption and the applicant is ineligible to take input tax credit on the inward supply of these goods/services.

  The input goods/services in the form of Trip to Dubai, Gold voucher, Televisions, Air coolers procured by the applicant for the intended use in furtherance of their business and distributed to the retailers under the 'Buy N Fly' scheme, are goods/services which are in the nature of gifts for personal consumption of the receiver specifically restricted under Section 17(5)(g) of the GST Act - further, the promotional rewards in goods being consumables in nature are gifts extended to the retailers for promoting their products, voluntarily distributed by the applicant without any consideration/ Tax invoice and are in the nature of gifts meant for personal consumption. Hence the input tax credit of the taxes paid on the goods/services procured to be distributed as rewards is not available to them under Section 17(5)(g) read with Section 17(5)(h) of the CGST Act 2017.

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• 2021 (10) TMI 1116
  

  Classification of goods - four toys in which physical force is the primary action and have electronic circuits/parts for providing light, music, horn etc arc ‘electronic toys’ - whether these toys will be taxable at 18% GST as per Sl.No. 440 of Schedule-III of the rate Notification or ‘Other than electronic toys’ attracting 12% GST as per Sl.No. 228 of Schedule --II of the rate Notification - HELD THAT:- The applicant arc trading the ‘toys’, viz., Children’s Scooter, Smart Tri-cycle, Activity Ride-on and Kick Scooter, which they have been considering as ‘Toys - Other than Electronic’ and has applied the rate as specified under Sl.No. 228 of Schedule-II of the Rate Notification. These toys are advertised to help the Kids to develop the motor skills. It is evident that the Tricycles, Scooters, pedal cars, like the products in hand are to be classified under CTH 9503 only and the 8 digit classification in the Tariff is based on the material it is made of and classification is not provided based on whether it is operated manually or otherwise.

  The description of goods in entry Sl.No. 228 says ‘Toys like tricycles, Scooters, pedal cars, etc’ and at Sl.No. 440 above, states as ‘Electronic Toys like tricycles, scooters, pedal cars, etc’. Thus, we see that both the entries speaks of Tricycles, Scooters, Pedal Cars, while one gives the rate for ‘Toys’, the other gives the rate for ‘Electronic Toys’. “Electronic Toys” are not defined in the said Notification and also in the Customs Tariff made applicable to GST - In the case at hand, ‘Electronic Toys’ are not defined in the Notification and the applicable Tariff. In such a situation, there is no merit in importing the observation/decision based on a definition specific to a Notification.

  In the case at hand, it is seen that the Children Scooter, Activity Ride-on, Smart Tri- cycle and Kick Scooter, have an electronic circuit for flashing lights, playing music/sound and horn, which is either powered by the Battery housed in the toy or powered by the Induction force applied while playing with the toy. Thus all the four products consists of an electronic circuit as a part of the said ‘Toy’ - it is not that the Scooters, Tri-cycle and Ride-on necessarily should have flashing lights, music/sound supplied by an exclusive electronic circuit. In the kick scooters meant for children upto the age of 14, the electronic circuit available in the product is powered by the Induction force, i.e., when physical force is applied and the kick scooter is moved, the physical force induces electrical energy which powers the electronic circuit and the LED starts flashing, thus encouraging the children while help improving the gross motor skills.

  The products are designed to develop gross motor skills in as much as they are designed to use the physical force and can be enjoyed by either pedaling, or by pushing with the leg and also fine motor skills like blinking, discrete tasks of switching on/off the music:/light etc provided through the inbuilt electronic circuit, powered with the electrical energy (battery)/ induction force. Both the functions of the toys are targeted to develop a certain skill while amusing the child playing with it. Therefore, the products in hand are ‘Electronic Toys’ and the applicable GST Rate is as per Sl.No. 440 of Schedule-III of the Rate Notification.

  The products Children Scooter, Activity Ride-on, Smart Tri-cycle and Kick Scooter, in which physical force is the primary action and contains an in built electronic circuit, are ‘Electronic Toys’ and the applicable GST Rate is CGST @ 18% as per S1.No. 440 of Schedule III to Notification No. II(2)/CTR/532(d-4)/2017 vide G.O. (Ms) No. 62 dated 29.06.2017.

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• 2021 (10) TMI 1115
  

  Principles of natural justice - request of the appellant to conclude the case without issuance of SCN - HELD THAT:- Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed.

  Whereas, on going through the content of the letter against which the appellant has filed the appeal, it is found that it is not a Decision or Order as there is no findings or observation are given in the said letter or no provisions of law/Act has been discussed in the letter accordingly, the said letter does not come under the purview of definition of order/decision. Though, the definition of order/decision has not been given in GST law/Act however, it has been defined in various legal dictionary/form.

  It is apparent that order or decision is pronounced after an evaluation of facts and law with proper reasoning and discussion and findings whereas, on going through the content of the letter, that it is found that in the instant case, there is no findings or discussion or provisions of law are discussed therefore, appeal against the said letter is not maintainable/acceptable under Section 107(1) of CGST Act, 2017.

  This appeal is not maintainable and liable to be rejected.

