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Showing 1 to 20 of 1553 Records
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2022 (11) TMI 1554
Taxability of Inland Haulage Charges (IHC) - Income deemed to accrue or arise in India - HELD THAT:- The issue in dispute is squarely covered in favour of the assessee by the decision of Safmarine Container Lines N.V. [2015 (8) TMI 1018 - BOMBAY HIGH COURT] wherein held income from slot chartering falls within the ambit of Article 9 of the DTAA between India and the UK, and is therefore exempt from taxation in India - Decided in favour of assessee.
Short grant of TDS credit appearing in form 26AS of United Arab Shipping Company (UASC SAG) and United Arab Shipping Agency Company India Pvt. Ltd., (UASE India) - HELD THAT:- This issue is no longer res integra in view of the decision of this Tribunal in the case of Hapag Lloyd AG [2022 (2) TMI 220 - ITAT MUMBAI] wherein this issue was restored to the ld. AO as held assessee has shown the income involved in this TDS certificates and in turn also claimed benefit of Article 8 and the benefit of DTAA, the credit for such tax should be granted to the assessee. The claim of the assessee is that Rule 37BA is required to be complied with. It is also submitted that merely because the deductor does not revise the TDS return, it cannot go against the assessee for the claim of the above refund. The assessee raised this additional ground before the learned Dispute Resolution Panel. The Dispute Resolution Panel admitted the above additional ground along with additional evidences. It also obtained the comments from the Assessing Officer and rejoinder of the assessee thereon. The learned Dispute Resolution Panel directed the learned Assessing Officer to carry out the necessary verification and to grant credit. The assessee was also directed to submit all relevant details and clarification thereon. But AO did not consider and carry out such directions.
Hence, respectfully following the decision supra, the ground restored to the file of the ld. AO with the same directions.
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2022 (11) TMI 1553
Rate of interest awarded - respondent fairly concedes that the statutory rate of interest payable is 6% and not 12% per annum - HELD THAT:- The present appeal is allowed and the impugned order is modified by reducing the rate of interest from 12% to 6% per annum from the date of deposit till the date of release.
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2022 (11) TMI 1552
TP Adjustment - difference in the arm’s length price (‘ALP’) of its international related party transactions - In lieu of the services availed by the assessee from its overseas AEs towards inspection of goods, supervision of commissioning, installation and erection of cement plant etc., the AE charges were fixed on cost plus certain markup of 4% basis - AO while making the assessment has disallowed the markup component while accepting the cost incurred by the AE - HELD THAT:- In the light of the submissions made on behalf of the assessee, the issue is no longer res integra. The issue has been either endorsed by the Revenue itself or has been ruled in favour of the assessee by the Co-ordinate Bench in assessee’s own case in Assessment Years 2014-15, 2016-17 and 2017-18. A reference is made in this regard to the decision of the Co-ordinate Bench [2022 (4) TMI 1506 - ITAT DELHI] and [2021 (11) TMI 967 - ITAT DELHI] - Decided in favour of the assessee.
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2022 (11) TMI 1551
Maintainability of application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Operational Creditor against the Corporate Debtor - default in payment of interest amount - amount arising out of some settlement agreement can be termed as operational debt within the meaning of Section 5(21) of the IBC, 2016 or not - HELD THAT:- It is not in dispute that the Corporate Debtor paid the Operational Creditor the entire operational debt (principal). The Corporate Debtor has also paid a sum of Rs. 16 Lakhs towards the interest on principal sum. It is a case of the Operational Creditor that the Corporate Debtor has to pay additional sum of Rs. 1,28,00,000/- towards the interest which amount is disputed by the Corporate Debtor. Earlier an application was disposed of on the ground of settlement - now the Operational Creditor is to claim a sum of Rs. 1,28,00,000/- (Rs 1,44,82,040 - Rs. 16,00,000) towards the interest. The Operational Creditor has been using the IBC proceeding for recovery of disputed amount and which is not object of the Insolvency and Bankruptcy Code, 2016. On this ground alone, this application is not maintainable.
Moreover, there appears to be a dispute about the term of settlement agreement as far as calculation of interest amount is concerned. It cannot be resolved before this Adjudicating Authority.
Conclusion - This application under Section 9 of the IBC, 2016 appears to be filed for recovery of disputed interest amount and not for Resolution of any Insolvency of the Corporate Debtor and, therefore, not maintainable before this Adjudicating Authority.
Petition rejected.
