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Showing 61 to 80 of 430091 Records
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2025 (4) TMI 1582
Seeking grant of privilege of anticipatory bail - criminal breach of trust and forgery related to misappropriation of funds - HELD THAT:- Considering the serious nature of allegation against the petitioners and the requirement of their custodial interrogation during the investigation of the case, this Court is not inclined to give the privilege of anticipatory bail to the petitioners. Accordingly, the prayer for grant of privilege of anticipatory bail to the above named petitioners is rejected.
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2025 (4) TMI 1581
Maintainability of petition - availability of alternative remedy - Cancellation of petitioner’s registration for failing to furnish the returns - complaince with due procedure contemplated under Section 29 of the CGST Act or not - HELD THAT:- Though petitioner alleges that Exhibit-P2 order of cancellation is ambiguous, on a perusal of the same, it is noticed that the respondent has complied with due procedure contemplated under Section 29 of the CGST Act. A reading of the order of cancellation as well as the show cause notice reveals that petitioner had not furnished the final return for the period prescribed under Section 29(2)(c) of the CGST Act. Despite the show cause notice issued to the petitioner as Exhibit-P1, he failed to respond at all. Even the opportunity for hearing granted to him was not availed. Therefore, petitioner cannot now turn around and allege that there was any procedural violation.
The statute provides for revocation of cancellation of registration under Section 30 of the CGST Act. The said provision was also not invoked by the petitioner. The appellate remedy under Section 107 of the CGST Act has also not been invoked by the petitioner. For more than 13 months, petitioner failed to initiate any steps to challenge the order of cancellation of registration. Petitioner can thus be deemed to have acquiesced into the order cancelling his registration. Thereafter, he cannot turnaround and challenge the order of cancellation of registration. Petitioner is thus estopped from challenging the impugned order.
Petition dismissed.
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2025 (4) TMI 1580
Anti-dumping investigation - Condonation of Delay in filing of response - technical delay of 19 minutes in submission - Imports of Plastic Processing Machines originating or exported from China and Taiwan - HELD THAT:- The Court has seen the email dated 4th November, 2024. Considering that in such matters, the investigation has to be comprehensive and the Petitioners have already been permitted to participate in the proceedings. A few minutes’ delay in the exporters’ questionnaire response cannot oust the Petitioners’ response from being heard and participating fully in the proceedings.
In terms of the facts of the present case, the response to the questionnaire is directed to be taken on record. The delay, if any, in filing the same is condoned. The enquiry shall now proceed in accordance with law.
Petition disposed off.
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2025 (4) TMI 1579
Voluntary cancellation of GST registration - principles of natural justice - HELD THAT:- Since none of the material which is placed on record and which is alluded to, was ever placed before the respondents, the ends of justice would merit the petitioner being accorded an opportunity to place the same before the competent authority and for the same being examined afresh.
Petition allowed by way of remand.
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2025 (4) TMI 1578
Refund claim - amount paid under protest is in the nature of revenue deposit and hence, it will not be covered by section 11B of CEA or not - principles of unjust enricment - HELD THAT:- The amount of deposit made under protest, except to the extent of amount which has been appropriated towards requirement of making pre-deposit under section 35F, would be in the nature of revenue deposit and therefore, it will not be covered by the provisions of section 11B of the Act, as held by Commissioner (Appeals) in his impugned order while upholding the order of the RSA. The reliance placed by the Revenue on the judgment of Hon’ble Supreme Court in the case of Union of India Vs Willowood Chemicals Pvt Ltd [2022 (4) TMI 980 - SUPREME COURT] is also misplaced inasmuch as this judgment is in respect of interest on delayed refund under IGST Act, whereas, in the present case, the issue is under section 11B of Central Excise Act. Therefore, the facts are distinguished.
The issue of unjust enrichment is not relevant in the factual matrix of the present case, as the same has not been even invoked by the RSA.
