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Showing 61 to 80 of 1564 Records
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2022 (12) TMI 1504
Seeking revival of appeal - Appellants are BPTP Spacio Park Serene Flat Allottees Welfare Association - HELD THAT:- Liberty granted to the Appellant to revive this Appeal in event the order dated 07.12.2022 does not survive. It is also noticed that in Company Appeal (AT) (Ins.) No. 1382 of 2022, the interim order was passed on 18.11.2022.
Appeal disposed off.
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2022 (12) TMI 1503
Challenge to impugned Assessment cum penalty cum Interest Order - violative of the principles of natural justice - HELD THAT:- Having found that the petitioner filed this writ petition against the impugned assessment order without availing the alternative remedy available to him, without expressing the views on the merits of the case, the writ petition is disposed off affording opportunity to the petitioner to approach the appellate authority.
The Writ Petition is disposed of.
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2022 (12) TMI 1502
Shifting the goods to a warehouse - Section 49 of the Customs Act, 1962 - Petitioner is incurring high demurrage charges in the IGI Airport - HELD THAT:- The Petitioner is permitted to make a representation to the Customs authorities for moving the cargo to a recognized warehouse. The same shall be considered and if the documents are found in order, the same shall be processed and decided within 3 days after moving of the representation.
List on 6th February, 2023.
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2022 (12) TMI 1501
Monetary limit to file appeal before High Court - Appeal dismissed on low tax effect - HELD THAT:- Central Board of Direct Taxes (CBDT) has issued Circular No. 17 of 2019, dated 08.08.2019, amending the previous Circular No. 3 of 2018, dated 11.07.2018, by further enhancing the monetary limits for filing appeals by the Income Tax Department before the Income Tax Appellate Tribunals, High Courts and Supreme Court as a measure for reducing litigation. In paragraph 2 of the said circular we find that the monetary limit fixed for filing an appeal before the High Court is Rs. 1.00 crore.
Therefore, the appeal filed by the Department is dismissed in terms of the aforesaid Circular No. 17 of 2019, dated 08.08.2019. However, if the appeal comes within the exception under paragraph 10 of Circular No. 3 of 2018, it would be open to the Income Tax Department to seek revival of the appeal.
Miscellaneous applications pending, if any, shall stand closed.
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2022 (12) TMI 1500
Monetary limit to file appeal before High Court - Appeal dismissed on low tax effect - HELD THAT:- Central Board of Direct Taxes (CBDT) has issued Circular No. 17 of 2019, dated 08.08.2019, amending the previous Circular No. 3 of 2018, dated 11.07.2018, by further enhancing the monetary limits for filing appeals by the Income Tax Department before the Income Tax Appellate Tribunals, High Courts and Supreme Court as a measure for reducing litigation. In paragraph 2 of the said circular we find that the monetary limit fixed for filing an appeal before the High Court is Rs. 1.00 crore.
Therefore, the appeal filed by the Department is dismissed in terms of the aforesaid Circular No. 17 of 2019, dated 08.08.2019. However, if the appeal comes within the exception under paragraph 10 of Circular No. 3 of 2018, it would be open to the Income Tax Department to seek revival of the appeal.
Miscellaneous applications pending, if any, shall stand closed.
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2022 (12) TMI 1499
Levy of penalty equivalent to the credit denied - CENVAT Credit on Capital Goods, for setting up the paint shop - inputs not received by the appellant in their factory premises but sent directly to the premises of the job worker, from where the goods were cleared to the customers as per Rule 10A of the Valuation Rules, 2000 - availment of the credit twice - clandestine removal - shortages of finished goods - invoking Rule 3 (5B) of the CENVAT Credit Rules, 2004, in respect of alleged shortages of the inputs and work in process material - extended period of limitation - penalties.