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• 2021 (10) TMI 1114
  

  TDS u/s 194H - discounts given to collection centres - Whether ITAT was justified in holding that the relationship between the assessee and collection centres is in the nature of Principal to Principal and not that of Principal to Agent? - HELD THAT:- In this case, admittedly, respondent has not been paying any money to the collection centres. Respondent was only receiving payment from the collection centres. As noted earlier, the collection centres collect money from the patient and pays a reduced amount to respondent and keeps the difference for itself as its margin.

  As the section is applicable only to a person who is responsible for paying to deduct tax at the time of credit to the account of the payee or at the time of payment and as respondent does not perform any act of paying, there is no obligation on the company to deduct tax at source. We fail to understand appellant’s arguments as to how respondent was to deduct TDS when it was not making any payment. Mr. Suresh Kumar was unable to explain how respondent should have deducted TDS and paid with the treasury when respondent was not making any payment. Even the Assessing Officer, who the appellant wishes to support, does not say anything on this - AO’s order is contrary to sense.

  In our view, ITAT (though has applied slightly different preposition while allowing the appeal) has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law.

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• 2021 (10) TMI 1113
  

  Offences u/s 276CC, 276C(1) and 276C(2) of the Income Tax Act, 1961 - search conducted in the partner's premises and that the transactions were admittedly recorded in the books of accounts of the firm, the Income Tax Appellate Tribunal's view that there was concealment of income for invoking Section 271(1)(C) - as urged by the learned Counsel that putting the petitioners through the ordeal of trial would be a futile exercise - HELD THAT:- Income Tax Department, very fairly affirmed that the Dvision Bench of this Court had set aside the order of the Income Tax Tribunal and stated that no further proceedings are pending against the parties and that order of the Division Bench had not been taken up further in appeal by the department/revenue.

  Also affirmed by the learned Counsel that the complaint had been preferred only consequent to the order of the Appellate Tribunal. But, as it turned out, that particular order of the Tribunal had been set aside by the Divison Bench of this Court.

  Find every reason to interfere with further progress of E.O.C.C now pending of the file the learned Additional Chief Metropolitan Magistrate/E.O - I, Egmore, insofar as the petitioners/A1 to A3 are concerned and direct the same to be quashed - present Criminal Original Petition is allowed and E.O.C.C.on the file of the Additional Chief Metropolitan Magistrate, Economic Offences Court - I, Egmore is quashed.

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• 2021 (10) TMI 1112
  

  Initiating the proceedings u/s 153C - grievance made on the part of the petitioner that the respondent has not disposed of the objections raised by the petitioner against the reopening - HELD THAT:- Noticing the requirement of the law, where the respondents have chosen not to dispose of objections raised to the satisfaction notes, without expressing any opinion on the correctness of initiation of the proceedings, the request is being granted to the assessee of availing opportunity of hearing. The objections raised by the assessee shall be considered by the respondent authority concerned which shall decide the same within the period of four weeks of the date of receipt of copy of this order. The order of disposing of the objection, if goes against the petitioner, the petitioner shall be availed the time of four weeks to avail the legal recourse in accordance with law.

  Present petition stands disposed of. Notice is discharged. Ad-interim relief, granted earlier stands vacated.

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• 2021 (10) TMI 1111
  

  Deduction claimed u/s 80P(2)(d) - as argued reply filed by the petitioner was not even referred to, while passing the order of assessment - Petitioner contends that though an appeal is available u/s 246A of the Act, failure to consider the reply submitted by the petitioner amounts to violation of the principles of natural justice - HELD THAT:- As rightly argued by the respondent, this Court will not interfere normally under Article 226 of the Constitution of India on orders of assessment issued by the assessing authorities. It is equally settled that when there is a violation of the principles of natural justice, this Court can step in, even against assessment orders, to avoid the unnecessary travails of an assessee, in pursuing the statutory remedies.

  In the instant case, Ext.P9 show cause notice was issued on 22.03.2021 directing the petitioner to show cause as to why the assessment should not be completed as per the draft assessment order. The response of the petitioner was also sought for in the said show-cause notice. Petitioner’s response to Ext.P9 is produced as Ext.P10, wherein it has raised an objection of some substance, however brief it may be. Certain documents were also produced along with Ext.P10. However, while issuing the order of assessment, it is seen that there is no reference at all to the response submitted by the petitioner nor is there any consideration of the document produced along with Ext.P10.

  Whether the contentions raised by the petitioner in Ext.P10 or whether the document produced along with Ext.P10 may have a bearing upon the case is not a matter which this Court can go into at this stage. An order of assessment is the foundation on which the rights of the assessee depend upon. It is necessary that the assessing authority considers the objections filed by the petitioner especially when a show-cause notice in the form of Ext.P9 had been issued, eliciting the response of the petitioner. Failure to consider the said response offered by the petitioner in the facts of the case is a negation of the rights of natural justice. In the said view of the matter, I find that the order of assessment suffers from the infirmity of violation of the principles of natural justice and is liable to be set aside.

  Accordingly, set aside Ext.P11 assessment order dated 19-04-2021 issued by the respondent and direct the respondent to consider and pass fresh orders for the assessment year 2018-19, relating to the petitioner, after affording an opportunity of hearing to the petitioner, as expeditiously as possible.

