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Showing 81 to 100 of 1245 Records

• 2022 (10) TMI 1166 - ITAT VISAKHAPATNAM
  

  Miscellaneous Application against exparte order by ITAT - non-appearance before the ITAT on the date of hearing of the appeal - HELD THAT:- On perusal of the reasons explained by the assessee for non-appearance of the Ld. AR of the assessee / the assessee itself on the date of hearing of the appeal, we are of the considered view that if the assessee is interested to pursue its appeal and present its case on merits, the onus is on the assessee to keep track of the dates of hearing.

  Considering the prayer of the Ld. AR as well as strictly following the principles of natural justice in order to provide one more opportunity to the assessee, we hereby recall the order of the Tribunal and post the appeal for hearing on 23/11/2022.

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• 2022 (10) TMI 1165 - CESTAT MUMBAI
  

  Cenvat credit - ineligible input services - bogus input credit invoices issued by the automobile dealers of various automobile manufacturers which were not actually provided by them - HELD THAT:- In the case of M/S. CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. VERSUS THE COMMISSIONER OF G.S.T. & CENTRAL EXCISE, CHENNAI [2021 (3) TMI 24 - CESTAT CHENNAI], the Tribunal has dealt with the same issue and has held that unless and until the assessment made by the dealer is revised, the credit at the recipient's end cannot be denied.

  There are no merits in the impugned order - appeal allowed - decided in favour of appellant.

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• 2022 (10) TMI 1164 - CALCUTTA HIGH COURT
  

  Penalty levied u/s 271(1)(c) - defective notice u/s 274 - Whether as order of assessment,which was subject matter of challenge before this Court at the instance of the revenue was dismissed by judgment would automatically result in setting aside the order of penalty imposed on the assessee? - HELD THAT:- This issue was considered and answered by the Hon’ble Supreme Court in the case of K.C. Builders & Anr. vs. Assistant Commissioner of Income Tax [2004 (1) TMI 7 - SUPREME COURT] wherein the Hon’ble Supreme Court held that where additions made in the assessment order on the basis of which penalty for concealment was levied, are deleted, there remains no basis at all for levying the penalty for concealment and therefore in such a case no penalty can survive and the same is liable to be cancelled. The additions made in the assessment order have not been set aside and the order having been confirmed by this Court [2022 (7) TMI 1395 - CALCUTTA HIGH COURT] penalty proceedings cannot survive. That apart, the Hon’ble Supreme Court had examined the factual position and found that the notice issued under section 274 of the Act was defective and in this regard also noted the decision in the case of CIT vs. Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] and allowed the assessee’s appeal and dismissed the revenue’s appeal.

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• 2022 (10) TMI 1163 - CALCUTTA HIGH COURT
  

  Penalty u/s 271(1)(c) - defective notice u/s 274 - whether show-cause notice does not specifically spell out the grounds for imposition of the proposed penalty ? - HELD THAT:- On perusal of the order passed by the learned Tribunal, we find that he Tribunal had examined the factual position and found that the show cause notice issued under Section 274 of the Act was defective. Tribunal had also noted various decisions of this Court wherein it has been held that when the notice issued u/s 274 of the Act was defective, the defect is incurable as it goes to the root of the matter. Therefore, we find that the Tribunal rightly granted relief to the assessee. Revenue appeal fails and is dismissed.

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• 2022 (10) TMI 1162 - ITAT AMRITSAR
  

  Assessment u/s 153A - incriminating documents during the search or not? - HELD THAT:- Both the factual additions related to deposit of cash in bank and the investment in the property and not the incriminating material of the assessee. Considering the factual aspects and the catena of judgments, in our opinion the addition u/s 153A is out of jurisdiction. The entire addition is liable to be quashed. Appeals of the assessees are allowed.

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• 2022 (10) TMI 1161 - ITAT COCHIN
  

  Deduction u/s 80P - AO assessed the interest earned by the assessee from such investments in District Cooperative Bank and Treasury deposits under the head "Income from Other Sources" and resultantly disallowing the claim of deduction u/s 80P - HELD THAT:- As decided in M/S. THE KIZHATHADIYOOR SERVICE CO-OPERATIVE BANK LTD case [2016 (7) TMI 1405 - ITAT COCHIN] the assessee is a cooperative Bank. The investment in treasury/banks and earning interest on the same is part of the banking activity of the assessee’s cooperative bank. Therefore, the said income is eligible for deduction u/s 80P(2)(a)(i) of the Act. Therefore, the Income Tax Authorities were not justified in treating interest income received by the assessee as ‘income from other source’ and denying the benefit of section 80P(2).

