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2022 (10) TMI 1186 - KARNATAKA HIGH COURT
Deduction u/s 10A - benefit denied for subsequent years - ITAT's finding that condition stipulated in Section 10A(2)(iii) had not been satisfied in the first year of commencement of manufacture - HELD THAT:- As combined reading of these two authorities in Sourashtra Cement [1979 (1) TMI 249 - GUJARAT HIGH COURT] and Direct Information Pvt. Ltd. [2011 (9) TMI 137 - BOMBAY HIGH COURT] make it clear that there cannot be uncertainty in the assessments for different years. Assessee sought deduction u/s 10A for the first time in A.Y. 1997-98 and the same has been allowed. Therefore, without disturbing the relief granted in that year, the AO could not have denied the benefit for subsequent years.
For 1998-99, the learned Senior Advocate has explained that assessee did not challenge the said order because assessee had got relief under Section 80HHE. For the subsequent two years, assessee has been given the relief. Therefore, we are of the considered view that the AO's view is perverse and not sustainable. Resultantly, this appeal merits consideration.
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2022 (10) TMI 1185 - ITAT DELHI
Addition u/s 68 - bogus/ ungenuine loans received - CIT(A) held that the bank statements of the loan parties were not furnished by the appellant and at the same time held that, on analysis of the bank accounts credit in the lenders account for more than the amount received by the Assessee - HELD THAT:- The total credit in the lenders account for more than the amount received by the Assessee cannot be a reason to construe the loan as bogus/ ungenuine.
Having gone through the entire evidences submitted by the Assessee as mentioned above at the beginning of this para, in the absence of any contra findings brought by the Revenue, we hold that no addition on account of the loans received by the Assessee is called for. Decided in favour of assessee.
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2022 (10) TMI 1184 - ITAT AHMEDABAD
Unexplained investment in purchase of properties u/s 69 - CIT-A allowed part relief - main contention of the assessee is that the opening cash balance was duly supported by two cash withdrawals made by the assessee from his bank account with Kotak Mahindra Bank Ltd and Bank of Baroda but CIT(A) accepted only the cash withdrawal from Bank of Baroda - HELD THAT:- A sum was deposited by the assessee in cash in Kotak Mahindra Bank immediately on 24.03.2012 and the assessee has not been able to explain either before the authorities below or even before the Tribunal the purpose of maintaining substantial cash balance of more than Rs. 8,00,000/- throughout the FY 2012-13 when the income declared by the assessee in his return of income for AY 2013-14 was only Rs. 3,53,910/-.
Moreover, there is hardly any withdrawal shown by the assessee for personal and household expenses in cash book prepared for three financial years i.e. FYs 2011-12, 2012-13 and 2013-14.
Keeping in view all these facts of the case, we find in agreement with learned CIT(A) that the cash of Rs. 9,00,000/- withdrawn by the assessee from his bank account with Kotak Mahindra Bank Ltd on 01.02.2012 cannot be said to be available for making investment in purchase of properties in FY 2013-14.
We uphold the impugned order of the learned CIT(A) sustaining the addition made by the Assessing Officer on account of unexplained investment made by the assessee in properties under Section 69 - Decided against assessee.
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2022 (10) TMI 1183 - SUPREME COURT
Whether the Respondents who turned out to be the writ Petitioners before the High Court are Public Trusts or they are in essence or in substance, Wakfs under the Mohammedan Law? - HELD THAT:- Facts which have occurred subsequent to the issuance of the list on 13.11.2003 and 31.12.2004, take it out of the ordinary run of cases. It is noticed that the fact for reasons which will remain a mystery to us, Government took it upon itself to convene meetings; a Committee was constituted described as a Bifurcation Committee. The Committee saw merit in the contention of the writ Petitioners. The Charity Commissioner was roped in as a member. It is thereafter that strangely after the publication of the lists which are claimed to be final lists Under Section 5(2) on 13.11.2003 and 30.12.2004 that the list dated 05.05.2005 is published and it is also described as another final list. All these lists have finally been sought to be extinguished by virtue of the notifications dated 25.04.2007 and 23.10.2008.
This means that the writ Petitioners' case is based on to a great extent the mechanical manner in which upon receipt of the list of public Trusts from the Charity Commissioner, the Wakf Board has notified them as Wakfs. Section 5(2) speaks about Wakf Board conducting an inquiry, or examining the manner. This certainly is not to be brushed aside as a matter of no moment. In fact, the whole idea of the Government placing the report before the Wakf Board as has been canvassed by the Appellants themselves to contend that a Wakf Board is very much contemplated even prior to the Survey being held is that it must discharge its functions of examining the report Under Section 5, before it is finally published.
