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Showing 81 to 100 of 1955 Records
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2018 (11) TMI 1879 - ITAT CHENNAI
TP Adjustment - applying the CUP method - TPO accepted the claim of assessee in respect of the ‘Operational Support Services’ and the reimbursements - It was a submission that there was no need for the assessee to pay the ‘Management Fees’‘ and ‘Management Fees’ are more than technical services - HELD THAT:- As it is noticed that the issue in the appeal is squarely covered by the decision of the Co-ordinate Bench of this Tribunal in the case of M/s. Bonfigioli transmissions Private Limited. [2018 (5) TMI 2069 - ITAT CHENNA] respectfully following the decision of Co-ordinate Bench of this Tribunal, and as the assessee has proved the incurring of the expenditure on Management Fees, the addition, as made by the ld. A.O/TPO and confirmed by the Ld. CIT(A), stands deleted.
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2018 (11) TMI 1878 - SC ORDER
Seeking Grant of stay - HELD THAT:- On 14.09.2018, in GOPAL KRISSHNA KARUNAKARAN NAIR VERSUS UNION OF INDIA MINISTRY OF CORPORATE AFFAIRS & ORS. ETC. ETC. [2018 (9) TMI 2057 - SC ORDER], we admitted the petition and stayed the operation of the impugned judgment and order of the NCLT, New Delhi.
List after six weeks.
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2018 (11) TMI 1877 - ITAT KOLKATA
Disallowing / adding taxpayer’s discount and brokerage claim - CIT- A deleted the addition - HELD THAT:- We invited attention to the fact that this tribunal has already reversed the CIT’s action in assessment year 2011-12 seeking to disallow the very claim in sec. 263 proceedings. Learned co-ordinate bench’s order to this effect [2016 (11) TMI 1700 - ITAT KOLKATA] forms part of served before us.
We are informed that Revenue’s appeal against the same is pending before hon'ble jurisdictional high court. There is no distinction on facts or law pointed out at either parties’ behest in these two assessment years qua the impugned identical issue. We therefore adopt judicial consistency in this facts and circumstances to affirm the CIT(A)’s findings under challenge deleting discount and brokerage disallowance -Decided against revenue.
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2018 (11) TMI 1876 - CESTAT NEW DELHI
Condonation of delay of about two days in filing the appeal before the ld. Commissioner (Appeals) - HELD THAT:- The delay of two days in filing the appeal before the Commissioner (Appeals) is condoned and accordingly set aside the impugned order in appeal and remand the matter for decision on merits. The ld. Commissioner (Appeals) shall hear the appellant and decide the appeal on merits and shall also decide the issue of jurisdiction as it appears the show cause notice was never served on the appellant. The appellant is also directed to appear before the Commissioner (Appeals) within 60 days from the receipt of a copy of this order and seek opportunity of hearing.
Both COD and appeal allowed.
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2018 (11) TMI 1875 - MADRAS HIGH COURT
Reopening of concluded assessment - short submission of petitioner is that this communication cannot be called as a SCN in terms of the proviso to Section 27(2) of TNVAT Act - HELD THAT:- Any show cause notice should be precise in the formulation of its tentative conclusions. In this case, the said communication dated 12.12.2017 called upon the petitioner to make available a set of documents. Therefore such a communication can only be characterized as a notice in terms of Section 63 of the TNVAT Act. Any Assessing Authority is empowered to call upon the assessee to produce the accounts and other relevant documents - It is true that the petitioner was given an opportunity of personal hearing on 18.12.2017. But then, such an personal hearing will have to be granted after issuing a show cause notice.
It is concluded that the communication dated 12.12.2017 is not a show cause notice at all. It is only a communication under Section 63 of the Act.
The order impugned will have to be set aside on the short ground that the show cause notice as contemplated under Section 27(2) of the Act, was not issued. Therefore, the order impugned in this writ petition is set aside - matter is remitted to the file of the respondent who shall issue a proper show cause notice and after affording an opportunity of personal hearing to the petitioner herein pass order in accordance with law.
Petition allowed by way of remand.