  The lower authorities have no benefit of judgement of Hon’ble Apex Court in the case of The Mavilayi Service Co-operative Bank Ltd. & Ors.[2021 (1) TMI 488 - SUPREME COURT] we are of the view that in the interest of justice and equity the issue of deduction u/s 80P(2)(a)(i) of the Act needs to be examined de novo in the light of the judgement of the Hon’ble Apex Court, referred supra. Therefore, the issue raised on merits is restored to the files of the AO.Appeals filed by the assessee are partly allowed for statistical purposes.

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• 2022 (10) TMI 1160 - ITAT MUMBAI
  

  Penalty u/s 271(1)(c) - defective notice u/s 274 - Non striking of any of the twin charge - HELD THAT:- From the perusal of the notice dated 31/03/2013 issued u/ss 274 r/w section 271(1)(c) of the Act, we find that the AO did not strike–off any of the twin charges i.e., concealment of particulars of income or furnishing of inaccurate particulars of income.

  The case of the assessee is squarely covered by the decision of Mohd. Farhan A. Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT] wherein held that the defect in notice by not striking off the irrelevant matter would vitiate the penalty proceedings. Accordingly, we reverse the findings of the lower authorities and quash the penalty order passed under section 271(1)(c) - Assessing Officer is directed to delete the penalty levied under section 271(1)(c) of the Act. Appeal by the assessee is allowed.

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• 2022 (10) TMI 1159 - ITAT MUMBAI
  

  Correct head of income - Transaction of sale of land at Nagpur - Business Income Vs. Capital Gain - HELD THAT:- The assessee has used its capital to purchase the said land and what is recovered is the said capital. The transaction cannot be treated to be an adventure in the nature of trade since the transaction of sale was forced upon the assessee due to circumstances which are enlisted hereinabove. This transaction cannot be classified as an adventure in the nature of trade. It was not a transaction which was actively intended at the time of acquisition of land.

  The judgments of courts relied upon Assessee is squarely applicable to the facts of the case on hand. The Ld. DR of the Assessee has not brought on record any contra decision or shown that the decisions relied upon by the Assessee and as relied upon by the CIT (A) are over ruled - DR has neither raised any additional argument other than what the AO has stated and already dealt with by the CIT (A) in an elaborate order nor stated as to why the findings and reasoning of CIT(A) is incorrect either on facts or in law.

  We uphold the order of CIT(A) on this ground and hold that the Assessee has rightly offered the gain on sale of Nagpur land under the head "Capital Gain".

  Long Term v. Short Term Capital gain - HELD THAT:- We are of the opinion that the date of finality of contract is the date of this AGM resolution dated 24/09/2007 passed by the Vendor Company and not the date of MOU as submitted by Assessee. Although as stated by CIT(A) in his order, the MOU grants right of termination only to the Assessee, yet a company operates through resolutions and hence, the date when the AGM resolution was passed, the contract became binding on the Vendor Company giving unfettered rights to the Assessee here to purchase the property. Hence, we direct the AO to take the said date of resolution being 24.09.2007 as the date of when the property can be said to be held by the Assessee for the purpose of section 2(42A) of the Act and compute the long term capital gain accordingly. To that extent, the order of the CIT(A) stands modified. This ground is partly allowed.

  Project Completion Method Vs Percentage Completion Method - CIT(A) allowed the appeal of the Assessee upholding the validity of the Project Completion Method - HELD THAT:- Merely because percentage completion is a better method as per AO, does not make project completion method as invalid. The choice as to which accounting method to be followed is with the Assessee - AO has not rejected the books of accounts or invoked section 145 of the Act before rejecting the accounting method followed by the Assessee. The decision of Bombay High Court in the case of Aditya Builders [2015 (9) TMI 1304 - BOMBAY HIGH COURT] is squarely applicable to the facts of the case here.