Payment of interest - HELD THAT:- There is no specific provision for grant of refund of revenue deposit under the statute, however, following various judicial pronouncements, different forums including Tribunals have been awarding interest @ 6%, as well as in some cases @ 12%, following the judgment of Hon’ble Supreme Court in the case of Sandvik Asia Ltd Vs CIT-I, Pune [2006 (1) TMI 55 - SUPREME COURT] - Hon’ble Supreme Court in the case of Poornima Advani & Ors Vs Govt. of NCT & Ors [2025 (3) TMI 60 - SUPREME COURT], inter alia, held that interest was payable in relation to refund of certain amount which was retained by the Government.
In the facts of the case, the interest is payable on the amount of Rs.1,28,95,173/-, w.e.f. from the dates of deposit made by the appellant. As far as the rate of interest is concerned, since there is no specific rate prescribed, the interest @ 6% is allowed, in view of the fact that similar rate of interest is also admissible for pre-deposit under section 35FF of the Act and the fact that the amount of pre-deposit has been appropriated from the same amount. Therefore, in the facts of the case, the rate of interest would be @ 6%. Moreover, it is seen that in the prayer itself, the total relief sought by the appellant is only Rs.59,98,517/- for refund under section 35FF, as redetermined, the differential amount will be payable. Therefore, the appellants will be entitled for refund, as discussed supra, subject to the cap of Rs.59,98,517/-.
Conclusion - i) The amount paid under protest by the appellant during enquiry is a revenue deposit and not "duty of excise" within the meaning of section 11B of the Act. ii) The RSA erred in calculating pre-deposit amounts under section 35F and interest under section 35FF by using the deposited amount as the base instead of the total disputed duty amount. The correct calculation leads to higher interest entitlement. iii) Interest is payable on the refund of the revenue deposit portion at the rate of 6% per annum from the dates of deposit, based on equitable principles and judicial precedents, despite absence of explicit statutory provision.
Appeal allowed.
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2025 (4) TMI 1577
Time limitation - refund of excise duty paid on investment subsidy adjusted against VAT and CST returns - amount was paid under protest - applicability of principles of unjust enrichment - HELD THAT:- From the grounds of appeal taken by the Revenue before the Commissioner (Appeals) and the appeal decided thereon is basically on the point that since the amount shown as “expenses” is not towards amount as “receivable”, it cannot be established that the assessee have passed the test of unjust enrichment. The said issue has been considered by the Tribunal in the case of M/s. Chambal Fertilizers and Chemical Vs. Commissioner of Central Excise and CGST [2023 (2) TMI 10 - CESTAT NEW DELHI], wherein it was noticed that the refund claim was rejected on the ground that the amount deposited was accounted as “expenses” in the Profit and Loss Account of the appellant meaning thereby that the burden of duty has been passed.
In the present case, the issue of excisability of subsidy amount was pending adjudication, and was finally concluded only by the order of the Tribunal dated 21.12.2018, where the period involved was from 2014 – 2015, however, the appellant had deposited further amount of central excise duty on VAT at their own risk and for the subsequent period which the present refund claim has been made. In this regard, it needs to be appreciated that the issue regarding the liability of duty on the subsidy amount was subjudice and the appellant to avoid any enhanced liability on account of non-payment of duty, had paid the said amount. The observations of the High Court of Delhi in the case of Team HR Services Pvt. Ltd. [2020 (6) TMI 342 - DELHI HIGH COURT], where the Court observed that the undisputed position is that the deposit “under protest” was made against the anticipated liability and which liability though fructified by the respondent was set aside by the CESTAT and which order attained finality.
Conclusion - The submissions of the learned counsel is that the disputed amount was paid under protest much after the clearance of the impugned goods and the said amount, therefore, is not covered by unjust enrichment. It is found from the decision of the Tribunal that once the supplies have already been made, any amount paid thereafter, as tax or deposit, the burden of such amount cannot be passed on to the assessee and, therefore, the test of unjust enrichment is not applicable.
The impugned order is set aside - appeal allowed.
