|
Advanced Search Options
Case Laws
Showing 41 to 60 of 1589 Records
-
2022 (7) TMI 1550
Quashing of FIR under Section 306 IPC based on settlement - whether the Criminal Miscellaneous Applications filed by the Accused Under Section 482 of the Code of Criminal Procedure could have been allowed and an FIR Under Section 306 of the Indian Penal Code for abetment to commit suicide, entailing punishment of imprisonment of ten years, could have been quashed on the basis of a settlement between the complainant and the Accused named in the FIR? - HELD THAT:- Even though, the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction Under Section 482 of the Code of Criminal Procedure is not to be exercised for the asking.
In DR. MONICA KUMAR & ANR VERSUS STATE OF U.P. & ORS [2008 (5) TMI 687 - SUPREME COURT], this Court held that inherent jurisdiction Under Section 482 of the Code of Criminal Procedure has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.
As held by this Court in STATE OF A.P. VERSUS GOURISHETTY MAHESH AND ORS. [2010 (7) TMI 1208 - SUPREME COURT], the High Court, while exercising jurisdiction Under Section 482 of the Code of Criminal Procedure, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation would not be sustained.
Offence Under Section 306 of the Indian Penal Code of abetment to commit suicide is a grave, non-compoundable offence. Of course, the inherent power of the High Court Under Section 482 of the Code of Criminal Procedure is wide and can even be exercised to quash criminal proceedings relating to non-compoundable offences, to secure the ends of justice or to prevent abuse of the process of Court. Where the victim and offender have compromised disputes essentially civil and personal in nature, the High Court can exercise its power Under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. In what cases power to quash an FIR or a criminal complaint or criminal proceedings upon compromise can be exercised, would depend on the facts and circumstances of the case.
In exercise of power Under Section 482 of the Code of Criminal Procedure, the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.
The Criminal Proceeding cannot be nipped in the bud by exercise of jurisdiction Under Section 482 of the Code of Criminal Procedure only because there is a settlement, in this case a monetary settlement, between the Accused and the complainant and other relatives of the deceased to the exclusion of the hapless widow of the deceased - An FIR Under Section 306 of the Indian Penal Code cannot even be quashed on the basis of any financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else. It is clarified that it was not necessary for this Court to examine the question whether the FIR in this case discloses any offence Under Section 306 of the Indian Penal Code, since the High Court, in exercise of its power Under Section 482 Code of Criminal Procedure, quashed the proceedings on the sole ground that the disputes between the Accused and the informant had been compromised.
The impugned orders of the High Court are set aside - Appeal allowed.
-
2022 (7) TMI 1549
Denial of exemption u/s 11 - assessee made investments in violation of section 13(1)(d) r/w section 11(5) - assessee is a registered society and was granted exemption u/s 10(22) in respect of all the income arising from the educational institutions run by them - HELD THAT:- It is an admitted fact that the assessee did not comply with the provisions of law, subsequent to the amendment, for claiming exemption under section 11, though they enjoyed the said benefit till the assessment year 1998-99, without any restrictions. It is the specific case of the appellant/Revenue that the assessee is holding shares and other investments in private companies, which are outside the scope of section 11(5) and hence, they are not entitled for the benefit of section 11 as provided in section 13(1)(d), for the assessment years under consideration.
Whereas the assessee stated that they are not holding any impermissible investments and they had not violated the provisions of section 11(5), as alleged. In support of the same, a memo dated 28-6-2022 was filed detailing the shares purchased and sold by the assessee in the form of a chart. Such being the submissions made by the parties, this court, in the light of the factual matrix and as agreed by the learned counsel appearing for both sides, is inclined to set aside the orders of the appellate authorities and remand the matter to the assessing officer for fresh consideration.
Accordingly, the orders of the appellate authorities are set aside and the matter is remitted to the assessing officer for fresh consideration, by considering the memo filed by the assessee before this Court. AO shall complete the said exercise, after providing due opportunity to the assessee for submission of both oral and documentary evidence, if any, and pass appropriate orders, on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this judgment.