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2022 (11) TMI 1550
Deduction u/s 80P - interest income earned from deposits or saving account with two Banks - as per AO income so earned is not eligible for exemption u/s 80P(2)(a)(i) for the reason that the interest income was earned from the non-members and principle of mutuality not applicable - HELD THAT:- There is a cleavage of judicial opinion among several High Courts on the issue of eligibility of this kind of income for exemption u/s. 80P(2)(a)(i).
Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] and Vaveru Co-operative Rural Bank Ltd. [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] took a view that such interest income is attributable to the activities of the society and, therefore, eligible for exemption u/s 80P(2)(a)(i) of the Act. Also in the case of M/s. Ratnatray Gramin Bigar Sheti Sah. Pat Sanstha Maryadit [2018 (12) TMI 1926 - ITAT PUNE] has taken view in favour of the assessee following the judgment of Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT]
Interest income earned on fixed deposits with bank partake of the business income which is eligible for deduction u/s 80P(2)(a)(i) of the Act. Accordingly, the grounds of appeal filed by the assessee stand allowed.
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2022 (11) TMI 1549
Seeking permission to withdraw SLP - Territorial Jurisdiction - Search and seizure - multiple agencies have carried out search operations - centralisation of investigation with DGGI, AZU - it was held by High Court that 'It cannot be said that in every such case, the ‘proper officer’ having limited territorial jurisdiction must transfer the investigation to the ‘proper officer’ having pan India jurisdiction - it would depend on the facts of each case as to whether such transfer is warranted or not. To lay down the indefeatable rule in this regard may not be feasible or advisable, and certainly not acceptable.'
HELD THAT:- The present Special Leave Petition stands dismissed as withdrawn.
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2022 (11) TMI 1548
Condonation of delay of 99 days in filing the appeal - whether the applicant has satisfactorily explained the delay of 99 days in filing the appeal as any period prior to that would be covered by the orders passed by the Supreme Court in suo moto proceedings relating to COVID pandemic? - HELD THAT:- It needs to be noted that against the final findings dated December 27, 2018 of the designated authority and the Notification dated January 28, 2019 issued by the Central Government imposing anti-dumping duty for the period of 18 months, the applicant had filed Anti Dumping Appeal No. 50196 of 2019 before this Tribunal in April 20, 2019. It cannot, therefore, be said that the applicant was not aware that an appeal could be filed before the Tribunal against the imposition of anti-dumping duty, even if the applicant had not participated in the proceedings before the Designated Authority. The applicant was aware that a sunset review investigation was being carried out, yet it did not participate in the proceedings before the designated authority.
In the present case, it is not the case of the applicant that it was earlier advised by the counsel not to file an appeal since the earlier appeal had already been filed nor dates have given as to when the applicant contacted the counsel for seeking his advice and when the counsel gave the advice. The applicant was well aware that an appeal can be filed as an appeal had earlier been filed against the final findings of the designated authority and the Notification issued by the Central Government.
Conclusion - The applicant's delay in filing the appeal is not satisfactorily explained and, therefore, the application for condonation of delay is rejected.
It is not satisfied that the applicant was prevented by sufficient cause from preferring the appeal within the stipulated period. The application is, accordingly rejected. As the application has been rejected the Anti-Dumping Appeal stands dismissed.
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2022 (11) TMI 1547
Interpretation of Section 42(3) of the VAT Act - amendment to Section 42(3) can reopen assessments that were previously time-barred under Section 25(1) of the KVAT Act or not - HELD THAT:- Through the Finance Act 18/2016, Section 42(3) is made effective from 01.04.2005. There is no reason, firstly, for limiting the retrospective operation to the period under which the dealer is under obligation to maintain the records.
The view expressed by the Supreme Court in Ghanshyam Das [1963 (8) TMI 2 - SUPREME COURT] is applicable to a similar fact situation and law. In the KVAT Act there are timelines for filing the return, deemed assessment, reopening etc. Therefore, the argument that till an assessment order is made by the Department, the return is deemed to be pending de hors Section 42(3) of the Act is untenable and unsustainable. Therefore, it was endeavoured through amended Section 42(3) of the KVAT Act to treat the returns as pending. The scheme under the General Sales Tax and Value Added Tax has noticeable distinguishing features. The said judgment does not aid the challenge laid to the impugned judgment.
