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2019 (8) TMI 1888
TP Adjustment - CIT(A) accepting segmental profitability statement of the assessee - DR pointed out that the segmental profitability statement is not a part of the audited financial statement therefore it must be rejected - HELD THAT:- It is pertinent to note that the dispute arising from this segment reporting issue has already been adjudicated by the Coordinate Bench of ITAT in assessee`s own case [2019 (4) TMI 2103 - ITAT KOLKATA] noted that it is an undisputed fact that the assessee company belongs to the category of 'Small and Medium Sized Companies'. As a consequence, the Accounting Standard(AS)-17 is not mandatory for the assessee company. That is why, the assessee company has not disclosed segment reporting in the audited financial statements for the relevant financial year. However, it is pertinent to note that the assessee company submitted segment reporting to the Ld TPO solely for the purpose of application of the TNMM..
Coordinate Bench Delhi Tribunal in the matter of GSR Technology (India) (P.) Ltd [2017 (12) TMI 809 - ITAT DELHI] held that even if such segmental results were not shown in the audited financial accounts, they had to be accepted. There was no legal requirement that the segment wise working submitted before the TPO should have been audited by the Assessee's Chartered Accountant. See Infotec Ltd. [2013 (5) TMI 834 - ITAT CHENNAI]
We note that in the instant case the assessee provided software development services to the AE generating revenue which constituted 99.24% of total AEsales. The assessee rendered a large variety of services to non-AEs such as drawing consultancy services (generating revenue which constituted 94.30% of the total non-AE sales), annual maintenance of website, annual maintenance contract for hardware, video editing and hiring of camera equipment, CD sales, digital media sales, charges for gift online etc., among other services.
Since the services rendered by the assessee to the AE are different from the services rendered by the assessee to non-AEs, the assessee determined the arm's length nature of the international transaction under the TNMM based on segmental accounts duly certified and verified by the independent statutory auditor of the assessee dated 11th August 2010 (date of signature of annual financial statements). In the aforesaid segmental accounts, one segment is 'Sales to AE and associated expenses' and the other segment is 'Sales to Non-AEs and associated expenses'.
TPO rejected the segmental accounts and the arm's length analysis undertaken by the assessee based on the segmental accounts under the transaction-by-transaction approach, primarily based on the allegation that the segmental accounts had not formed part of audit report and hence, the same was not reliable - We note that that the Coordinate Benches of ITAT, as explained above, have accepted segmental accounts for the purpose of arm's length analysis of international transactions under the TNMM where the functions performed by the assessee under the AE-segment are different from the functions performed by the assessee under the non-AE segment, though the segmental accounts do not form part of the audit report.
Having regard to the nature of functions performed by the assessee under the AE segment and the non-AE segment respectively and the relevant decisions of the Coordinate Benches of ITAT in this regard (as mentioned hereinabove), we are inclined to accept the segmental accounts used by the assessee for determination of the arm's length price of the international transaction under consideration under the TNMM on transaction-by- transaction basis. That being so, we decline to interfere with the order of Id. C.I T.(A) in accepting the segment report and hence the ground of appeal of the Revenue is dismissed.
Rejection of comparables - Intec Software Pvt Ltd was not functionally comparable to the assessee company in the instant case.
Cherrytec Intelisolve Ltd, Cigniti Technologies Ltd and Secure Earth Technologies Ltd. - TPO cannot suo moto apply the filter 'companies who have less than 75% of the revenue as export sales were excluded' in order to exclude Cherrytec Intelisolve Ltd, Cigniti Technologies Ltd and Secure Earth Technologies Ltd. In this connection, it is pertinent to note that the TPO has not disputed; otherwise functional or FAR (function-asset-risk) comparability between the assessee company and Cherrytec Intelisolve Ltd, Cigniti Technologies Ltd and Secure Earth Technologies Ltd. That being so, we decline to interfere in the order passed by the ld CIT(A), his order on this issue is hereby upheld and ground No.4 raised by the Revenue is dismissed.
Kireeti Soft Technologies Ltd - We note that in the assessee`s case under consideration, the employee cost to sales ratio of Kireeti Soft Technologies Ltd is 24.31%, whereas the TPO set the threshold at 25% and rejected the aforesaid company. The TPO has not disputed, otherwise functional or FAR (function-asset-risk) comparability between the assessee company and Kireeti Soft Technologies Ltd. We reject the contention of the TPO and accept Kireeti Soft Technologies Ltd as comparable to the assessee company. That being so, we decline to interfere in the order of ld CIT(A) and dismiss the ground No. 5 raised by Revenue.