-
2022 (7) TMI 1548
Validity of Assessment order passed u/s 143(2) due to lack of personal hearing for the petitioner - HELD THAT:- The issue involved in the present writ petition is no longer res integra. This Court in the case of Bharat Aluminium Company Ltd. vs. Union of India & Ors. [2022 (1) TMI 658 - DELHI HIGH COURT] has held that the use of the expression “may” in Section 144B(7)(viii) is not decisive.
Where discretion is conferred upon a quasi judicial authority, whose decision has civil consequences, the word “may” which denotes discretion should be construed to mean a command. Consequently, the requirement of giving an assessee a reasonable opportunity of personal hearing is mandatory. It was further held that the classification made by the Respondent between the matters involving disputed questions of fact and questions of law by way of the Circular dated 23rd November, 2020 is not legally sustainable. This Court is of the opinion that an assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.
Consequently, the impugned assessment order passed by the respondent under Section 143(2) and the consequent proceedings are quashed and the matter is remanded back to the Assessing Officer for a fresh decision.
-
2022 (7) TMI 1547
Compliance with One Time Settlement (OTS) scheme terms - construction of the terms of the sanction letter - the last payment made by Petitioner-company by way of a negotiable instrument (a cheque) on 23rd July, 2021 i.e. the last date of the validity period, stood credited into the account of SBI only on 27th July 2021 - HELD THAT:- When Petitioner- company tendered the final amount by cheque, SBI accepted the same without any condition. During the course of arguments, Ms. Tomar made an oral submission, without any supporting specific averment in the counter affidavit, that it could be a possibility that Petitioner-company simply deposited the cheque in the dropbox/ dak and moved away. However, the Court finds no mention of such contention in the counter affidavit. The Court also finds it hard to believe that the exact calculation of payable interest amount would have been done by Petitioner-company unilaterally. Nonetheless, SBI did not dispute the cheque even on the subsequent date, and instead, proceeded to encash the same.
There is no explanation why the cheque was not sent for clearing on 23rd July, 2021 itself. Although it is orally argued that the same was perhaps for the reason that it was deposited by Petitioner-company after the clearing hours; however, again, there is no such averment in the counter affidavit.
The first communication relied upon by SBI to defend its inaction is the letter dated 31st January, 2022 wherein for the first time, referring to a meeting held in the first week of January and on 31st January, 2022, it is contended that no-dues certificate cannot be issued towards the settlement of account. In view of the above, it emerges that SBI unconditionally accepted the payment; made no protest and credited the payment. Having accepted the payment and not offering any plausible explanation for the delay in responding can only lead to one inference– the stand now put forth by SBI is an after-thought.
SBI has a duty to act fairly and reasonably. The OTS cannot be rendered infructuous on fanciful reasons otherwise the intent of bringing an OTS scheme, and the ensuing consequences, would stand defeated. The reasons offered by SBI have trivialized the ‘non-discretionary’ aspect of the scheme.
The Court is satisfied that Petitioner- company has complied with the terms of the sanction letter, and therefore, the petition deserves to be allowed - petition allowed.
-
2022 (7) TMI 1546
Validity of reassessment proceedings - whether the reopening of the assessment was valid and the tribunal was correct in setting aside the order passed by the CIT(Appeals) by which he affirmed the ex parte order of assessment passed by the AO u/s 147, 144 and 143(3)? - HELD THAT:- The tribunal after considering the facts which were placed before it has recorded a finding that the assessing officer does not spell out that escapement of income was due to the assessee not fully and truly disclosing all material facts necessary for completion of the assessment. On perusal of the reasons mentioned by the AO, the tribunal found that there is no specific finding to the effect that there was failure on the part of the assessee to fully and truly disclose all material facts.