It would appear to be a case where proceeding on the basis that all the Muslim public Trusts registered under the 1950 Act must be treated as Wakfs, the Wakf Board has proceeded to notify all of them as Wakfs. It is this which formed the subject matter of deliberations which involved the Government, Wakf Board and Charity Commissioner. It is, accordingly, under the auspices of the Committee described as Bifurcation Committee that efforts were made to weed out those public Trusts which fell not within the four walls of a Wakf and considering them as secular trusts. To a great extent, their claims being genuine is borne out by a bare passing of Resolution on 09.03.2005. A fresh list was published on 05.05.2005.
It is not in dispute that when the Board was constituted on 04.01.2002, there were only four members. All the four members were nominated. Two out of the four members were apparently appointed in the category of Member of Parliament as, both belonged to the Rajya Sabha. No doubt, there is a case that out of them viz., Shabana Azmi, the theatre person also fitted the bill of a Shia member. We must not be oblivious to the fact that Section 14(5) contemplated (the provision stands deleted by Act 27 of 2013) that there must be one Shia member in a composite board. After 04.01.2002 and before 13.11.2002, there were in all seven members in the Board, including the four notified in first notification, as three more were appointed prior to 13.11.2003. One more person was appointed on 13.11.2003 which according to the Respondents was an attempt at complying with Section 14(5) of the Act viz., for the first time, a Shia member made his appearance in the Board. This is an aspect which was canvassed as one of the grounds for not only challenging the constitution but to attack the publication of the list of 13.11.2003. The contention taken was and still persevered in before us is that the Board had decided to notify the list even prior to 13.11.2003 viz., on 27.09.2003. The Board itself therefore had become functus officio after 27.09.2003 as far as the list is concerned, prior to 13.11.2003 when the eighth member was appointed.
When the Board has, in law, any reason therefore to believe that any property of any Trust registered under the Indian Trusts Act, 1882 or any society registered under the Societies Registration Act 1860 or the property of any Trust registered under any other law, is wakf property, the Board is given certain powers and responsibility. The Board is clothed with the power notwithstanding anything contained in any of those laws, to hold an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law - It means that the Wakf Board must give notice of the proposed action to the Charity Commissioner as it is the authority under the 1950 Act, who registered or registers a public Trust Under Section 18 of that Act.
When parliament made the Act in 1995, it was aware that it would repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provision which corresponds to Section 27 of the earlier Act. Parliament must be presumed to know the laws which are on the statute book. In fact, Parliament must be presumed to be aware of all necessary facts which would give life to a law and make it workable, fair and reasonable. Parliament must, therefore, be assumed to know that laws like the Bombay Public Trust Act were on the statute book. It must be aware that the definition of public Trust such as is contemplated under the Bombay Public Trust Act took within its sweep Wakfs - As far as other public Trusts which are registered under the 1950 Act, no doubt, in keeping with what we have already observed and bearing in mind the fact that there is a distinction between a Trust and a Wakf, it is a matter to be decided on the facts of each case as to whether what is ostensibly a Trust within the meaning of 1950 Act is in substance a Wakf.
Registration is intended to bring Wakfs under the close scrutiny of the competent authority, be it the Board or the executive officers. The whole history of the legislation of Wakfs reflects the perception of the legislature that property which is dedicated to the Almighty for charitable, religious and pious purposes should be protected. The protection must be extended against the Mutawallis and others who may deal with the property and thereby, completely destroy the very original purpose of the founder. What would be used for public welfare, be it even of Sections of a community for certain cases, would all be covered thereunder as provided in the Act.
It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not. No doubt, all public Trusts which have been registered by way of a deeming provision Under Section 28 of the 1950 Act will necessarily have to be treated as Wakfs. This is on the principle that once a Wakf is created unless it be a case where the title is extinguished by way of exercise of power of eminent domain by the State, the title of the Almighty though by implication cannot cease.
Thus, what was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. It is pointed out by Shri Anil Anturkar, learned Senior Counsel, that such Wakfs would come within Section 43 and be deemed to be registered. We, however, make it clear that the passing of the Act will not affect the powers of the authorities in respect of public Trusts registered under it which are not Wakfs.
It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion - Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction Under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter.
