|
Advanced Search Options
Case Laws
Showing 501 to 520 of 1482 Records
-
2023 (6) TMI 982
Seeking grant of pre-arrest bail - supply of material/ goods without invoices to evade the tax - HELD THAT:- Examining the provisions of section 438 CrPC, perusal of the same would show that though expression “the High Court” and “the Session Court” has been given, but the provisions of section 438 CrPC nowhere lays down the High Court or the Court of Session where offence has been committed. Basic rule of interpretation of any provision of law is to understand the bare provision of statute with the meaning as it conveys, court cannot interpret the provision in any other manner than the meaning expresses. “The High Court” in itself does not convey the High Court within territorial jurisdiction of which offence has been committed. Had such been the intention of the legislature, there would not have been any constrain in mentioning the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed.
There cannot be any denial to the general legal proposition that in view of the provisions of section 177 to 189 falling in Chapter VIII of Cr.PC, generally the court of competent jurisdiction is where the offence has been committed. As such that court generally entertain application for relief of bail etc.
There has always been divergent view of different High Courts on the question of entertaining the anticipatory bail application within the territorial jurisdiction of the court where the offence has not been committed. Section 438 being a special provision for protecting a person apprehending his arrest, such provision cannot be restricted in every possible situation to file the application only within that court - Kolkata High Court in B.R. SINHA AND ORS. VERSUS THE STATE [1981 (7) TMI 249 - CALCUTTA HIGH COURT] has taken the view that High Court within whose territorial jurisdiction person resides is competent to grant anticipatory bail, even if offence is alleged to have been committed outside its jurisdiction. Similarly, that judgment was relied upon by Karnataka High Court in L.R. NAIDU VERSUS STATE OF KARNATAKA [1983 (10) TMI 295 - KARNATAKA HIGH COURT].
In the facts of the present case no doubt the corporate office of MEPL is at Noida and the investigation has been initiated by DGGI Zonal unit Jaipur but fact remains that applicant Prashant Kumar Singh also operates through MEPL in Marketing Office of Delhi. Therefore it cannot be laid down as an absolute rule that Delhi court has no jurisdiction at all - Therefore taking into consideration the fact that accused/ applicant is ready and willing to join the investigation for furnishing all the necessary documents etc. and also for the reason that in the reply filed by the DGGI Jaipur Zonal Unit, no specific amount has been mentioned about the tax evasion.
The accused is certainly required to be protected from possible arrest till the time he joins the investigation with DGGI Jaipur Unit subject to joining the investigation as and when called upon - application disposed off.
-
2023 (6) TMI 981
Income deemed to accrue or arise in India - India - USA DTAA - FTS OR FIS - payments received by the Assessee from its Indian Customers on account of Centralized Services viz. sales and marketing, loyalty programs, reservation service, technological service, operational services and training programs/human resources do not constitute ‘Fee for Technical Services’ u/s 9(l)(vii) or 'Fee for included services’ as defined under Articles 12(4) (a) of the Indo-US DTAA - HELD THAT:- Delay condoned. Leave granted.
Issue notice on the appeal, returnable in four weeks.
-
2023 (6) TMI 980
Applicability of Section 43B - electricity duty collected by the assessee as per the provisions of Punjab Electricity (Duty) Act, 1958 - As per HC applicability of Section 43B on the electricity duty, needs to be answered against the revenue - HELD THAT:- No ground to interfere with the impugned judgment and order passed by the High Court. Accordingly, the Special Leave Petition is dismissed.
Pending application(s), if any, stand disposed of.
-
2023 (6) TMI 979
Addition u/s 68 - genuineness and credit worthiness of the transaction in question - As per HC assessee though has disclosed the source of the deposit but could not establish the nature thereof and conditions which are required to be proved by the Assessee as per Section 68 could not be proved by him - HELD THAT:- Delay condoned.
We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed. Pending application(s), if any, shall stand disposed of.