Levy of penalty equivalent to the credit denied - CENVAT Credit on Capital Goods, for setting up the paint shop - HELD THAT:- The appellant do not dispute that these capital goods were not received by them and not installed/ put to use. They do not dispute the denial of the credit, which they had reversed along with the interest due on the same. They are only challenging the penalty imposed on them equivalent to the credit denied. It is found that in respect of the said demand undisputedly appellant have paid the entire amount of credit along with interest on being pointed out by the audit much before the issuance of show cause notice. In such a situation, the as per the provisions of Section 11 A (2) reproduced below, no notice could have been issued to the appellant and penalty imposed - the submission of the appellant, challenging the penalty imposed under needs to be accepted, and appeal in respect of this demand allowed to the extent of setting aside the penalty imposed.
CENVAT Credit - demand made on the insulation material without physically receiving the same in their factory premises - HELD THAT:- Undisputedly in the present case the goods were cleared from the premises of the job worker to unrelated buyer after determination of value under Rule 10A. Thus the clearances undertaken were in fact clearances made by the principal manufacturer and all consequences including admissibility of CENVAT Credit on the input raw materials supplied by them to the job worker is on the principal manufacturer. The appellants in fact being the principal manufacturer cannot be faulted when they had availed the credit in respect of the inputs supplied by them directly to the job worker for the clearance of the finished goods as provided for in terms of Rule 10A.
On the issue of admissibility of CENVAT Credit on the inputs sent directly to the premises of job worker, the issue is no longer res-integra. CENVAT Credit has been held to be admissible in respect of the goods sent directly to the job worker - reliance can be placed in M/S BILT GRAPHIC PAPER PRODUCTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2018 (5) TMI 390 - CESTAT MUMBAI] and FLEX INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2006 (2) TMI 439 - CESTAT, NEW DELHI].
The principles stated in the above decision were incorporated in the CENVAT Credit Rules, 2004 vide the amendments made by Notification No 6/2015.In view of the decisions, the demand made for recovery of the CENVAT Credit availed by the appellant on the insulation material sent directly to the job worker without receiving the same in their premises cannot be sustained, the appeal needs to be allowed in respect of this demand.
Denial of the CENVAT credits - it is alleged that appellant has availed the CENVAT Credit twice on the same invoice, appellants have not stated anything in their appeal memo - HELD THAT:- From the show cause notice and the impugned order, there are no support for the allegation made. Even the detail of invoice against which the credit has been alleged to have been taken twice is not stated. In absence of any details in respect of the invoice number/ date and the entries in the CENVAT account by which the credit has been taken twice, it cannot be held in favour of this demand. The allegation made without any reference to relevant documents and entries in the book of accounts cannot be upheld. Appeal filed by the appellant in respect of this demand is allowed.
Gross shortages and on the Damaged/ rejected/ Non saleable stock - HELD THAT:- It is observed that these demands have been made in respect to the accounting shortages, which were in respect Raw material, Work in Process material and Finished Goods. These shortages are not the physical shortages determined by the actual physical stock taking undertaken by the department. As per the appellants the entire issue of shortage in the present case, cropped up when the appellants migrated from the earlier system of accounting to SAP system. In process the appellants discovered certain accounting errors in books of account like BOM error, posting entry, material issued to production but not captured in the books, process loss not captured in the books, etc. Accordingly, some of the stocks in the books were reflected at higher side and some of the stocks were reflected at lower side - The department proceeded on the assumption that the shortage in books stock due to accounting errors is an actual shortage of stock without conducting any physical stocktaking to show that the shortages reflected in the books were actually the physical shortages too.
Extended period of limitation - HELD THAT:- In the present case the entire demand has been made by the revenue by relying on the book of accounts taking note of the adjustment of stocks of inputs/ work in process/ finished goods as shortages, without producing any evidence of clandestine clearance of the same Further no stock taking has been independently conducted by the revenue to determine any shortages under panchanama - The entire case against the appellants have been made out on the basis of their own book of accounts. There is no evidence adduced to show that the appellants had intention to evade payment of duty by undertaking the review of their account books vis a vis physical inventories at time of shifting their accounts on SAP. Once the book of accounts disclosed the facts completely then proceeding against the appellant by invoking the extended period of limitation cannot be justified - It cannot be held that extended period of limitation as provided under Section 11A will not be available for making this demand as the entire case in respect of denial of CENVAT Credit in respect of raw materials contained in the finished goods and raw materials contained in the finished goods and raw materials, the value of which was adjusted in the books of accounts as well as demand of excise duty in respect of finished goods, the value of which was adjusted in the books of accounts, is made out against the appellants on the basis of the own documents of the appellant, which were in the public domain.