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2025 (4) TMI 1576
Taxable service or negative listed services - activity undertaken by the appellant-sale and purchase of postal stamps through a franking machine - suppression of facts or not - invocation of extended period of limitation.
Taxability of service - HELD THAT:- The franking machine is a stamp vending machine or stamping machine. These can be used subject to getting license from Postal Authorities. The license gets issued by the head of the Postal Division or the independent gazetted Postmaster of the office of Director Posts, Mumbai, Kolkata or New Delhi GPO or by officer commuting postal/SDS unit/SBPO within whose jurisdiction the machine is located. Resultantly, the certificate produced on record was the certificate produced by postal governmental authorities. Presumption of correctness is attached to the said document. There is nothing on record produced by the department to rebut the said presumption. The said document produced sufficiently proves that the activity of the appellant was trading of postal stamps and the said activity is coverd under negative list, sub clause (e) of Section 66D of Finance Act, 1994 - the service tax liability has wrongly been fasten upon the appellant.
Extended period of limitation - HELD THAT:- Vide show cause notice of 25.04.2018, service tax for the period 2012-13 has been proposed. Apparently, the period falls beyond the period of five years, hence had the invocation of extended period would have been justified, the demand for the period beyond five years cannot sustain. Though the department has taken the plea that the period of filing ST-3 returns for Financial Year 2012-13 was extended by 31.10.2013 but this submission does not extend any benefit to the department for want of any apparent reason on record for invoking the period of five years for issuing the show cause notice. As already observed above that the appellant activity was not a taxable service, nonfiling of ST-3 returns and non-deposit of service tax is wrongly held an act of suppression - the show cause notice has wrongly invoked the extended period of limitation and has been vague being solely based on third party information.
Conclusion - i) The activity of the appellant is trading of postal stamps and the said activity is covered under negative list, sub clause (e) of Section 66D of Finance Act, 1994. ii) The show cause notice has wrongly invoked the extended period of limitation and has been vague being solely based on third party information.
Appeal allowed.
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2025 (4) TMI 1575
Deduction of liquidated damages by the respondent from the appellant's contractual dues, in view of the extensions of time granted for completion of the contract work - seeking to set aside the arbitral award, upholding such deduction - HELD THAT:- Respondent had established that the loss suffered by it indeed occurred due to delay in handing over the new premises. Clause 26 of the contract agreement permitted the respondent to levy liquidated damages. It also provided as to how the quantum of liquidated damages should be arrived at. According to the arbitral tribunal, the quantum was at the rate of 0.5% per week of delay. Delay in this case was more than ten months. Bulk of the delay was for reasons within the control of the appellant. The figure of Rs. 82,43,499.00 was correctly quantified and deducted as liquidated damages by the respondent. Therefore, the arbitral tribunal held that the liquidated damages were legally and contractually valid.
A conjoint reading of Sections 55, 73 and 74 would indicate that in a contract whether time is of the essence or not, if the contractor fails to execute the contract within the specified time, the contract becomes voidable at the option of the promisee and the promisee would be entitled to compensation from the promisor for any loss occasioned to him by such failure. However, in case of a contract where time is of the essence, the contract becomes voidable on account of the contractor’s failure to execute the contract within the agreed time. The promisee cannot claim compensation for any loss occasioned by such breach of the contract unless he gives notice to the promisor of his intention to claim compensation. This is made more specific in Section 73. Section 74 contemplates a situation where penalty is provided for and quantified as compensation for breach of contract. In such a case, the party complaining of the breach is entitled to compensation whether or not actual damage or loss is proved to have been caused thereby but such compensation shall not exceed the quantum of penalty stipulated.
Scope of Section 34 of the 1996 Act is now well crystallized by a plethora of judgments of this Court. Section 34 is not in the nature of an appellate provision. It provides for setting aside an arbitral award that too only on very limited grounds i.e. as those contained in sub-sections (2) and (2A) of Section 34. It is the only remedy for setting aside an arbitral award. An arbitral award is not liable to be interfered with only on the ground that the award is illegal or is erroneous in law which would require re-appraisal of the evidence adduced before the arbitral tribunal - The award as such cannot be touched unless it is contrary to the substantive provisions of law or Section 34 of the 1996 Act or the terms of the agreement.
