|
Advanced Search Options
Case Laws
Showing 501 to 520 of 1486 Records
-
2020 (3) TMI 986
Dishonor of Cheque - preponderance of probability - discharge the burden under Section 139 of the Negotiable Instruments Act - HELD THAT:- In the cross-examination of the complainant (P.W.1), it was suggested to him that the eight cheques were given only as security on the promise that the complainant will arrange an educational loan for the daughter of the accused, but he did not arrange the loan and instead, misused the cheques. The complainant denied this suggestion. The defence was not able to make any serious dent in the testimony of the complainant (P.W.1) in the cross-examination - If the complainant had failed to arrange the promised loan, the accused would have issued directions to his Bank to stop payment, but that was not done. The accused also did not issue any reply notice to the statutory demand notice sent by the complainant. Of course, that by itself, cannot be a reason to hold against the accused. But, that circumstance, if viewed cumulatively with other circumstances, does make this Court to reject the defence theory. The defence theory, that the eight post dated cheques for ₹ 20,000/- each were given in anticipation of a loan that was promised by the complainant, defies credibility.
Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability even that has not been done in this case - this Criminal Revision Case is devoid of merits and stands dismissed.
-
2020 (3) TMI 985
Dishonor of Cheque - insufficiency of funds - Challenging the concurrent findings of the two Courts below, the accused has filed the present Criminal Revision Case, before this Court, under Section 397 (1) r/w. 401 Cr.P.C. - HELD THAT:- It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court.
This Criminal Revision Case is devoid of merits and stands dismissed and the judgments of the two Courts below are confirmed. The trial Court is directed to secure the accused and commit him to prison to undergo the remaining sentence.
-
2020 (3) TMI 984
Dishonor of Cheque - contention that the disputed cheques were not dishonoured for insufficiency of fund rather the payment of above cheques were got stopped as per the instructions of the applicant and in cases of stop payment, the provisions of 138 of the Negotiable Instruments Act do not apply - applicability of section 138 of NI Act - HELD THAT:- The contentions raised by applicant are required to be decided upon evidence to be led by parties before the trial court and at this stage merely for the reason that the applicant got the payment stopped it will not be just and appropriate to discharge the applicant.
There is no illegality, irregularity, incorrectness or impropriety in the impugned order or any sufficient ground for quashing it and learned counsel for the applicant has failed to show that there is any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court is required. The application is devoid of merits and is liable to be dismissed.
Application dismissed.
-
2020 (3) TMI 983
Bail application - allegation that the accused had taken away money form her in the context of chit fund - HELD THAT:- Petitioners remained proclaimed offenders from 2016 to 2019. Now they are in custody since 28.06.2019. The case is triable by the Magistrate. Only one prosecution witness has been examined so far and the cross-examination of PW 1 was deferred as the prosecution wanted to file an application under Section 319 Cr.P.C. The filing of application under Section 319 Cr.P.C and decision thereof, would give rise to some more time for commencement of the trial in accordance with law. In such situation, bail can be granted to the petitioners on stringent condition in order to ward off any apprehension of the prosecution that the petitioners may flee from justice.
The petitioners are directed to be released on regular bail on their furnishing adequate bail/surety bonds to the satisfaction of the trial Court.
-
2020 (3) TMI 982
Condonation of delay in filing appeal - Time Limitation - Levy of GST - operation of “logging” - the operation is independent of the trees, whether planted by the Forest Department or which grew out of natural regeneration - intra-state supply or not - the goods are taken by the recipient after the supply is completed.
HELD THAT:- It is evident that this Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of Section 100 of the CGST Act is concerned, the crucial words are “not exceeding thirty days” used in the proviso to sub-section (2). To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase “not exceeding thirty days” wholly otiose. No principle of interpretation would justify such a result. Therefore, we hold that we are not empowered to condone the delay of one day in filing this appeal.
Since the appeal cannot be allowed to be presented on account of time limitation, the question of discussing the merits of the issue in appeal does not arise - Appeal is dismissed on the ground of limitation.