  More importantly, the entire exercise is tax neutral as the Assessee has offered the income of the project under project completion method in A.Y.s 2013-14 to 2017-18 as detailed which is accepted by the Revenue. Hence, we uphold the order of CIT (A) in this ground and dismiss this ground of the Revenue.

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• 2022 (10) TMI 1158 - ITAT DELHI
  

  Exemption u/s 11 denied - return has been filed beyond due date as mandated in section 139 (1) - HELD THAT:- The undisputed facts are that the assessee filed its return of income on 23.02.2021. It is also not in dispute that the due date for this assessment year has been extended till 15.02.021. This means that there was a delay of 7 days but considering the pandemic period and the decision of the Hon’ble Supreme Court by which the Hon’ble Supreme Court has extended the period of limitation across board, thus delay of 7 days deserves to be condoned. In any case the return was filed before 31.03.2021 which is the last date for filing a belated return of income.

  Language of the Circular F. No.173/193/2019 –ITA – is very clear and unambiguous in so far as the return of income filed u/s. 139 of the Act is concerned. Section 139 has several sub sections (1), (2), (3), (4), (4a), (5) - it is of the considered view that if the return is filed within the specified time limit of sub section of 139 would be eligible for the benefit given by the above mentioned CBDT circular and should avail the benefit of exemption u/s. 11 of the Act. CIT(A) erred in misinterpreting the aforementioned circular and, therefore, to that extent the order of the CIT(A) is erroneous and deserves to be set aside the grievance of the assessee is allowed.

  Delay has not been condoned inspite of CBDT circular No.06/2020 dated 19.02.2020 - As per CBDT circular No.06/2020 dated 19.02.2020, we direct the CIT(A) exemption to consider the return of the assessee and allow the benefit as per the provisions of the law.Appeal of the assessee is allowed in part for statistical purpose.

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• 2022 (10) TMI 1157 - ITAT DELHI
  

  Income deemed to accrue or arise in India - Attributing any income in India - PE in India - activity relating to sale of network equipment and terminal equipments was carried out by the Appellant in India - Whether any portion of profits, if any, accruing to Appellant from off shore sale of terminal equipments to Indian customers can be attributed to the alleged PE in India given the nature of equipment, customer profile and modalities of undertaking sales - HELD THAT:- For Assessment Years 2005-06 to 2008-09 [2014 (4) TMI 770 - ITAT DELHI], the assessee has made no submission on profit attributed of alleged PE by the Assessing Officer in those years. That aspect has been duly noted by the Tribunal while upholding the order of the AO/DRP and dismissing the appeal filed by the assessee for those years. We note that this reference by the ld. counsel for the assessee is not factually correct as ITAT in its order has nowhere mentioned that this aspect has not been argued or this aspect has not been decided by the Tribunal. In this view of the matter, since the Tribunal in assessee’s own case has rejected this ground, ground no.6 alongwith all its sub-grounds raised by the assessee is liable to be dismissed and the same is dismissed as such.

  We place reliance upon the decision of the Hon’ble Apex Court in the case of Honda Siel Power Products Ltd. vs CIT [2007 (11) TMI 8 - SUPREME COURT] regarding cannon of following Co-ordinate Bench decision. In this view of the matter, other case laws referred by the Ld. counsel for the assessee are not considered applicable in the particular facts of this case. This is more so when ITAT order has not been reversed by Hon’ble jurisdictional High Court. Moreover, it is also noticed that assessee is already in appeal before the Hon’ble High Court against this order of the Tribunal.

  We agree that the assessee can raise this necessary ground before the Tribunal but we are also of the opinion that judicial discipline also demands that we follow ITAT order in assessee’s own case, facts being similar. Since ITAT in its common order dated 21.03.2014 [2014 (4) TMI 770 - ITAT DELHI] has categorically held that ground no.6 by the assessee is dismissed. We follow the same and hold that following the precedent in assessee’s own case, this ground is dismissed.

  Taxation of software royalty - As both parties have accepted that in the assessee’s own case for Assessment Years 2005-06 to 2008-09 [2014 (4) TMI 770 - ITAT DELHI] the Revenue’s appeal in this regard was dismissed by ITAT and that Hon’ble Delhi High Court has dismissed the appeal against this order.