The learned Single Judge had clearly gone beyond the grounds provided in Section 34 of the 1996 Act to set aside the arbitral award. Learned Single Judge exceeded the jurisdiction under Section 34 of the 1996 Act. There was no justification for setting aside the arbitral award by taking a different view. View taken by the arbitral tribunal is certainly a possible and plausible view. A different interpretation of clause 26 other than the one taken by the arbitral tribunal is possible but that will not bring the challenge to the arbitral award within the four corners of Section 34. In any view of the matter, mere setting aside of the arbitral award did not confer any benefit to the appellant. In the circumstances, the Division Bench was justified in reversing the order of the learned Single Judge under Section 37 of the 1996 Act.
Conclusion - The arbitral award upholding the deduction of liquidated damages restored, and the Single Judge's order setting aside the award set aside as beyond jurisdiction.
Appeal dismissed.
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2025 (4) TMI 1574
Cancellation of the petitioner's GST registration license on the ground of discrepancies noticed during physical verification - HELD THAT:- Since the show cause notice has been adjudicated partially in favour of the petitioner hence only issue regarding the cancellation of the GST license of the petitioner is being considered in this writ petition. The entire process for cancellation of the license was initiated after the visit note prepared by Shri Avinash Joshi, Superintendent, CGST and C.X.Range-2 Division IV Indore - the officer did not record the statements of the nearby shop owners. This visit note is only signed by Shri Avinash Joshi not by any other witness. Shri Joshi ought to have recorded the statement of the nearby shop owner and obtained their signature in the visit notes as a witness. It appears that no one was accompanied with him from the GST department on 15.05.2023 at the time of the search. Had any person visited with him, he would have countersigned this visit note, therefore, such a visit note cannot be relied on for taking such a drastic action of cancellation of license.
In the case of Roxy Enterprises [2023 (12) TMI 1098 - DELHI HIGH COURT], the Division Bench of the High Court of Delhi has considered Rule 25 of GST Rules 2017 which deals with the physical verification of business premises in certain cases. According to Rule 25, the physical verification of the business premises should be done in the presence of the person, and it should be uploaded in the form GST REG-30 on the common portal within 15 working days following the date of such verification.
The entire impugned action of the respondents is based on the presumption that the firm is bogus because the office/place of business was found locked.
The order dated 29.05.2023 passed by the Superintendent Officer (respondent No.5), the order dated 03.08.2023 passed by Deputy Commissioner (respondent No.4), and the order dated 25.04.2024 passed by Joint Commissioner (respondent No.3) are unsustainable and liable to be quashed and are hereby quashed - petition allowed.
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2025 (4) TMI 1573
Demand for alleged violation of Rule 96(10) of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- Issue Notice returnable on 07.05.2025 for final disposal.
By way of ad interim relief, no coercive action shall be initiated by the respondent during the pendency of this petition. Direct service through Email is permitted.
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2025 (4) TMI 1572
Rejection of application made by the writ petitioner for voluntary cancellation of its Goods and Services Tax - no reason provided in SCN - Violation of principles of natural justice - HELD THAT:- The impugned order fails to assign any reason whatsoever and which may have indicated what could have possibly weighed upon the respondents in not acceding to the prayer for voluntary cancellation.
The impugned order dated 20 November 2024 is hereby quashed. The application for cancellation as made shall consequently be taken up for consideration afresh and be disposed of by the competent authority in accordance with law.
Petition allowed.
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2025 (4) TMI 1571
Jurisdiction of issuing notice u/s 143 (2) - omission on the part of the DCIT in not issuing notice u/s 143 (2) to the assessee - Whether the assessee can challenge the authority of the ITO, who had issued the notice u/s 143 (2) and the authority of the DCIT for issuing the assessment order u/s 143 (3) in view of the limitations prescribed under Sections 292B and 292BB of the I.T. Act? - HELD THAT:- Section 292B provides that notice as well as return of income, assessment, summons, etc., issued under the provisions of the I.T. Act cannot be treated as invalid merely by reason of any mistake, defect or omission in such notice, etc., if the same is in substance and effect in conformity with or according to the intent and purpose of the I.T. Act.