-
2020 (3) TMI 981
Input tax credit - Blocked Credits - Section 17(5) of the CGST Act, 2017 - taxes paid on procurement of goods and/or services for installation of various parts of AC - whether input tax credit against purchases of goods and services used for installation of the aforesaid items in the shopping mall under construction can be claimed and utilized to pay GST on the outward supply of services of renting of the shopping mall as retail shops, food courts, cinema theater, etc.? - challenge to AAR decision.
HELD THAT:- The word ‘or’ in clause (d) of Section 17(5) of the CGST Act can be read as ‘and’ since it appears to give effect to the intention of the legislature to allow input tax credit on the construction of plant and / or machinery.
The restriction contained in Section 17(5)(d) is applicable to goods and services received by a taxable person for construction of an immovable property. When goods and services are received by a taxable person for construction of plant or machinery, there is no bar on eligibility to input tax credit. The appellant has argued that all the installations mentioned in his application qualify as ‘Plant’ or ‘Machinery’.
The items such as Chiller, Air Handling Unit, Indoor/Outdoor Surveillance System (CCTV), electrical wiring and fixtures, Public Health Engineering (PHE), Fire-fighting and water management pump system do not appear to be apparatus/equipment/machinery which are fixed to the earth. The appellant has also not submitted any information as to how these items are getting embedded to the earth since the criteria for terming such items as “Plant and Machinery” is that they have to be fixed to the earth either by foundation or structural support. In the absence of such information we hold that Chiller, Air Handling Unit, Indoor/Outdoor Surveillance System (CCTV), electrical wiring and fixtures, Public Health Engineering (PHE), Fire-fighting and water management pump system do not qualify as plant or machinery but are items which are procured for the purpose of construction of the immovable property. Hence, the appellant is not eligible for the input tax credit of the tax paid on the procurement and installation of Chiller, Air Handling Unit, Indoor/Outdoor Surveillance System (CCTV), electrical wiring and fixtures, Public Health Engineering (PHE), Fire-fighting and water management pump system.
In respect of the Water treatment Plant and Sewage Treatment Plant, as can be seen from the photographs, they form part of the civil structure of the immovable property. Civil structures are specifically excluded from the definition of “Plant and machinery”. So also, the DG Set and Transformer - they are procured as independent items and their installation becomes part of the civil structure of the immovable property - the appellant is not eligible of the credit of the taxes paid on the procurement of the Water Treatment Plant, Sewage Treatment Plant, DG Set and Transformer.
Ruling of AAR upheld.
-
2020 (3) TMI 980
Filing of FORM GST TRANS 1 - Transitional credit - HELD THAT:- The issue decided in the case of JODHPUR TRUCK PVT. LTD. VERSUS UNION OF INDIA, CHAIRMAN, GSTIN, GST, COUNCIL, THE COMMISSIONER, CENTRAL GOODS AND SERVICE TAX COMMISSIONRATE, JODHPUR. [2019 (11) TMI 820 - RAJASTHAN HIGH COURT] where it was held that the petition is disposed of with the direction to the respondents to permit the petitioner to submit offline GST TRAN-1 form, subject to furnishing a proof that he had tried to upload GST TRAN-1 form prior to 27.12.2017 and such attempt failed due to technical fault/glitch on the common portal.
Application disposed off.
-
2020 (3) TMI 979
Filing of Fomr GST TRAN-1 - transitional credit - transition to GST regime - HELD THAT:- It appears that if the petitioner could not upload the form GST TRAN-1 due to technical glitches and in spite of various representations made by the petitioner, he was not allowed to upload the form GST TRAN-1.
In view of the settled legal position, the petitioner is entitled to claim credit of CENVAT as well as service tax as on 30th June 2017 as per the provisions under section 140(1) of the Act, 2017 read with Rule 117 of the Rules 2017.
The respondent No. 4, who is the jurisdictional officer, is directed to verify the claim of credit of CENVAT and service tax of the petitioner so as to enable the petitioner to carry forward by filing/uploading form GST TRAN-1 on GST portal - respondent No. 4 shall complete the exercise of verification and permit the petitioner to upload the form GST TRAN-1 within a period of two seeks from the date of receipt of the writ of this order so that the petitioner can upload the form GST TRAN-1 on or before 31st March 2020.