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• 2022 (10) TMI 1156 - BOMBAY HIGH COURT
  

  Maintainability of petition - petition dismissed by the Appellate Authority only on the ground that the Petitioner did not avail the remedy under Section 30 of the CGST Act - Cancellation of registration of petitioner - HELD THAT:- Petitioner may file an application either by E-mail or hand delivery within 15 days from today under Section 30 of the Central Goods and Services Tax Act, 2017 before the authority/proper officer who shall construe the same as within time and dispose the application on merits expeditiously and in any case within four weeks of receiving the application.

  Petition disposed off.

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• 2022 (10) TMI 1155 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH, NEW DELHI
  

  Initiation of CIRP - petition filed under Section 7 of the Insolvency & Bankruptcy Code 2016 - It is stated by the petitioner that notice in terms of Rule 4 of Adjudicating Authority, IBC Rules, 2016 has already been issued on the Corporate Debtor - HELD THAT:- Notice to the Respondent/Corporate Debtor, be issued, returnable by seven days.

  This Notice to be sent by the Petitioner/Financial Creditor under NCLT Rules, Form-5.

  1. By way of an email to the registered email of the Corporate Debtor available with the petitioner.

  2. By way of an email to the CD email address registered with the MCA.

  3. Service by way of Dasti within three days for today.

  4. Proof of Service in any one of the above form filed by way of an affidavit before the next date of hearing.

  List the matter for further consideration on 02.11.2022.

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• 2022 (10) TMI 1154 - ITAT DELHI
  

  Validity of Reopening of assessment u/s 147 - mistake of noting section under section 147(b) of the Act for reassessment proceeding - non-application of mind by the AO while filling proforma in a mechanical manner - whether the mention of non-existent provision of section 147(b) of the Act is a clerical mistake which is curable u/s 292B? - HELD THAT:- AO, in the first page of reasons mentioned in column 7 that provisions of section 147(b) is applicable which is non-existent in the statute book for AY 2010-11. This apparently shows non-application of mind by the AO while filling proforma in a mechanical manner and the ld. ACIT and Ld. PCIT also approved the same in a mechanical manner.

  So far as the contention of the ld. Sr. DR that this defect is curable u/s 292B of the Act is concerned, this contention was decided by the ITAT Delhi Bench in the case of Madhu Apartments India Pvt. Ltd [2021 (2) TMI 709 - ITAT DELHI] the relevant part of which has already been reproduced in the earlier part of this order since the same was referred to and included in the relevant part of the order of the ITAT in the case of Omkam Developers Ltd. (2021 (5) TMI 414 - ITAT DELHI). Therefore, we hold that the impugned reassessment proceedings and the impugned reassessment order deserves to be quashed and hold so. - Decided in favour of assessee.

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• 2022 (10) TMI 1153 - ITAT BANGALORE
  

  TP Adjsutment - ALP of provision of software development services - MAM selection - TPO Rejecting the segmental profitability analysis computed by the Appellant while computing the arm's length price of Appellant's provision of software development services transactions using Transactional Net Margin Method (TNMM') - HELD THAT:- As relying assessee own case for the AY 2005-06 we decide the issue in favour of the assessee and direct the AO/TPO to consider the segmental profitability analysis computed by assessee with regard to software development services transactions using TNMM method. Ordered accordingly.

  Comparable companies selected by the Appellant in the comparability analysis - Akshay Software Technologies Ltd., Sagar Soft India Ltd. and Sasken Communication Technologies Ltd. - These companies have not been included in the comparable on the reason that these companies were not appeared in TPO search matrix and documentation was available on this comparable. In our opinion, it is appropriate to remit this issue to the file of AO to consider it afresh to see whether all the filters applied by the TPO is satisfied. Accordingly, this ground is remitted back to the file of AO for fresh consideration. Accordingly, all three comparables are remitted to AO for fresh consideration on similar lines.

  Turnover filter to be applied between Rs.1 crore to Rs.200 crores and if the comparable from the software development segment exceeds Rs.200 crores, the same to be excluded from the list of comparables.

  Companies functinally dissimilar with that of assessee need to be deselected .

