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Showing 81 to 100 of 1445 Records
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2024 (3) TMI 1365
Denial of granting regular registration u/s 80G(5) - application is barred by limitation - delay in filing forms like 10A/10AB - applicability of circular 08/2023 in cases where provisional approval u/c (iv) of first proviso to s/s (5) of section 80G of the Act is granted - HELD THAT:- In the present case before us, reading from para 3 of impugned order it as an undisputed fact that the appellant assessee was granted a provisional registration u/c (iv) of s/s (5) of section 80G of the Act by an order u/c (vi) of s/s (5) of section 80G of the Act by the Ld. CIT(E). Therefore, there remains no reason to draw out appellant’s case from claiming benefit of extended period for filing application for regular registration.
Further the circular 08/2023 also clarified that the extended period upto 30/09/2023 shall apply even in cases, (i) where the application was rejected by the CIT(E) on or before issuance of this circular dated 24/05/2023 (ii) where due date for making/filing application has expired, on or before 30/09/2023. In addition to above, in reply to a specific query, one of the Trustee/founder members appearing for the appellant spelt out the reasons beyond delayed filing of application, which in our considered view also formed sufficient & reasonable ground to condone the delay.
We find in similar facts & circumstance, the co-ordinate benches allowed benefit of extended time period in Swachh Vapi Mission Trust [2024 (3) TMI 614 - ITAT SURAT] , TB Lulla Charitable Foundation[2024 (6) TMI 798 - ITAT PUNE] and ‘Gujarat Hira Bourse[2024 (1) TMI 946 - ITAT SURAT] and ‘Bhamashah Sundarlal Daga Charitable Trust’ [2023 (11) TMI 1210 - ITAT JODHPUR]
Thus, rejection of appellant’s application on the ground of limitation in our considered view is without appreciating the facts in its entirety and devoid of subsisting circular (supra), hence deserves to be set-aside, ergo ordered accordingly.
Remand the matter back to the file of Ld. CIT(E) with a direction to treat appellant’s application dt. 31/03/2023 as filed within the time limit prescribed u/c (iii) to first proviso to s/s (5) of section 80G of the Act r.w.c. 06/2023 - Assessee appeal is allowed for statistical purpose.
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2024 (3) TMI 1364
Rejection of the application for anticipatory bail without considering the application on merits for the reason of issuance of proclamation under Section 82, Cr. PC - HELD THAT:- It is evident that for reasons best known to the appellants, subsequent to the filing of the final report in terms of the provisions under Section 173 (2), Cr.P.C in FIR No. 79/2020 and issuance of summons, issuance of bailable warrants and issuance of non-bailable warrants; pursuant to the failure of the appellants to appear before the Court on the date fixed for their appearance based on bailable warrants, they did not care to take any action in accordance with law except moving applications for bail. Same was the position even after the issuance of the proclamation under Section 82, Cr.PC.
What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the “summons”. The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable.
In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail.
The factual narration made would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accused, after the issuance of bailable warrants, applied and obtained regular bail. Though the appellants filed an application, which they themselves described as “bail-cum-surrender application” on 23.08.2022, they got it withdrawn on the fear of being arrested. Even after the issuance of nonbailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling.
Thus, there is no ground for interfering with the order of the High Court rejecting the application for anticipatory bail rather not considering application on merits. Since their action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this appeal must fail.
Appeal dismissed.
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2024 (3) TMI 1363
Maintainability of appeal - low tax effect - Interpretation of Circular Instructions regarding monetary limits for filing appeals before the Tribunal - HELD THAT:- There is no exception made in the Circular/Instructions with regard to the manner in which the duty or tax is demanded. It may be that in the instant case, there was a misdeclaration of goods and the duty demanded was Rs.10,91,500/-. However, the fact remains that a portion of the said amount was adjusted at the instance of the petitioner herein and therefore before the Tribunal, the disputed amount was less than Rs.10,00,000/. The appeal before the Tribunal was by the revenue and as the assessee had accepted the demand and had got a small portion of the demand even adjusted to make the disputed amount less than Rs.10,00,000/-, the appeal was not maintainable.