Petition disposed off.
-
2020 (3) TMI 978
Deposit of Interest - Section 50 of the Central Goods and Sales Tax Act, 2017 - HELD THAT:- Respondents submits that the impugned communications, in fact, afford the Petitioner an opportunity for voluntary compliance. In case this opportunity is not availed by the Petitioners, appropriate legal action for recovery of the interest due for the delay in filing of returns shall be initiated. She clarifies that this means that a show cause notice will be issued. Upon service of such show cause notice, the Petitioners will be given an opportunity to put-forth its case and in that sense, there will be compliance with the principles of nature justice.
The statements made by respondents is accepted on the basis of instructions. In view of such statements, it is not necessary to entertain the present Petition since, the apprehensions expressed by the Petitioner in this Petition, stand substantially redressed at the present stage.
By granting liberty to the Respondents to issue necessary show cause notice in accordance with law, the petition is disposed off.
-
2020 (3) TMI 977
Filing of FORM GST TRAN-1 - transitional credit - HELD THAT:- In view of the Order No.1/2020-GST, dated 7th February, 2020 passed by the Central Board of Indirect Taxes and Customs with regard to the extension of the time limit for submitting the declaration in Form GST TRAN-1 under Rule 117 (1A) of the Central Goods and Services Tax Rules, 2017 in certain cases.
The respondents are directed to permit the petitioner to upload the Form GST TRAN-1, which is saved by the petitioner as per the Order No.1/2020-GST, dated 7th February, 2020 passed by the Central Board of Indirect Taxes and Customs. Such exercise shall be completed within a period of two weeks from the date of the receipt of the order.
-
2020 (3) TMI 976
Denial of Input Tax Credit (ITC) - Tax paid u/s 129 after detention of goods alongwith the vehicle - part B of the e-way bill was not filled up - HELD THAT:- This Court is of the considered view that the matter requires serious reconsideration at the hands of the 1st respondent as vital aspects enumerated in paras 15 and 16 of the Writ Petition (Civil) have not been duly considered and adverted to by the 1st respondent. Accordingly, for effectuating such a remit, it is ordered that the impugned Ext.P-5 order dated 21.11.2019 refusing to credit the abovesaid amount towards the GST registration number of the petitioner will stand quashed and the matter in relation thereto will stand remitted to the 1st respondent for consideration afresh.
Petition disposed off.
-
2020 (3) TMI 975
Grant of waiver of interest and/or penalty - company in liquidation - whether for the purpose of grant the Official Assignee should approach only the Central Board of Direct Taxes or whether the Official Assignee can get appropriate orders under Section 7 of the Presidency Towns Insolvency Act, 1909 or not? - HELD THAT:- Petitioner (s), on instructions issued by the Department of Revenue, Ministry of Finance vide F.No. 390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw these special leave petition(s) along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions.
The special leave petition(s) and pending applications are dismissed as withdrawn, leaving question(s) of law open.
-
2020 (3) TMI 974
Privilege fee - whether is in the nature of revenue expenditure and deductible expenditure under Section 37(1)? - Excise duty addition to closing stock - applicably of provisions of section 145A - Addition on account of depositing the PF/ESI payment beyond the prescribed time - HELD THAT:- Petitioner on instructions issued by the Department of Revenue, Ministry of Finance vide F.No.390/Misc./116/20l7-JC dated 22.08.2019, seeks permission to withdraw these special leave petitions along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions.
The special leave petitions and pending applications are dismissed as withdrawn, leaving question(s) of law open.
-
2020 (3) TMI 973
Stay petition - recovery proceedings - calling upon the Petitioner to pay 20% of the demand as a pre-condition for stay of the demand; failing which it was stated that the demand would be enforced and coercive measures would be taken to recover the demand - HELD THAT:- We find that Respondent No. 1 while passing the impugned order dated 31.01.2020 did not at all consider the various issues raised by the Petitioner in his stay application and merely called upon the Petitioner to pay 20% of the demand. This court in UTI Mutual Fund [2012 (3) TMI 333 - BOMBAY HIGH COURT] has made it abundantly clear that the assessing authority while considering the stay application has to act as a quasi judicial authority, which means that he has to apply his mind to all relevant factors and thereafter, take a decision which is just, fair and reasonable.
