Advanced Search Options
Case Laws
Showing 41 to 60 of 1438 Records
-
2021 (10) TMI 1399 - ITAT DELHI
Rectification of mistake u/s 254 - Incorrect and incomplete recording of the fact that the responsibility for installation and commissioning alongwith supply of equipment is with the appellant/applicant - HELD THAT:- The issue has been decided by this Tribunal [2020 (12) TMI 857 - ITAT DELHI] wherein the Tribunal has taken a view that the dominant purpose of the appellant/applicant is not to sell telecommunication equipment but to commission it after due customisation of hardware and software in accordance with the requirement of telecommunication service provider.
After carefully perusing the contents of the Miscellaneous Applications, we are of the considered view that this Tribunal has taken a view after due appreciation of facts. It may be an error of judgment but not an error as contemplated in section 254(2) of the Act. We, therefore, do not find any reason to hold that there is a mistake apparent from record in the view taken by this Tribunal. This issue is, accordingly, dismissed.
Incorrect adjudication of Ground of appeal No. 6 – Attribution of profits - Non-adjudication of Ground of Appeal No. 7 – Taxation of software as royalty - HELD THAT:- We have given thoughtful consideration to the orders of this Tribunal. We are of the considered view that for the limited purpose of adjudication of Ground No. 6 with its sub-grounds and Ground No. 7, needs to be re-adjudicated as there is a mistake apparent from record in not adjudicating the captioned grounds. Therefore, for this limited purpose, the captioned order of this Tribunal is recalled for the captioned A.Ys for the adjudication of Ground Nos. 6 and 7 in their true perspective.
Registry is directed to list the appeals for hearing of Ground Nos. 6 and 7 on 08th February, 2022 and inform the parties accordingly.
-
2021 (10) TMI 1398 - MEGHALAYA HIGH COURT
Smuggling - Betel Nuts of foreign origin - seizure of bags of betel nut under Section 110 of the Customs Act on the ground that the said betel nuts were brought to India through unauthorised route in violation of the Customs Act and are liable for confiscation under Section 111(b) and 111(d) of the said Act - HELD THAT:- The Division Bench of the Tribunal recorded the finding that the confiscated betel nut is non-notified goods and therefore, burden to prove the fact of smuggling lies on the department and same has not been discharged. In this regard, the department relied upon the certificate issued by the Arecanut Research and Development Foundation, Mangalore to show that the confiscated goods/betel nuts are of foreign origin. However, the Tribunal refused to consider this certificate on the ground that the said Institution is not accredited and hence the report was not relied on.
The Tribunal in this regard relied on the decision of the Patna High Court reported in M/S AYESHA EXPORTS VERSUS THE UNION OF INDIA AND ORS. [2019 (1) TMI 1633 - PATNA HIGH COURT] where it was held that This court is of the opinion that in absence of there being a standardized laboratory test for tracing the country of origin, established under some statute and such Labs have been accredited by the competent authority and the Labs could have the scientific method to come to a conclusion that a Betel Nut is of a particular country's origin, it would not be in the interest of justice to direct the petitioner to pay the custom's duty.
There are no error in the findings given by the Tribunal - appeal dismissed.
-
2021 (10) TMI 1397 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
Classification of imported goods - API Supari - Chikni Supari - Unflavored Supari - Flavored Supari - Boiled Supari - Boiled & Cut Supari - classifiable under heading 0802 90 00 or under heading 2106 90 30? - HELD THAT:- The five goods, namely API supari, Chikni supari. unflavored supari, boiled supari and boiled & cut supari together. In these cases, one set of processes are found to be intended for cleaning; the second set for enhancing preservation; and third set for enhancing appearance or presentation, in addition to cutting. Addition of starch would be included under such process. These processes are clearly covered by the Chapter Note to Chapter 8 as well as the HSN, it is found that in the instant case, betel nuts atter being boiled are dried and this fact per se would not exclude the end-products from the scope of "dried nuts". Further, it is equally obvious to me that boiling or mere addition of certain additives for the limited purpose of enhancing preservation or appearance or ease of consumption per se does not result in obtaining a preparation of betel nut.