The Revenue could not have maintained the appeal before the Tribunal having regard to the extant Circular/Instructions dated 17.12.2015 which bears the threshold limit of Rs.10,00,000/- or above. The object and purpose of issuing these instructions is to reduce litigation by the Revenue as a measure of sound litigation policy. Despite the Circular/Instruction the Revenue filed an appeal before the Tribunal as well as before the High Court assailing the Tribunal’s order.
The High Court was not right in entertaining the appeal and remanding the matter to the Tribunal to consider the same on merits by accepting the contention of the respondent herein that the threshold limit would include even interest and penalty along with duty when that was not at all to be considered having regard to the Circular/Instructions dated 17.08.2011 which remained unchanged by the subsequent Circular/Instruction dated 17.12.2015.
The Review Petition is allowed.
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2024 (3) TMI 1362
Rectification of mistake - error apparent on the face of record - Review Order Modification (ROM) was filed due to a contradiction in the original order - HELD THAT:- The order of the Commissioner relying on the NIDB data has not been found to be maintainable and, therefore, the appeal filed by the Revenue was required to be allowed. Hence, the order is modified to that extent that the appeal filed by the Revenue is allowed and para 7 of the Final Order dated 18.01.2018 shall read as under:
''7. In the result, appeal filed by the Revenue, is allowed''.
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2024 (3) TMI 1361
Bogus LTCG - Treatment of long-term capital gains as non-genuine - unexplained cash credit u/s 68 - denial of exemption u/s 10(38) - AO observed that the transaction of LTCG is a manipulated transaction done by assessee in connivance with the operators to evade taxes on his unaccounted income and treated the LTCG as non-genuine - HELD THAT:- There is no discrepancies in the documents filed by the assessee claiming the deductions u/s 10(38) of the Act. At the same time, the revenue has not brought on record any materials linking the assessee in any of the dubious transactions relating to entry, price rigging or exit providers. Even in the SEBI report, there is no mention or reference to the involvement of the assessee. We can only presume that the assessee is one of the beneficiary in this transactions merely as an investor who has entered in investment fray to make quick profit. Even the assessing officer has applied the presumptions and concept of human probabilities to make the additions without their being any material against the assessee.
AO and CIT (A) has applied the concept of Human probabilities and held the above said scrip to be a penny stock without bring on record how the assessee is involved in any of the scrupulous activities or directly linked to one of the person who has involved in manipulation/rigging of share prices, entry operator or exit provider. Therefore, there is no material with the tax authorities to substantiate their findings that the impugned transaction is non-genuine. Therefore, we are inclined to allow the ground raised by the assessee.
Addition on account of commission paid on alleged bogus share transaction - As already held that the transaction involving the LTCG is genuine and in favour of the assessee, the consequential addition relating to the above transaction is also deleted. Accordingly, we direct the AO to delete the above addition made u/s 69 - Decided in favour of assessee.
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2024 (3) TMI 1360
Disallowing the ‘marked to Market’ (MTM) losses on account of fluctuation in foreign currency in respect of hedging of forward contracts claimed - Taxation of foreign exchange fluctuation - Scope of introduction of Section 43AA - HELD THAT:- We find that the principal question which stands raised appears to be conclusively settled in light of Simon India Ltd. [2022 (12) TMI 358 - DELHI HIGH COURT] as held undisputedly, the Forward Contracts, in the present case, are hedging transactions. Assessee has reinstated its debits and credits from the underlying transactions on the value of the foreign exchange on the due date. The corresponding losses/gains under the Forward Contracts, thus, were also required to be accounted for to arrive at the real profits. It would be anomalous if, on the one hand, debtors and creditors, in respect of current assets, are stated at the current value of foreign exchange and the corresponding loss on the hedging transaction is not accounted for.
In essence, the Assessee has stated his income by taking into account the foreign exchange value as it stands on the due date. It is well settled that the CBDT Instructions and circulars which are contrary to law are not binding.