In Bharat Steel Tubes Ltd. v. State of Haryana [1988 (5) TMI 335 - SUPREME COURT] the Supreme Court has indicated that the assessment of tax should be completed with expedition. It involves revenue to the State. In the case of a registered dealer, who collects sales tax on behalf of the State, there is no justification for him to withhold the payment of the tax so collected. If a timely assessment is completed, the dues of the State can be conveniently ascertained and collected. Delay in the completion of assessment often creates problems. The assessee would be required to keep all the evidence in support of his transactions. Where evidence is necessary, with the lapse of time, there is scope for its being lost.
Clauses (i) to (iv) begin with the words “if a dealer fails to file” – (a) audited accounts; (b) revised annual return rectifying mistake; (c) annexures, (d) statements; (e) declare any sale, purchase etc., the assessment of such dealer for the relevant year shall be ‘treated as pending’ without reference to limitation stipulated under Section 25(1) of the VAT Act. Section 42(3) clauses (i) to (iv) refer to failure to file one or the other obligated return, annexure etc. - The expression 'fails to file' means neglect to file or a mistake, failure, or instance of poor performance to file. It is a simple present tense, and at best, ‘fails to file’ can be used as a future tense.
Section 21 provides for self assessment of returns filed under Section 20. The self assessment is subject to reassessment under Section 25 of the KVAT Act. The broad heads attracting reassessment have a period of limitation of five or six years as is applicable to the return period. The structure of Section 42(3) is that for an omission brought under Section 42(3), there is no limitation at all. It is the fiction created by the phrase ‘treated as pending’ the limitation otherwise attracted is removed. Juxtapose both situations; on the one hand, Sections 22 and 25, and on the other hand, section 42(3)(i) to (iv), there is inconsistency in the application. The certainty covered for reopening is disturbed, and uncertainty in reassessment is created. The argument of the Counsel for dealers that there will be limitation and no limitation for the same or similar eventualities appears to be correct.
Conclusion - The retrospective application of Section 42(3) must be controlled by a reasonable period, consistent with other provisions of the KVAT Act.
The appeals filed by both the State and the dealers are dismissed, with the affirmation for a reasonable limitation period for reassessments under the KVAT Act.
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2022 (11) TMI 1546
TDS u/s 194N on Primary Agricultural Co-operative Credit Societies - deduction of tax on cash withdrawal - Societies function for the purposes of advancing crop and fertilizer loans to agriculturalists and have accounts with R2 banks - HELD THAT:- Identical issue arose in a batch of matters in the case of S.N. 299 Molasi Primary Agricultural Cooperative Credit Society [2022 (11) TMI 1213 - MADRAS HIGH COURT] it was open to the banks to establish before the assessing officers that the sums withdrawn by the member societies did not represent income in their hands, after considering the evidence available in that regard. The aforesaid examination can be carried out only in the instance of the societies and not at the instance of the banks, who are payers, with statutory responsibility to deduct.
That apart, the matter is stated to be pending in appeal in batch and interim stay granted on 17.12.2020.
For the above reasons, the challenge to the impugned Circulars cannot be entertained as the District Central Cooperative Banks have, therein, merely sought to bring to the notice of the petitioner societies the statutory provisions in regard to deduction of tax, enjoining that they adhere to, and comply with the same, scrupulously. There could be no fault attributed to R2 Banks in this regard.
The challenge to the Circulars fail and these Writ Petitions are dismissed both on the ground of maintainability as well as merits.
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2022 (11) TMI 1545
Addition u/s 68 - bogus LTCG - AO has disbelieved the transactions of purchase and sale of shares only for the reason that the shares of M/s Global Infratech and Finance Ltd is identified as one of the penny stocks by the investigation wing of Income tax department
HELD THAT:- We notice that the AO has not found fault with any of the evidences furnished by the assessee. AO has also not bring any material on record to disprove those evidences. AO has also not shown that the assessee was part of the ring which alleged to have rigged the prices of penny stocks.
Thus, we notice that the AO has simply placed his reliance on the report given by the investigation wing of the department in order to disbelieve the claim of long term capital gain earned by the assessee. Hence, there is merit in the submission of assessee has invested in the shares of M/s Global infratech and Finance Ltd as an ordinary investor on the basis of some market information.
Appellant had stated that have brother-in-law was taking care upon trading/investment in shares and that her brother-in-law was in turn, advice for investment consultant. It is pertinent to note that the Assessing Officer has not shown that brother-in-law or investment consultant were part of syndicate.
We noticed that the assessee has furnished all documents relating to purchase and sale of securities. The shares have entered and exited his demat account. The purchase and sale transactions have been routed through the bank accounts of the assessee. All these documentary evidences produced by the assessee have not been disproved.