  TP adjustment determined by AO in respect of interest on outstanding receivables - Tribunal consistently taking a view that if the credit period granted to the AE is more than 90 days that should be a TP adjustment towards notional interest @ LIBOR+2% - we remit this issue to the file of AO/TPO to pass order in conformity with the above direction of Tribunal as in the case of Swiss Re Global Business Solutions India Pvt. Ltd. Cited [2022 (1) TMI 1275 - ITAT BANGALORE] by allying LIBOR+2% in this case also.

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• 2022 (10) TMI 1152 - SC ORDER
  

  Seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 - HELD THAT:- In the facts and circumstances of the present case, no interference of this Court is called for in exercise of powers under Article 136 of the Constitution of India. The Special Leave Petitions stand dismissed.

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• 2022 (10) TMI 1151 - ITAT KOLKATA
  

  Additional depreciation u/s 32(1)(iia) - assessee’s claim for 50% initial depreciation u/s 32(1)(iia) in respect of new plant and machinery purchased and installed in the preceding year but put to use for a period of less than 180 days in that year - HELD THAT:- Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee’s own case for preceding assessment year i.e. for AY 2010-11 [2017 (9) TMI 962 - ITAT KOLKATA] and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A). Thus, common ground no. 1 for AY 2011-12 & AY 2012-13 raised by the Revenue is dismissed.

  Deduction u/s 80IA in respect of thermal power plants for generating electricity - electricity generated by the two power plants was transferred to the assessee’s cement manufacturing units. Further, electricity was also sold to independent third parties during the year under reference - HELD THAT:- As decided in assessee’s own case for AY 2010-11 [2017 (9) TMI 962 - ITAT KOLKATA] in the issue to exclude electricity duty and cess, we find that the same has been addressed by the Hon’ble Gujarat High court in the case of CIT vs Shah Alloys Ltd. [2011 (11) TMI 762 - GUJARAT HIGH COURT] which approved the view taken by the Ahmedabad Tribunal in [2010 (1) TMI 1175 - ITAT AHMEDABAD], that the price charged by the Electricity Board inclusive of the amount of Electricity Duty represented the market value even though the assessee was not required to charge electricity duty. In view of our aforesaid findings, we direct the Id AO to accordingly modify the earlier years profits also which were modified by him, in the same lines as directed for Asst Years 2008-09 and 2009-10 herein. Accordingly, the grounds raised by the assessee in this regard deserve to be allowed and that of the revenue deserve to be dismissed.

  Claim of compensation paid for obtaining limestone connected to mining activity - Revenue or capital receipt - HELD THAT:- As decided in assessee own case [2017 (9) TMI 962 - ITAT KOLKATA] for AY 2010-11 assessee is required to pay compensation as determined by the local authority/ court to the persons whose rights are infringed because of the mining activity. We also observe that Ld. CIT(A) has properly analysed the facts of the present case and distinguished the facts decided by the Hon’ble Apex Court in the case of Enterprising Enterprises vs. DCIT [2006 (12) TMI 138 - SC ORDER] and then only had come to a conclusion that the compensation was paid for the damaged caused on the infringement of right of the land owner. He has also analysed that the payments are progressively distributed as they work, as they proceed year by year, going on with their work and the payments are in the nature of incidental expenditure to conduct the mine and the business operations. He, therefore, held that the payment of compensation to persons whose rights are infringed by the mining activity is revenue in nature. Decided against revenue.

  Nature of receipt - treating of industrial promotion assistance from the State Government as capital receipt - HELD THAT:- The identical question involving the 2000 Scheme came up for consideration recently before the Hon’ble Calcutta High Court in PCIT vs. Budge Budge Refineries Limited [2022 (2) TMI 533 - CALCUTTA HIGH COURT] and the revenue’s appeal against the order of the Hon’ble Tribunal was dismissed - IPA received by the assessee would have to be construed as a Capital Receipt and the same need not be reduced from the cost of assets in terms of Explanation 10 to Section 43(1) of the Act. Accordingly, the grounds raised by the revenue are dismissed and grounds raised by the assessee are allowed.

  Claim of interest subsidy from the State Government as a capital receipt - HELD THAT:- Since the issues raised before us are squarely covered by the decision of this Tribunal in assessee’s own case for preceding assessment year i.e. AY 2010-11 [2017 (9) TMI 962 - ITAT KOLKATA] and Revenue being unable to controvert this fact by placing any other binding precedence in its favour, we fail to find any infirmity in the finding of ld. CIT(A) to hold that the interest subsidy is to be treated only as a capital receipt and accordingly the grounds raised by the assessee in this regard are allowed.