Appeal allowed.
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2022 (12) TMI 1498
Revision u/s 263 - sustainability of the disallowance of the assessee’s claim for deduction of “VAT” on sale of liquor - CIT holding a conviction that the “VAT” claimed by the assessee which was liable for disallowance u/s.40(a)(iib) was summarily allowed by the A.O, thus, vide his order passed u/s.263 had set-aside the order passed by the A.O u/s.143(3) - HELD THAT:- We find substance in the claim of the Ld. AR that the issue involved in the present appeal is squarely covered by the judgment of Kerala State Beverages Manufacturing & Marketing Corporation Ltd. [2022 (1) TMI 184 - SUPREME COURT]. As stated by the Ld. AR, and, rightly so, the Hon’ble Apex Court had approved the view taken by the Hon’ble High Court of Kerala that [2020 (5) TMI 176 - KERALA HIGH COURT] as “surcharge on sales tax” is a “tax”, and Section 40(a)(iib) does not contemplate “tax”, and surcharge on sales tax is not a “fee” or a “charge”, therefore, no disallowance under the said statutory provision was called for in the hands of the assessee.
Considering the aforesaid judgment of the Hon’ble Apex Court[surpa], we are of the considered view that the same in fact supports the claim of the assessee that the provisions of Section 40(a)(iib) would not be applicable to the case of the assessee qua the “VAT” paid by the assessee company. We, thus, in terms of our aforesaid observations set18 aside the order passed by the Pr. CIT u/s.263 of the Act, dated 28.03.2021, and restore the order of the A.O passed u/s.143(3), to the extent he had allowed the assessee’s claim for deduction of “VAT”. Assessee appeal allowed.
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2022 (12) TMI 1497
Dishonour if Cheque - compounding of offences - Section 147 of Negotiable Instrument Act - HELD THAT:- Keeping in view the provisions of Section 147 of Negotiable Instruments Act coupled with inherent power of the High Court under Section 482 Cr.P.C., in the interest of justice, High Court is not precluded from compounding the case in absence of consent of complainant where complainant is duly compensated as Section 138 of the Negotiable Instrument Act does not provide that it is mandatory for the Court to sentence respondent-accused for imprisonment in all eventualities but there is option to the Court to impose sentence of imprisonment or fine or both.
In present case, petitioner is 52% handicapped and has deposited in the Court 10% over and above the amount of compensation and therefore, taking into consideration these facts, it is opined that complainant has been compensated adequately and therefore, substantive sentence of imprisonment imposed upon him is not necessary.
Trial Court is directed to release the amount of Rs.15,000/- deposited by the petitioner in the Trial Court alongwith interest, if any, accrued thereon, to the respondent-complainant Pushpa Devi by remitting the same in her Bank Account without issuing notice to petitioner-accused-Rajinder Kumar, on production of downloaded copy of this order along with details of Bank account.
Petition disposed off.
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2022 (12) TMI 1496
Interest u/s 50 of the WBGST Act, 2017 - interest levied on the ground that the petitioner has wrongly claimed ITC under the WBGST Act, 2017 and in the same communication it has been recorded that petitioner has made payment voluntarily in DRC 3 for the said amount as per provisions of Section 73(5) of the WBGST Act, 2017 - HELD THAT:- In the present case admittedly it has not been utilized and it has been reversed and as such petitioner is not liable to pay interest in view of the amended provisions of Section 50 sub-section (3) of the said Act substituted by Finance Act, 2022 with retrospective effect from 1st July, 2017.
Considering the facts and circumstances of this case and legal position and submission of the parties and particularly taking into consideration the substituted provisions of Section 50(3) of the WBGST/CGST Act, 2017, the petitioner is not liable to pay interest as per impugned communication dated 2nd May, 2018 and as per the view taken by this Court, all legal consequences will follow.
Petition disposed off.