Akshay Software Technologies Ltd. be accepted as functionally comparable to the assessee as it is clearly evident from the annual report of the comparable company itself that it is engaged in rendering software development activity only.
Avani Cimcon Technologies Ltd. - As total revenue of the said company stands at INR 3.05 crore out of which the operational revenue stands at INR 2.83 crore. The cost incurred by the company stands at INR 2.73 crore leading to profit before tax amounting to INR 0.33 crore. Thus, the allegation made by the Revenue that the company has insignificant cost base has no leg to stand. It is also not true that in the case of the aforesaid company, with a small variation in profit, the impact in the profit margin will be very significant. We therefore accept Avani Cincom Technologies Ltd as comparable, and for that we rely on the judgment of the Coordinate Bench of ITAT Hyderabad in the matter of CNO IT Services (India) (P.) Ltd. [2018 (1) TMI 1151 - ITAT HYDERABAD]
CAT Technologies Ltd is to be selected as comparable .
Selecting cash profit over sales - We accept the cash profit margin ratio as an appropriate profit level indicator(PLI) under the TNMM which places the tested party and comparable companies on equal footing. In the aforesaid decisions, nowhere it is stated that cash profit margin is an appropriate net profit indicator only for a company which operates in capital intensive industry. The cash profit margin ratio is also applicable to other companies, as profit level indicator (PLI) and it is not only restricted to capital intensive industries; that is, it is equally applicable to other industries also. We accept cash profit margin ratio as appropriate profit level indicator (PLI) in the assessee`s case under consideration. That being so, we decline to interfere in the order of ld CIT(A) and dismiss the ground raised by Revenue.
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2019 (8) TMI 1887
Jurisdiction of the Special Court treating offences committed territorially under the SEBI Act - scope of proceedings after the amendment of the SEBI Act 2014 and offences under the SEBI Act committed prior to the 2002 amendment - revisionist would argue that no part of the cause of action in the original complaint that was adjudicated by SEBI arose in Kolkata and the entire proceedings were initiated at Mumbai in which the revisionist was penalised as said first proceeding was carried in appeal to the Securities Appellate Tribunal at Mumbai, which affirmed the order of the Adjudicating Officer - HELD THAT:- As in the case of Securities and Exchange Board of India –Vs.- Classic Credit Limited [2017 (8) TMI 869 - SUPREME COURT] related to a trial and not enforcement of a final order passed by the Adjudicating Officer. Since the final order of the Adjudicating Officer has been upheld all the way to the Supreme Court. The issue as to the person to whom the penalty should be paid can no longer be reopened. The impugned proceedings are for failure on the part of the Revisionist to repay the amount of the order of the Adjudicating Officer to the Regional Manager of the SEBI at Kolkata. The principle to be followed in this regard is that an executing court cannot go behind the original order that is sought to be executed.
This Court finds no infirmity in the proceedings and, therefore, the revisional application must fail and hereby dismissed.
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2019 (8) TMI 1886
Reversal of ITC - petitioners had effected inter-state sale of goods without 'C' Form Declarations - second revision notice - first revision notice already dropped - HELD THAT:- Having dropped the first proposal, there is clearly no justification for issuance of the second revision notice wherein the respondent has simply sought wide – ranging particulars from the petitioners.
It appears that what the Assessing Authority has embanked in the second revision upon a fishing expedition. No flaw or lacunae in the turnover returned by the assessee has been pointed out in the second revision notice, in the absence of which the notice has no justification at all.
Petition allowed.
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2019 (8) TMI 1885
Monetary limit for filing the appeals by the Department before the ITAT - maintainability of appeal on low tax effect - HELD THAT:- In the present case it is an admitted fact that the CBDT vide Circular No. 17/2019 enhanced the monetary limit to Rs. 50,00,000/- for not filing the appeal by the department before the ITAT, earlier this limit was specified at Rs. 20,00,000/- in the original Circular no. 03/2018 dt. 11/07/2018.