This court had highlighted that though the Assessing Officer had made the assessment, nonetheless at the time of deciding stay of the demand, he must objectively decide the application for stay considering that an appeal lies against the order which in fact has been filed in the present case.
Order dated 31.01.2020 is devoid of any reasons which reflects non-application of mind and therefore, cannot be sustained. Consequentially, the action of attaching the bank account of the Petitioner in the HDFC Bank, Chembur, Mumbai cannot also be justified.
Accordingly, the impugned order dated 31.01.2020 is hereby set aside and quashed. Further, the attachment of the bank account of the Petitioner being Account No. 4251570000839 in HDFC Bank, Chembur, Mumbai, is also set aside.
-
2020 (3) TMI 972
Disallowance u/s 50B - slump sale - Special provision for computation of capital gains in case of slump sale - HELD THAT:- Section 50B is a code in itself only for the determination of cost of acquisition and cost of improvement of the undertaking but not for the computation of capital gains in case of slump sale. The object of section 50B is to simply determine and supply the figure of cost of acquisition and cost of improvement of the undertaking or division, being its net worth along with the decision as to whether the undertaking is a long term or short term capital asset is decided and forwarded to section 48, the computation provision in the later section is activated for determining the income chargeable under the head “capital gains” in accordance with the mode of such computation as prescribed therein.
The modus operandi to compute capital gain from the transfer of undertaking thus provides for reducing the cost of acquisition and cost of improvement of the capital asset from the full value of consideration received or accruing as a result of the transfer of capital asset. Coming back to the nature of capital asset being undertaking, which comprises of “all assets minus all liabilities” of the undertaking, the amount of capital gain means reducing the net worth, being cost of acquisition and cost of improvement of “all assets minus all liabilities” of the undertaking from the full value of consideration of “all assets minus all liabilities” of the undertaking.
In computing the net worth of the undertaking or the division, as the case may be, the benefit of indexation as provided in the second proviso to section 48 has been withheld. The possible reason may be quid pro quo. By extending the benefit of lower rate of taxation on long term capital gain as provided under section 112 to the undertaking as a whole notwithstanding the fact that there may be several assets held by the assessee for a period of not more than 36 months, the Legislature though it to curtain the benefit of indexation to the cost of acquisition and cost of improvement.
Enhancement of slum sale consideration from ₹ 143.21 crores to ₹ 186.58 crores - HELD THAT:- Tribunal noticed that the assessee and Fortis Hospitals Ltd had entered into a business agreement and as per the agreement, excess liability arising during the transition period had to be adjusted from the lump-sum amount of ₹ 186.58 crores. It was further noted by the Tribunal that during the process of transaction, excess liability of ₹ 43.36 crores arose which had to be deducted from the lump-sum amount of ₹ 186.58 crores to arrive at the lump-sum consideration received by the assessee which was ₹ 143.21 crores. Accordingly, the order of the First Appellate Authority was affirmed.
On due consideration, we do not find any error or infirmity in the order passed by the Tribunal. Besides, this is a finding of fact, rather a concurrent finding of fact and revenue is unable to point out any perversity in the conclusion reached. In the circumstances, no question of law, much less any substantial question of law, arises from such finding of the Tribunal.
Treating the capital gain on slump sale as long term capital gain instead of short term capital gain initially held by the Assessing Officer - HELD THAT:- Referring to the decision of the Tribunal in Summit Securities Ltd. [2012 (3) TMI 176 - ITAT MUMBAI] CIT(A) held that if at least one asset was more than three years, then it was long term in nature. It was found that four of the assets were more than three years old. Therefore, capital gain accruing out of slum sale had to be assessed as long term capital gain.
In further appeal before the Tribunal, the above decision in Summit Securities Ltd. was again adverted to where after Tribunal held that there was no need to interfere with the order of the First Appellate Authority as four hospitals of the assessee were owned by it for a period of more than 36 months. Therefore, the capital gain accruing out of the slump sale was nothing but long term capital gain.