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2022 (12) TMI 1495
Disallowance u/s 14A - claim of interest - HELD THAT:- Both the parties submitted that this issue is squarely covered in assessee’s own case by Co-ordinate Bench of this Tribunal in [2020 (10) TMI 1021 - ITAT AHMEDABAD] wherein the Hon’ble ITAT remanded the matter back to the Assessing Officer for fresh adjudication to examine the facts and figures of the case in the light of our observations made above in order to arrive at a final conclusion as to whether disallowance u/s 14A is to be made and if so, then the amount thereof which in no case should exceed the exempted income earned by assessee during the year under appeal.
Nature of expenses - Guarantee fees paid to Govt. of Gujarat related to capital work-in-progress which needs to be capitalized - assessee submitted that the certificate of utilization was already furnished before the Ld. CIT(A) stating that the loans on which guarantee fees was paid were utilized for construction of power plant and there was no capital work-in-progress in respect of such loans borrowed - HELD THAT:- As decided in own case in [2020 (10) TMI 1021 - ITAT AHMEDABAD] wherein CIT(A) directed to verify the certificate filed during the appellate proceedings that the loans on which guarantee fees was paid were utilized for construction of power plants at that time and there was no capital work-in-progress in respect of such loans during the Financial Year 2014-15. Both the assessee counsel as well as the Ld. D.R. could not place on record what is the giving effect order passed by the A.O. thereafter, pursuant to the direction of the Ld. CIT(A). Therefore this ground no. 2 is also set aside to the Assessing Officer for proper verification and adjudication.
Disallowance u/s 14A r.w.r. 8D while determining the income under the provisions of MAT - HELD THAT:- As this case is already remanded back to the Assessing Officer for verification for the earlier two issues under consideration for the Assessment Year 2015-16, this issue is also remanded back to the Assessing Officer for verification of the same and allow the submission of the assessee, if the same is found to be is in order
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2022 (12) TMI 1494
Revision u/s 263 - as per CIT AO erroneously allowed this taxpayer’s section 80P deduction claim representing interest derived from deposits made in cooperative banks - HELD THAT:- We find merit in assessee’s arguments in light of this tribunal’s recent order in Rena Sahakari Sakhar Karkhana Ltd. [2022 (1) TMI 419 - ITAT PUNE] though the co-operative banks pursuant to the insertion of sub-section (4) to Sec. 80P would no more be entitled for claim of deduction under Sec. 80P of the Act, but as a cooperative bank continues to be a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies, therefore, the interest income derived by a co-operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d)
Thus as the A.O while framing the assessment had taken a possible view, and allowed the assessee’s claim for deduction under Sec. 80P(2)(d) on the interest income earned on its investments/deposits with co-operative banks, therefore, the Pr. CIT was in error in exercising his revisional jurisdiction u/s 263 of the Act for dislodging the same.
Accordingly, finding no justification on the part of the Pr. CIT, who in exercise of his powers under Sec. 263 of the Act, had dislodged the view that was taken by the A.O as regards the eligibility of the assessee towards claim of deduction under Sec. 80P(2)(d), we set-aside his order and restore the order passed by the A.O under Sec. 143(3).
Thus PCIT’s revision directions stand reversed. - Decided in favour of assessee.
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2022 (12) TMI 1493
Validity of reassessment order passed u/ss.143(3)/147 on the basis of notice u/s.148 issued by non jurisdictional A.O - validity of the jurisdiction that was assumed by the A.O i.e. ITO, Ward-2(1), Bhilai for framing of the impugned assessment u/ss. 143(3)/147 - whether or not the assessment framed by the ITO, Ward-2(1), Bhilai vide order passed u/ss.143(3)/147 on the basis of notice issued u/s.148 by the ITO, Ward1(1), Raipur i.e. a non jurisdictional A.O is sustainable in the eyes of law?