The tribunal also noted that even during the original proceedings before the assessing officer, at the first instance, increase in freight charges vis-à-vis purchases were very much available before the assessing officer.
Tribunal took note of the decision in CIT vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] and applied the said decision to the facts of the case and held that the assessing officer does not refer to any new material that came into his possession based on which he entertained to believe that income of the assessee chargeable to tax has escaped assessment.
The nature of activities done by the assessee was taken note of and that it was a Government of West Bengal company. After examining the facts, the tribunal has concluded that the initiation of reassessment proceeding was merely on the basis of change of opinion. Thus, we find that the factual position having been taken note of by the tribunal, relief was granted to the assessee.
-
2022 (7) TMI 1545
Jurisdiction of Court to pass an order directing the Income Tax authority to make an investigation over the transactions between the parties to be unconscionable and opposed to public policy - recovery of money lent and advanced by the plaintiff to the defendant - HELD THAT:- In a recent judgment the Apex Court in PASL Wind Solutions Pvt. Ltd. [2021 (4) TMI 1056 - SUPREME COURT] accepted the principles on public policy laid down in Central Inland Water Transport Corporation [1986 (4) TMI 271 - SUPREME COURT] and held that it is capable of being modified and/or varied and may be expanded depending upon the public conscience, public good and the public interest and, therefore, is not a rigid principles solely based on the common law or the precedents in past.
It is inconceivable that the Court would remain a mute spectator where the contract between the parties is a harmful thing, having harmful tendencies, having ramification on the interest of the welfare state in the realm of a freedom of contract. The concept of public policies broadly is founded on public good or public interest and in the changing times may extend it to any transaction which affects the public at large. It is sometimes regarded as an unruly horse and the Judges remained on a slippery road, yet had a firm footing in a patent case of injury to a public at large.
It is no longer res integra that Court should seldom exercise the inherent powers enshrined under Section 151 of the Code when there is a specific provision contained in the Code yet sometimes the Court for securing the ends of justice i.e. ex-debito justitiae may invoke such power necessitated by circumstances. Ordinarily, the Court decides the cause pleaded in the respective pleadings and the reliefs claimed therein, yet it has not brindled the power of the Court after noticing the special facts in passing an order under the public policy to secure the interest of the welfare state.
There are no infirmity and/or illegality in the impugned order - The appeal is dismissed.
-
2022 (7) TMI 1544
Who is the Borrower - actual physical possession of the property - respondent-Bank did not disclose about the pendency of the civil proceedings - Section 14(1) of SARFAESI Act - HELD THAT:- The order rejecting the interim injunction application was affirmed by the Division Bench. However, while doing so, the Hon’ble Division Bench has observed that the appellant/plaintiff shall not be evicted from the premises in question except in due process of law. The question would be as to what is meant by due process of law in the facts and circumstances of this case. As observed earlier, it is for the District Magistrate to decide the same, and therefore, the Bank ought to have placed the order passed by the Division Bench before the District Magistrate before he could exercise jurisdiction under Section 14(1) of the SARFAESI Act.
There are no hesitation to hold that not placing the order passed by the Division Bench before the District Magistrate is definitely prejudicial to the interest of the appellant as the District Magistrate had no occasion to make any observation as regards the effect of such order. It is not clear as to why the respondent-Bank failed to place the order passed by the Hon’ble Division Bench before the District Magistrate. In fact, stronger observation ought to have been made against the respondent-Bank than what was made by the learned Single Bench by stating that the respondent-Bank should have been more careful while disclosing true state of affairs. The respondent-Bank being lendor ought to be fair by placing all materials before the concerned authority. Non- disclosure especially when it is an order passed by the Hon’ble Division Bench of this Court is undoubtedly a very serious matter, and has to be deprecated.