-
2023 (6) TMI 978
Reopening of assessment u/s 147 - application of mind by the PCIT while granting sanction u/s 151 - validity of order disposing objections questioned - Petitioner states that reopening notice was issued after the expiry of four years of the assessment year but was candid to say that this was a case where no order u/s 143(3) had been passed - HELD THAT:- We find that in the order Rejecting petitioner’s objections, has not given any reasons as to why he did not find any merit in the objections raised by the assessee. The assessee had also, in his objections, raised the issue of non application of mind by the PCIT while granting sanction u/s 151 - PCIT has simply endorsed “Yes”. No date is mentioned and it does not also disclose why he felt there was a need to grant the sanction. None of these points have been discussed in the order disposing the objections.
We quash and set aside the order dated 15th November 2019 disposing the objections and remand the matter for denovo consideration to the Jurisdictional Assessing Officer (JAO).
-
2023 (6) TMI 977
Income from other sources u/s 56(2)(viib) - FMV determination - fair market value of the shares shall be the value determined under the prescribed formula or as per DCF method - HELD THAT:- As tribunal considering the provisions contained in Section 56(2)(viib) as well as Rule 11UA(2) of the Rules observed that as per the aforesaid Rule, fair market value of the shares shall be the value determined under the prescribed formula or as per DCF method which is at the option of the assessee and, therefore the DCF method adopted by the assessee for determining the fair market value of the share as per Rule 11UA2 does not require any interference - additions made u/s 56(2)(viib) are not sustainable in law and, thereby the tribunal has upheld the order passed by the CIT (Appeals) to the said extent and, thereby rejected the appeal filed by the appellant – Tribunal.
No substantial question of law.
-
2023 (6) TMI 976
Addition of provision made on account of performance service incentives by holding the same to be an unascertained liability - HELD THAT:- The Bench is of the considered opinion that learned CIT(Appeals) has failed to appreciate that it was the contingent liability or an estimated provision as it was directly related to the performance of employees. The amount stood accrued to the employee for all purposes and on completion of continuous period of service it would merely became payable. It gave rise to a contingent liability. So a provision of that amount cannot be considered to be one for unascertained liability.
At the same time, since this incentive was part of the pay and emoluments of the employee, TDS was supposed to be deducted only at the time of payment. Thus, the provision of non-deduction of TDS cannot be considered to be against the Act. CIT(Appeals) has fallen in error in considering the same to be in the nature of bonus, which was not at all the case of the AO nor for which a specific query was raised at the appellate stage by the CIT(Appeals). Thus, the ground deserves to be allowed.
TDS u/s 194IB - Disallowance of payment made on account of rent to landlord - no TDS has been deducted by the appellant company - HELD THAT:- TPPL was separate entity and appellant cannot take benefit of the deduction of the TDS by third party. However, the fact is that assessee was not the tenant under the lease agreement dated 11.11.2003. What can be concluded is that assessee may be a sub-tenant qua the land-lord on the basis of estoppels.
The Bench is of the considered opinion as there is tri-parte transaction and TPPL is responsible for payment of Rent, so as per 194-IB of the Act, TPPL had liability to deducted the tax. The assessee was not making payment to the landlord/lessor but to actual lessee, TPPL, through whom assessee was in possession as sub-lessee thus the deduction of tax by TPPL met the mandate of law. Learned Tax authorities have failed to appreciate the aforesaid and accordingly ground raised is allowed.
Nature of expenses - interior work on basement, for building painting work and for woodwork and painting - tax authorities have considered the same to be lease-hold improvements of enduring nature and, therefore, held that assessee is entitled for depreciation and these expenditure are not of revenue nature - HELD THAT:- There is nothing pointed out in the order of learned tax authorities that they have examined the lease agreement to conclude that expenditure brought benefit of enduring nature to assessee who was in possession under a lease agreement between the lessor Sardar Manmohan Singh and TPPL. Thus, the conclusion of learned tax authorities that the repairs or any interior work was of enduring nature and capital in nature is not supported by any cogent reasoning by way of examining nature of rights of the assessee in the premises. When assessee is enjoying the premises then the work in the nature of interior decoration and painting and woodwork cannot be considered to be of enduring nature. These are all improvements involving temporary material and can be very well removed at the time of vacation of the premises. The ground is decided in favour of the assessee.