HELD THAT:- The assessment proceedings in the case of the assessee were initiated by the ITO, Ward-1(1), Raipur vide notice u/s.148 dated 23.03.2015. Subsequently, the ITO, Ward- 1(1), Raipur had transferred the case record of the assessee on 12.05.2015 to ITO, Ward-2(1), Bhilai. The ITO, Ward-2(1), Bhilai had, thereafter, on the basis of notice u/s.148 dated 23.03.2015 (supra) proceeded with and framed the assessment vide his order u/ss.143(3)/147 dated 25.03.2016. Ostensibly, the ITO, Ward-2(1), Bhilai, i.e., jurisdictional officer had not issued any notice u/s.148 of the Act but had acted upon that as was issued by the ITO, Ward1(1), Raipur i.e. a non-jurisdictional officer on 23.03.2015.
It is not the case of the department that the jurisdiction over the case of the assessee was transferred from ITO, Ward-1(1), Raipur to ITO, Ward-2(1), Bhilai vide an order passed by the appropriate authority u/s.127 of the Act. Also, no material had been placed before me by the Ld. DR which would reveal that as the ITO, Ward-1(1), Raipur at the time of issuance of notice u/s.148 dated 23.03.2015 was duly vested with the jurisdiction over the case of the assessee, which, thereafter, had validly been transferred to the ITO, Ward-2(1), Bhilai, therefore, as per Section 129 of the Act the assessment framed by the latter on the basis of notice u/s.148 dated 23.03.2015 issued by the ITO, Ward-1(1), Raipur could not be faulted with.
On the basis of the aforesaid facts, as stated by Mr. R.B Doshi, the Ld. AR, and, rightly so, the framing of the impugned assessment u/ss.143(3)/147 dated 25.03.2016 by the ITO, Ward-2(1), Bhilai on the basis of notice issued u/s. 148 dated 23.03.2015 by the ITO, Ward-1(1), Raipur i.e. an officer who at the relevant point of time was not vested with jurisdiction over the case of the assessee, was devoid and bereft of any force of law. Appeal of assessee allowed.
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2022 (12) TMI 1492
Validity of Re-assessment order framed by non-jurisdictional officer - scope of instruction No.1/2011, dated 31.01.2011 as revising the earlier existing monetary limit for assigning the cases to ITOs/ACs/DCs w.e.f. 01.04.2011 - HELD THAT:- As per the CBDT Instruction No.1/2011, dated 31.01.2011 the jurisdiction over the case of the assessee who is located in a mofussil area i.e. Raipur and had in compliance to the notice u/s. 148, dated 18.06.2013 filed a non-corporate return on 05.07.2013 for the year under consideration, i.e., A.Y.2010-11 declaring an income of Rs. 9,47,500/- was vested with the ITO, Ward 1(3), Raipur [which w.e.f. 15.11.2014 was transferred to ITO-1(2), Raipur].
Although notice u/s. 148, dated 18.06.2013 was issued within the stipulated time period, however, the same was issued by the DCIT-1(1), Raipur, i.e., an A.O who pursuant to the CBDT Instruction No.1 of 2011, dated 31.01.2011 was not vested with jurisdiction over the case of the assessee for the year under consideration. On the other hand as the ITO, Ward-1(3), Raipur [succeeded by ITO, Ward-1(2), Raipur w.e.f. 15.11.2014] who as per the aforesaid CBDT Instruction (supra) was at the relevant point of time vested with the exclusive pecuniary jurisdiction over the case of the assessee for the year under consideration had not issued any notice u/s. 148 of the Act, and had proceeded with on the basis of the notice u/s. 148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional Officer, therefore, no valid jurisdiction could have been assumed by him for framing the impugned assessment vide order passed u/s. 143(3)(sic), dated 31.03.2015.
Thus the assessment framed in the case of the present assessee by the ITO-1(2), Raipur vide order u/s. 143(3)(sic) dated 31.03.2015 on the basis of notice u/s. 148 dated 18.06.2013 issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional A.O, is devoid and bereft of any force of law, therefore, the same cannot be sustained and is liable to be struck down on the said count itself. Decided in favour of assessee.