From the contents of the aforesaid Circular it is crystal clear that the anomaly in the earlier Circular no. 3 of 2018 dt. 11/07/2018 at page 5 has been removed and the limit specified in para 3 of the earlier Circular has been enhanced. It is also not in dispute that the earlier Circular was applicable retrospectively to the pending appeals / cross objections.
Now the CBDT simply enhanced the monitory limit and the directions given earlier vide para nos. 12 & 13 of the Circular no. 3 / 2018 dt. 11/07/2018 are still intact which is crystal clear from the language of the Circular no. 17/2019 wherein it has been mentioned that there is enhancement of monetary limit and amendment to Circular no. 3 /2018 for reducing the litigation. We therefore are of the confirmed view that the amended Circular No. 17/2019 now issued by the CBDT is also applicable to the pending appeals as has been specified in para 13 of the original Circular no. 3/2018 dt. 11/07/2018 and that the Department ought not have filed the appeals before the ITAT where the tax effect is Rs. 50 Lacs or less.
In view of the aforesaid discussion all the above appeals filed by the Department are dismissed.
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2019 (8) TMI 1884
Monetary limit for filing the appeals by the Department before the ITAT - HELD THAT:- In the present case it is an admitted fact that the CBDT vide Circular No. 17/2019 enhanced the monetary limit to Rs. 50,00,000/- for not filing the appeal by the department before the ITAT, earlier this limit was specified at Rs. 20,00,000/- in the original Circular no. 03/2018 dt. 11/07/2018.
CBDT simply enhanced the monitory limit and the directions given earlier vide para nos. 12 & 13 of the Circular no. 3 / 2018 dt. 11/07/2018 are still intact which is crystal clear from the language of the Circular no. 17/2019 wherein it has been mentioned that there is enhancement of monetary limit and amendment to Circular no. 3 /2018 for reducing the litigation. We therefore are of the confirmed view that the amended Circular No. 17/2019 now issued by the CBDT is also applicable to the pending appeals as has been specified in para 13 of the original Circular no. 3/2018 dt. 11/07/2018 and that the Department ought not have filed the appeals before the ITAT where the tax effect is Rs. 50 Lacs or less. Appeal filed by the Department is dismissed.
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2019 (8) TMI 1883
Penalty u/s 271(1)(c) levied on the legal representative/heirs - penalty was initiated assessee-husband but not concluded prior to his death - penalty in hand of wife post husband death - interpretation of Section 159 - As decided by HC [2019 (3) TMI 1165 - MADRAS HIGH COURT] Once the provisions of Section 271 (1) (c) depend upon the guilty animus or mens rea on the part of the assessee concerned, naturally, as legal representative, the wife cannot be held liable to defend those penalty proceedings or be held guilty of any mens rea on the part of the husband. Therefore, unless the penalty proceedings are concluded against a living assessee, the legal heirs cannot be held liable to face those proceedings or pay any sum determined as penalty payable under Section 271 (1) (c)
HELD THAT:- Delay condoned. The petitions stand dismissed.
Question of law is left open.
Pending applications stand disposed of.
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2019 (8) TMI 1882
Dishonour of Cheque - discharge of legally recoverable debt or cheque given as security - transfer of shares - factual defences - HELD THAT:- It is clear that the grounds agitated by the petition at hand relate to “factual defences”, which cannot be considered by this court by the limited inquiry permissible on a petition under section 482 Cr.P.C.
The observations of the Supreme Court in RAJIV THAPAR & ORS. VERSUS MADAN LAL KAPOOR [2013 (1) TMI 932 - SUPREME COURT] needs to be borne in mind where it was held that the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.”
The petitioner is at liberty to raise such defences as are available to him before the court which has summoned him in the above case.
Petition dismissed.
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2019 (8) TMI 1881
Maritime claim - Inherent jurisdiction of Commercial Court at Rajkot to entertain and decide the said petition - seeking stay on further proceedings of Execution Petition - HELD THAT:- The bare reading of the definition of the word "Commercial Dispute" includes within its compass a dispute arising of the clauses provided under section 2(c)(i) to (xxii).
It is an admitted position that the original dispute was filed as a commercial dispute before the English Courts and a decree has been passed and the same would not change its nature and character at the stage of execution and as succinctly set out by the learned Commercial Court in the impugned order the petitioner was the defendant before the English Courts.