The order passed in the writ petition is set aside. Consequently, the order passed by the District Magistrate dated 06.06.2017 is quashed, and the matter is remanded to the District Magistrate, Paschim Medinipur and with the direction to the respondent-Bank to place all the materials including the pleadings and the orders passed by the civil court as well as the order passed by the Hon’ble Division Bench and thereafter the District Magistrate shall afford an opportunity of hearing to the respondent-Bank as well as the appellant, and take a fresh decision on merits and in accordance with the law.
Appeal allowed by way of remand.
-
2022 (7) TMI 1543
Assumption of jurisdiction by the PCIT u/s 263 - Estimation of income on bogus purchases - as per CIT AO having failed to disallow bogus purchases fully, but resorted to a certain percentage - HELD THAT:- The tribunal has elaborately examined this issue, taken note of the decision of the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] and allowed the appeal. Further, the tribunal has noted that the assessing officer had made an addition of 2% to the gross profit over and above the rate of gross profit of 4.63% totalling to 7.63%.
It appears that after completing the assessment the assessing officer addressed the PCIT stating that certain error has occurred in the assessment order and requested him to review the order u/s 263 of the Act.
Whether such a procedure adopted by the PCIT was legally sustainable was examined by the tribunal and in our considered view after taking note of the various decisions of the Hon’ble Supreme Court it was rightly pointed out that section 263 of the Act does not permit substituting one opinion for another. That apart, the tribunal has specifically recorded a factual finding that the assessee had produced all necessary details of the purchase, sales, audited books of accounts, quantity details, etc..
Tribunal found that the assessee’s books of accounts were audited by the Chartered Accountant, the quantity details were given in respect of opening stock, purchase, sales, closing stock, etc. Tribunal pointed out that no discrepancy was found between the purchase shown by the assessee and the sales decline. Thus, on facts, the tribunal concluded that assumption of jurisdiction by the PCIT u/s 263 of the Act was erroneous. Decided in favour of assessee.
-
2022 (7) TMI 1542
Assumption of jurisdiction by the PCIT u/s 263 - Estimation of income on bogus purchases - as per CIT AO having failed to disallow bogus purchases fully, but resorted to a certain percentage - HELD THAT:- The tribunal has elaborately examined this issue, taken note of the decision of the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] and allowed the appeal. Further, the tribunal has noted that the assessing officer had made an addition of 2% to the gross profit over and above the rate of gross profit of 4.63% totalling to 7.63%.
It appears that after completing the assessment the assessing officer addressed the PCIT stating that certain error has occurred in the assessment order and requested him to review the order u/s 263 of the Act.
Whether such a procedure adopted by the PCIT was legally sustainable was examined by the tribunal and in our considered view after taking note of the various decisions of the Hon’ble Supreme Court it was rightly pointed out that section 263 of the Act does not permit substituting one opinion for another. That apart, the tribunal has specifically recorded a factual finding that the assessee had produced all necessary details of the purchase, sales, audited books of accounts, quantity details, etc..
Tribunal found that the assessee’s books of accounts were audited by the Chartered Accountant, the quantity details were given in respect of opening stock, purchase, sales, closing stock, etc. Tribunal pointed out that no discrepancy was found between the purchase shown by the assessee and the sales decline. Thus, on facts, the tribunal concluded that assumption of jurisdiction by the PCIT u/s 263 of the Act was erroneous. Decided in favour of assessee.
-
2022 (7) TMI 1541
Challenge to issuance of Look Out Circular against the petitioner without due process of law - offences under Sections 498-A and 307 read with Section 34 IPC and under Sections 3 and 4 of Dowry Prohibition Act - HELD THAT:- According to the police, the whole basis for issuing the look out circular is that NBWs were issued against the petitioner. When once the petitioner has returned to India and appeared before the Court below, wherein bail was granted as well as the permission to travel abroad, there are no reasons for continuation of the said look out circular. Once LOC is issued, it has to be renewed every year in all the cases. But the respondent-police are continuing the same without any renewal. In this case, even as per the counter, there are no circumstances for continuing the look out circular and hence, the respondents are directed to withdraw the look out circular and also communicate the same to all the concerned within a period of three weeks from the date of receipt of a copy of the order.