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2018 (11) TMI 1874 - ITAT PUNE
Revision u/s 263 by CIT - assessment order passed under section 143(3) r.w.s. 153C - Assessment u/s 153A of the Act after obtaining approval of Additional CIT under section 153D - HELD THAT:- The assessment in the present case has been completed by the Assessing Officer by passing order under section 143(3) r.w.s. 153C of the Act after taking the approval of JCIT, Central Range, Nashik and following the ratio laid down in Rasiklal M. Dhariwal (HUF) Vs. CIT [2017 (1) TMI 260 - ITAT PUNE] we hold that exercise of revisionary powers by the Commissioner is both incorrect and invalid in law. The grounds of appeal raised by assessee are thus, allowed.
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2018 (11) TMI 1873 - ITAT PUNE
Revisionary jurisdiction by the Commissioner u/s 263 - Assessment was completed under section 143(3) r.w.s. 153A of the Act after obtaining approval of Additional CIT under section 153D - HELD THAT:- As decided in Dhariwal Industries Limited [2017 (1) TMI 260 - ITAT PUNE] where the Assessing Officer had passed the order after obtaining necessary approval from Additional CIT under section 153D of the Act, then the Commissioner is precluded from exercising his revisionary power under section 263 of the Act and consequently, order passed by the Commissioner is both invalid and bad in law and the same is cancelled. The grounds of appeal raised by assessee are thus, allowed.
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2018 (11) TMI 1872 - NATIONAL COMPANY LAW TRIBUNAL, SINGLE BENCH, CHENNAI
Seeking liquidation of the Corporate Debtor - seeking to allow the Liquidator to dispose of the assets of the Corporate Debtor as a “going concern” basis - Sections 33(1)(a) and 34 (1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In view of the facts and circumstances recorded by Resolution Professional, this Adjudicating Authority did not receive any Resolution Plan under Sub-section (6) of Section 30. Therefore, in exercise of powers conferred under Sub-Clauses (i) (li) and (iii) of Clause (b) of SubSection (1) of Section 33 of the I&B Code, 2016, this Authority proceeds to pass Liquidation Order - this Authority hereby orders for liquidation of the Corporate Debtor viz., M/s. Ashok Magnetic Limited, which shall be conducted in the manner as laid down in Chapter III of part II of the I&B Code, 2016.
Application allowed.
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2018 (11) TMI 1871 - CHHATTISGARH HIGH COURT
Benami Transaction - Scope of Section 4(1) of the Benami Transaction Act, 1988 - civil revision invoking jurisdiction of this court under section 115 of CPC has been preferred by the petitioners, who are defendants before trial Court - HELD THAT:- The question as to whether bar would be applicable in suits which are filed after coming into force of the Act of 1988 has been considered by the Supreme Court in the matter of Duvuru Jaya Mohana Reddy and another v. Alluru Nagi Reddy and others [1993 (4) TMI 335 - SUPREME COURT] and it has been held that Section 4(1) of the Act of 1988 would apply to proceedings pending on the date of the commencement of the Act and the provisions were held applicable to an appeal that was pending.
In the matter of R. Rajagopal Reddy (Dead) by LRs and others v. Padmini Chandrasekharan (Dead) by LRs [1995 (1) TMI 67 - SUPREME COURT] the Supreme Court in paragraph 11 of its judgment has clearly held that no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1) of the Act of 1988.
Undisputedly, the instant suit has been filed on 28.03.2017 after coming into force of the Act of 1988 and plaintiff is claiming title on the basis of Transaction which is said to have been taken place on 13.03.1981 and 09.06.1988. This being so, the prohibition imposed under Section 4(1) of the Act of 1988 is squarely attracted as the plaintiff has filed the suit after coming into force of Act of 1988 in order to enforce his right under Benami Transaction which is specifically barred under Section 4(1) of the Act of 1988 and as such the plaint is barred by virtue of Order 7, Rule 11(d) of CPC, therefore, the trial Court is absolutely unjustified in holding that the said question is mixed question of law and fact, as it is pure question of law.
Accordingly, the impugned order is set aside and it is held that the suit is barred by Section 4(1) of the Benami Transaction Act, 1988 and therefore, it is liable to be rejected under Order 7, Rule 11(d) of CPC. The civil revision is allowed as indicated hereinabove with no order as to costs. The order passed by the trial Court is hereby set aside and the suit is held barred by Section 4(1) of the Act of 1988 and the plaint filed by the plaintiff stands rejected.