No reason to disturb such finding of the Tribunal. Rather we concur with the view taken by the Tribunal which affirmed the decision of CIT(A). The question framed by the revenue, therefore, does not arise for consideration.
Addition u/s 14A read with Rule 8D - HELD THAT:- Section 14A deals with expenditure incurred in relation to income not includible in total income. As per sub- section (1), for the purpose of computing the total income, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act.
Rule 8D lays down the method for determining the amount of expenditure in relation to income not includible in total income. Tribunal held that assessee had not earned any exempt income during the assessment year under consideration, nor it had claimed any expenditure against any tax free income. Thus, the twin pre-conditions for invoking the provisions of Section 14A read with Rule 8D of the Rules i.e. earning of exempt income and claiming expenditure to earn the same were absent. Therefore, the order passed by the First Appellate Authority was affirmed.
We are in agreement with the view taken by the Tribunal. As rightly held by the Tribunal, assessee had neither earned any exempt income nor claimed any expenditure for earning such exempt income. That being the position, Assessing Officer was not justified in making the disallowance by invoking the aforesaid two provisions. The same was rightly deleted by the First Appellate Authority which order has been affirmed by the Tribunal. Therefore, this question proposed by the revenue also fails.
-
2020 (3) TMI 971
TDS u/s 195 - expenditure incurred for service procured for a future business to be carried on by the petitioner in Indonesia - amount which was paid by engaging services of the aforesaid law firm was for the purpose of “making or earning any income from any source outside India” within the meaning of Section 9(1)(vii)(b) - HELD THAT:- To attract exception under Section 9(1)(vii)(b) of the Income Tax Act, 1961, the service should be utilized in India. Any payment by way of fees and technical service to a non-resident by an resident is an income deemed to have accrued or arisen in India and is thus liable to tax. The expression “Fees” for “Technical Service” has been defined in Explanation 2 to Section 9(1)(vii)(b) of the Income Tax Act, 1961.
The expression “Technical Service” and “Consultancy Service” also have not been defined in the Act. The “Technical Service” would include any service in connection with the “engineering service” as it is associated with the service provided by the person technically qualified in the field of engineering. The “Consultancy Service” is again very wide, it can include the service of every nature.
From the scope of work undertaken, it is evident that the Indonesian law firm has provided consultancy services.
In this case, the Indonesian firm has provide “Consultancy Service”. Therefore, I am of the view that it is not open for the petitioner to state that the said service fell within exception provided in Section 9(1)(vii)(b) of the Income Tax Act, 1961 or outside the Explanation 2 to said Section.
If the service utilized by the petitioner abroad was for preexisting business in Indonesia, the petitioner could have legitimately stated that the service provided was utilized for a business of profession carried out outside India or for the purpose of making or earning any income from any source from outside India. There is no source that is existing in Indonesia.
In this case, there was a mere proposal for acquiring the insurance business in privately or Indonesian Insurance Policy. The service of the said law firm was sought for a range of service which are approval consultancy service.
Therefore, the issue as to whether the petitioner was entitled to the benefit of any Clause in the said Double Taxation Avoidance Agreement as notified in Notification No.GSR 77(E), dated 04.02.1988, is left open. It is for the petitioner to file appropriate application before the 2nd respondent within a period of thirty days from the date of receipt of a copy of this order. Writ Petition is dismissed with the above observations
-
2020 (3) TMI 970
Transfer of case u/s 127 - whether procedure prescribed under Section 127(2) was not complied ? - transfer assessment jurisdiction from Mumbai to Kochi - agreement between the two designated higher authorities - proposal for centralization of assessment in a group of cases - HELD THAT:- There has to be a positive meeting of mind to the suggested proposed course of action. The dictionary meaning of the expression ‘agreement’ is harmony in opinion or feeling; a manifestation of mutual assent by two or more persons. Therefore, furnishing of a proposal, in our view, may not amount to an agreement of the designated higher authorities as contemplated under clause (a) to sub-section (2) of Section 127 of the Act. In Noorul Islam Educational Trust Vs. CIT [2016 (10) TMI 982 - SUPREME COURT] Supreme Court considered transfer of assessment jurisdiction under Section 127(2)(a). Supreme Court held that agreement between the two designated higher authorities was necessary. Revenue took the stand that there was no disagreement between the two Commissioners. Rejecting this stand, Supreme Court held that absence of disagreement cannot tantamount to agreement as visualized under Section 127(2)(a) of the Act which contemplates a positive state of mind of the two jurisdictional Commissioners.