ITAT, in the present case, has interfered with the order passed by the CIT (Appeals) and the assessment order mainly on the ground that there is omission on the part of the DCIT in not issuing notice u/s 143 (2) to the assessee.
ITAT has not concluded that the notice issued to the assessee by the Income Tax Officer u/s 143 (2) is not in substance or not in conformity with the intent and purpose of the I.T. Act. In the absence of such finding, the ITAT cannot interfere with the notice or the assessment order issued against the assessee.
In the present case, apart from that, the assessee is also debarred from challenging the assessment proceedings for the first time before the ITAT on the ground of issuance of notice under Section 143 (2) by the Income Tax Officer in the light of the provisions of Section 292BB of the I.T. Act. Section 292BB of the I.T. Act clearly provides that where an assessee has appeared in the proceedings relating to assessment or reassessment before the authority concerned without raising any objection before completion of assessment or reassessment, it is not open for him to raise such objection after passing of the assessment order. In the present case, the notice under Section 143 (2) of the I.T. Act was issued by the Income Tax Officer and was duly served upon the assessee, who, in turn, had appeared before the DCIT, to which the proceedings were transferred by the Income Tax Officer, without raising any objection till the assessment order was passed. Even in the appeal preferred by the assessee before the CIT (Appeals), no such ground was ever raised by the assessee. In such circumstances, we are of the candid view that as per law, the respondent/assessee was not within his right to raise the objection regarding issuance of notice by the Income Tax Officer under Section 143 (2) of the I.T. Act or questioning the authority of the DCIT in passing the assessment order while exercising powers under Section 143 (3) of the I.T. Act before the ITAT.
Thus, in the light of the provisions of Section 292B as well as Section 292BB of the I.T. Act, the right of the assessee has been restricted to challenge the validity of a notice issued by the Income Tax Officer or the assessment order passed by the DCIT and in such circumstances, the ITAT has illegally passed the impugned order ignoring the said provisions, which restricts the right of the assessee.
Question of law framed by this Court is answered in affirmative and the impugned order passed by the ITAT is set aside.
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2025 (4) TMI 1570
Penalty u/s 271E - repayment of loan to the extent of more than twenty thousand rupees by the assessee is in violation of provisions contained in Section 269T - appellant has not proved reasonable cause for its failure within the meaning of Section 273B - HELD THAT:- A combined reading of the provisions contained in Section 271E [which provides penalty for failure to comply with the provisions of Section 269T] and Section 273B of the Act makes it abundantly clear that if the assessee shows reasonable cause for the failure to comply with any provision referred thereto, the penalty for its violation of Section 269T of the Act shall not be imposable on the assessee.
The word 'reasonable cause' has not been defined in the Act of 1961. Therefore, in the context of the penalty provisions, the words 'reasonable cause' would mean a cause which is beyond the control of the assessee. 'Reasonable cause' obviously means a cause which prevents a reasonable man of ordinary prudence acting under normal circumstances, without negligence or inaction or want of bona fides.
In our considered opinion, bona fide belief coupled with the genuineness of the transactions would constitute a reasonable cause. Furthermore, the transaction which was bona fide and not aimed to avoid any tax liability would constitute a reasonable cause within the meaaning of Section 273B for not invoking Section 271E.
in our considered opinion, the cause shown by the assessee that on the insistence of M/s. Tata Finance Corporation to pay the amount of loan in cash vide its letter dated 5-11-2012, would constitute a reasonable cause within the meaning of Section 273B of the Act and also in light of the decision of Kum. A.B. Shanthi's case [2002 (5) TMI 4 - SUPREME COURT] reasonable cause has been shown by the assessee for non-compliance with the provisions contained in Section 269T of the Act and the transaction is genuine and bona fide which is not disputed by all the three authorities, however, all the three authorities ignored the provision contained in Section 273B of the Act and proceeded to levy penalty under Section 271E of the Act rendering the provision contained in Section 273B of the Act otiose, as the provision contained in 271E of the Act for imposition of penalty for non-compliance of Section 269T of the Act is subject to Section 273B of the Act.