The constitution of the Bifurcation Committee and various proceedings thereafter, would appear to be not proceedings which are strictly within the ambit of the Act as such. There cannot also be plea of estoppel or equity against Statute - Appeal allowed in part.
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2022 (10) TMI 1182 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Auction proceedings - Rejection of application seeking direction to Respondent-Resolution Professional to convene the meeting of the Committee of Creditors to place the Resolution Plan for consideration - case of appellant is that the Appellant ought to have been given opportunity to submit a scheme of compromise/arrangement but the Liquidator proceeded for auction without giving any opportunity - HELD THAT:- In the facts of the present case, the ends of justice will be served in giving liberty to the Appellant to submit a scheme of compromise/arrangement as contemplated under Section 230 of the Companies Act to the Liquidator within one month from today as well as to the Financial Creditors for their approval as contemplated under Section 230 of the Companies Act. Let entire process be completed within three months’ period as has been allowed under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 from today.
The Liquidator who has already issued notice fixing Auction on 10th November, 2022, shall differ the proposed auction. It will be open for the Liquidator to proceed with the Auction further, if any, only after completion of the process under Regulation 2B of the IBBI (Liquidation Process) Regulations, 2016 after period of 3 months.
Appeal disposed off.
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2022 (10) TMI 1181 - SC ORDER
Smuggling - Betel Nuts of foreign origin - seizure of bags of betel nut under Section 110 of the Customs Act on the ground that the said betel nuts were brought to India through unauthorised route in violation of the Customs Act and are liable for confiscation under Section 111(b) and 111(d) of the said Act - HC [2021 (10) TMI 1398 - MEGHALAYA HIGH COURT] held the view Tribunal of Tribunal as correct.
HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the special leave petition is dismissed.
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2022 (10) TMI 1180 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Compulsory delisting against the company - Payment of reinstatement fee to the Exchange - HELD THAT:- Having heard the learned counsel for the applicant, we do not find any manifest error in our order requiring a review. The Review Application fails and is dismissed.
This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.
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2022 (10) TMI 1179 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of goods - handheld enterprise mobile computers - to be classified under Heading 84.71 or under the Heading 85.17 of the Customs Tariff? - HELD THAT:- These are portable devices used in enterprise environments to run mobile apps, capture barcodes, take photos and videos, and provide voice and data communications for workers and managers. These devices combine personal computer and scanning functions (applies to mobile computers and tablet computers) in a single device that can be outfitted with off-the-shelf or custom software applications that perform everyday tasks, such as monitoring deliveries, tracking assets, and managing inventory. And because they run on familiar operating systems such as Windows/Android, they offer the same functionality as a desktop computer or laptop. These processors are also equipped with a barcode scan engine and act as their own host, which means one can instantly update and edit information as it is captured.
Note 6(C) to Chapter 84 specifies the conditions for a unit to be classified as being part of an automatic data processing system. However, from the working and features of the impugned devices, it appears that these are not units of ADP machines, but ADP machines themselves. Note 6(D) to Chapter 84 lists certain separately presented products that are to be excluded from Heading 8471, even if they can be classified as part of an ADP system. Note 6(E) to Chapter 84 mentions that a machine incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. As the impugned devices, as described by the applicant appear to be akin to ADP machines performing the tasks of data capture and its further processing, the Notes 6(D) and 6(E) do not appear to have application in this case.
As per Circular No. 20/2013-Cus., dated 14-5-2013, ‘the difference between a “smartphone” and “tablet computer”, is not based on whether the product has a voice calling function or not, but on the principal features that a producer has intended for the device when designing and developing it’. The manufacturer is advertising these products as mobile computers. These devices are essentially ADP machines with additional connectivity capabilities, including cellular connectivity in 8 devices - These devices are used by enterprises to capture data. The products are used in inventory management, store receiving, order processing, package tracking, tracing delivering etc. These devices use Wi-Fi connectivity and Bluetooth for information sharing. Cellular connectivity is essentially used for GPS and information sharing, where Wi-Fi is not available. Cellular connectivity can also be used for making calls. Therefore, the devices under consideration are not classifiable as smartphones.
The 13 devices listed in the Table-1 in the first paragraph of this ruling are classifiable under Heading 8471 and more specifically, under sub-heading 8471 30 90 of the First Schedule to the Customs Tariff Act, 1975.