It is crystal clear that the liability of the petitioner is based upon the maritime claim, which is a commercial dispute and the personal guarantee which has been given by the petitioner is under commercial dispute, which arose before the English Court. It clearly appears from the record that the decree has become final as the petitioner has not been able to point out before this Court that it has been challenged by the petitioner before the competent appellate jurisdiction, which has become final in November 2017 and thereafter, the respondent herein has preferred an application for its execution before the competent court. The contention raised by the learned counsel for the petitioner that the Commercial Court at Rajkot (now Jamnagar) has no jurisdiction is totally meritless - What is sought to be executed by the respondent is a maritime claim as per decree by the Commercial Court at England and therefore, the dispute in the present matter is a commercial dispute as rightly held by the Commercial Court at Rajkot in all four circumstances as narrated in the impugned judgment.
The record clearly indicates that the petitioner has participated before the English Commercial Court and has not contended or objected that it is not a commercial dispute. Even independently examining the same, the Commercial Court at Rajkot has come to the conclusion that it is a commercial dispute and that Commercial Court at Rajkot, now at Jamnagar has inherent jurisdiction to try and decide the execution petition filed by the respondent - the record indicates that having filed objections under section 13 of the CPC before the Commercial Court at Rajkot, only with an aim and object to delay the execution proceedings, the petitioner filed the present application exhibit 19 and on its dismissal, the present writ petition under Article 227 of the Constitution of India.
The learned Commercial Court at Rajkot, while dealing with application at exhibit 19, has threadbare considered the same and has correctly interpreted the provisions of the Act as well as the provisions of section 126 of the Indian Contract Act in particular. It would not be out of place to record that having participated in the proceedings before the English Commercial Court, having given a guarantee and the judgment of English Court having become final, only with a view to throw spanner in the execution of such decree, the present petition is filed only with a view to create hurdle and delay the execution proceedings, which is nothing but an abuse of the process of the Court.
The petition is devoid of any merits and the same is liable to be dismissed and is hereby rejected in limine with cost of Rs. 25,000/- to be deposited by the petitioner within a period of one week with Gujarat High Court Legal Services Committee.
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2019 (8) TMI 1880
Murder - whether the conviction of the Appellant-Accused Under Section 302 Indian Penal Code and Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is sustainable?
Whether the Appellant-Accused intentionally caused the death of deceased Veer Singh? - HELD THAT:- The entire incident occurred when the Appellant had taken his buffaloes for grazing in the field of deceased for which the deceased objected and drove all the buffaloes out of his field. It is in these circumstances, the Appellant became furious and abused the deceased and caused injuries on his head in a sudden fight with axe. There was no premeditation for the occurrence and because of the grazing of the cattle, in a sudden fight, the occurrence had taken place.
Whether the act of the Appellant-Accused would fall under Exception 4 to Section 300 Indian Penal Code? - HELD THAT:- Exception 4 to Section 300 Indian Penal Code can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. In the present case, the Appellant-Accused and the deceased exchanged wordy abuses on which, Appellant gave the deceased blows on his head causing six head injuries. Where the occurrence took place suddenly and there was no premeditation on the part of the Accused, it falls under Exception 4 to Section 300 Indian Penal Code.
The entire incident was in a sudden fight in which the Appellant-Accused caused head injuries on the deceased with an axe. There was no prior deliberation or determination to fight. The sudden quarrel arose between the parties due to trivial issue of grazing the buffaloes of the Appellant for which, the deceased raised objection. In a sudden fight, the Appellant had inflicted blows on the head of the deceased with an axe which caused six head injuries - Considering the fact that the occurrence was in a sudden fight, the occurrence would fall under Exception 4 to Section 300 Indian Penal Code. The conviction of the Appellant-Accused Under Section 302 Indian Penal Code is therefore to be modified as conviction Under Section 304 Part II Indian Penal Code.
Whether the conviction Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be sustained? - HELD THAT:- From the evidence and other materials on record, there is nothing to suggest that the offence was committed by the Appellant only because the deceased belonged to a Scheduled Caste. Both the trial court and the High Court recorded the finding that the Appellant-Accused scolded the deceased Veer Singh that he belongs to "Khangar" Caste and how he could drive away the cattle of the person belonging to "Thakur" Caste and therefore, the Appellant-Accused has committed the offence Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the Appellant-Accused Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.