An identical case of allegation that the assessee has availed accommodation entries by way of capital gains in order to convert unaccounted money into accounted one, was examined in the case of Shyam Power [2014 (12) TMI 977 - BOMBAY HIGH COURT] Tribunal concluded that this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment. The discrepancy pointed out by the Calcutta Stock Exchange regarding client Code has been referred to. But the Tribunal concluded that itself, is not enough to prove that the transactions in the impugned shares were bogus/sham. The details received from Stock Exchange have been relied upon and for the purposes of faulting the Revenue in failing to discharge the basic onus. If the Tribunal proceeds on this line and concluded that inquiry was not carried forward and with a view to discharge the initial or basic onus, then such conclusion of the Tribunal cannot be termed as perverse.
Appeal filed by the assessee is allowed.
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2022 (11) TMI 1544
Non-payment of service tax on reimbursable expenses incurred on behalf of customers - Seeking recovery of the service tax amount along with interest and for imposition of penalties - HELD THAT:- Challenging the vires of sub-rule (1) of Rule 5 ibid, M/s. InterContinental Consultants and Technocrats Pvt. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT] before the Hon’ble Delhi High Court, which was disposed off vide judgment dated 30.11.2012, in declaring such Rule 5 as ultra vires. It has been ruled by the Hon’ble High Court that both under the un-amended and amended provisions of Section 67 ibid, the charge of service tax under Section 66 ibid has to be on the value of taxable service i.e., the value of service rendered by the assessee and nothing more. The Hon’ble High Court further observed in the said judgment that the expenditure or cost incurred by the service provider in the course of providing the taxable service can never be considered as the gross amount charged by the service provider ‘for such service’ provided by him.
The impugned order is set aside and the appeal is allowed in favour of the appellant.
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2022 (11) TMI 1543
Delayed payment of PF and ESI in respect of employees contribution - submission that the payment was made before the due date of filing of the return u/s. 139(1) - HELD THAT:- Admittedly, the Hon’ble Supreme Court in the case of Checkmate Services Pvt Ltd. [2022 (10) TMI 617 - SUPREME COURT] has categorically held that the employees contribution to PF and ESI to the extent it is not paid within due date prescribed under the PF Act, is not allowable u/s. 36(1)(va). The Hon’ble Supreme Court has also admittedly held that the provisions of section 43B would not apply to the provisions of section 36(1)(va) of the Act in respect of employees contribution.
Respectfully following the decision supra, we are of the view that the delayed payment in respect of employees contribution to PF and ESI is not allowable.
In the case of Nirakar Security & Consultancy Services Pvt. Ltd. [2022 (11) TMI 69 - ITAT CUTTACK] Liberty is granted to the ld AR to make all submissions in respect of allowability of disallowed contribution of the employees to PF and ESI under other relevant provisions in the interest of justice. This direction is being given because ld AR has submitted that as the amount is not allowable under section 36(1)(va) of the Act and same is also not covered under section 43B of the Act, the amount of delayed contribution to PF and ESI in respect of employees contribution would be treated as income in the hands of the assessee u/.s. 2(24)(x) and on subsequent payment of the same, it would be a business expenditure, which can be claimed u/s. 37(1).
Thus, this appeal is restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity of being heard. Appeal of the assessee stands partly allowed for statistical purposes
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2022 (11) TMI 1542
Denial of set-off of brought forward loss against the dividend income which the petitioner company earned - the same cannot be claimed if the return is filed online as the software does not permit the petitioner to make such a claim - it is prayed that the petitioner be permitted to file a return of income in physical form, considering the fact that the last date of filing the return is fixed on 30.11.2022
HELD THAT:- Issue notice to the respondents. Mr. Suresh Kumar waives service of notice on behalf of the respondents. Mr. Suresh Kumar shall file reply to the Petition within six weeks from today and a copy thereof be furnished to learned counsel for the petitioner.
List the Petition on 27th January, 2023.
In the meantime, there shall be ad-interim relief in terms of prayer clause (e) of the petition, which reads as under:-
“that pending the hearing and final disposal of this petition, the Petitioner be permitted to file a paper return of income for the assessment year 2022-23 and treat the same filed as per law, subject to the final outcome of the Petition.”
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2022 (11) TMI 1541
Bogus share capital including share premium u/s 68 - HELD THAT:- A perusal of the assessment order would indicate that the ld. Assessing Officer has not conducted any enquiry. The assessee has submitted the material in support of its contention, but those materials have not been rebutted by the AO. He made reference to the finding of the DDIT (Investigation), Unit-2(1), Kolkata, but that was not an adjudicatory finding.