We additionally take note of the legislative amendments which have been introduced pursuant to the view which was expressed in Woodward Governor India Private Limited [2009 (4) TMI 4 - SUPREME COURT] and which has led to the introduction of Section 43AA with effect from 01 April 2017.
It is thus manifest that Forward Exchange Contracts were clearly not covered within the ambit of the provisions concerned prior to 01 April 2017.
We answer the questions posited in favour of the appellant.
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2024 (3) TMI 1359
Validity of Assessment u/s 153A - material seized during the course of search of another person - non-following the procedure under Section 153C - HELD THAT:- After going through the judicial precedents and particularly the decision of Anand Kumar Jain [2021 (3) TMI 8 - DELHI HIGH COURT] we are of the view that as per the mandate provided by the provisions of section 153C of the Act, the statement made by assessee cannot be a base for making assessment u/s. 153A of the Act on the basis of alleged incriminating material (being the statement recorded u/s. 132(4) of the Act) on the basis of which assessment was framed u/s. 153A of the Act rather assessment should have been framed u/s. 153C of the Act by recording a separate satisfaction. Hence, we find no infirmity in the order of CIT (A) and we affirm the order of CIT (A) on this legal issue.
We upheld the order of CIT (A) quashing the assessment in all these three years i.e., assessment years 2013-14, 2014-15 & 2015-16. Therefore, these appeals of Revenue are dismissed.
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2024 (3) TMI 1358
Retention of amount purportedly on account of 2% TDS deductions from the bills raised by the petitioner - HELD THAT:- This Court has formed a prima-facie opinion that retention of amount purportedly on account of 2% TDS deductions from the bills raised by the petitioner is without any authority in law if the said amount is not deposited with the Income Tax Department.
n the counter-affidavit, the stand taken by the JBVNL that the aforementioned amount has been retained as “Keep Back Amount” for meeting the future liability under the Income Tax Act also seems to be unjustified as once an amount is deducted towards TDS liability the same should have been deposited so that the assessee shall get the benefit thereof in his income tax return.
As on the request of JBVNL, this matter is adjourned by one week to enable the JBVNL to take a conscious decision in the matter whether or not to deposit the amount of Rs. 2,90,32,000/- deducted from the running bills of the petitioner.
For that purpose, this matter shall be posted on 21st March 2024.
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2024 (3) TMI 1357
Delayed contribution to Provident Fund and Employee’s State Insurance - scope of adjustments u/s 143(1) - HELD THAT:- This Tax Appeal is admitted for consideration of the following substantial question of law :
“(A) Whether the Income Tax Appellate Tribunal has erred in law and on facts in confirming the disallowance of Rs.22,68,438/- on account of delayed contribution to Provident Fund and Employee’s State Insurance which were debatable and contentious in nature and therefore were beyond the scope of adjustments under Section 143(1) of the Income Tax Act?”
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2024 (3) TMI 1356
Seeking grant of bail - Money Laundering - proceeds of crime - submission of forged papers - predicate crime - principles of parity - twin conditions under Section 45 of PMLA - HELD THAT:- The Hon'ble Apex Court in the case MANUBHAI RATILAL PATEL TR. USHABEN VERSUS STATE OF GUJARAT & ORS. [2012 (9) TMI 1080 - SUPREME COURT] has categorically observed that while exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand.
It is evident from the aforesaid judgment that the power conferred to the Court to remand a person in the judicial custody if there is imputation of prima facie case said to be committed under cognizable offence. The word “remand” bifurcates that whether the same is for one allegation or more than one allegation, rather irrespective of number of allegations even if a person has committed one offence and when said person is produced before the concerned court seeking remand then the court is to accept the remand by assigning the reason of remand.
It is, thus, evident that Section 19 of the PML Act, 2002 confers power upon the competent authority to arrest a person if he has got reason to believe of commission of offence. The phrase “reason to believe’ is having bearing and this Court is to consider on the basis of imputation as to whether the arrest is based upon any reason to having been said to be believed by the Director in order to come to the conclusion with respect to fact as to whether the remand/arrest is legal or not.