Insofar as the conviction Under Section 302 Indian Penal Code is concerned, the conviction of the Appellant Under Section 302 Indian Penal Code is modified as conviction Under Section 304 Part II Indian Penal Code. The Appellant-Accused has been serving the sentence in jail for more than twelve years. As per the jail certificate issued by the Superintendent, Central Jail, Gwalior, the Appellant has served the actual sentence in jail for more than twelve years (as on 04.07.2018) and as on date, he has served the sentence of more than thirteen years. Considering the facts and circumstances of the case, for the conviction Under Section 304 Part II Indian Penal Code, the Appellant is sentenced to undergo imprisonment to the period already undergone.
The conviction of the Appellant Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is set aside and he is acquitted of the said charge - conviction of the Appellant Under Section 302 Indian Penal Code is modified as conviction Under Section 304 Part II Indian Penal Code and is sentenced to undergo imprisonment to the period already undergone - Appeal allowed in part.
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2019 (8) TMI 1879
Assessment u/s 153A - Addition of share capital / share application money - whether any incriminating material has been found or seized during the course of search? - HELD THAT:- DR as contended that the CIT(A) has erred in law and on facts in holding that sec. 153A proceedings arise only if any incriminating material has been found or seized during the course of search in case of various judicial precedents as relying on E.N. Gopakumar [2016 (11) TMI 72 - KERALA HIGH COURT] and CIT vs. Kesarwani Zarda Bhander [2017 (4) TMI 57 - ALLAHABAD HIGH COURT] that such an assessment bar to assessee as the searched assessee’s total taxable income than that based on the alleged incriminating material only.
We are informed by both parties very fairly that hon'ble jurisdictional high court is yet to adjudicated upon this legal issue involving varying judicial prepositions by hon'ble non-jurisdictional high courts (supra). We therefore quote hon'ble apex court’s landmark decision in CIT vs. Vegetable Products [1973 (1) TMI 1 - SUPREME COURT] to decide this legal issue in assessee’s favour. We reiterate that the search herein had not yielded any incriminating material against the assessee. Decided in favour of assessee.
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2019 (8) TMI 1878
Deduction u/s. 80P - interest income on deposits with non co-operative bank - HELD THAT:- As decided in own case [2018 (3) TMI 1562 - ITAT PUNE] assessee before us, in line with statutory obligation of maintaining its status of Co-operative society and as per the regulations of Maharashtra State Co-operative Societies Act, was duty bound to transfer 25% of its profits to reserve funds, which it has done. There is no dispute to the same.
For utilization of funds in reserve funds by way of making FDRs with Scheduled bank u/s 70 of the said Act. The assessee has received permission of the Registrar of Maharashtra Co-operative Societies Act to make such investment with Bank of Maharashtra and also in order to carry on the business activities of providing credit facilities to its employees, it is mandatory upon the assessee to invest 25% of its profits in the reserve funds, which in turn, are parked in FDRs with Bank of Maharashtra, then interest income earned by the assessee is from carrying on its business activities. Once it is so, then the said income is assessable as ‘Income from business’ and the assessee is entitled to claim deduction under section 80P(2)(a)(i) - Decided in favour of assessee.
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2019 (8) TMI 1877
Maintainability of appeal before Tribunal - tax limit for filing of appeal by the Revenue before the Tribunal - HELD THAT:- As as per the CBDT Circulars No.03/2018 dated 11.07.2018 and Circular No.17 of 2019 dated 9th August, 2019, the tax limit for filing of appeal by the Revenue before the Tribunal has been fixed at Rs.50.00 lakhs. Since the tax effect in all these appeals is less than Rs.50.00 lakh, we are dismissing the same on account of low tax effect with the liberty to the Revenue to seek recall of the order, if any of these appeals falls within the exceptions mentioned in the Circulars cited above.
In the result, all these appeals filed by the Revenue are dismissed as withdrawn and the cross objections are dismissed as infructuous.