Provision made on account of audit fee payable - allowable revenue deduction or not? - HELD THAT:- Tax authorities have considered it to be prior period expenses and they have not crystallized during the year. However, what they failed to appreciate is that as the bill was raised by auditors the payment was made. Even otherwise when the provision was not disturbed in assessment of FY 2006-07, then in any case when the provision was reversed in the present FY, that entitled assessee to debit the expenses in the present FY. Consequently, ground raised is sustained and is allowed.
Software licenses expenditure - Nature of expenses - whether to be in the nature of perpetual licenses and having enduring benefit while denying the expenditure incurred on software purchase - HELD THAT:- DR has tried to convince the Bench on the basis of nature of software and bills that as they were used for many years after purchase so they have to be considered to be of perpetual license.
The law in regard to same stands crystallized that the Expenditure on ‘Application Software’ is revenue. As claim was allowed in A.Y. 2007-08 U/s 143(3) and in AY 2009-10 the same has been deleted at the stage of learned first appellate authority. In the light of aforesaid, the ground is sustained.
-
2023 (6) TMI 975
Reassessment proceedings against dead person - whether curable defect u/s 292BB? - HELD THAT:- Notice u/s 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non- existent/ dead person which is not allowed.
Issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case.
The purpose of issue of notice is to make the noticee aware of the nature of the proceedings. Once the nature of the proceedings is made known and understood by the assessee, he should not be owed to take advantage of certain procedural defects. That was the purpose behind the enactment of Section 292BB. It cannot be invoked in cases where the very initiation of proceedings is against a dead person
AO exercised jurisdiction in erroneous way. The ground raised in this regard stands allowed.
-
2023 (6) TMI 974
Levy of late fees u/s 234E - assessee filed TDS statement in Form No.24Q for quarter-4 belatedly - CPC processing the TDS statement u/s 200A levied late fee - HELD THAT:- There is nothing on record to show that assessee has been served with an intimation u/s 200A of the Act for Assessment Years 2013-14 to 2015-16. The reminder letter issued by the ITO(TDS) regarding the payment of outstanding demands payable for the quarter for the above mentioned Assessment Years are placed on record along with Form No.36.
CIT(A) had dismissed the appeals of the assessee by stating the appeals have been preferred against the intimation of demand and not against the order u/s 200A - CIT(A) has not held that there is a delay in filing the appeals before him, if the time limit is calculated from the orders passed u/s 200A - In the interest of justice and equity, the CIT(A) ought to have decided the cases on merits instead of dismissing them in limine.
As the provisions of charging of late fees under section 234E of the Act was introduced w.e.f. 01.06.2015, we hold that issue relating to charging of interest under section 234E of the Act is covered in favour of the assessee and we delete the late fee charges under section 234E of the Act, for the Assessment Years 2013-14 to 2015-16 - Decided in favour of assessee.
-
2023 (6) TMI 973
Approval u/s 80G - Charitable activity u/s 2(15) - denial of approval real purpose of the trust does not get established - HELD THAT:- Appellant failed to establish the real purpose of the trust and the receipts and the expenses shown in the bank statement remained uncorroborated and the Appellant has not provided the financial statement for the year ending 31st March, 2018.
Assessee has also failed to appear before us to support his case and failed to submit any material, thus, we find no reason to interfere with the findings and the conclusion of the CIT(E), we find no merit of the assessee. Grounds of Appeal of the assessee are dismissed.
-
2023 (6) TMI 972
Revision u/s 263 - Receipts against sale of plots - Mismatch between the amount disclosed by the assessee and amount shown as per 26AS - Method of accounting - HELD THAT:- As in the present case, the assessee furnished a reply in response to the question raised by the AO and had taken a plausible stand explaining the mismatch in Form 26AS and the amount received and also had submitted the year of taxation of the receipts and further had made out a case that the assessee has opted for percentage completion method and therefore, the accounting treatment given by the assessee to the receipts is in accordance with law.