This Court, in order to reach to the conclusion as to whether the material has been available before the learned Special Judge for passing the order of remand, has perused the order of remand, based upon the incriminating material claimed by the ED as per reference to that effect made in paragraph 7 to 17 of the application for custody. It has been found by learned Special Judge that huge amount of proceeds of crime is involved with larger conspiracy to illegally sell the land by manipulation of official records and later acquiring the said land on meager price. Accordingly, the petitioner was remanded in the case.
The present Deputy Commissioner was aware with all the facts regarding the fabrication of the document from its rightful owner in the name of Pradeep Bagchi and as such direction was given by him to the Circle Officer and based upon said forged document, the documents pertaining to the said land was prepared in the name of Pradeep Bagchi who has subsequently sold out the land in favour of one firm, M/s Jagatbandhu Tea Estate Pvt. Ltd, the land situated at Cheshire Home, which was owned by Amit Kumar Agarwal, the accused no. 3 - this Court is of the view that the order of remand cannot be said to suffer from error, as the learned Court based upon the material available before it has passed the order of remand.
The authority under the Act, 2002 is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of “proceeds of crime”. Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process - It is thus evident from the imputation of allegation leveled against the petitioner that it is incorrect on the part of the petitioner to take the ground that there was no reason to believe to the competent authority for making arrest. Irrespective of the fact that subsequently the other allegations have been added.
It is evident that the penal offence under Section 3 will be attracted if a person is directly or indirectly even attempting to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime, meaning thereby that it is not that it is direct involvement rather it is indirectly also even in taking attempts or by assisting in any process or activity connected with the proceeds of crime - the question of commission of crime as per imputation, as per the argument advanced on behalf of learned counsel for the petitioner even accepting to be correct the same will not come under the fold of proceeds of crime and hence Section 3 will not be attracted but this Court is dealing with the issue of bail and not analyzing the veracity of the imputation which is only to be done at appropriate stage and at this stage which requires consideration is parameters of Section 45 (ii) of the PML Act, 2002 as per which the twin condition is to be fulfilled.
After perusal of the record of the instant case it appears that the holding number was issued to show that the possession of the said land is in the name of Pradeep Bagchi and based upon which title of the said land was established with the help of present petitioner by relying upon the report which is based upon a forged deed planted in the Registrar Kolkata Assurance Office and petitioner used his official position to give legal colour to the transaction when he himself was aware that the title to the said land is in dispute and possession belongs to Defence and from the various paragraph of prosecution complaint it is evident that in the said act proceeds of crime is generated wherein forged deed is relied upon and transaction was entered into a miniscule rate wherein no actual amount of payment was done - From record it also appears that the petitioner has involvement in facilitating brokers and private entities to acquire the properties which had been in possession of the Defence before independence. The deliberate act of the petitioner is not only restricted in extending benefits to the private entities but it also amounts to cheating and forgery and the petitioner who had a responsibility of ensuring fairness and securing government properties himself misused his official position and influenced his subordinate officials.
Ground of parity - HELD THAT:- Law is well settled that the principle of parity is to be applied if the case of one or the other is exactly to be similar then only the principle of parity is to be applied but if there is difference in between the facts then the principle of parity is not to be applied - Ground of parity though has been raised but in the aforesaid context it may be noted that parity is not the law, rather the principle of parity is based on the guarantee of positive equality before law enshrined under Article 14 of the Constitution of India and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
This Court is of the view that the applicant has failed to make out a case for exercise of power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of bail, without commenting on the merits of the case, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail. Therefore, this Court is of the view that the bail application is liable to be rejected - the instant application stands dismissed.
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2024 (3) TMI 1355
Rectification application u/s 154 - "mistake apparent on the record" - appellant assails the invocation of powers u/s 154 to contend that mere non-reference to a binding verdict would not amount to a rectifiable error.
HELD THAT:- We consequently admit this appeal on the following question of law:
(i) Whether a debatable question of law, which calls for a detailed inquiry/investigation/discussion fall within the category of “mistake apparent on the record” as is used in Section 154 of the Act?