Before passing the impugned order u/s 127(2) on 09.08.2019, no opportunity of hearing was granted to the petitioner. Hearing was granted after the said decision was taken culminating in the second order dated 09.12.2019. That apart, from the second order it is discernible that there was no agreement between the two jurisdictional Principal Commissioners to transfer assessment jurisdiction from Mumbai to Kochi. Evidently, the procedure prescribed under Section 127(2)(a) of the Act has not been complied with. It is trite that when a statute requires a thing to be done in a particular manner, then it has to be done in that particular manner.
In the light of the above discussions, we are of the view that the decision making process leading to passing of the two impugned orders has been vitiated for non-compliance to the statutory procedural requirements. Consequently, both the orders dated 09.08.2019 and 09.12.2019 passed by respondent No.1 cannot be sustained; those are hereby set aside and quashed.
Since we have set aside the above two orders, all consequential actions shall also stand interfered with.
-
2020 (3) TMI 969
Interpretation of Section 44BB and 44DA - income on account of receipts from provision of software enabled solutions to the oil and gas industry along with providing annual maintenance services of the software - categorization of the income of the assessee - whether Royalty or FTS - whether the receipts from the activities rendered by the assessee fall under Section 44BB or fall within the purview of Section 44DA after the amendment introduced by the Finance Act, 2010? - HELD THAT:- If the nature of services rendered have a proximate nexus with the extraction of production of mineral oils, it would be outside the ambit of the definition of FTS. In the instant case, since the nature of services rendered by the Petitioner gets excluded from the definition of “FTS”, in light of what is discussed above, the next logical question that arises for consideration is whether the Petitioner can claim the benefit of Section 44BB. The answer to this question is contingent on factual determination, as the legal position has changed from April 01, 2011. It is now required to be considered whether the receipts in the hands of the assessee qualify to be “royalty” or not? If the answer to this question is in the affirmative, then in that event, the relevant provision would now be 44DA(1).
CIT has also made certain observations that the assessee is not transferring the ownership in the software to the purchaser and is only granting a license to use the same. It has been further held that under Clause (v) of Explanation 2 to Section 9 (1) (vi) of the Act, transfer of all or any rights in respect of any copyright is ‘Royalty’. It has been held that if the software continues to be owned by the licensor, the use thereof would amount to ‘Royalty’.
From the above it manifests that the contracts executed by the assessee are composite contracts and there is no bifurcation with respect to the nature of consideration relating to the services rendered. The assessee has not segregated its activities into supply of software and maintenance/support services. The entire income derived under the contracts was offered for taxation under section 44BB. Revenue in its note of arguments has contended that ‘supply of software’ is ‘royalty’ and ‘other services’ are ‘FTS’ and accordingly Petitioner is liable to pay tax under Section 44DA of the Act.
Whether the services of updating the software/renewal of license or warranty services or maintenance of software are inextricably and essentially linked to the supply of the software and are ancillary services is a question of fact that would require determination after examining the dominant purpose of such contracts. In our opinion, there is no factual clarity on this aspect. We do not find any such distinction/segregation that can be inferred with respect to the receipts in the hands of the assessee under the contracts executed by it, referred above. The CIT being a fact-finding body has failed to give a reasoned order with respect to the nature of income and its subsequent application.
In view of the afore-going discussion, we set aside the impugned order and the matter is remanded to the file of the Ld. CIT to assess the Petitioner’s income and tax payable thereon by first determining the nature of the income/receipts in the hands of the assessee in light of the observations made in this judgment. The CIT, would be required to give a finding of fact on the following aspect:
Whether the income from services provided by the Assessee including the supply of software as well as ancillary services such as maintenance and installation would be covered under the definition of Royalty under the Explanation 2 to section 9(vi) of the Income Tax Act?