How the method of accounting opted by the assessee was erroneous and prejudicial to the interest of the Revenue when the method of accounting opted by the assessee was proper under AS-7 and further the learned PCIT has also failed to bring on record after making the inquiries how the order of the AO has become prejudicial to the interest of the revenue and erroneous.
More particularly, when all the receipts are duly reflected in the subsequent A.Ys by following the percentage completion method. The view of the AO is a plausible view and merely because the PCIT holds a different view, then that of the AO this cannot be a ground to cancel the order of the AO being erroneous and prejudicial to the interest of Revenue. There is a difference between inadequate inquiries and lack of inquiry. In the present case sufficient and adequate enquiries were made by the AO. Merely because the AO had not written a detailed and elaborate order for accepting the submissions of the assessee, the same cannot be a ground to declare the order of the Assessing Officer as nonest.
PCIT had only pointed out the alleged mismatch between the payment accounted for and TDS deducted. The above-said mismatch had been duly explained by the assessee during the assessment proceedings as well as in the revision proceedings, as the said payment (difference) was reflected in the subsequent year. In view of the above, it cannot be said that the order of the Assessing Officer was prejudicial to the interest of the Revenue. Therefore, the order passed by the learned PCIT u/s 263 of the Act being not in accordance with law is cancelled. Appeal filed by the assessee is allowed.
-
2023 (6) TMI 971
Revision u/s 263 - Right issue shares - applicability of section 56(2)(viib) on the issue of shares by the company by stating that this section applied only to the residents and not to the non-residents - assessee is engaged in the business of developing and operating industrial and logistics park - case of the assessee was selected for limited scrutiny on the ground of “Large share premium received during the year” - HELD THAT:- As incumbent upon the PCIT to specifically point out where the AO went wrong in accepting the assessee’s explanation. His action in generalizing the issue to the effect that the AO failed to make enquiry to examine and verify the reasonableness and genuineness of share premium, cannot be accorded our imprimatur when all such details were already on record and examined by the AO.
If the view point of the ld. PCIT is approved, it would give a licence to Pr. CITs to revise any assessment order in the second situation category cases without first satisfying the jurisdictional condition of showing the defect in the approach of the AO in accepting the assessee’s claim.
Here is a case in which the assessee issued shares with face value of Rs. 10/- at a price of Rs. 6,526.96 per share. The shares were right issued to the existing shareholders. The assessee justified the receipt of share premium at this level with the help of report of a valuer. Such report was drawn on 05-12-2016, when the assessee issued shares at the same amount of premium in the immediately preceding assessment year 2017-18 to Indospace Ventures II, Mauritius. Assessment for the A.Y. 2017-18 was completed u/s. 143(3) without casting any doubt or aspersion over the reasonableness of the amount of premium charged on the shares. It is the same amount of premium which has been charged by the assessee during the year under consideration on fresh issue of shares within a gap of six months from the last issue of shares, that has been doubted by the ld. PCIT in the present case.
We are satisfied that the PCIT was not justified in revising the assessment order passed u/s 143(3) of the Act. The revisionary order is hereby set aside and quashed. Appeal is allowed.
-
2023 (6) TMI 970
Rectification u/s 154 - AO power to re-visit the order passed by the Tribunal or/Ld.CIT(A) - Once the appeal of the assessee against quantum additions have attained finality upto the level of the Tribunal then question arises as to whether the AO can rectify the order passed by him on an issue which is highly debatable and after the order got a seal of approval from the Ld.CIT(A).
HELD THAT:- In our view, the answer is NO since in our considered opinion, it will amount to re-visiting the order of the assessment, which has attained finality. Recently, in the identical facts, in the case of Shri Krishna Kumar D. Shah [2023 (5) TMI 1208 - ITAT HYDERABAD] the decision relied upon by the learned DR, we had examined the law on the subject and after examining the same, we have heed that the AO has no power to re-visit the order passed by the Tribunal or/Ld.CIT(A)
-
2023 (6) TMI 969
TP Adjustment - addition pertaining to interest on outstanding receivables - DRP have erred in rejecting the economic analysis undertaken by the Appellant by conducting a fresh economic analysis for the impugned transaction - HELD THAT:- We note that the ITAT in assessee’s own case for immediately preceding assessment year i.e. AY 2015-16 [2023 (2) TMI 1105 - ITAT DELHI] on the impugned issued as held since the assessee has provided similar services to unrelated parties and claims that no interest was charged with respect to outstanding receivables from unrelated parties, in all fairness, this contention cannot be brushed aside lightly, though needs due verification by lower authorities.