The processes to which raw betel nuts have been subjected to obtain API supari, Chikni supari, unflavored supari, boiled supari and boiled & cut supari are squarely in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as "preparations" of betel nut, which is sine qua non for a good to be classifiable under Chapter 21.
Flavored supari - whether the addition of special flavoring agents would render the betel nuts into preparations of betel nuts, classifiable under Chapter 21? - HELD THAT:- The judgment of the Hon'ble Supreme Court of India in the case of CRANE BETEL NUT POWDER WORKS VERSUS COMMR. OF CUS. & C. EX., TIRUPATHI [2007 (3) TMI 6 - SUPREME COURT] has held that the process of cutting betel nuts into small pieces and addition of essential/non-essential oils, menthol, sweetening agent etc. did not result in a new and distinct product having a different character and use - Put simply, this decisions clearly imply that addition of flavoring agents do not change the character of the good, meaning in the present case betel nut would continue to remain betel nut and not become preparation of betel nut.
Thus, all the six goods placed before me for consideration, i.e., API supari, Chikni supari, boiled supari, boiled & cut supari, unflavored supari, and flavored supari, merit classification under Chapter 8 of the First Schedule to the Customs Tariff Act, and more precisely, under the heading 0802. This is so in view of the fact that the processes to which raw green fresh betel nuts have been subjected to obtain the said six goods are squarely in the nature of processes mentioned in Note 3 to Chapter 8, and have not materially changed the essential character of betel nuts - the said six goods are not classifiable under sub-heading 2106 9030, as contended by the applicant, since they have not attained the character of "preparations" of betel nut, which is sine qua non fora good to be so considered.
-
2021 (10) TMI 1396 - ITAT LUCKNOW
Assessment u/s 153A - necessity of valid approval u/s 153D - HELD THAT:- As in cases Navin Jain & Others [2021 (9) TMI 1068 - ITAT LUCKNOW] and SHRI NARESH KUMAR JAIN [2021 (9) TMI 1080 - ITAT LUCKNOW]has been followed, the Tribunal has held to the effect that granting of a mechanical approval u/s 153D of the Act vitiates the entire proceedings. It is on this basis that the issue was decided in favour of the assessee in both these cases, under facts and circumstances exactly similar to those present herein.
Respectfully following the view taken in the above appeals, we allow additional ground of appeal and quash the assessment order. As the assessment order has been quashed, the consequent order of learned CIT(A) is also quashed. Rest of the grounds do not survive for adjudication. Appeal of assessee allowed.
-
2021 (10) TMI 1395 - ITAT MUMBAI
TP Adjustment - rate the interest-free loans granted by the assessee to its associated enterprise in Mauritius should be benchmarked as at an arm’s length - HELD THAT:- This issue is no longer res integra. The issue in the appeal is squarely covered, in favour of the assessee, by a coordinate bench decision in assessee’s own case for the assessment years 2009-10 and 2010-11 [2019 (6) TMI 1691 - ITAT MUMBAI]
It is indeed disappointing that even after taking note of the above fidnings of the coordinate bench, the authorioties below have justified a higher ALP on the basis of some new arguments. Given the findings of the coordinate bench-as extracted above, the reference to the fixed rate of interest and swap variable, with reference to the LIBOR, as has been done by the authorities below to go beyond LIBOR plus 300 bps, is irrelevant. There is no point in making these efforts to circumvent the conclusions arrived at by the coordinate bench, and justifying the same on the basis of a new set of arguments.
We direct the Assessing Officer to delete any arm’s length price adjustment beyond the difference, if any, between 4.01% interest charged by the assessee and LIBOR plus 300 bps. If suo motu adjustment by the assessee, i.e. adopting an interest rate of 4.01%, is below this rate, obviously no further ALP adjustment is called for. With these specific directions, the matter is restored to the file of the Assessing Officer for giving such relief as may be admissible in the terms indicated above. Appeals are allowed, in principle, and in the terms indicated above.
-
2021 (10) TMI 1394 - MADRAS HIGH COURT
Review application - sheet anchor of his argument is based on the decision of the Hon'ble Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] - HELD THAT:- Though the contentions advanced by the learned counsel appearing for the review applicant are highly persuasive, in as much as, the said decision of the Hon'ble Supreme Court is subsequent in point of time, it cannot be a ground for reviewing the order passed by this Court.