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2022 (10) TMI 1178 - MADRAS HIGH COURT
Money Laundering - cheating against gullible job seekers - recipients of money from the complainants and other individuals, on the promise of obtaining them Government jobs as Drivers, Conductors and Technicians in the State Transport Corporation - getting money from unlawful sources given for unlawful consideration - HELD THAT:- Having gone through the records of the case available with this Court it appears that irregularities have been committed in the matter of recruitment of candidates at Tamil Nadu State Transport Corporation during the period 2014-2015, at the relevant period of time one of the accused Mr.V.Senthil Balaji for the State Transport Corporation Minister at AIADMK Cabinet, now functioning as Tamil Nadu State Minister for Electricity, Prohibition and Excise, other accused are his brother, personal assistant and other State Transport Corporation officials and their associates, thus it is alleged as a cash-for-job scam in recruitment and appointment at the State Transport Corporation.
The undisputed fact is that all the criminal cases in FIR No.441 of 2015 (C.C.No.24 of 2021), FIR No.298 of 2017(C.C.No.19 of 2020), FIR No.344 of 2018 (C.C.No.25 of 2021) are inter connected with same recruitment irregularities in the appointment at State Transport Corporations during the year 2014 - 2015 and all the criminal cases involved in cash-for-job scam.
My attention at this juncture was drawn by learned Senior Counsel for the petitioner in Crl. O.P. No.15122 of 2021 to the order of the Hon’ble Supreme Court in Crl.A.No.1514 of 2022 (Special Leave Petition (Crl.) No.1354 of 2022) P.Dharmaraj Vs. Shanmugam & Ors. [2022 (9) TMI 1470 - SUPREME COURT] wherein, the Hon’ble Supreme Court set aside the order of quashing the criminal case in C.C.No.25 of 2021 by this Court order dated 30.07.2021 in Crl. O.P. No.13374 of 2021 filed by Mr.Shanmugam (A3) in C.C.No.25 of 202 -. Further held that the remaining two criminal cases i.e. C.C.No.19 of 2020 and C.C.No.24 of 2021 are also with corruption allegation and all criminal complaints arose out of the very same cash-for-job scam as a matter of fact the State ought to have undertaken a comprehensive investigation into the entire scam.
The reinvestigation to be started abinitio wiping out the earlier investigation altogether and to collect fresh evidence and material in the above criminal cases. Hence, the Crl. O.P. No.15122 of 2021 in C.C.No.24 of 2021 for de-novo investigation along with C.C.No.19 of 2021 allowed - it is directed the investigation should be conducted ab-initio comprehensively without reference to the earlier investigation on record covering all the aspects in relation C.C.No.19 of 2020 and C.C.No.24 of 2021 including whether the offence under Prevention of Corruption Act, 1988 are made out against the accused. The special Court before which C.C.No.19 of 2020 and C.C.No.24 of 2021 are pending will be at liberty to exercise power under Section 216 Cr.P.C, if there is any reluctance on the part of the State/investigating Officer.
Further, on completion of investigation, if the investigating agency makes out a case for cognizance of offence against the accused then the investigating agency of the predicate offence shall provide the relevant materials/documents to the Directorate of Enforcement so as to enable it to invoke its jurisdiction to commence its enquiry under the P.M.L Act thereafter.
Application disposed off.
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2022 (10) TMI 1177 - SUPREME COURT
Grant of protection of anticipatory bail - Sexual Assault - Sections 354A(1)(i),(ii) & (iv), 354 A( 2) and 354A( 3) of the Indian Penal Code read with Sections 7, 8, 9 and 11 of the Protection of Children from Sexual Offences Act, 2012 - HELD THAT:- The Special Judge relied upon the decision of the Kerala High Court in the case of JOY V.S. VERSUS STATE OF KERALA [2019 (3) TMI 1906 - KERALA HIGH COURT], wherein the Kerala High Court has taken the view that the courts shall take into consideration the presumption under Section 29 of the POCSO Act while dealing with an application for bail filed by a person who is accused of the offence under the Act.
In a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves freehand to take the investigation to its logical conclusion. It goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No.1 to custodial interrogation, can hardly be fruitful to find out the prima facie substance in the allegations, which are of extreme serious in nature - The fact that the victim – girl is traumatized to such a high degree that her academic pursuits have been adversely impacted alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting prearrest bail.
The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.
The issue of Section 29 of the POCSO Act, not taken up in the present case. Even without the aid of Section 29 of the POCSO Act, it is convincing that the High Court committed a serious error in exercising its discretion in favour of the respondent No. 1 herein (original accused) while granting anticipatory bail.