The Writ Petition is disposed of.
-
2022 (7) TMI 1540
Validity of reopening proceedings - eligibility of exemption u/s. 10B of the Act and also exemption on receipts relating to EMA - HELD THAT:- Tribunal after elaborately considering the factual position found that the identical issue was adjudicated and decided in the assessment proceedings u/s 143(3) of the Act and the reopening was wholly without jurisdiction. There is no perversity in the order passed by the tribunal for us to interfere. Decided against revenue.
-
2022 (7) TMI 1539
Revision u/s 263 - Addition u/s 2(22)(e) - assessee availed unsecured loan from its group company - HELD THAT:- It is not disputed before us that the question of law which has been raised for consideration was considered in the case of SUPRABHA INDUSTRIES LTD [2022 (1) TMI 796 - CALCUTTA HIGH COURT] wherein it was held that Section 2(22)(e) of the Act would not be applicable where the assessee availed unsecured loan from its group company which was paid back with interest in the same year.
In the light of the above, following the decision the appeal filed by the revenue is dismissed and the substantial questions of law are answered against the revenue.
-
2022 (7) TMI 1538
Approval of Resolution plan - HELD THAT:- Company went to liquidation as the NCLT passed the resolution plan in favour of some other company M/s. SVG Fashions Pvt Ltd.
This appeal become infructuous and disposed of accordingly.
-
2022 (7) TMI 1537
Taxability of benefits being granted on the voluntary retirement - whether the individual retired as Managing Director or Advisor and eligibility of voluntary retirement benefits? - Tribunal said when the assessee did not draw any salary even for half a day for working as an Advisor, there is no question of any amount being worked for permissible deduction under Section 10(10C) - HELD THAT:- The assessee preferred appeal before the CIT(A) who had elaborately taken note of the factual position and, in our view, rightly come to the conclusion that the application for voluntary retirement dated 10th December, 1992 was accepted by the employer of the assessee with effect from 31 st December, 1992 on which date the appellant/assessee was to retire voluntarily as Managing Director of the Durgapur Steel Plant
The revenue was not in a position to dislodge the factual finding which was recorded by the CIT(A). However, the tribunal without appreciating the factual position erroneously reversed the order on the flimsy ground the assessee did not draw any salary even for a half day, i.e. 1st January, 1993. The tribunal missed an important fact as regards the actual date of retirement on voluntary basis. We are of the view that the order passed by the tribunal was erroneous, perverse and calls for interference. Assessee appeal allowed.
-
2022 (7) TMI 1536
Validity of reopening of assessment - notice after a period of four years from the end of the relevant assessment year - agricultural income which included the long term capital gain arising out of the land in question as unexplained - seized material as collected during the course of search action carried out in the case of third party - HELD THAT:- As certain incriminating documentary evidence was found and based upon one such document seized during course of search, assessment is sought to be reopened on the ground that the petitioner along with others sold the property for a consideration of Rs. 1,30,80,100/- whereas amount shown in the sale deed is only 1,46,33,000/-. It is also the case of the AO that no return of income was filed by the petitioner at the relevant time and the assessed income to the tune of Rs. 3,27,20,025/- has escaped assessment on account of unexplained long term capital gain.
AO has without verification of the record has issued the impugned notice as the petitioner has filed the return of income for the AY 2011-2012 on 17.01.2012 declaring total income of Rs.4,81,499/- which has been processed under section 143(1) of the Act. Thus the entire premise for reopening of the assessment that the petitioner has failed to disclose the long term capital gain by filing return of income is without any basis.