The order imposing penalty passed by the AO, affirmed by the first appellate authority by order dated 25-10-2022 and further affirmed by the second appellate authority by order dated 6-9-2023, are liable to be and are hereby set-aside/quashed and it is held that since the appellant has shown the reasonable cause within the meaning of Section 273B the appellant is not liable to pay penalty u/s 271E for non-compliance of Section 269T. Substantial question of law is answered against the Revenue and in favour of the assessee.
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2025 (4) TMI 1569
Validity of Reopening of assessment u/s 147 - Reasons to believe - whether notice under Section 148 of the Income Tax Act, 1961 requires reasons in support of notice or not? - whether official respondent while issuing notice u/s 148 require to furnish reasons or not?
HELD THAT:- The general principle insofar as providing opportunity or reasons in support of any adverse order or civil consequence, in such circumstance invariably reasons must be supported. In the present case, by virtue of notice u/s 148, petitioners are required to submit their explanation or whatever the materials. In this regard, unless and until petitioners are made known that they have to answer to the notice and it is not supported by reasons, otherwise they are not in a position to submit effective reply / explanation with the material information. On this score the petitioners have made out a case. Reassessment notices set aside. Assessee appeal allowed.
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2025 (4) TMI 1568
Validity of final assessment order without considering the petitioner's request for adjournment - validity and effect of the affidavit filed by the Income Tax Officer which contradicted the petitioner's claim regarding the adjournment request - HELD THAT:- Department when confronted with the contradiction of the aforesaid affidavit with the facts on record of the case submits that the deponent of the said affidavit had insisted on filing the present affidavit stating the above facts and the remarks to that effect have also been received by her in writing. She however, expresses her apology as counsel and seeks to withdraw the aforesaid affidavit.
We accept the apology of Ms. Mehta, however, we decline the permission to withdraw the present affidavit which has been tendered before us. The same is directed to be kept on record.
Let notice be issued to the deponent of the said affidavit - Shri Ashish Kumar Gupta serving as Income Tax Officer (Exemption) Ward-2, Ahmedabad, to explain the circumstances which has led to filing of the present affidavit, returnable on 3rd March, 2025.
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2025 (4) TMI 1567
Reopening of assessment u/s 147 - period of limitation - assessee failed to explain the source of the cash deposit - HELD THAT:- We find since the notice u/s 148 of the Act has been issued after the statutory due date as per the decision of Rajeev Bansal [2024 (10) TMI 264 - SUPREME COURT (LB)], therefore, such notice for reopening being barred by limitation has to be quashed. We accordingly, quash the re-assessment notice issued by the AO. Since the assessee succeeds on this legal ground i.e. validity of re-assessment proceedings, therefore, the grounds challenging the addition on merit are not being adjudicated being academic in nature. The grounds raised by the assessee are accordingly allowed.
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2025 (4) TMI 1566
Disallowance @ 25% of various expenditure - non rejection of books of accounts - whether AO has not followed the direction of the DRP? - HELD THAT:- The voluminous evidence regarding the expenses were submitted before the AO. The copies of those documents, addition evidence, submission, etc. were also furnished before us in the paper book with the certification that these were dully submitted before the lower authorities.
AO had not consider the additional evidence submitted before the DRP and that is why he has not made any comment thereon.
AO is duty bound to incorporate the specific directions issued by the DRP in the relevant para of the assessment order and do needful accordingly.
DRP directed the AO to reconsider and verify the submissions (including additional evidence) before completing the assessment. DRP direction did not mandate the AO to provide opportunity of being heard to the assessee on this score.