Let the matter be called again on 15.07.2024.
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2024 (3) TMI 1354
Deduction u/s 80P - interest income from deposit(s) made with Co-operative/Scheduled bank(s) as well as from nominal members in course of regular business activity - HELD THAT:- As decided in The Rena Sahakari Sakhar Karkhana Ltd [2022 (1) TMI 419 - ITAT PUNE] AO 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. Decided against revenue.
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2024 (3) TMI 1353
Addition u/s 69A - Treatment of cash deposits during demonetizationas "unexplained income" - assessee submitted that source for cash deposits is out of opening cash balance in hand which is supported by Income Tax Return filed for last two financial years - HELD THAT:- The assessee has filed ITRs for last two financial years and as per ITRs filed by the assessee, the assessee has declared about Rs. 6,00,000/- agricultural income for two assessment years. The assessee has not declared any other income in the return of income filed for last two financial years. Assuming for a moment, the assessee derives agricultural income at Rs. 6,00,000/-, it cannot be said that the assessee has saved entire agricultural income without spending for his day-to-day expenses.
Therefore, considering the amount of agricultural income declared by the assessee for last two financial years, we are of the considered view that a reasonable amount can be attributable towards savings, which can be kept in cash balance. Therefore, out of total agricultural income declared by the assessee, we consider a sum of Rs. 2,00,000/- towards expenses of the assessee for two years and balance sum of Rs. 4,00,000/- is available with the assessee in the form of cash in hand which can be considered as source for cash deposits.
We direct the AO to allow relief to the extent of Rs. 4,00,000/- towards cash deposits into bank account in addition to relief already given by the ld. CIT(A). For balance cash deposits, the assessee could not adduce any evidence. Therefore, we sustain additions made by the Assessing Officer and sustained by the ld. CIT(A). Decided partly in favour of assessee.
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2024 (3) TMI 1352
Validity and correctness of the Interim Award - impleadment of Petitioners as party Respondents to the Arbitration proceedings despite not being signatories to the Arbitration Agreement - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Supreme Court in Cox and Kings [2023 (12) TMI 427 - SUPREME COURT (LB)] has held that where at a referral stage impleadment of a non-signatory to the Arbitration Agreement is raised, the Referral Court should leave it for the Arbitral Tribunal to decide whether the non-signatory is bound by the Arbitration Agreement. Thus, it is clear that the Arbitral Tribunal has the power to decide whether the non-signatory is bound by the Arbitration Agreement and to implead the non-signatory if answered in the affirmative.
It is not found from a reading of the decision of the Supreme Court in Cox and Kings Ltd. that merely by there being no prayer for impleadment of a non-signatory in the Section 11 Application, the applicability of the doctrine of 'group of companies' by the Sole Arbitrator is excluded. The Arbitrator does have the power/authority to implead the non-signatory if such non-signatory is otherwise liable to be impleaded on the basis of the 'group of companies' doctrine - there are no merit in the submission of Mr. Rustomjee that in the event the issue of joinder of a non-signatory to an Arbitration Agreement is not raised before the Referral Court, the Arbitral Tribunal on its own accord does not have the power to determine this issue and/or allow the impleadment of a non-signatory to an Arbitration Agreement.
The Arbitrator under Section 16 of the Arbitration Act has the power to determine issues of jurisdiction which in my view would include whether the Arbitrator has jurisdiction over non-signatories to an Arbitration Agreement. Any such decision taken by the Arbitrator can always be the subject matter of a challenge by the Petitioners in a Petition filed under Section 34 of the Arbitration Act after the final Award is passed.
There are no valid grounds raised under Section 34 of the Arbitration Act which can at all result in the impugned award being set aside - Arbitration Petition is dismissed.