It was a process of collecting incriminating material against the assessee and preparation of a report to consider that material. The opportunity to the assessee is to be given during an assessment proceeding when it can explain this material and AO is bound to verify to the contentions of the assessee in the light of that material in an analytical manner. That exercise is totally missing here.
It is pertinent to note that copy of the reasons for reopening is available. According to the assessee, this is the information supplied by the ld. Assessing Officer, but it does not contain complete copy as well as the approval, if any, granted by the Principal CIT, Kolkata.
Though to our mind, it is an irregularity and if we are called upon to test the veracity of impugned order only on this fold of dispute, then we would have remitted the issue back for adjudication of the objections against reopening as well as supply of complete copy of the reasons.
But we do not deem it appropriate to explore that procedure because we concur with the finding of the ld. CIT(Appeals) on merit.
AO has not conducted any enquiry for pointing out faults in the details submitted by the assessee running into more than 140 pages as discernable from the details mentioned in the Index with the paper book. Therefore,we do not find any merit in this appeal.
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2022 (11) TMI 1540
Requirement to furnish documents - HELD THAT:- The relied upon documents (RUDs) i.e., seized documents, appended to the subject show cause notice have already been furnished to the petitioners.
Insofar as those documents are concerned which are not on record and are in the custody of the respondent/revenue, photocopies of the same will be furnished, with an endorsement that the photocopy of the relevant document is backed by a seized document, which is in the custody of the respondent/revenue.
Application disposed off.
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2022 (11) TMI 1539
Maintainability of interlocutory orders passed by the Arbitral Tribunal under Article 227 of the Constitution of India - Rejection of application seeking termination of the arbitral proceedings under Section 32(2)(c) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 37(2) permits challenges against orders passed at the interlocutory stage in the arbitral proceedings either where a plea under Section 16(2) or (3)25 of the 1996 Act is allowed or where a prayer for grant of interim measure under Section 17(1) is allowed or refused. In the first case, the appeal would lie under Section 37(2)(a), whereas in the second, the appeal would lie under Section 37(2)(b).
An interlocutory order of an Arbitral Tribunal would also be susceptible to challenge, under the 1996 Act, where it is an “interim award”, as the definition of “arbitral award”, in Section 2(c) of the 1996 Act, includes an “interim award”.
Interim awards of Arbitral Tribunals are, therefore, amenable to challenge under Section 34 of the 1996 Act, without waiting for the final award to be passed. Else, challenges to interlocutory orders have to be restricted to clauses (a) and (b) of Section 37(2); the former applying where the learned Arbitral Tribunal has allowed an application under Section 16(2) or (3) and the latter where it has refused to grant an interim measure of protection under Section 17.
Interlocutory orders passed in arbitral proceedings are otherwise immune from challenge under the 1996 Act.
Any reference to the merits of the impugned orders, would be both inapposite and inappropriate.
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2022 (11) TMI 1538
Recovery of erroneous rebate with interest and penalty - misutilisation of Advance Licence Scheme by mis- declaring their export goods as Catalysts of Palladium and Platinum - extended period of limitation - Admissibility of the CENVAT Credit.
Recovery of erroneous rebate - HELD THAT:- Admittedly goods were exported as per the provisions of the Rule under claim for rebate by following the procedure as prescribed by the notification. Appellants had filed 27 ARE-1’s against which the export goods were cleared by them and subsequently after export of the said goods the rebate claims were filed in the prescribed manner. These rebate claims were allowed in their favour. There is no dispute that the goods which were cleared under the ARE-1’s were not exported and diverted elsewhere. The facts as recorded in the order acknowledge the fact of actual shipment of these goods. It is also not in dispute that these goods were cleared on payment of the duty which has been sought to be rebated after the export of the said goods. The facts that the goods cleared were exported is enough to allow the claim of rebate in the favour of the appellants.
Admittedly there was misdeclaration of the description of the goods on the export documents to the effect that the goods were declared as “Platinum/ Palladium supported catalyst” instead of “Ash and Residue”. This misdeclaration resulted in appellants claiming certain benefits under the Advance License DEEC Scheme. As per this scheme against the exports made appellant obtained Advance Licenses for import of duty free precious metals, and imported duty free material against these licenses during the period from December 2003 to June 2008.