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2019 (8) TMI 1876
Entitlement for regular salary emoluments from the day the petitioner resumes his duty - Due suspension of an employee even on the allegation of bribery can be prolonged without any departmental proceeding and such suspended employee being involved in economic crime with moral turpitude cannot be transferred to any other branch even with lesser responsibility or not - entitlement to get an order of reinstatement having regard to his enlargement of bail - HELD THAT:- The Bank in fact, has been depriving him from his right to live and other civil liberties. Such right to live is guaranteed under Article 21 and in effect a fundamental right. This right to live includes right to fair and speedy trial as has already been discussed by the Hon’ble Apex Court in Hossainara Khatoon Vs. Home Secretary State of Bihar [1979 (2) TMI 194 - SUPREME COURT] where Court even directed release of under trial prisoners where no charge-sheet has been framed. The Court also held that States financial constraints should not stand in the way to avoid this constitutional obligation. Direction was also issued for setting up new Courts, providing more staffs and equipment and appointment of additional judges. The concept of fair trial has been envisaged under article 21 which entails familiar triangulation of this interest of the accused, the victim. A fair trial is aimed at ascertaining the truth to all concerned.
In a case where the appellant is accused in criminal breach of trust by taking money from someone else who has lodged a complaint against him that the accused compelled the complainant to give money to favour with an order of granting loan is a serious allegation against a bank employee and such bank employee when is faced with the criminal trial, it is expected that the criminal trial should be proceeded with without delay because until and unless such trial is over neither the allegation of the complainant could be proved nor the accused would able to prove that the allegation levelled against him are false and baseless which right pertains to his right to live guaranteed under Article 21 of the Constitution.
There is no law today to create a bar for departmental proceeding against the employee concerned on the ground that a criminal proceeding is pending against him and only after acquittal from the criminal trial he may be reinstated, does not justify prolonged suspension. Therefore, the authority has not acted bona fide in complying with the procedures prescribed under their own regulation. When the regulation becomes a complete Code the authority ought to have moved independent of the criminal prosecution and should have investigated departmentally to find out the wrong with the said employee. Having not done so the excuse shown by it that papers are not available with it to initiate departmental proceeding cannot be supported. Interference made by the impugned order against the prolonged suspension does not warrant interference in this appeal.
When departmental proceeding is not contemplated at all, this cannot be the only object to place the employee under suspension and for him to be satisfied with a limited payment of his salary. This prolonged suspension is opposed to the due process of law in our constitution. Because it cannot be the public policy to abridge a person’s right ordinarily to continue with the job for which he has been engaged. If he is alleged to have committed any wrong or guilt the same itself cannot be construed a punishment. Any allegation labelled against an employee is to be enquired into by the procedure established by law or prescribed under the rules and regulations.
It can be opined that criminal charges or assertion of substantial civil liability, and criminal trial is required. The employment of the employee is subject to certain limitation prescribed by the regulations. The curtailment of the employees’ rights from his right to enjoy benefits pertaining to service cannot be unlimited. If by invoking a particular provision the employee concerned is placed under suspension, the other provisions in the same regulation will automatically gets revived to be followed promptly to put an end to the proceeding and such proceeding is definitely the departmental proceeding which the authority has failed to initiate, although, he has been placed under suspension under regulation.
The authority’s decision to prolong the suspension without initiation of the departmental proceeding is opposed to the due process of law emerged from the Constitution. The petitioner is entitled to get all benefit pursuant to the order impugned.
Reference disposed off.
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2019 (8) TMI 1875
Initiation of proceeding by Insolvency and Bankruptcy Board of India (IBBI) - HELD THAT:- Normally, the Adjudicating Authority is not supposed to pass any adverse observations, even prima facie, against the ‘Resolution Professional’, without giving an opportunity to the ‘Resolution Professional’ as to why in view of certain Act, the matter be not referred to ‘IBBI’ - the matter has been taken cognizance by the IBBI which has initiated the proceedings against the Appellant – ‘Resolution Professional’, no opinion expressed on the merit of the observations.
However, the ‘IBBI’ cannot treat observations as made by the Adjudicating Authority, as referred to above, as final decision against the Appellant, as the observation made, without granting any opportunity to the Appellant. Therefore, the ‘IBBI’ will hear the proceedings and decide on merit after hearing the ‘Resolution Professional’ and taking into consideration reply as may be submitted by the Appellant, uninfluenced by the observations made by the Adjudicating Authority.
Appeal disposed off.