The review application is dismissed.
-
2021 (10) TMI 1393 - CESTAT AHMEDABAD
Refund claim of service tax paid due to wrong calculation of value - rejection also on the ground that the appellant’s payment of service tax is advance payment in terms of Rule 6(1A) of Service Tax Rules, 1994 which is required to be adjusted for the future payment - rejection also on the ground of unjust enrichment.
HELD THAT:- There is no charge in the show cause notice for denial of refund on this ground. Secondly, even if Rule 6(1A) is referred, it is found that appellant have clearly made the service tax payment in respect of an invoice of Bombardier Transportation Sweden. Therefore, it is an actual payment of service tax which falls under Rule 6(2) and does not fall under Rule 6(1A) as deposit. Therefore, on both the count the refund was wrongly rejected.
Principles of Unjust enrichment - HELD THAT:- On the perusal of the balance sheet, it is satisfied that the amount of refund is clearly shown under the head of Loan & Advances. Therefore, the appellant has established that the incidence of amount of refund has not been passed on.
On both the grounds the Commissioner (Appeals) has wrongly rejected the refund claim - the impugned order is set aside - Appeal allowed.
-
2021 (10) TMI 1392 - ITAT BANGALORE
TP Adjustment - Comparable selection - HELD THAT:- Assessee is engaged in providing Business support services, thus companies functionally dissimilar with that of assessee need to be deselected.
Cedit of advance tax - We restore this issue to the file of AO to examine the claim of the assessee.
-
2021 (10) TMI 1391 - ITAT DELHI
TP Adjustment - comparable selection - inclusion of E-clerx Services Ltd and TCS E-Serve Ltd. - HELD THAT:- This Tribunal has excluded E-clerx Services Ltd and TCS E-Serve Ltd. from the final set of comparables. Respectfully following the decision of this Tribunal in own case [2021 (2) TMI 575 - ITAT DELHI], we direct the Assessing Officer/TPO to exclude E-clerx Services Ltd and TCS E-Serve Ltd. from the final set of comparables. Ground with its sub grounds is, accordingly, allowed.
Addition on account of alleged interest on delay in collection of receivables from the AEs - invoices pertain to the year under consideration only and in most of the cases, the delay is NIL or less than 45 days. It is true that in some of the cases, the delay is more than the stipulated period of 45 days - HELD THAT:- We have been told that in the subsequent year, no addition has been made on this account and in earlier Assessment Year small additions were made which were not contested on the smallness of the amount. In light of the aforementioned observations of the Hon'ble High Court of Delhi KUSUM HEALTH CARE PVT. LTD. [2017 (4) TMI 1254 - DELHI HIGH COURT] we are of the considered view that the figure of receivables mentioned elsewhere do not reflect a pattern and, as held the assessee has already fettered the impact of receivable on the working capital which has been accepted by the DRP - we direct the Assessing Officer/TPO to delete the addition.
Assessee appeal allowed.
-
2021 (10) TMI 1390 - GUJARAT HIGH COURT
Handover of physical possession of the property - assignment of debt - Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- It is not in dispute that the respondent No.1 passed the order under Section 14 on 10.9.2018 whereas the petitioner has entered into the Deed of Assignment with the original lender on 5.11.2019.
On perusal of the provision of sub-section (4) of Section 5 of the SARFAESI Act, it is clear that on the date of acquisition of financial asset by the petitioner under subsection (1) of Section 5, if any suit, appeal or other proceeding of whatever nature relating to the said financial asset is pending by or against the bank or financial institution, then only the same shall continue in the name of the petitioner who has acquired the debt by way of assignment from the original lender.
Admittedly in the facts of the case, the order under Section 14 of SARFAESI Act is passed on 10.9.2018 prior to the date of Deed of Assignment on 5.11.2019. Therefore, it cannot be said that the proceedings under Section 14 of SARFAESI Act relating to the financial assets which are subject matter of the proceedings, were pending on the date of acquisition of financial assets under sub-section (1) of Section 5 of the SARFAESI Act - the respondent No.1 could not have directed the petitioner to approach the Debts Recovery Tribunal, but the petitioner is required to file a fresh application under Section 14 of the SARFAESI Act and the petitioner could also not have requested the respondent No.1 to substitute the name of the petitioner in the order passed under section 14 on 10.9.2018 prior to the date of Deed of Assignment.