The impugned Judgment and Order dated 2572022 passed by the High Court granting anticipatory bail to Respondent No.1 is set aside - appeal allowed.
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2022 (10) TMI 1176 - DELHI HIGH COURT
Validity of approval u/s 153D - sanctity of the approval obtained by the AO from Additional Commissioner under Section 153D - as stated approval sought by AO in almost 35 cases (including that of the Petitioner) was granted instantaneously without following the rules - HELD THAT:- Petitioner states that there has been failure on part of the Respondents to follow the fundamental principles of judicial discipline and hierarchy which provide for following the judgments and orders passed by the higher judicial forum by the lower judicial forum or the officers/ authorities subordinate thereto.
In the opinion of this Court, petitioner has an alternative and effective remedy by way of an appeal before the ITAT. Accordingly, the present writ petition is disposed of with liberty to the petitioner to urge all his contentions and submissions before the ITAT.
Petitioner presses for stay of the demand.This Court is of the view that the petitioner has the option to file an interim application before the Tribunal. Needless to state, that if such an application is filed, the same shall be considered in accordance with law.
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2022 (10) TMI 1175 - DELHI HIGH COURT
Validity of Arbitral Award - Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 - Welspun had failed to explain the delay in invoking the arbitration after the dispute resolution process had failed on 21.12.2012 - whether the claims of Welspun, as included in the Final Bill dated 30.10.2010, were barred by limitation?
Whether the Arbitral Tribunal (majority) erred in not appreciating that NCC had taken contradictory stands? - HELD THAT:- The Arbitral Tribunal held that it was required to independently adjudicate the question as the controversy involved jurisdictional issues. The decision of the Arbitral Tribunal, in this regard, cannot be faulted. Section 3 of the Limitation Act, 1963 expressly requires the court to reject an action instituted beyond the prescribed period notwithstanding that no such defence has been set up. By virtue of Section 43 of the A&C Act, the Limitation Act is also applicable to arbitration - the Arbitral Tribunal's decision to determine the question of limitation on merits notwithstanding the inconsistent pleas raised by NCC, cannot be faulted with.
Import of the provision of the pre-arbitration dispute resolution process on the question of limitation - whether, in the context of the aforesaid dispute resolution mechanism, the period of limitation would commence prior to the parties exhausting the agreed pre-reference procedure/remedies? - HELD THAT:- Several dispute resolution clauses provide for multi-tier or water fall dispute resolution mechanisms. These require the parties to undertake mediation or to first attempt to resolve the dispute in an alternative forum before resorting to arbitration. The entire purpose is to provide the parties an opportunity to resolve the disputes in an amicable manner before resorting to adversarial proceedings.
In PANCHU GOPAL BOSE VERSUS BOARD OF TRUSTEES FOR PORT OF CALCUTTA [1993 (4) TMI 302 - SUPREME COURT], the Supreme Court referred to the decision of the Queen's Bench in West Riding of Yorkshire Country Council v. Huddersfield Corporation and held that the rule of limitation would be applicable to arbitration proceedings in the same manner as it applies to litigation before courts. In that case, the party had invoked the arbitration process under the Arbitration Act, 1940 after a period of ten years from the date it had first put forward its claims. In the facts of the said case, the Supreme Court found that recourse to arbitration was not available. The Supreme Court also referred to the text, Russel on Arbitration, 19th Edn, to posit that the limitation period to commence arbitration, would start to run "from the date when the claimant first acquired either a right of action or a right to require that an arbitration takes place upon the dispute concerned".
The period of limitation would run when a party acquires a right to refer the disputes to arbitration. Clearly, if the arbitration agreement requires the parties to exhaust the dispute resolution process as a pre-condition for invoking arbitration, the right to refer the dispute to arbitration would arise only after the parties have exhausted the said procedure. The counterparty could raise a valid objection to any step taken to refer the disputes to arbitration in avoidance of the agreed pre-reference dispute resolution procedure. If the parties have agreed that they would first endeavour to resolve the disputes amicably in a particular manner, it is necessary for them to first exhaust that procedure before exercising any right to refer the disputes to arbitration.
The necessary question to be addressed is whether the period of limitation for referring the disputes to arbitration commences to run prior to the parties exhausting the agreed pre-reference procedures. In our view, the answer is in the negative. If the period of limitation does not commence running till the pre-arbitration processes have been exhausted - as has been held in various decisions- there is no need for protecting the remedy of arbitration against the bar of limitation prior to completion of the pre-reference procedure. We are unable to accept that if the arbitration agreement requires a party to refer the disputes to conciliation before referring the same to arbitration, the period of limitation would commence prior to the parties exhausting the remedy to resolve the disputes through conciliation.