If the answer to the above question is in the affirmative, the income would be taxable under section 44DA.
On the contrary, if the answer is in the negative, the income of the assessee would not be taxable under section 44DA but section 44BB [as held in ONGC [2015 (7) TMI 91 - SUPREME COURT] as well as CBDT Circular No. 1862 dated 22.10.1990] since it is excluded from the definition of Fees for Technical Services under the Explanation 2 to section 9(vii) of the Act, being covered under the exception relating to mining and like activities provided in the definition of FTS.
Lastly, though this ground has not been raised by the assessee, however, it is required to be examined whether the assessee’s case would be covered under the India-Australia DTAA. Article 12(3) of the said DTAA provides the definition of Royalty. The Petitioner is granted liberty to claim benefit under the said DTAA before the Ld. CIT if it wishes to do so. Besides, in the event the answer to the question is in the affirmative, the assessee shall also be at liberty to assail such findings on merit, as we have refrained ourselves from determining whether the income of royalty is excluded from the definition under the Act. The writ petition is allowed in the above terms.
-
2020 (3) TMI 968
Refund withheld u/s 241A - procedure for refund and withholding of refund - without the conditions mentioned therein being fulfilled - HELD THAT:- We have perused the record, no reasons apart from one mentioned in the order are there. The note of approval of the Princial Commissioner was also perused by us, the only reason mentioned was that there was an amount outstanding of ₹ 5 crores odd against the petitioner and for the said reason, the refund is withheld. Petitioner disputed the fact and submitted that the said demand was set aside. Be that as it may, the pendency of demand of ₹ 5 crores cannot be a ground for withholding almost refund of ₹ 300 crores, as per Section 245, the due amount could be set off against the refund due.
In the absence of any material and reason for forming opinion that refund is likely to adversely affect the revenue withholding cannot be sustained.
Learned counsel for the petitioner relied upon various citations relating to Section 143(1D) but the same would have no direct application in the case in hand as the grievance is against order under Section 241A of the Act.
It would be further pertinent to note here that there is no dispute raised by the respondents that as on date refunds are due to the petitioner as per communication of processing of return under Section 143(1).
Respondents have not disputed that in the return filed by the petitioner for the assessment year 2019-20, the total income declared is more than ₹ 550 crores and refund of more than ₹ 183 crores has been claimed. It cannot be lost sight of that the revenue is not in a position to deny that the petitioner is running its business, the returns being filed are of almost more than ₹ 200 crores, there are no arrears of tax relating to any assessment year and the refund is being claimed every year. There is no allegation that the tax is not being paid or there is any irregularity in filing the returns.
The contention of the respondents to remit the matter back is not found worth acceptance as in the present case, there are no reasons even in the record to support the finding that refund would adversely affect the revenue and the note in approval file that there was demand of ₹ 5 crores pending has been found not good enough to withhold the refund of more than ₹ 300 crores. Even the officials present in Court were not in a position to cite any material or reason with regard to adverse affect of refund on revenue, it would be an exercise in futility to give another opportunity.
In view of the above, writ petition is allowed. The impugned order is quashed. The respondents are directed to issue refund for the assessment year 2017-18 and 2018-19 along with statutory interest not later than within four weeks from receipt of certified copy.
-
2020 (3) TMI 967
Deduction u/s 10A - alternate remedy under Section 10A which says that if the assessee is not eligible for deduction u/s 10B then, deduction should be considered under Section 10A of the Act alternatively - HELD THAT:- It is seen that the appeal was admitted on 19.06.2018. When the matter is called today, the learned Counsel for the appellant as well as the learned Counsel for the respondent produced the order copy dated 26.07.2019 passed by the Tribunal in the original appeal by which the appeal itself has been disposed of holding that the claim of deduction under Section 10A for the assessment year 2006-07 is already remitted back. Since the order of the Tribunal has been acted upon, this Court confirms the order [2017 (8) TMI 1597 - ITAT CHENNAI] in [2019 (7) TMI 1587 - ITAT CHENNAI] - Questions of law framed is kept open.
............
|
9911796707