  Disallowance u/s 14A of the Act read with Rule 8D of the Rules - HELD THAT:- As decided in assessee own case AY 2010-11 direct the AO to consider all investments (excluding investments in subsidiary companies) which yielded dividend income to the assessee for computing disallowance u/s 14A of the Act r.w. Rule 8D(2)(iii) of the Rules.

  MAT Computation - whether subsidy/incentives need to be excluded from the book profit u/s 115JB? - HELD THAT:- Since the issue stands squarely covered by the Hon'ble Jurisdictional High Court in the case of Ankit Metal and Power Limited [2019 (7) TMI 878 - CALCUTTA HIGH COURT] we fail to find any infirmity in the finding of ld. CIT(A) holding that the subsidy/incentive received by the assessee which have been held to be capital receipts are to be excluded from the book profit u/s 115JB of the Act.

  Upward adjustment made to book profit for disallowance computed u/s 14A r.w. Rule 8D of the Rules - HELD THAT:- As relying on Gokaldas Images’ case [2020 (11) TMI 345 - KARNATAKA HIGH COURT] no infirmity in the finding of ld. CIT(A) in deleting upward adjustment made to book profit for disallowance computed u/s 14A r.w. Rule 8D of the Rules.

  Education cess being claimed as an expenditure u/s 37(1) - HELD THAT:- We fail to find any merit in this ground raised by the assessee, since the claim of deduction in the nature of education cess has been decided against the assessee by this Tribunal in the case of M/s. Kanoria Chemicals & Industries Ltd. [2021 (10) TMI 1153 - ITAT KOLKATA] and also in light of the retrospective amendment made by the Finance Act, 2022 inserting Explanation 3 to Section 40 of the Act as per which education cess cannot be claimed as expenditure. Therefore, common ground no. 1 raised by the assessee for AY 2011-12 & AY 2012-13 are dismissed.

  Deduction of provision made for leave encashment and the allowability of the deduction u/s 43B(f) of the Act - HELD THAT:- As respectfully following the finding of the Tribunal applying the ratios laid down by Hon'ble Supreme Court of India in the case of Exide Industries Limited [2020 (4) TMI 792 - SUPREME COURT] are of the considered view that the issue needs to be remitted back to the file of ld. AO who shall allow the claim of leave encashment actually paid by the assessee during the AY 2011-12 & AY 2012-13.

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• 2022 (10) TMI 1150 - ITAT MUMBAI
  

  Income from house property - ALV of the flats held as stock in trade - notional income as income from house properties in respect of unsold units held by the assessee as its stock in trade - HELD THAT:- When specific provision has been brought with the effect from 01.04.2018 which cannot be applied retrospectively, then in our humble opinion it cannot be imputed that ALV of the flats held as stock in trade should be taxed on notional basis prior to AY 2018-19. Without any legislative intent or specific provision under the Act, such notional or deeming income should not be taxed as cardinal principle, because assessee is not aware that any hypothetical income is to be shown when he has not received any real or actual income. In our view of Hon‟ble Delhi High Court East India Housing & Land Development Trust [1960 (11) TMI 7 - SUPREME COURT] is too harsh an interpretation.

  Since, even prior to the amendment, there is one High Court judgment of Hon‟ble Delhi High Court which is directly on this issue and against the Assessee, therefore same needs to be followed. Accordingly, we hold that Assessing Officer is correct in computing ALV on notional rent on unsold stock, but with following riders and directions to the AO as discussed herein after.

  Firstly, the flats or units on which assessee has received any advance in this year or in the earlier years but has not delivered or given final possession of the said flat/unit to the buyer, then no notional rent can be charged as it tantamount to sale. Secondly, if unit of flat is shown as work-in-progress in the books then also no notional rent can be computed. And Lastly, Ld. Assessing Officer is not justified in making estimate of 8.5% of investment as ALV which is unsustainable in view of the decision of Hon‟ble Bombay High Court in the case CIT Vs. Tip top Typography [2014 (8) TMI 356 - BOMBAY HIGH COURT] wherein, it has been held that rent should be computed at Municipal ratable value. We accordingly direct the AO to ascertain the Municipal rateable value for computing the notional rent. This is also been held by ITAT Mumbai Bench in the case of Dimple Enterprise [2021 (6) TMI 132 - ITAT MUMBAI]

  AO is directed to compute accordingly as per direction given above. Accordingly, ground No.1 of the revenue is partly allowed for statistical purposes.