In the facts of the present case, the Arbitration Clause expressly required the parties to attempt resolving the disputes and differences by mutual negotiations. If the efforts to resolve the disputes did not yield fruit within a period of one month from the date the same had arisen, the parties were bound to refer the disputes to their respective Chief Executives. The parties could refer the disputes to arbitration only if the Chief Executives failed to arrive at a consensus - It is not clear as and when the negotiations between the parties to amicably resolve the disputes commenced and failed. However, it is clear that Welspun had escalated resolution of the disputes to the second tier by seeking a reference to the respective Chief Executives well within the period of limitation. Clearly, Welspun could not have sought a reference to arbitration prior to referring the disputes for resolution to the respective Chief Executives. Concededly, an attempt to resolve the disputes by the Chief Executives failed on 21.12.2012.
It is clear that the decision of the Arbitral Tribunal (majority) to reject the claims made by Welspun as being barred by limitation is erroneous and the impugned award is liable to be set aside - Appeal allowed.
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2022 (10) TMI 1174 - SC ORDER
Exemption under Notification No. 89/95-C.E., dated 18-5-1995 - wastes, gums, etc. arising during the course of refining of vegetable oil - it was held by Tribunal that wastes, gums, etc., arising during the course of refining of vegetable oil, the appellant is entitled for exemption under Notification No. 89/95-C.E. ibid - HELD THAT:- There are no good ground to interfere with the impugned order(s) - appeal dismissed.
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2022 (10) TMI 1173 - KERALA HIGH COURT
Survey proceedings u/s 133A - Authenticity of the data contained in the pendrive seized from the possession of Shri Riyaz, one of the assessee's employee - what is clearly borne out by the record on the controversy surrounding the pen drives and the generation of data from the pen drives? - Whether the appellate Tribunal should not have found that the survey conducted on 14.7.2014 at the residential house of Sri Riyaz violated the provisions of Section 133A of the Income Tax Act? - HELD THAT:- We have to interpret Section 133A (1). According to the explanation, a place (a) where a business or profession or activity for charitable purpose is carried on, (b) shall also include any other place where any business or profession and activity for charitable purpose is carried on or not. Therefore, explanation includes a place where any one of the three activities is carried on therein or not. Excluding residence by the construction now commended to this Court would completely take away from the scope of the survey of the Department a residence simpliciter. Such a meaning would defeat the language of Section 133A of IT Act. A few of the statements recorded at any point in time during the pendency of the proceedings on the description of the place are not conclusive in interpreting the applicability of Section 133A - Annexure A filed describes the place of the survey as follows: “Chelembra, Malappuram, Office room of Shri Riyas M @ Veliyaparambil House, Pulliparamba”.
In our view, the ground raised u/s 133A is not sustainable. The question is answered in favour of the Revenue and against the assessee.
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2022 (10) TMI 1172 - SUPREME COURT
Seeking grant of bail - contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain - offences punishable under Sections 21(c) read with 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 - Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a question? - HELD THAT:- The answer to said question could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Section 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 has been pronounced upon by this Court in TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT]. In STATE BY (NCB) BENGALURU VERSUS PALLULABID AHMAD ARIMUTTA & ANR. ; UNION OF INDIA VERSUS MOHAMMED AFZAL; UNION OF INDIA NARCOTICS CONTROL BUREAU, BENGALURU VERSUS MOHAMMED AFZAL; STATE BY INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU VERSUS MUNEES KAVIL PARAMABATH @ MUNEES KP; STATE OF KARNATAKA VERSUS MUNEES KAVIL PARAMABATH; STATE BY INTELLIGENCE OFFICER (NCB) BENGALURU ZONAL UNIT, BENGALURU VERSUS ABU THAHIR @ ABDU & ETC. [2022 (1) TMI 1366 - SUPREME COURT], the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.
Going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matter stands on a different footing. In the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail.
These appeals are allowed, and the view taken by the High Court set aside and both the appellants are directed to be taken in custody forthwith.