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2022 (12) TMI 1491
TDS u/s 195 - Disallowance u/s 40(a)(i) - payment made to non residents - HELD THAT:- Disallowance made u/s 40(a)(i) of the Act, vide order [2015 (2) TMI 1400 - ITAT CHENNAI] the Tribunal has noted that neither the Assessing nor the ld. CIT(A) discussed the factual aspects of the issue and therefore, the issue has been remitted back to the file of the Assessing Officer to examine all the facts and decide the issue afresh in accordance with law. It appears according to the submissions made by both the parties that the AO has already passed the order for the assessment year 2009-10 and the appeal is pending before the ld. CIT(A).
We are of the considered opinion that similar issue raised in the appeals for the assessment year 2014-15 and 2011-12 should also go back to the ld. CIT(A) to a decision on facts and also on law. In view of the above, we set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh in accordance with law.
Disallowance u/s 14A - CIT(A) is directed to decide the issue afresh after obtaining remand report on the fresh evidences produced by the assessee during the course of appellate proceedings.
Both the grounds raised by the assessee are also remitted back to the file of the ld. CIT(A) for fresh adjudication.
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2022 (12) TMI 1490
Illegal gratification - Culpability/guilt of public servant - relevant evidences - proof of demand - Presumption of law - scope of expressions "may presume", "shall presume" and "presumptions of mixed law and fact" - Circumstantial Evidence - hostile witness - Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?
HELD THAT:- The cases in which secondary evidence relating to documents may be given are stated in Section 65 of the Evidence Act read with Section 66, Section 67(2), Section 78. Proof of documents, whether public or private, including execution of such documents etc.
Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression “shall be presumed” in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification.
In STATE OF MADRAS VERSUS A. VAIDYANATHA IYER [1957 (9) TMI 63 - SUPREME COURT], it was observed that the presumption under Section 4(1) of the 1947 Act which is similar to Section 20 of the Act under consideration would arise where illegal gratification has been accepted, then the presumption introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The legislature has used the words “shall presume” and not “may presume” which means that the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise this presumption. Further, the presumptions of law constitute a branch of jurisprudence unlike a case of presumption of fact which is discretionary.
The conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combat that effect. When a statute makes certain facts final and conclusive, evidence to disprove such facts is not to be allowed.
Circumstantial Evidence - hostile witness - HELD THAT:- This Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.
Thus, there is no conflict in the three judge Bench decisions of this Court in B. JAYARAJ VERSUS STATE OF A.P. [2014 (3) TMI 1104 - SUPREME COURT] and P. SATYANARAYANA MURTHY VERSUS THE DIST. INSPECTOR OF POLICE AND ORS. [2015 (9) TMI 1666 - SUPREME COURT] with the three judge Bench decision in N. NARSINGA RAO VERSUS STATE OF ANDHRA PRADESH [2000 (12) TMI 892 - SUPREME COURT], with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.
The question referred for consideration of this Constitution Bench is answered as:- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
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2022 (12) TMI 1489
Rejection of Refund claim - appellant acted as intermediary or not - providing sales promotion and other sales support services to its associated company, located outside India - entire output services provided by the appellant were exported to its associated company - HELD THAT:- It cannot be said that the appellant has acted as an intermediary in the dealings between the overseas entity and their customers in India. To qualify as an intermediary, service as per the statutory provision, the essential element for consideration is that the parties to the contract should act as principal-agent and that the agent shall be in a position to represent and bind the principal. On reading of the clauses in the agreement vis-à-vis the statutory provisions, it is abundantly clear that the services provided by the appellant to the overseas entity qualify as export in terms of Rule 6A of the Service Tax Rules, 1994 read with Rule 3 of the Place of Provision of Services Rules, 2012.
By reading the contents of the said agreement dated 14.09.2009 entered into between the appellant herein and the self same overseas entity, this Tribunal in the case of the appellant itself, M/S CHEVRON PHILLIPS CHEMICALS INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, MUMBAI EAST [2019 (12) TMI 1066 - CESTAT MUMBAI] has held that the appellant cannot be termed as an intermediary.
There are no merits in the impugned order passed by the adjudicating authority in confirming the adjudged demands on the appellant - appeal allowed.