The petitioner is directed to file fresh application under Section 14 of the SARFAESI Act to get the assistance of the respondent No.1 for taking over the possession of the assets of the borrower to realise the debts which it has been assigned by way of Deed of Assignment dated 5.11.2019 - the petition is disposed of.
-
2021 (10) TMI 1389 - ITAT DELHI
Royalty receipt - Explanation 2 to section 9(i)(vi) of the Income-tax Act, 1961 and Article 12(3) of the India-USA Double Taxation Avoidance Agreement (“DTAA”) - appellant being a resident of USA is covered by the beneficial provisions of DTAA between India and USA and accordingly, could not be taxed under the provisions of the Act - HELD THAT:- After going through the decisions of the Hon'ble High Court of Delhi in the case of the appellant, we find that the quarrel has now been well settled in favour of the assessee and against the Revenue by the decision of the Hon'ble High Court of Delhi [2012 (9) TMI 1081 - DELHI HIGH COURT]
Similar view was taken in Assessment Year 2013-14 by this Tribunal [2019 (6) TMI 1689 - ITAT DELHI] wherein the Tribunal has placed strong reliance on the decision of the Hon'ble High Court of Delhi in the case of Asia Satellite Telecommunications Co. Ltd [2011 (1) TMI 47 - DELHI HIGH COURT] and New Sky Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] and since the order of the Tribunal was based on these decisions of the Hon'ble Jurisdictional High Court of Delhi, the Hon'ble High Court dismissed the appeal of the Revenue holding that no question of law arises.
-
2021 (10) TMI 1388 - ITAT CHENNAI
Provision for estimated loss of contracts - ascertained liability - AO observed that the said loss on an estimate, which is bound to vary due to variation in input costs - HELD THAT:- Accounting Standards are binding on the Company in so far as the preparation of books are concerned, but, are not binding for Income Tax purposes. Further, the Assessing Officer, by following the decision in the case of EDAC Engineering Limited [2013 (11) TMI 164 - ITAT CHENNAI], disallowed the same and the same was confirmed by the ld. CIT(A). The assessee, neither before the Assessing Officer nor before the ld. CIT(A) substantiated the provision made by it is an ascertained liability. Even before us, the assessee has not been able to explain as to what was the necessity for the assessee to make such a provision.
Assessee has simply stated that the provision made by the assessee is an ascertained liability. If at all, it is an ascertained liability, it is the onus on the assessee to establish that the liability is an ascertained liability. No material was placed on record before the Tribunal. We are of the opinion that the provision made by the assessee for a loss on contract is not an ascertained liability and it is a simple provision made by the assessee which is not allowable u/s 37.
So far as case law placed by the assessee are concerned, the decision in the case of Rotork Controls India Limited. [2009 (5) TMI 16 - SUPREME COURT] has no application to the facts of the present case. In the order passed by the Tribunal for the AY 2005-06 dated 03.08.2017, the issue dealt by the ITAT relates to provision of warranty and therefore, in our opinion, the issue under consideration need not be remitted back to the Assessing Officer. In view of the above, the ground raised by the assessee is dismissed.
Provision made in respect of various expenditures - HELD THAT:- The assessee has made a provision - However, no explanation was given before the Assessing Officer. Even before the ld. CIT(A), the assessee has not given any explanation the reason for making such provisions of expenses. Even before us, the assessee has not been able to explain the reason for making such provisions. We are of the opinion that the provision created by the assessee in respect of various expenses is an unascertained liability and not allowable as an expenditure for the assessment year under consideration. Therefore, we confirm the order passed by the ld. CIT(A).
So far as alternative submission is concerned, we direct the Assessing Officer to verify as to whether the assessee has reversed the provision and the same is offered for taxation for the assessment year 2012-13 and decide the alternative plea in accordance with law. This ground is partly allowed.