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2022 (10) TMI 1171 - ITAT MUMBAI
Income deemed to accrue or arise in India - Royalty receipt - Non-taxable business income in the nature of Subscription Fees for standard online market research database on pharmaceutical sector taxed as Royalty under Section 9(1)(vi) - India- Switzerland Tax Treaty - HELD THAT:- As decided in assessee own case [2022 (5) TMI 1547 - ITAT MUMBAI] we uphold the plea of the assessee and delete the impugned addition in respect of subscription fees received by the assessee.
Non granting of TDS Credit - AR submitted that assessee has filed rectification application u/s 154 requesting for grant of TDS - HELD THAT:- AO has completed Assessment under section 143(3) r.w.s 144C(13) of the Act. Therefore, certain informations were not available with him at the time of completion of the final Assessment Order. However, assessee has filed rectification application u/s. 154 of the Act and it is the duty imposed on the AO to complete the rectification process within six months. Even otherwise the AO should have intimated the same - We remit this issue back to the file of the AO to verify the claim of the assessee - Ground raised by the assessee is allowed for statistical purpose.
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2022 (10) TMI 1170 - ITAT CHENNAI
TP Adjustment - management service charges - TPO alleged that no services were received by the assessee - HELD THAT:- The present assessee has submitted evidences in support of rendering of services which have been held to be routine activities in nature.
Finally, considering the facts of the case, the impugned adjustment confirmed by ld. DRP could not be sustained. AO is directed to re-compute the income of the assessee.
TP Adjustment on FCCD - assessee issued debentures to its AE M/s Flakt Woods Cyprus Ltd. and paid interest @12% - HELD THAT:- The term debentures, in its ordinary sense, denote one of the modes for borrowing money by any company in exercise of its borrowing powers. The instrument imports an obligation or a covenant to pay. It is a repayment of the loans of the money borrowed by issue of debentures. Thus, the debentures are essential borrowing of money against interest with a certain other rights.
Benchmarking interest rate as applicable to lending of money may be applied to determine ALP of these transactions. Considering the same, the adjudication of Ld. DRP determining the ALP as Nil could not be upheld. The convertible debentures may give ownership rights to the holders but the rights accrue only at a future date and till such time, the holder is entitled to receive interest on such holding. Since the debentures are denominated in Indian Rupees, the same, in our considered opinion, could be benchmarked at SBI Prime Lending Rate with mark-up of 2% considering the fact that the assessee has credit rating of BB+ (S & P). AO / Ld. TPO is directed to re-compute TP adjustment accordingly.
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2022 (10) TMI 1169 - ITAT HYDERABAD
Revision u/s 263 by CIT - Capital gain on sale of land - conversion of capital asset into stock-in-trade - Reopening of assessment concluded - as per AR adequate enquiries were made by the Assessing Officer during the proceedings u/s. 148 of the Act and, therefore, the Ld.PCIT cannot invoke the explanation-II to section 263 of the Act for the purposes treating the order passed by the AO is erroneous - HELD THAT:- In our opinion, the AO had formed a view whereby the AO has considered the transfer of land as a capital asset and is subjected to profit and gain on the transfer of the capital asset in accordance with the principles for computing the business income of the assessee. However, undoubtedly, the other view of the ld.PCIT whereby he was of the opinion that the land stood transferred within the meaning of section 2(47)(v) of the Income Tax Act on the date of handing over the possession of the land.
Both the views are possible in the present set of facts and therefore, the view of the Assessing Officer cannot be said to be erroneous merely on the ground that he had agreed to the contention of conversion of capital asset into stock-in-trade as on 02.05.2007. AO has rightly taken one view by duly considering the fact that the impugned Land was nothing but a stock in trade and can be evidenced from the financial statements of the assessee.
Once the view has been taken by the AO after thorough examination any other view taken by the ld.PCIT would form change of Opinion and is not possible U/s 263 of the Act. In our view, the Pr. CIT cannot thrust upon his own thoughts, perceptions, and conclusions on the A.O. (or) direct him to pass on order in such a manner and in such a fashion as he thinks fit by setting aside the already completed assessment.
Crux of the issue involved is that the AO has framed assessment u/s 147 and not under section 143(3), as it is purely re-opened for a specific reason and was concluded by accepting the submissions of assessee after duly verifying the records and the material available on record and on complete satisfaction of the Assessing Officer.
Assessing Officer had applied his mind and asked the relevant question from the assessee and thereafter had completed the assessment. While, deciding the issue, the Assessing Officer had noticed the decision of R. Gopinath (HUF) Vs. ACIT [2009 (7) TMI 1209 - ITAT CHENNAI] and ACIT Vs. T. Ashok Kumar [2012 (12) TMI 518 - ITAT HYDERABAD]. Thus, the decision of the Assessing Officer was based on one of the possible views, which is supported by the two decisions of the Tribunal.