Even while disposing the objection of the assessee, the AO failed to consider that the return of income was filed by the assessee on 17.01.2012 declaring long term capital gain with regard to the sale of the land. Moreover, reliance placed by AO on the document seized during the course of search from M/s. K Star Corporation is not at all related to assessee as explained in letter dated 29.11.2018 addressed by the assessee to the AO categorically stating that M/s. K Star Corporation is an unknown entity for the assessee and assessee has not executed any agreement or made any transaction with the said firm and the assessee has executed the sale deed along with other co-owners with Shri Swintobhai Mawani and Ankitbhai Koshiya.
Thus the AO has failed to establish any live nexus between the material relied upon to reopen the assessment and as such reopening on the basis of such information is not valid in the eyes of law and liable to be quashed for the reason that the AO failed to apply his mind by arriving at reasonable belief by recording reasons on the borrowed satisfaction. This Court incase of other co-owner Kantibhai Dharmasinh Narola quashed the reopening proceedings and therefore, on the same reasoning the impugned notice is liable to be quashed and set aside.
The impugned notice u/s 148 of the Act by the respondent exercising the powers to reopen the assessment is quashed and set aside. Decided in favour of assessee.
-
2022 (7) TMI 1535
Recovery of the demand arising out of the adjudication order without giving any opportunity to the petitioner - Violation of principles of natural justice - HELD THAT:- Admitted position is that the adjudication order was passed on 14th December, 2021 while just within 16 days i.e. on 30 th December, 2021 respondent authorities concerned has recovered the demand in question which is a clear violation of the aforesaid provision of Section 78 of WBGST Act, 2017.
This writ petition is disposed of by directing the authorities concerned to refund the money which it has collected in excess of demand in question which is required to be deposited as a pre-deposit for filing of appeal against the impugned adjudication order within 15th days from date on condition that petitioner will file the appeal against the impugned adjudication order within 15 days from date and if such appeal is filed by the petitioner within the time stipulated herein, the appellate authority concerned will consider the issue of limitation by taking a lenient view.
-
2022 (7) TMI 1534
Revision u/s 263 - CIT-DR pleaded for dismissal of the appeal on the ground that no submissions were made by the assessee during revisional proceedings also - HELD THAT:- Upon perusal of impugned order, it could be seen that the assessment order was subjected to revision on certain points which are enumerated in para-2 of the impugned order. Though the assessee was put to show-cause, however, the assessee failed to make any submissions.
Accordingly, the assessment was set aside and AO was directed to redo the assessment. Aggrieved the assessee is in further appeal before us. In one of the grounds, the assessee has pleaded that the assessee sought adjournment and the order was passed without sufficient opportunity of hearing.
Though we concur with the submissions of CIT-DR that the assessee has remained negligent before revisional authority, however, keeping in view the principle of natural justice, we direct Pr. CIT to grant another opportunity of hearing to the assessee to defend its case and take a fresh call on the revision. Pr. CIT is at liberty to proceed with the revision in case the assessee fails to substantiate its case. The appeal stand allowed for statistical purposes.
-
2022 (7) TMI 1533
Reduction of the competition to its electors by creating indirect entry barriers into the profession of legal service - whether the Second Respondent/ ‘Bar Council of India’ comes within the ambit of ‘enterprise’ as per Section 2(h) of the Competition Act, 2002? - HELD THAT:- It is convincing that the order of which review has been sought, does not suffer from any error apparent warranting its reconsideration.
The Review petition is dismissed.
-
2022 (7) TMI 1532
Procedure of assessment for certain category of assessees specified in section 144C - Period of limitation to pass final order - applicable from 01/10/2009 or from assessment year 2010-11 - HELD THAT:- We find that both, the Division Bench of the Hon’ble Andhra Pradesh High Court and Single Bench of the Hon’ble Madras High Court in the case of Vedanta Limited. [2020 (1) TMI 168 - MADRAS HIGH COURT] has given contrary finding and so the issue before us is which findings should be followed. We find that there is no decision on the issue of the jurisdictional High Court. The judicial discipline demand that decision of the higher forum should be followed.