We, therefore, restore this issue to the file of the TPO/AO. Assessee is directed to furnish necessary documentary evidences to demonstrate that on outstanding receivables from unrelated parties, no interest was charged on similar transactions as that with AEs and the Assessing Officer/TPO is directed to examine the same and decide the issue afresh as per provisions of law.
-
2023 (6) TMI 968
Draft assessment order in the name of a non existing/Amalgamated company - defective ROI filled - PAN of a non existing entity used for filing ROI - assessee Star Sports India Pvt. Ltd. got amalgamated with Star India Pvt. Ltd. - Whether draft Assessment order passed as void ab initio? - HELD THAT:- We hold that the ld DRP has correctly held the ROIs filed by assessee as non est and has also correctly quashed the draft assessment order. Thus we confirm the direction of the ld DRP to that extent.
Refund due to the assessee denied, we hold that when ld AO has assessed income of the assessee independently i.e. Without considering the ROIs filed, he is duty bound to give credit of taxes u/s 199 of the Act. Accordingly due refund of taxes should be allowed to the assessee. Ld AO is directed to verify the claim of refund and allow the same in accordance with the law. Thus all the grounds of Memorandum of appeal of the ld AO are dismissed.
-
2023 (6) TMI 967
Addition u/s 68 - unexplained share premium and share capital - HELD THAT:- Assessee effectively discharged the burden cast upon them u/s 68 of proving identity of the investors, the genuineness of the transactions and the creditworthiness of the parties with respect to the transactions that took place between the Assessee and the investors.
Since the Assesses filed the bank statements of the parties conclusively proving that the impugned sums were received through normal banking channels from the bank accounts of the parties, the burden of proving the genuineness of the transactions between the Assessee and the parties and the creditworthiness of the parties to invest in the share capital of the Assessee Companies stood discharged.
Once the Assessee established the identity of the parties, the genuineness of the transactions and the creditworthiness of the parties to invest in the share capital of or advance loans to the Assessee Companies, the burden shifted to the Revenue to prove the contrary. The Ld. A.O has failed to discharge the secondary onus of demolishing/disproving the genuineness of the documentary evidences filed by the Assessee. As held in the cases cited above, before fastening any liability upon the Assessee, the A.O is required to show by bringing on record tangible material that the amounts received as share capital/loans from the investors/lenders actually emanated from the coffers of the Assessee or represented the undisclosed income of the Assessee. Addition made u/s 68 as sustained by the CIT(A) his hereby deleted. Decided in favour of assessee.
Enhancement of income by CIT(A) under the head from other sources by applying Section 56(2)(viib) - Addition on protective basis by rejecting the valuation report furnished under Rule 11UA (2) (b) of the Income Tax Rules i.e. Discounted Cash Flow Method (DCF Method) - HELD THAT:- There is no dispute that legally the assessee had option to choose the valuation of the shares as per Rule 11UA of the IT Rules. When the statute provides for particular procedure, authorities have to follow the same and cannot interpret or permitted to act in contravention of the statute. The said legal principal is based on the legal maxim ‘Expression Unis Est Exclusion Alterius’. Thus, we hold that the CIT(A) have committed an error in rejected the valuation done by the assessee from prescribed expert as per the prescribed method, which ultimately resulted in enhancement of income of the Assessee u/s 251(1) of the Act. Accordingly, we allow Ground Nos. 2 of the Assessee and delete the enhancement made by the CIT(A).