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• 2021 (10) TMI 1110
  

  Stay of demand - deposit of 20% of the total demand - HELD THAT:- Exts.P2 and P8 directing deposit of 20% of the total demand are both made by the Income Tax Officer and not by the Appellate authority. Petitioner has not yet moved any application for stay of the assessment order in the pending appeal, before the 2nd respondent. As rightly pointed out by the learned Standing counsel, the Appellate Authorities are not bound by any office memorandum issued by the department, since they are exercising adjudicatory powers and possess discretionary powers.

  In considering the grant of stay pending appeal, the High Court of Delhi had clearly observed in Turner General Entertainment Networks case [2019 (1) TMI 1365 - DELHI HIGH COURT] that while, the authorities concerned have to apply their mind to decide such applications and pass appropriate orders independent of the office memorandum. The judgment of the High Court of Kerala, produced as Ext.P9, stands on a different footing since, in that case, this Court had directed the consideration of the appeal without insisting on any deposit due to the peculiar nature of the facts involved in that case.

  Petitioner, if he is so advised, ought to move an appropriate application for stay before the Appellate Authority. If such an application is preferred, needless to say, the appellate authority shall pass appropriate orders within a period of two months from the date of receipt of such an application. Further, if the Appellate Authority feels it desirable to consider and pass orders on the appeal itself, liberty is granted to the Appellate Authority to do so.

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• 2021 (10) TMI 1109
  

  Validity of reopening of assessment - absence of a valid Section 143(2) notice issued by the Assessing Officer - HELD THAT:- AO has himself filed a remand report dt.13-07-2021 inter alia making it clear that he had issued 148 notice on 21-03-2014 followed by the assessee’s latter submissions dt.07-01-2015 seeking to treat the original return filed on 31-07-2008 as the one in response to re-opening only. Learned assessing authority further states that it had issued only Section 142(1) notice(s) dt.21-01-2014 and 30-12-2014 thus, a Section 143(2) notice in the entire re-assessment process. We thus quote hon’ble apex court’s landmark decision in ACIT Vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] holding that Section 143(2) notice has to be mandatorily issued before framing an assessment.

  An assessee’s letter seeking to treat the original return as that filed in furtherance to Section 148 notice requires issuance of a valid Section 143(2) notice.

  Thus the impugned re-assessment frame herein on 31-03-2015 is non est in law. The same stands quashed therefore. All other pleadings on merits are rendered infructuous. - Decided in favour of assessee.

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• 2021 (10) TMI 1108
  

  Addition of deferred revenue income - HELD THAT:- We notice that the coordinate bench has upheld the view taken by Ld. CIT(A) on an identical issue in assessment year 2007-08 [2020 (1) TMI 1011 - ITAT BANGALORE] including the view taken by CIT(A) on alternative contention of the assessee. Following the same, we uphold the view taken by the Ld. CIT(A) on this issue in this year also. The alternative direction given by Ld. CIT(A) to A.O. is also upheld.

  Disallowance u/s 14A - HELD THAT:- We notice that the A.O. has made disallowance out of administrative expenses under Rule 8D(2)(iii). As per the decision rendered in the case of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] only those investments which have yielded exempt income should be considered for computing average value of investments for the purpose of Rule 8D of I.T. Rules. Accordingly, we modify the direction given by Ld. CIT(A) and direct the A.O. to exclude all investments which did not yield any exempt income while computing average value of investments for the purpose of Rule 8D of I.T. Rules and compute the disallowance accordingly.

  Disallowance of software expenses - AO took the view that software purchases are in the nature of capital expenditure - AO disallowed the claim of the assessee and allowed depreciation @ 60%/30% depending upon the date of purchase of software - HELD THAT:- We direct the A.O. to examine the issue afresh as per the directions given by the Tribunal in assessment year 2011-12 [2020 (12) TMI 470 - ITAT BANGALORE] with regard to treating of software purchases as capital in nature. The AO should also examine the issue with regard to other directions issued by Ld CIT(A).

  Disallowance of brand building expenses - Revenue or capital expenditure - HELD THAT:- We hold that the brand building expenditure is allowable as revenue expenditure. We notice that the Ld. CIT(A) has observed that some of the invoices produced by the assessee do not relate to the year under consideration and further some of the expenditure is liable for tax deduction at source. Accordingly, we restore this issue to the file of the A.O. for examining the above said two observations made by CIT(A) and to take appropriate decision in accordance with law.

  Computation of deduction u/s 10A and 10AA - Reduction of expenses incurred in foreign currency from the export turnover while computing deduction u/s 10A - whether the expenditure incurred by the assessee in foreign currency is towards providing technical service outside India or not? - contention of Ld A.R is that assessee is providing BPO services and not any technical service as contemplated in the definition of “export turnover” given in sec.10A/10AA - HELD THAT:- As relying on M/S MPHASIS LTD [2014 (8) TMI 690 - KARNATAKA HIGH COURT] we direct the AO not exclude the expenditure incurred in foreign currency from export turnover.

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