Extended period of limitation - HELD THAT:- All the facts were in the knowledge of the department and the goods were cleared for export in manner as provided by the Notification after due examination. In such a situation there cannot be any justification for invocation of extended period of limitation for making this demand.
Admissibility of the CENVAT Credit - HELD THAT:- There are no merits in the said arguments as that was not even the issue in the show cause notice nor have been adjudicated by the impugned order. Further in case if the revenue intended to proceed against the appellants for recovery of inadmissible CENVAT Credit then the proper course would have been to initiate the proceedings as provided by the Rule 14 of the Cenvat Credit Rules, 2004.
Conclusion - i) The mis-declaration of the goods 'Ash and Residues' under the description 'Platinum/Palladium supported catalysts' in the 27 ARE-1's and Shipping Bills is proved beyond doubt. ii) The recovery of erroneous rebates upheld, penalties imposed for mis-declaration. iii) There are no merits in the demand made, demand of interest and imposition of penalty set aside.
Appeal allowed.
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2022 (11) TMI 1537
Levy of Excise duty - Applicability of N/N. 42/2008-CE and the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - compounded levy scheme - It is the contention of the appellant that the samples cleared by them were not manufactured of power operated packing machines but were made by hand filling and hence the provisions of these rules do not apply to them - HELD THAT:- Rule 11 of the Rules, specifically provides for declaration of the RSP, and Rule 12 provides for the manner in which the RSP needs to be determined by the departmental authorities in case were the goods were cleared without declaration of RSP or the RSP was obliterated etc., after the clearance of the goods. The Rule 12 do not prescribe the manner in which revenue has proceeded to determine the RSP for making these demands by referring to the tariff values as per the notification issued under Section 3 of the Central Excise Act, 1944. In Annexure II to the Show Cause Notice, in remarks column the manner of determination of the RSP has been stated “Retail packs of 4 gms Cleared without printing RSP. Tariff Value 3 per unit pack (Notfn No 3/2006-CE (NT) dated 01.03.2006 as amended.) Duty Payable per packing machine per month as per Sr No 4 of table 1 to Notification No 42/2008_CE dated 01.07.2008 as amended.” Thus it is seen that RSP has been determined on the basis of the Notification issued under Section 3, fixing Tariff Value. Such method of determination of RSP is not even prescribed method for the determination of RSP as per Rule 12. It is settled law that when a statue prescribes a manner of doing the thing then it would be done in the manner prescribed or not at all. Hence there are no position to approve of the manner in which RSP has been determined specifically by referring to Notification issued under Section 3 which by use of non obstante clause in Section 3A.
Conclusion - i) The compounded levy scheme applies only to goods manufactured with the aid of packing machines, thus the compounded levy scheme was not applicable. ii) Determination of RSP is invalid.
Appeal allowed.
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2022 (11) TMI 1536
Income deemed to accrue or arise in India - business connection and Permanent Establishment (PE) in India u/Article 5(4) and 5(5) of India – Mauritius DTAA - AO attributed 50% of the net profits to the PE -
Whether the assessee had any business connection or PE in India under the India-Mauritius Tax Treaty, so as to, attribute a part of the profits earned from the advertisement revenue to the PE? - HELD THAT:- Notably, in the latest order passed for the assessment year 2012-13 [2021 (10) TMI 1102 - ITAT DELHI] held that the assessee has no business connection in India in terms of section 9(1) of the Act and has no PE under Article 5(2), 5(4) and 5(5) of India Mauritius DTAA.
Since held that there is no PE, we are of the considered view that there cannot be any attribution of profit as held by this Tribunal in assessee's own case in A.Ys 2009-10 and 2011-12.
Thus, following above we hold that since the assessee had no PE, either fixed place or DAPE in India, no part of its profit can be attributed to the PE. Accordingly, the addition made is deleted. Decided in favour of assessee.
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2022 (11) TMI 1535
Dismissing of petitioner’s income tax appeal ex-parte - no adequate opportunity of hearings given to petitioner - HELD THAT:- As the assessee should have been more diligent in prosecuting the matter nevertheless the appellate remedy being a very valuable right, that too before the learned Tribunal, which is the last fact finding forum. We are of the view that one more opportunity can be granted to the appellant, more particularly, when the appellant/assessee is an individual.
However, at this juncture we are not inclined to interfere with the order passed by the learned Tribunal but would restore the miscellaneous application to the file of the learned Tribunal for being considered afresh taking note of the fact that the assessee is an individual and as of now it is stated that he does not have any business activity.
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9911796707