-
2021 (10) TMI 1387 - SUPREME COURT
Amnesty scheme - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking to issue discharge certificate under SVLDRS - declaration under FORM SVLDRS-1 was rejected on the ground of ineligibility, with the remarks that “Demand has neither been quantified nor has been communicated to the assessee” and “Submit SVLDRS-4 of main noticee” - it was held by Delhi High Court that In the present case, since amount could not be said to have been ‘quantified’, the petitioner was not eligible, and therefore, the reasoning given by the respondent in rejecting the application does not call for any interference.
HELD THAT:- No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petition is, accordingly, dismissed.
-
2021 (10) TMI 1386 - SUPREME COURT
Initiation of contempt proceedings against the alleged contemnors-Respondents - wilful disobeying the order passed by this Court - fixation of inter se seniority list published on 29th April 2004 - HELD THAT:- There can be no quarrel with the proposition that in a contempt jurisdiction, the court will not travel beyond the original judgment and direction; neither would it be permissible for the court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order. The court is only concerned with the wilful or deliberate non-compliance of the directions issued in the original judgment and order.
This Court in unequivocal terms has held that if the order of dismissal of SLPs is supported by reasons, then also the doctrine of merger would not be attracted. Still the reasons stated by the court would attract applicability of Article 141 of the Constitution of India, if there is a law declared by this Court which obviously would be binding on all the courts and the tribunals in India and certainly, the parties thereto. It has been held that no court, tribunal or party would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. Such an order would mean that it has declared the law and in that light, the case was considered not fit for grant of leave - It is thus clear that though it cannot be said that the second judgment of the Madras High Court has merged into the order of this Court dated 22nd January 2016, still the declaration of law as made in the said order, would be binding on all the courts and tribunals in the country and in any case, between the parties.
The Respondents are directed to revise and publish the seniority list of the selectees, who were selected in the selection process conducted in pursuance of the notification issued by TNPSC dated 10th September 1999, strictly on the basis of the merit determined by it in the selection process and not on the basis of the roster point. The same shall be done within a period of 12 weeks from the date of this order.
SLP disposed off.
-
2021 (10) TMI 1385 - ITAT RAIPUR
Revision u/s 263 by CIT - investment towards purchase of property unexplained - HELD THAT:- We find that vide notice iisued specific queries were raised by the AO seeking details and source of investment in the property purchased during the year. In response, the assessee has filed replies explaining the relevant facts towards source of money utilized for purchase of her share in property.
The source of investment was corroborated by evidence. It is trite that the PCIT cannot pass revisional order to direct the AO to make some fuller and extended enquiry desired in the opinion of the revisional authority.
In such a situation, where there appears to be inadequacy to the PCIT in the manner of enquiry, he himself should embark upon some enquiries to discover the possibility of error. A roving enquiry cannot be directed summarily. The action of the PCIT is unsustainable in law without objectively showing how the order of the AO is erroneous. The revisional direction, in the instant case, is thus unsustainable in law.
We also find merit in the plea of the assessee that having regard to CBDT instruction Nos. 7/2015, 20/2015 & 5/2016 and also CBDT letter dated 30.11.2017, the AO was not entitled to go beyond the reasons for selection of matter for limited scrutiny.
As a corollary, it is not open to the PCIT to pass revisionary order and remit the matter to the AO on other aspects by rendering assessment order as erroneous and prejudicial to the interest of the Revenue. This is the view consistently taken by the co-ordinate benches in several decisions, some of which are noted earlier. The action of the PCIT u/s 263 of the Act thus cannot be approved on this parameter also. Appeal of the assessee is allowed.
-
2021 (10) TMI 1384 - SC ORDER
TDS u/s 195 - commission paid outside India - disallowance made u/s 40(a)(i) - HC [2021 (4) TMI 93 - KARNATAKA HIGH COURT] held in the present case the Associated Enterprises has rendered services out of India in the form of placing orders with the manufacturers who are already outside India - commission was paid to Associate Enterprises out of India. No taxing event has taken place within the territories of India and therefore, the Tribunal was justified in allowing the appeal of the assessee - HELD THAT:- The special leave petition is dismissed.
Pending application(s), if any, stand disposed of.