From the perusal of the final assessment order, it is not evident that whether the AO followed the direction of the DRP in this regard as there is no such mention in the final assessment order. Thus, it cannot be held that the AO has not followed the direction of the DRP in this regard as it cannot be ruled out that the verifications of submission might have not resulted new facts other than those mentioned the draft assessment order. Hence, the argument AO had failed to carry out the statutory duty to abide by the direction of the DRP as the AO had not issued any notice to the assessee, nor did he independently examine the additional evidence filed by the assessee before the DRP is held to have no merit.
AO has adopted an ad-hoc percentage of 25% to make a disallowance out of certain expenses. AO has not given any rational basis for the same except holding that the assessee has not filed details of employee cost of Rs. 16.40 Crores and Marketing expenses of Rs. 148.00 Crores. however, the facts are contrary as evident from the Paper book and statement at Bar by the Ld. Counsel that the assessee has submitted these details much time ahead of the draft assessment order.
As per various benches of the Tribunal on the issue of the disallowability of expenses on ad-hoc basis without rejecting the books of accounts. In the present case the AO has not specify any shortcoming/discrepancy in the bills, vouchers, etc. in the expenses. The books of accounts have not been rejected by the AO.
AO has not pointed out that any part of the expenditure in question is either found to be bogus or fictitious nor is found to have not been incurred by the assessee wholly and exclusively for business. There is no mention of rationale in arriving at the percentile of disallowance in the instant case. Further, there is no clear findings as to the number of bills and vouchers requiring denial of allowances with the amount of expenditure and nature of defects therein or therewith.
AO’s action (25% disallowance out of certain expenses) is hereby deleted. Appeal of the assessee is allowed.
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2025 (4) TMI 1565
TP Adjustment u/s 92CA (3) - international transaction of “provision of Software Development Services” - TPO held that XS CAD India Private Limited is functionally comparable to the Assessee and retained as a comparable company on the ground that the services provided by the Company are predominantly software development services, which are similar to the services provided by the Assessee - HELD THAT:- XS CAD India Private Limited cannot be said to be functionally comparable to the Appellant, accordingly, we direct the TPO/A.O. to exclude excess XS CAD India Private Limited while benchmarking the international transaction pertaining to provisions of IT support and related services.
Since, AR submitted that by excluding the XS CAD India Private Limited from comparables, the Assessee will be at Arm’s Length, accordingly, not canvassed any argument on the other comparable companies, thus, the Ground is partly allowed.
Corporate tax addition made by disallowing the claim of donation made u/s 80G - HELD THAT:- As donation made to a Trust and Societies register under 80G of the Act for the purpose of compliance with the provision of Companies Act, 2013 regarding CSR activities and the subsequent claim made u/s 80G of the Act has been decided in the case of Tera data India Pvt. ltd [2023 (10) TMI 1376 - ITAT DELHI] as held assessee in the instant case had duly complied the provisions of Companies Act, 2013 read with CSR rules thereon and as per the provisions of the Income Tax Act had also voluntarily disallowed the CSR expenditure while computing the taxable income. Since, the donee institutions are eligible institutions enjoying exemption u/s 80G of the Act, the assessee has claimed deduction u/s 80G of the Act which is also provided in the statute itself to the assessee. Hence, denial of deduction u/s 80G of the Act to the assessee would result in gross injustice.
Thus, we are of the opinion that denial of deduction u/s 80G of the Act to the Assessee would resulting gross injustice, accordingly, we direct the A.O. to grant deduction u/s 80G of the Act if other conditions of Section 80G of the Act are fulfilled - Decided in favour of assesssee.
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2025 (4) TMI 1564
Revision u/s 263 - re-assessment order so framed u/s 147 r.w.s. 144B to be modified/set aside on the ground that such order of the AO is erroneous and pre-judicial to the interest of the Revenue - without proper enquiry on the bonafides of LTCG claimed as exempt u/s 10(38) - HELD THAT:- Pr.CIT in backdrop could step in u/s 263 only if it is demonstrated that the approach of the AO is perfunctory. Such finding would depend on specific facts emerging from record. In the instant case, purchase/ allotment of shares took place nearly three years prior to the year of sale. The payments were made through banking channel.