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2019 (8) TMI 1874
CENVAT Credit - use of input services in common for manufacture of both exempted as well as dutiable goods - not maintaining separate accounts in respect of the input services used - applicability of Rule 6(3) of CENVAT Credit Rules, 2004 - reversal of entire amount proportionate credit along with interest due even prior to issuance of show cause notice - HELD THAT:- Courts and Tribunals have time and again while interpreting the scope of Rule 6 of CENVAT Credit Rules, 2004, concluded to state that in so circumstances the said rule should be used as a measure to extract illegal amounts from the assessee. The scope of Rule 6, is limited to the extent that assessee do not get the undue benefit by availing the CENVAT Credits in respect of the exempted goods manufactured by him or the exempted services provided by him.
Taking note of the fact that appellants had reversed the entire amount proportionate credit along with interest due in respect in respect of the period 01.04.2008 to 31.12.2010 (Rs 1,22,98,068/ +Rs 17,49,730/-) even prior to issuance of show cause notice, there are no merits in the demands made post 1st April 2008 and the same is set aside.
For the period prior to 1st April 2008, it is found that as per the law as it existed during the relevant period appellant was required to pay 10% of the value of exempted goods, if he was not in position to maintain separate account in respect of the inputs/ input services used for manufacturing both exempted and dutiable goods. Interpreting the erstwhile rule 57CC of Central Excise Rules, 1944, Hon’ble Supreme Court has in case of UNION OF INDIA & OTHERS VERSUS M/S. HINDUSTAN ZINC LTD. [2014 (5) TMI 253 - SUPREME COURT] held Rule 57CC requires an assessee to maintain separate records for inputs which are used in the manufacture of two or more final products one of which is dutiable and the other is non-dutiable. In that event, Rule 57CC will apply.
The benefit of proportionate reversal has been extended from retrospective effect, in cases where common inputs/ input services were used for manufacture of dutiable and exempt products. In our view the intention behind the amendment made, is quite obvious. The assessees have been allowed to proportionately reverse the credit attributable to inputs/ input services used for manufacture of exempted goods, in cases where common inputs/ input services are used or manufacture of both dutiable and exempted goods - the case of appellants for the periods, 2006-07 and 2007-08 is covered by the amendments made by way of insertion of sub-rule (7) in Rule 6 of the CENVAT Credit Rules, 2002.
Impugned order set aside - appeal allowed.
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2019 (8) TMI 1873
Levy of Luxury Tax - Refund claim - HELD THAT:- The Honourable Apex Court in the case of M/s.Godfrey Philips India Ltd., V. The State of U.P. [2005 (1) TMI 391 - SUPREME COURT], had held that the State Government imposing Luxury Tax on gold, silver, platinum jewellery and precious stones is ultra vires the Constitution of India. Following the decision in M/s. Godfrey Philips India Ltd., V. The State of U.P., this Court had set aside the assessment orders therein, and directing the respondents to pass orders on the refund claim made.
The present impugned assessment orders are also set aside - petition allowed.
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2019 (8) TMI 1872
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - present complaint has been filed against the signatory of the cheque and not against the Company and its Directors - signatory had not denied her signatures on the impugned cheque and lastly it is stated that the pleas taken by the applicant could be seen only at the time of trial when defence is taken by the accused-applicant.
HELD THAT:- In the present case, cheque is stated to have been returned for insufficient amount and not for any alteration or cutting in the cheque but no explanation has come on record that why the impugned cheque was received by the opposite party no. 2 despite the said cheque having alteration in the amount in words without any signature of the executant of the cheque and why it was not insisted by him at that very moment that the said cheque was void under the provisions of Section 87 of the Act due to the said cutting particularly when the amount was so big. He would be treated to be in possession of the said cheque soon after the same was issued to him and when he came in possession of the same, if any alteration in the said cheque happened, the burden would lie only on him to explain as to under what circumstances the said cutting took place but in counter affidavit, no such disclosure has been made, which renders the impugned cheque to be a void instrument in the light of Section 87 of the Act.
The view is fully agreed upon that whether or not cheque was issued for discharging a debt or liability can be seen at the time of trial and not in proceeding before this Court under Section 482 Cr.P.C. but the question remains in the present case that the impugned cheque itself appears to be void on account of there being cutting, which renders the said cheque to be void under the provisions of Section 87 of the N.I. Act, and hence, the subsequent proceedings in opinion of this Court would not serve any purpose, hence in view of this peculiar situation in this case, it is considered appropriate to quash the impugned order.