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2024 (3) TMI 1351
Seeking appointment of a sole arbitrator to adjudicate the disputes between itself and PNB Housing Finance Limited - HELD THAT:- The scope of inquiry by a referral court in a petition under Section 11 of the A&C Act is confined to examination of the existence of an arbitration agreement. The referral proceedings are preliminary and summary and not in the nature of a mini-trial. Rarely as a demurrer, the referral court may decline reference when there is not even a vestige of doubt that the claim is non-arbitrable. If there is a slightest doubt, the rule is to refer the dispute/s to arbitration.
It can be seen that the arbitration clause is widely worded and any dispute "arising out of" or "in connection with" or "the performance of" the SPA is to be referred to arbitration thereunder. Given the width of the arbitration agreement, it cannot be said that the various facets with regard to which DLF has sought to raise disputes are unconnected with the SPA.
This Court is not required to conduct an in-depth inquiry as to whether the disputes sought to be raised by the petitioner/DLF afford any valid cause of action to the petitioner on the basis of the provision of SPA or not. This is an aspect which necessarily requires an in-depth examination on merits and necessarily required to be gone into by a duly constituted arbitral tribunal.
The existence of a valid arbitration agreement, of sufficient width and amplitude, is not in doubt - As held in Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re, [2023 (12) TMI 897 - SUPREME COURT (LB)] "the scope of examination under Section 11(6A) should be confined to the existence of an arbitration agreement on the basis of Section 7. Similarly, the validity of an arbitration agreement, in view of Section 7, should be restricted to the requirement of formal validity such as the requirement that the agreement be in writing."
Signatories to Arbitration Agreement - HELD THAT:- Prima facie, despite assignment of the SPA to Omkara, PNBHFL would be a necessary party as regards pre-assignment disputes, including dispute/s relating to non-acceptance of the offer of DLF and/or dispute/s concerning purported irregularities in the assignment of debt - in case of an assignment of a contract, unlike novation, the assignor is not discharged of its obligation under the contract assigned. Therefore, prima-facie, it cannot be said that PNBHFL is not a necessary party in the proposed arbitration proceedings.
Impleadment/joinder of assignee/Omkara in the proposed arbitration proceedings - HELD THAT:- The law is also well settled that where there is an assignment of a contract containing an arbitration agreement, the assignee will be bound by the arbitration agreement. The assignee would take both the benefit and burden of the arbitration agreement i.e., the assignee can invoke the arbitration agreement to pursue a claim and can be compelled to arbitrate a dispute raised by another party.
Impleadment/joinder of the non-signatories in the proposed arbitration proceedings - HELD THAT:- The ambit of non-consensual theories like "alter ego", "estoppel", or "single economic entity" is materially different from the ambit of consent-based theories. The non-consensual theories place emphasis on the overriding considerations of good faith and equity to bind non-signatories to an arbitration agreement, whereas consent-based theories place emphasis on mutual intent of the parties to arbitrate a dispute - in a given case non-signatories may be bound with the arbitration agreement on the basis of both the consensual and non-consensual theories. After piercing the corporate veil of a company, it may be found that the shareholder or parent corporation had in fact impliedly consented to the arbitration agreement. The decision to join a non-signatory oft rests on more than one factor.
This Court is inclined to refer respondent Nos. 6 and 7 to arbitration, however, granting liberty to the said respondents to raise appropriate jurisdictional objections as regards substantive existence of the arbitration agreement qua the said respondents. All contentions of the said respondents in this regard shall be duly considered by the arbitral tribunal.
There is no impediment in appointing an independent sole arbitrator to adjudicate the disputes between the parties - Petition allowed.
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2024 (3) TMI 1350
CENVAT Credit - trading in Mutual Funds - failure to discharge 6% / 7% of the value under Rule 6(3) of Cenvat Credit Rules, 2004 (CCR) - non-payment of Service Tax on the amount received from employees for waiver of notice period on leaving the employment - demand alongwith interest and penalty.