-
2021 (10) TMI 1383 - GUJARAT HIGH COURT
Detention of goods alongwith vehicle - discrepancy found in the documents visa-vis the goods being transported or not - discrepancies in respect of some post transactions of the buyer and the buyer had claimed some wrongful input tax credit - HELD THAT:- In the case of Mahadev Enterprise [2016 (5) TMI 1274 - GUJARAT HIGH COURT], the Court has held that each matter has to be decided on its own facts and the Tribunal while deciding the case of one party cannot place reliance upon the facts which have come to its knowledge only in another proceeding and apply them to a third party who has no connection with those proceedings. The Court found that there was a complete absence of any materials on record establishing the transaction made being non-genuine. There was also no material to show that the dealer, at any point of time, had been called upon to establish the genuineness of such transactions or to produce any documentary evidence.
Adverting to the facts on hands, it is not in dispute that the goods along with the vehicle, when were in transit, was stopped by respondent No.2 and the driver had produced the invoice and e-way bill and other documents as required by the authority concerned. There was also an order for physical verification passed in Form GST MOV 2 and the report was issued in the form of GST MOV 4. It is not in dispute that there was absence of discrepancies and anomalies in the documents when compared with the goods which were being transported. The only ground was the vehicle and goods had been seized, was because of the credential of the buyer to whom were goods being sent. In this case, it is alleged that the buyer, in the past, had taken wrong credit. The buyer also responded to the email sent by the petitioner that no proceedings had been initiated against him under the GST Act in relation to the claim of input tax credit in respect of the past transactions and yet, that is the ground for initiation of action.
Considering the e-way as well as invoices produced by the driver, since, are in order, the goods and the conveyance are ordered to be released. Resultantly, this petition is allowed directing release of goods and conveyance. However, the show-cause notice of inquiry against the purchaser which has been initiated, there shall be no interference. Without opining anything on merits and without intervening show-cause notice that may be contemplated against the said buyer as well as qua the present petitioner in that regard (if any), this petition is allowed.
The petition is disposed off.
-
2021 (10) TMI 1382 - ITAT HYDERABAD
TP Adjustment - comparable selection - HELD THAT:- We find no merit in the assessee's former twin substantive grounds since the DRP herein has directed exclusion of M/s. Infosys BPO Limited not only on the basis of turnover but due to its brand value, diversified activity as other functional dissimilarity as well. This tribunal coordinate bench decisions in assessee's cases itself for Assessment Year 2008-09 and 2009-10 have also directed M/s. Infosys BPO Limited’s exclusion in the very segment. And that the Revenue has not been able to pin point any change in the corresponding facts in all these assessment years. We therefore uphold learned DRP’s direction ordering exclusion of M/s. Infosys BPO Limited from the array of comparables.
Excluding M/s. Jeevan Scientific Technology Limited on the ground that it had failed to satisfy the turnover filter despite the fact that the said entity had derived income both from BPO operation as well as ERP segment - We find that the Revenue’s instant arguments are against the facts on record wherein it has been found that this entity had derived income of Rs.79.21 lakhs form BPO operation only and no revenue from ERP segment as against the turnover limit of Rs.1 Crore set by the TPO in his analysis. We therefore decline the Revenue instant third substantive ground as well.
Exclusion of comparables on functional dissimilarity.
Disallowance of overhead and trademark licence fees - not filed any objection corresponding details despite the DRP’s remand directions to this effect - HELD THAT:- The assessee has placed before us the corresponding invoices along with the AO’s consequential order for Assessment Year 2003-04 and 2009-10 not making any such disallowance in light of the corresponding agreement and invoices. Faced with this situation, we deem it appropriate to restore the instant issue back to the AO for his afresh factual verification as per law within three effective opportunities of hearing subject to the condition that the assessee itself shall file all the documentary evidence by electronic mode as well as registered post.
Capital expenditure on software license fees - disallowance on the ground that it the assessee had not filed any objections to this effect before the DRP - HELD THAT:- CIT-DR fails to dispute that the DRP’s detailed discussion regarding assessee's objection No.10 in para 2.10 page 14 had clearly directed the AO to grant depreciation @ 60% in view of the tribunal's findings in preceding assessment years. We therefore allow the assessee's instant substantive ground in principle and leave it open for the AO to frame consequential computation as per law.
Disallowing deduction u/s. 10A - expenditure towards software lincence fee disallowed in the assessment order relating to STPI unit of the company - HELD THAT:- The same is admitted being an alternate plea; without prejudice to the foregoing third substantive ground, and restored back to the Assessing Officer as per law in light of the relevant facts and the corresponding factual position in preceding and succeeding assessment years.