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2022 (12) TMI 1488
Territorial Jurisdiction - transfer of the case - respondent has stated that because no cause of action or incident was related to any place in Delhi, therefore, the case was transferred to UP Police for further investigation where the jurisdiction lies - HELD THAT:- A reading of section 156 (3) shows that the Magistrate enjoys all the power to order the investigation and ensure that the same is conducted in a fair manner and may also direct the police to perform its duties.
In the present case, the metropolitan magistrate while exercising his powers under section 156(3) directed investigation into the complaint. It was open to the respondent to raise objections with regard to territorial jurisdiction at the time when directions were issued by the learned MM directing investigation. Once the order has been passed by the magistrate directing investigation, it is not open to the police to raise objection regarding territorial jurisdiction. In fact, in the present case, the Addl. Commissioner of Police has transferred investigation from Delhi to Greater Noida, U.P. This is tantamount to reviewing the order of MM which only a superior court has the authority to do.
A bare perusal of the complaint clearly shows that the complainant is a resident of Model town, Delhi. He carried Rs. 50,00,000 in cash and his chequebook to Noida from Delhi. Subsequently, the complainant reached Greater Noida wherein the said cash and cheques were forcibly taken away from him. The petitioner has made a complaint dated 05.12.2018 to PS Model Town and also on 01.01.2019 to ACP, DCP and Commissioner of Police. Hence, a part of cause of action has arisen in Delhi. The court of the learned MM, Delhi will have jurisdiction to take cognizance of the offence and direct investigation to PS Model Town. When the learned MM directed the registration of FIR, no such objection was taken by the respondent.
The order of Addl. Commissioner of Police (Crime) of transferring the investigation from PS Model Town, Delhi to PS Surajpur, Noida is bad in law and is liable to be set aside.
Petition allowed.
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2022 (12) TMI 1487
Accrual of income in India - Alleged Permanent Establishment ('PE’) in India of the Appellant under the Article 5(1) and 5(2)(i) of the India - UAE Tax Treaty (‘Tax Treaty’) - HELD THAT:-. We have carefully considered the orders of the authorities below. We find force in the contention of the Counsel the coordinate Bench in A.Y. 2014-15 [2021 (3) TMI 1440 - ITAT DELHI] has followed the findings of the Tribunal given in earlier assessment years while dismissing the ground find that the assessee has met the twin criterion of existence of a fixed place of business and carrying out of business from such fixed place of business as enunciated of the judgment of Hon'ble Supreme Court in the case of Morgan Stanley & Co. [2007 (7) TMI 201 - SUPREME COURT] - The claim of the assessee that they did not have a place at their disposal cannot be accepted in view of the judgment of Hon'ble Supreme Court in the case of Formula One World Championships Ltd. [2017 (4) TMI 1109 - SUPREME COURT], in the case of Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME COURT] and also E-funds IT Solutions [2017 (10) TMI 1011 - SUPREME COURT] - The facts on record undisputedly prove that the premises AHL are at the disposal of the assessee for conduct of their business. While coming to the issue of "at the disposal" in the premises is available for the assessee for running of their business even for a limited time it constitutes a PE - Decided against the assessee.
Attribution of profits to alleged PE of the Appellant in India inspite of entity level operating losses - alternative taxation of India source income as ‘Royalty’ under Section 9(l)(vi) of the Income Tax Act, 1961 (‘the Act’) and Article 12 of the Tax Treaty - We find that the identical issue raised in the present appeal, has already been adjudicated in [2021 (7) TMI 1440 - ITAT DELHI] to hold that the revenue's earned by the assessee are taxable under Article 12 of the DTAA. Regarding the determination of the profit, taken up at ground No. 4 by the assessee, we hereby hold that the taxable profits may be computed in accordance with the provisions of Section 44DA of Indian Income Tax Act and Article 12 of Indo-UAE, DTAA.
During the arguments, it was also submitted that the assessee has incurred losses in the assessment year 2008-09. The assessee be given an opportunity of submitting the working of apportionment of revenue, losses etc. on financial year basis with respect to the work done in entirety by furnishing the global profits earned by the assesse, so that the profits attributable to the work done by the PE can be determined judiciously. The same may be considered while determining the taxable profits in India in accordance with the provisions of Section 90(2).