The company underwent corporate restructuring in the intervening period. The factum of actual payment and investment towards purchase of shares is demonstrable from record and further supportable by corresponding receipts of shares in Demat account. CIT has merely alleged inadequacy in enquiry on the basis of absence of the bank name which is also discredited from the facts emerging from record. No third party statement or SEBI report etc. is available to impair the bonafides of claim of the assessee.
No adverse material is brought on record to warrant deeper scrutiny. In our opinion, the view taken by the AO thus cannot be assailed when tested on the touchstone of circumscribed allegations on bank particulars leveled in the revisional order.
We also find merit in the contention of the assessee that some inadequacy in the manner of inquiry cannot necessarily be a ground for invocation of powers u/s 263. Such view has been expressed in the judgments rendered by Sunbeam Auto Ltd [2009 (9) TMI 633 - DELHI HIGH COURT] DG Housing Projects Ltd [2012 (3) TMI 227 - DELHI HIGH COURT] Clix Finance India Pvt. Ltd. [2024 (3) TMI 157 - DELHI HIGH COURT] And Klaxon Trading Pvt. Ltd. etc. [2023 (12) TMI 36 - DELHI HIGH COURT] In the instant case, the alleged inadequacy towards bank particulars is also not correct.
The facts of the present case do not indicate that the twin conditions contained in sec. 263 are fulfilled in letter and spirit. Appeal of the assessee is allowed.
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2025 (4) TMI 1563
Non granting exemption u/s 11 and 12 - missing entry in the income tax return - charitable activity u/s 2(15) - HELD THAT:- It appears that while filing the return of income, the said counsel did not fill in the column 6(i) relating to the amount applied to charitable purposes in India during the previous year. While he had correctly filled the amount of exempt income claimed and the amount that have been accumulated or set apart for application to charitable or religious purposes to the extent it did not exceed 15% of the receipts, he had left the column relating the amount applied to charitable purposes as blank.
Therefore, addition had been made during the course of assessment and CIT(A) instead of appreciating that the exemption could not be denied only on account of a missing entry in the income tax return, had adopted a pedantic approach in considering what expenditures were allowable under income from sources and what were not.
In our opinion CIT(A) should have paused to consider that the society was a registered trust u/s 12A and therefore, it was to be assessed under the tax regime prescribed for societies u/s 11, 12 and 13. What had to be seen in such cases was whether the income of the society had been applied towards charitable purposes enshrined within the objects of the society, for which the CIT had granted the registration u/s 12A.
The mere fact that the assessee may have filled wrongly or omitted to fill a column in its income tax return, would not take away its eligibility for exemption, if it was otherwise eligible under the law.
Since, it is clear that the assessee trust had been registered under section 12A for the purposes of imparting education to students and it has not been pointed out that any expenditure made by the society has been made on matters outside the objects of the assessee trust or for non-charitable purposes, there was no occasion to sustain the disallowances of the nature that the CIT(A) has, on account of his understanding of what was deductible against income from other sources.
We have also perused the computation filed by the assessee society and after going through the same, we delete the addition sustained by the ld. CIT(A).
In making this decision, we rely upon the orders of Sh. Gujarat Bhavsar Samaj [2024 (11) TMI 94 - GUJARAT HIGH COURT] which has been placed by the ld. AR in her paper book, which lays down that where the assessee trust filed its return claiming application of income for charitable purposes, but due to a technical glitch, the income applied by the assessee was not reflected in the return and consequently revision application filed u/s 264 was rejected, the Hon’ble High Court held that since the assessee had incurred expenditure and applied income / donation received by it for charitable purposes, the assessee was entitled to benefit of the same.
We find that the facts in the aforesaid case are quite similar to the facts of the assessee’s case and therefore, relying upon the said order, we delete the addition sustained by the ld. CIT(A) and allow the appeal of the assessee.
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