-
2021 (10) TMI 1381 - RAJASTHAN HIGH COURT
Seeking grant of bail - offence compoundable or not - HELD THAT:- Having regard to the totality of the facts and circumstances of the case and looking to the custody period as also the fact that conclusion of the proceedings is likely to take some time and without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.
This bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Praveen Jangir S/o Mohan Lal Jangir shall be released on bail provided he executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
-
2021 (10) TMI 1380 - MADRAS HIGH COURT
Benami transactions - Notice and attachment of property involved in benami transaction - Reason to believe - whether the transactions in question constituted benami transactions, and merely adopt the identical contents of the communication of the forwarding authority? - petitioner argues that no material was available with the Department to discharge such onerous burden and thus the assumption of jurisdiction was itself bad in law - HELD THAT:- The nature of the transactions in question have to be established by the petitioner before the authorities upon the respondents discharging the initial burden cast upon them to furnish the primary evidences available with them to the effect that the property is benami in nature. This is a rebuttable presumption and the effectiveness of the rebuttal will depend on the evidences furnished by the noticees to the authorities.
In our considered view, therefore, the enquiry contemplated at the stage of initial investigation is only preliminary, based upon prima facie reasons and conclusions. A detailed verification of the evidences as regards whether the transactions were benami or otherwise can, and must only be undertaken in the course of adjudication and not at the stage of preliminary enquiry.
The thrust of the petitioner's case is the alleged insufficiency of materials as well as the fact that the evidences gathered are unreliable. However, and at the risk of repetition, the enquiry conducted under Section 24 is only a preliminary enquiry and the use of the phrase 'reason to believe' only indicates a prima facie satisfaction that all was not well as regards a particular transaction. In the present case, the trajectory of events as has been noticed by me in the preceding paragraphs of this order do not lead to the conclusion that the respondents had no reasons at all to justify the invocation of Section 24.
Denial of opportunity to cross examine the parties at the stage of investigation - As regards this, the respondents deny that such opportunity was sought for by all petitioners. In any event, they reiterate that opportunity for cross examination will be granted, as appropriate, in the course of adjudication proceedings.
In the present case, the testimony of the parties is one among other material that the respondents claim to be in possession of. The petitioners also rely upon a decision of the learned single Judge in Thilagarathinam Match Works Vs. Commissioner of Central Excise, Tirunelveli [2013 (11) TMI 535 - MADRAS HIGH COURT] to the effect that where the assessee asks for a request for cross examination, such request must be acceded to.
Thus, the process and procedure as envisaged for provisional attachment under Section 24 is of a narrower compass when compared with the process of adjudication to follow thereafter. That apart, not all the petitioners before me appear to have sought an opportunity to cross examine witnesses. It would thus suffice to state that it is open to the petitioners to make such request for cross-examination once they have been supplied with the relied upon documents at the time of adjudication, and such request, if and when made, will be considered by the respondents in accordance with law.
The mode of payment employed as between the parties and the actual amount transacted are pure questions of fact that are best left for verification and determination by the authorities concerned. This question is also left open for decision in the course of adjudication by the authorities.
The challenge to the impugned orders under Section 24(4) fails and the respondents are directed to proceed in line with Sections 25 and 26 forthwith. All writ petitions are dismissed. The petitioners were protected during the pendency of these Writ Petitions by virtue of an undertaken given by learned Standing Counsel for the respondents that there would be no escalation of the matter to the stage of adjudication. With the passing of this order that undertaking does not continue any longer.
The respondents will continue with adjudication under Section 25 and complete proceedings in light with the mandate of that Section. Notices under Section 26 of the PBPT Act will be issued within a period of 30 days from date of issue of these orders accompanied with all material that the respondents rely on and proceedings under Section 26 shall be conducted scrupulously in line with the mandate thereof.
The petitioners shall be afforded full opportunity to put forth all contentions before the adjudicating authority who shall take note of the same and pass speaking orders in accordance with law. Connected Miscellaneous Petitions are closed and the order of interim protection, if any, stands vacated forthwith. No costs.
........
|