Whether the amount 6% or 7% on is payable on the differential value of mutual fund investment and realization under Rule 6(3)(i) of CCR, 2004 being an exempted service? - HELD THAT:- This issue is no more res integra since considered in a series of judgments of this Tribunal. In Ace Creative Learning (P.) Ltd. case [2021 (4) TMI 687 - CESTAT BANGALORE], this Tribunal analyzing the provisions applicable to investment in mutual funds held 'the appellant cannot be termed as “service provider” because he only makes an investment in the mutual fund and earn profit from it which is shown in the Books of Accounts under the head “other income”. Hence the question of invoking Rule 6 does not arise and I am of the view that Department has wrongly invoked the provisions of Rule 6(3) demanding the reversal of credit on the exempted services.' - Thus, it can safely be inferred that the investment in mutual funds by the appellant cannot be considered as an activity involving exempted services nor sale/trading of exempted goods. Thus, the demand on this count cannot be sustained.
Whether the amount recovered from the employees in lieu of service period on leaving the employment is leviable to Service Tax? - HELD THAT:- The issue has been considered by this Tribunal in XL Health Corporation India (P.) Ltd. [2022 (5) TMI 427 - CESTAT BANGALORE] where it was held that 'any compensation paid by the employee to the employer for resigning from the service without giving the requisite notice, would not be termed as consideration for the contract of employment and as such, would not fall within the preview of taxable service.' - thus, the demand of Service Tax on the charges recovered by the appellant from the employees in lieu of notice period, also cannot be sustained.
The impugned order is set aside - Appeal allowed.
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2024 (3) TMI 1349
Royalty v/s business income - distribution revenue earned by the appellant assessee - taxed as royalty, as per section 9(1)(vi) and Article 12 of the DTAA between India and the USA OR a business income - HELD THAT:- The fact of the Mutual Agreement Procedure having been adhered to by respective parties and consequent to the adjudication completed therein, the assessee having agreed to pay 10% of advertising and subscription revenue is not disputed. As would be manifest from a reading of of our order the aforesaid practice is also stated to have been accepted by the Revenue for Assessment Years 2007-08 and 2008-09.
In view of the aforesaid and bearing in mind the principles of consistency, we find no justification to entertain the challenge.
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2024 (3) TMI 1348
Seeking review of the order - scope of Review - Review of an order based on consensus - consent of the parties were there or not - error apparent on the face of records or not - HELD THAT:- In the present case, the core grounds raised on which the review petition rests, in our considered opinion are beyond the scope of the provisions of Order 47 Rule 1 CPC and the law laid down by the Hon’ble Supreme Court and the Hon’ble High Court. The Review Applicant in the guise of the Review Petition wants this Bench to rewrite its Judgment, which is not possible under review jurisdiction. As already stated above review is not an appeal in disguise and there is no error apparent on the face of the record. Therefore, the Division Bench rightly confirmed the order of the learned Single Judge, which does not warrant any review.
There are no merits in the Review petition - review petition dismissed.
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2024 (3) TMI 1347
ITAT rejecting Petitioner’s application u/s 254(2) - HELD THAT:- We have considered the impugned order as well as the application filed and we find no error in the order passed by the ITAT. We agree with the ITAT that application itself is in effect seeking a review of the ITAT’s order [2022 (9) TMI 588 - ITAT PUNE] - WP dismissed.
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2024 (3) TMI 1346
Validity of approval u/s 153D - supervisory and advisory involvement of the approving authority - HELD THAT:- Referring to additional material which have been placed for our consideration by the appellant, including the Internal Correspondence Folder and the record filed would appear to indicate the manner in which the case proceeded at different levels in the office of the appellant
As the undisputed position which emerges is that the approval u/s 153D of the Act was a common and composite order which was framed in the case of the respondent-assessee. The invalidity of that approval is an aspect which has attained finality consequent to the appeal of the Department in Anuj Bansal having come to be dismissed by this Court [2023 (7) TMI 1214 - DELHI HIGH COURT]
Accordingly, while we dismiss the instant appeal following the reasons assigned in the earlier case of Anuj Bansal, we leave the question pertaining to the effect and impact of Section 144A of the Act as well as of the provisions contained in the Search and Seizure Manual, 2007, open to be addressed in appropriate proceedings.
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9911796707