Thus assessment order passed under the proviso of section 143(3) r.w.s 147 of the Act, cannot be said as erroneous. Appeal of the assessee is allowed.
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2022 (10) TMI 1168 - ITAT MUMBAI
TP Adjustment - assessee has availed the services of its associated enterprises with respect to payment of regional fees and payment of management fees - assessee has benchmarked services under transactional net margin method - HELD THAT:- We find that both these services are in the nature of intra group services. To prove that an independent third party would have paid for the services, assessee need to establish and demonstrate by reasonable level of evidence and documentation that these services were required (need test), those were rendered (rendition test), resulted into benefit to the assessee (benefit test) and also are not duplicative in nature. Any third independent party would not have paid for these services only if same were shareholders’ activity. Neither the TPO nor the assessee made any effort to demonstrate the same either in TPSR or in TP order. Both these services are required to be looked into from this angle.
Payment of royalty claim of the assessee is that despite it is not a manufacturer, same are used as intangibles on the products distributed in Indian market. The royalty payments were also made in terms of the agreement. The claim of the assessee that by paying the royalty, the assessee gets a right to use trademark and knowhow to market the products in India which in term increases its customer base. The assessee also claimed that it’s established with the primary object of distribution of modified starch in Indian market. Therefore, it is never to be a manufacturer.
Assessee benchmarked all these above three transactions on an aggregate basis using transactional net margin method as the most appropriate method. The claim of the assessee is that net operating margin of the assessee is higher than the comparable companies and therefore it is at arm’s length.
TPO has determined ALP of royalty at ₹ Nil. The assessee claims that the MNE group has a global royalty policy which is common across all regions. The agreement entered into is also containing standard clauses. Picking one of the standard clause from that agreement cannot be used against the assessee. The royalty payment by using trademark and patent is only for the sale of the product. As assessee is engaged in FMCG food sector, the assessee would require know how about the product information, product specification, application and formulation for its customers. Assessee also stated that, without trademark the assessee would not earn such a markup.
TPO has determined the ALP of royalty and other two IGS at ₹Nil. As of these three international transactions have not been benchmarked properly, we set aside them back to file of the learned TPO with direction to the assessee to demonstrate the requisite test for intra group services and as well as the need and benefit of the use of trademark and patent involved in payment of royalty. TPO may verify the evidence – documentation produced by the assessee and then determined arm’s length price of these three transactions.
Appeal filed by the assessee is partly allowed for statistical purposes.
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2022 (10) TMI 1167 - TELANGANA HIGH COURT
Seeking release of attached property - Continuation of attachment of the properties even after closer of C.C. No. 319 of 2010 on which action was initiated under PMLA - HELD THAT:- The only ground on which they have filed present writ petition is that the proceedings in C.C. No. 319 of 2010 basing on which the respondent has initiated proceedings which was ended in acquittal by virtue of compromise. Therefore, there are no 'proceeds of crime' and the allegation of respondent that the 1st petitioner has purchased the property derived out of the proceeds of crime is false and baseless. Therefore, the petitioner is entitled for release of the aforesaid property.
Both the criminal proceedings and proceedings under the Act are different and distinct. Enforcement Directorate had filed a complaint before the designated court and the same was also taken cognizance by the Designated Court proceedings in S.C. No. 342 of 2018 are pending. If at all, the petitioner is having any grievance, they have to file an appeal under Rule 3-a of the aforesaid rules seeking release of the aforesaid properties.
The Hon'ble Apex Court in Jai Shanker v. Directorate of Enforcement [2022 (5) TMI 309 - SUPREME COURT] has held that Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law which attracts provisions of Article 20(2) of the Constitution of India or section 300 of the Criminal Procedure Code.
If the exoneration in adjudication proceedings is on technical grounds and not on merits, the prosecution may continue and in case of exoneration, however, on merits where the allegation found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and the circumstances cannot be allowed to continue, to the underlying principle being the highest standard of proof in criminal cases.
The petitioner herein have to approach Designated Court for release of property by way of an application under Rule 3-a of the Prevention of Money Laundering (registration for confiscated properties rules 2016). It is for the said court to decide the said matter. Therefore, this Court is not inclined to grant any relief by raising the attachment order. Viewed from any angle this writ petition is liable to be dismissed.
Petition dismissed.
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