Since the decision of the Hon’ble Andhra Pradesh High Court is of the division bench whereas the decision of the Hon’ble Madras High Court in the case of Vedanta Ltd (supra) is of the single bench, and therefore we are inclined to follow the decision of the Hon’ble Andhra Pradesh High Court in the case of Zuari Cement Ltd. wherein it is held that procedure of issuing draft assessment order laid down in the section 144C is to be followed with effect from 01/10/2009.
In the instant case, though the assessment year involve is 2009-10, the draft assessment order has been issued on 28/03/2013, much after the specified date of 01/10/2009 and therefore we do not find any violation of the law by the Assessing Officer in issuing the draft assessment order on 28/03/2013 and passing of the final assessment order dated 26/02/2014 by the AO. Therefore, the final assessment order passed by the Assessing Officer is well within the limitation provided in law. Thus, the additional grounds raised by the assessee are accordingly dismissed.
TP adjustment on the total manufacturing turnover of the assessee - whether the transfer pricing adjustment should be made on the entire manufacturing turnover of the assessee or in respect of international transactions carried out by the assessee with the Associated Enterprises? - HELD THAT:- In our opinion, the entire exercise of determination of arm’s-length price is in respect of the international transactions carried out by the assessee with the Associated Enterprises and therefore adjustment is also should be limited to the international transactions carried out with the Associated Enterprises and cannot be applied over the transactions with unrelated party or domestic parties unless covered under Domestic Transfer Pricing Provisions.
We set aside the finding of the Assessing Officer on the issue in dispute and restore the matter back to him for comparison of export segment of the assessee with the export segment of comparable companies and then determine the arm’s-length price of the international transactions with AE applying the mean margin of the comparables. The ground No. 2 of the appeal of the assessee is accordingly allowed for statistical purposes.
Additions of purchase expenses - in the draft assessment order the Assessing Officer has made addition on the basis of the response of the notice under section 133(6) issued to those purchase parties - HELD THAT:- We find that, in the case matter is of verification of the parties and the Ld. DRP has provided opportunity to assessee and after taking into consideration the additional evidence submitted by the assessee and calling for remand report from the assessee has sustained addition in respect of the two parties only, particularly where the assessee failed to substantiate purchase amount recorded in its books of accounts.
In our opinion, the exercise of the verification has already been done during the proceeding before the DRP. Assessee has not provided any justified reasons for restoring the matter back to the file of the AO. DRP has duly considered the submission of the assessee and wherever the assessee has failed to substantiate with evidence in that case only additional is sustained. Therefore, the ground No. 6 and 7 of the appeal of assessee are dismissed.
-
2022 (7) TMI 1531
Denial of registration u/s. 12AA - non-receipt of notices of hearing - as claimed on behalf of the Society that it had received only one notice, i.e., dated 15-10-2020, on 27-10-2020, wherein the date for filing the reply was mentioned as 26-10-2020, so as to be of no consequence - HELD THAT:- As regards the pleading of Appellant-society the same is neither here nor there inasmuch as the Revenue would send notices only at the email ids provided thereto for the purpose. Two, the addressee’s email id or the proof of delivery furnished by the ld. CIT-DR is not refuted. The affidavit dated 02/7/2022 thus stands disproved to that extent. We are disinclined to, in view thereof, i.e., the assessee making a wrong averment per a sworn statement, accord much credence thereto. In any case, the assessee became aware of the proceedings being on in it’s case on the receipt of notice dated 15/10/2020 on, as stated, 27/10/2020 and, in fact, ought to have been ready with the case.
We, in view of the supervening circumstance of the pandemic, consider it proper to, in the interest of justice, take a liberal view of the matter. No prejudice would also stand to be caused to the Revenue, except, of course, the administrative load that any remission entails. We also abstain imposing cost in view of, as afore-stated, the pandemic.
The matter is accordingly restored back to the file of the ld. CIT(E) for affording one final opportunity to the assessee to present it’s case before the competent authority.
........
|
9911796707