Thus the issue of attribution of profit to the Permanent Established (PE) is accordingly restored to the file of Assessing officer for deciding in the light of the direction of the Tribunal in AY 2013-14, as reproduced above. Appeal of the assessee is allowed partly for statistical purposes.
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2022 (12) TMI 1486
Rejection of bid with respect to a Request for Proposal (RFP) issued by the Respondent for Development of a Six-Lane Access Controlled Highway - whether the decision taken by the Respondent while rejecting the bid of the Petitioner on the ground that the Net Worth of the Petitioner is less than Rs.42.98 crores is correct or not? - whether it warrants interference by this Court while exercising its jurisdiction under Article 226 of the Constitution of India?
HELD THAT:- The law regarding interference with the decision taken by the tendering authority has been well settled by the Apex Court. In AFCONS INFRASTRUCTURE LTD. VERSUS NAGPUR METRO RAIL CORPORATION LTD. & ANR. [2016 (9) TMI 1292 - SUPREME COURT], the Supreme Court has observed that constitutional courts must defer to the understanding and appreciation of the author of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions.
In THE SILPPI CONSTRUCTIONS CONTRACTORS VERSUS UNION OF INDIA (UOI) AND ORS [2019 (6) TMI 1449 - SUPREME COURT], the Supreme Court, while discussing the aspect of judicial intervention in matters of contract involving state instrumentalities had held that the authority which floats the contract or tender, and has authored the tender documents is the best judge regarding interpretation of the same. Any interference by the Court has to be for the purposes of preventing arbitrariness, irrationality, bias, mala fides or perversity.
A perusal of the reasoning contained in the Final Evaluation Report indicates proper application of mind by the Financial Consultant. It cannot be said that the opinion of the Financial Consultant is so arbitrary that it would warrant interference by this Court under Article 226 of the Constitution of India. The contention of the learned Counsel for the Appellant, that restricting the reserves only to reserves arising out of revenue profit will have a disastrous effect on the Appellant company inasmuch as it cannot apply for the tenders floated by the NHAI and that this will go against the spirit of the orders passed by the NCLT reviving the company, cannot be accepted - In the present tender, the Respondent has fixed a minimum net worth (financial capacity) of Rs.42.98 Crores. It is always open for the Appellant herein to apply for projects floated by the NHAI in which the minimum net worth prescribed is less than Rs.42.98 Crores.
The present case deals with a very important infrastructure activity under the Bharatmala Pariyojana which is a prestigious project of the Government of India. The financial capacity of the bidder is an important factor which has to be kept in mind by the tendering authority in order to decide as to whom the tender should be awarded, and therefore, the decision of the tendering authority to restrict the reserves only to reserves arising out of revenue profits cannot be found fault with and the same cannot be held to be so arbitrary and unreasonable that this Court should exercise its jurisdiction under Article 226 of the Constitution of India and interfere in the award of tender.
This Court does not find any merit in the petition - Petition dismissed.
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2022 (12) TMI 1485
Income taxable in India - Investment made in Mutual Fund as assessable to tax in India - HELD THAT:- It is clear the source of the fund is from outside India and not taxable in India. The assessee could not produce these documents during time barring period of reassessment, when the same were more than six years old documents to be obtained from the bankers.
CIT(A) directed the AO to obtain from the assessee, the certified True Copies of the above documents from Standard Chartered Bank and the assessee shall bound to furnish the same, before the AO while giving effect to the appellate order. The ld. CIT(A) further directed the A.O. having satisfied himself that the source of such investment is from outside India shall delete the addition made by him. We do not find any infirmity in the direction issued by the CIT(A)
CIT(A) having satisfied with the copies of the documents submitted by the assessee, has taken a conscious decision to delete the additions, since the funds are NRI Repatriation funds came outside India and is not taxable in India. Assessee also produced before us a copy of giving effect order dated 04.11.2020 passed by the AO deleting the addition made by him. Grounds raised by the Revenue does not have any merits and the same are hereby rejected.
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