-
2023 (6) TMI 966
Income deemed to accrue or arise in India - Taxability of royalty income received by the assessee on subscribers units from original equipment manufacturers (OEMs) located outside India and royalty income on infrastructure equipments - As per AO since the subscriber units(handsets/equipments) containing CDMA technology/patent is ultimately used in India by subscribers, the royalty connected to such patent would be taxable in India as the OEMs selling the subscribers units/equipments have PEs in India. - assessee is a non-resident corporate entity incorporated in USA
HELD THAT:- Considering the submission of assessee that locking of CDMA subscriber units to make it India-specific or network carrier-specific, was discontinued in assessment year 2010-11 and thereafter, subscriber units available were open market handsets not locked in any specific service provider, in our view, the report of the technical expert do not have any relevance in so far as the impugned assessment years are concerned.
In any case of the matter, the assessment order makes it clear that driven by the assessment order passed for the assessment year 2012-13, the AO has concluded that the royalty income received from OEMs located outside India is taxable in India. Pertinently, while deciding the appeals for the assessment years 2009-10 to 2012-13 [2018 (4) TMI 1362 - ITAT DELHI] the Tribunal, having taken note of the relevant facts and earlier decisions on the issue, has held that the royalty income received from OEMs located outside India is not taxable in India. Decided in favour of assessee.
-
2023 (6) TMI 965
Addition on account of cash deposit to the bank account of the assessee - assessee is consistently submitting that the assessee has two bank accounts in her name and the assessee is earning cash income from tuition since very long time and has been filing her return of income for 20 to 25 years showing tuition income, rental income and interest income which was earned by the assessee from providing loans to her husband’s brother firm and these amounts consists of income as well as savings of assessee earned during the long period of life - HELD THAT:- From the copy of the passbook with SBI it is clear that the assessee has withdrawn Rs. 24 lakhs during the FY 2014-15 from the period 29.05.2014 to 21.03.2015 and the amount of cash deposit to UCO bank i.e. Rs. 9,99,000/- and lesser than the amount of cash withdrawals by the assessee during the same financial period. AO was not correct in considering the available cash out of cash in hand of Rs. 3,24,500/- for the purpose of adjudication the issue keep aside the factum of huge cash withdrawals from the bank account of the assessee with State Bank of India.
Addition made by the AO and sustained by CIT(A) is not sustainable as the factual position stated by the assessee in her submission before the ld CIT(A) as well as before the AO have not been controverted neither by the authorities below nor by the Sr. DR before us as noted above. Therefore, AO is directed to delete the addition.- Decided in favour of assessee.
Addition on account of stamp duty paid on purchase of property - paid out of alleged unexplained sources - HELD THAT:- This is well known fact to understand the fabric of society and habits of Indian home maker women and issue has to be seen from the angle of normal women who has normal sources of income and has spent big part of her life’s earning to financially strengthen her family from doing tuition work and again utilizing the tuition income for giving loans to the relatives for earning interest income.
It is not the case of the AO that the assessee has not paid any tax or has not filed return of income but the submission of the AO noted by the ld CIT(A) have not been controverted by the ld CIT(A) while restricting the addition to the tune of Rs. 6 lakhs. Therefore, explanation submitted by the assessee is a plausible explanation.
Amount invested by the assessee towards payment of stamp duty in cash cannot be doubted in view of the conduct of assessee in the capacity of a consistent tax payer since 20 to 25 years and thus addition cannot be held as sustainable - Decided in favour of assessee.
-
2023 (6) TMI 964
Condonation of delay of 295 days in filing appeal - Valuation of imported goods - rejection of declared value - prohibited goods or not - contemporaneous imports/NIDB data - HELD THAT:- This appeal is delayed by a period of 295 days. The reasons stated in the application for condonation of this inordinate delay are not satisfactory. Even on merits, there are no substantial question of law worth consideration in this appeal.
This appeal stands dismissed on the ground of delay as also on merits.
-
2023 (6) TMI 963
Classification of imported goods - Speed Boat - classified under CTH 8906 00 90 or under CTH 8905 90 90 of Customs Tariff Act, 1975? - N/N. 21/2002-Cus., dated 1-3-2002 - HELD THAT:- This Court is of the opinion that the appeal does not involve any substantial question of law.
The appeal is, therefore, dismissed.
............
|
9911796707