The impugned order dated is quashed.
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2019 (8) TMI 1871
Question on performance of Resolution Professional - Eight orders filed by the Resolution Professional was taken up 8 times but no order was passed by the Adjudicating Authority - it is the case that the Adjudicating Authority has wrongly made the observations that no serious effort was made by the Resolution Professional - HELD THAT:- It is found that when the LA. was listed before the Adjudicating Authority no order was passed by the Adjudicating Authority on the mentioned dates and as such no observation can be made against the performance of the Resolution Professional.
Appeal allowed.
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2019 (8) TMI 1870
TP Adjustment - comparable selection - HELD THAT:- Deselction of companies as functionally not comparable with Low end BPO services as that of assessee.
Deselection of company as into high-end KPO services and an assessee rendering low end BPO services cannot be compared with it.
BNR Udyog Ltd. (segmental) - Assessee is challenging functional dissimilarity of this company with that of assessee as it is into medical transcription - As medical transcription services is basically back-office services provided by graduates who are trained for short period of 6 months to one year. These are short crash courses undertaken by graduates who are trained to understand and speak English. There is no value addition in the services rendered by people in medical transcription. To our understanding, basically these people who carry out medical transcription services are trained to understand language spoken by doctors, outside India to whom medical reports of patience are sent for expert opinion. Medical transcriptionist simply reproduces opinion expressed by Doctor, which is then communicated to the patients.
It is observed from annual report placed that this company has segmental information of medical transcription and revenue earned under this segment is Rs.147.40 Lacs. It is also been observed that various other decisions by co-ordinate Benches of this tribunal has remanded this comparable back to Ld.TPO, for proper analysis and fresh consideration. Thus we set aside this comparable back to Ld.TPO for considering it afresh.
Excel Infoways Ltd. (segmental) - As this company for year under consideration made a statement under 133 (6) regarding allocating entire employee cost to IT-BPO segment, with no allocation to other segment, which amounts to almost 49% of its total revenue during the year under consideration. At this stage, we clarify that, we are not inclined to express our opinion regarding functional similarities/dissimilarity of this company with that of present assessee before us and the same is kept open to be considered in an appropriate case. We therefore agree with contention raised by assessee regarding this comparable not satisfying employee cost filter.
Informed Technologies India Ltd. - It is observed that this comparable has been not disputed for functional dissimilarity by DRP. However the observation that segmental informations are not available needs to be verified. We are therefore of considered opinion that, this comparable needs to be set-aside to Ld.TPO for verification afresh. Needless to say that assessee shall be granted proper opportunity as per law to represent its case.
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2019 (8) TMI 1869
Deemed dividend u/s. 2(22)(e) - assessee had substantial interest in the associated companies where in the assessee had more than 20% shareholding - CIT-A deleted the addition as confirmed by Tribunal - HELD THAT:- We find that this issue was duly considered by the CIT(A) when he called for the remand report from the AO. In the remand report, the AO did not dispute the fact that the notarized of MoU dated 9th May, 2008 was for sale/ purchases of office premises. This document was also produced before the AO during the assessment proceedings but the same was not even considered by him.
MoU dated 9th May, 2008 was duly supported by cheque also dated 9th May, 2008. Thus, on the consideration of the entire evidence, both the CIT(A) and the Tribunal come to a concurrent finding of fact that the amount of Rs.4.48 Crore is not a loan to be covered by Section 2(22)(e) of the Act.
Therefore, the view taken by the CIT(A) and the Tribunal on facts, is a possible view and cannot be said to be perverse.
Exchange of money OR advance for purchase of property - transactions between the two entities in which the assessee had substantial shareholdings - ITAT deleted addition - HELD THAT:- CIT(A) while dealing with the remand report noticed the fact that the MoU dated 9th May, 2008, which was produced during the assessment proceedings before the AO was completely ignored by him in the Assessment Order. This, MoU dated 9th May, 2008 was also supported by the payment by Cheque No.246161 dated 9th May, 2008 drawn on Bank of India, was also made under the MoU by M/s. ADJPL to M./s. DJPL. Thus, there is nothing to suggest on record that the amount of Rs.4.48 Crores was a part of series of monetary transaction and not in respect of advance for purchase of property.
No substantial question of law raised - Decided against revenue.
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