  Disallowance u/s 14A - Admittedly the AO has made disallowance u/s 14A much beyond the exempt claimed by the Assessee - Assessee has claimed exempt income and has suo motto disallowed the entire exempt income - CIT (A) has restricted the disallowance to the extent of exempt of income after following the judgment of M/s. Nirved Traders Pvt.Ltd. [2019 (4) TMI 1738 - BOMBAY HIGH COURT] - HELD THAT:- CIT (A) is justified in restricting the disallowance to the extent of exempt of income. Accordingly, the order of the CIT (A) is confirmed and ground no.2 of the revenue is dismissed.

  MAT Computation - Disallowance u/s 14A, r.w.s 115JB is also dismissed as already we have deleted the disallowance u/s 14A.

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• 2022 (10) TMI 1149 - ITAT MUMBAI
  

  TP Adjustment - applicability of principle laid down in the Advance Pricing Agreement[APA] for benchmarking the international transactions - HELD THAT:- When in the APA entered into between the tax payer and the CBDT though for the subsequent years, application of most appropriate transfer pricing method and arms length price of these transactions have already been agreed upon between the tax payer and CBDT and there is no change in the FAR and nature of the international transactions entered into during the year under consideration vis-à vis subsequent years, principle laid down in the APA for benchmarking the international transactions in question shall have a guidance value.

  Moreover, in these days it is endeavor of the Union of India to stop multiplicity of the litigation and this case falls in the category of cases where litigation can be minimized. Consequently, we are of the considered view that APA already entered into between the tax payer and CBDT has the persuasive value so the matter is remitted back to the TPO to decide afresh in the light of the APA already entered into by providing opportunity of being heard to the tax payer. So aforesaid grounds are determined in favour of the assessee for statistical purposes.

  Nature of expenses - computer software expenses - revenue or capital expenditure - HELD THAT:- This issue has already been decided in assessee’s own case by the co-ordinate Bench of the Tribunal which has since been confirmed by the Hon’ble Bombay High Court [2020 (7) TMI 648 - BOMBAY HIGH COURT] by treating the software expenses as revenue expenditure. The AO is directed to treat the computer software expenses claimed by the assessee as revenue expenses.

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• 2022 (10) TMI 1148 - MADRAS HIGH COURT
  

  Appellate Jurisdiction - Provisional order of attachment - jurisdictional error - HELD THAT:- Had there been no Presiding Officer for the Appellate Tribunal, we would have entertained this petition. Now that a Presiding Officer has been appointed to the Appellate Tribunal, the petitioners can approach the said Tribunal and urge all these points. In fact, under Section 42 of PML Act, a further appeal from the order of the Appellate Tribunal has been provided to the High Court, which is entertained as a Civil Miscellaneous Appeal (CMA).

  We do not want to arrogate to ourselves the powers of the Appellate Tribunal by entertaining this writ petition. Hence, this petition is dismissed with liberty to the petitioners to approach the Appellate Tribunal constituted under Section 26 of PML Act. No costs.

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• 2022 (10) TMI 1147 - ITAT MUMBAI
  

  Deduction u/s 80P(2)(d) - claim denied as assessee had not filed return of income within due date as specified u/s. 139(1) of the Act - HELD THAT:- A bare perusal of the un-amended provision would show that there was no restriction for claiming deduction u/s 80P of the Act even if the return was filed beyond due date as specified u/s. 139(1) - The restriction was applicable only to the specified sections mentioned in section 80AC of the Act. The scope of section was enlarged by the Finance Act 2018 to include all deductions admissible under Chapter-VIA under the heading “C-Deduction in respect of certain incomes” The substituted section w.e.f. 01/04/2018 would be applicable to assessment year 2018-19 and in respect of deductions claimed u/s. 80P of the Act, as well. Since, in the impugned assessment year substituted provisions of section 80AC would be applicable, the CIT(A) has rightly rejected the appeal of assessee.

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