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2018 (11) TMI 1870 - ITAT KOLKATA
Corrigendum filed by the respective assesses with regard to change in first paragraph of the Tribunal order - As gone through the facts available on record and find that first paragraph of the order passed by this Tribunal requires to be modified, for which purpose this corrigendum is hereby issued.
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2018 (11) TMI 1869 - ITAT PUNE
Disallowance u/s.14A read with Rule 8D - AO worked out the disallowance being, ½ percent of average value of investment under Rule 8D(2)(iii) - HELD THAT:- As relying on assessee's own case [2018 (10) TMI 1911 - ITAT PUNE] we set-aside the impugned order and remit the matter to the file of AO for complying with the directions given by the Tribunal for the earlier four assessment years and then deciding the issue for the year under consideration accordingly. Assessee appeal is allowed for statistical purposes.
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2018 (11) TMI 1868 - ITAT KOLKATA
Liability crystallized and quantified during the previous year - Additions on account of Prior period expenses, ERPC Charges and Integrated income on SLDC UI Fund WBSETCL - whether AO was not justified in making the disallowance as whatever expenses claimed by the appellant are already disallowed by the A.O. separately? - HELD THAT:- Prior period expenses - liability of expenses has been crystallized during the previous year, relevant to the assessment year under consideration. As per mercantile basis of accounting, the liability is recorded when obligation to pay arises. In the assessee`s case the liability to pay arises in the assessment year under consideration therefore, assessee has rightly claimed the expenses - we decline to interfere in the order passed by the ld CIT(A), his order on this issue is hereby upheld and the grounds of appeal raised by the Revenue, on this issue is dismissed.
ERPC Charges - These payments would not attract any of the provisions relating to the requirement for making TDS while making the impugned payments, as these were statutory contributions made to a Government Body, and not contractual payments and hence these payments would not attract any of the provisions relating to the requirement for making TDS. That being so, we decline to interfere with the order of Id. C.I T.(A) deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue is dismissed.
Accrual of Income - Interest income on SLDC-UI Fund-WBSFTCL - We note that on the identical issue, the Division Bench in assessee`s own case,. [2014 (10) TMI 942 - ITA T KOLKATA]deleted the addition. As the issue is squarely covered in favour of the assessee and there is no change in the facts and law and the Ld. CIT(A) has allowed the appeal of the assessee by relying the judgment of the Division Bench - Appeal filed by the Revenue is dismissed.
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2018 (11) TMI 1867 - BOMBAY HIGH COURT
Seeking appointment of an arbitrator - agreement to sell and transfer the suit property - applicant had failed to obtain the permissions as per clause 4 of the said agreement and thus the said agreement automatically stood terminated - condonation of delay in filing arbitration application - immovable property exclusively used in trade or commerce or not - jurisdiction of the Commercial Courts under Section 6 of the Commercial Courts Act, 2015 - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- By virtue of the amendment as on 23rd October 2015, there was no persona designata available for hearing the applications under Section 11(6) of the Arbitration Act even in respect of the arbitration proceedings having commenced prior to 23rd October 2015 by virtue of notice invoking the arbitration agreement issued prior to the date of the amendment - since the proceedings under Section 11(6) of the Arbitration Act are required to be filed before the High Court, Article 137 of the Schedule to the Limitation Act, 1963 would apply to such application filed under Section 11 (6) of the Arbitration Act. Since Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application under Section 11(6) of the Arbitration Act, Section 5 of the Limitation Act, 1963 would also apply to the arbitration application filed under Section 11(6) of Arbitration Act.
Delhi High Court in the case of Yogesh Kumar Gupta [2007 (2) TMI 714 - DELHI HIGH COURT] has held that since the Limitation Act, 1963 specifically applies to the arbitrations, Section 5 of the Limitation Act would also apply to an application/petition under Section 11(5) of the Arbitration Act. Delhi High Court has also considered the provisions of Section 14(1) and 14(2) of the Limitation Act, 1963 and held that it would be open to the applicant to file a fresh application under Section 11(5) of the Arbitration Act. The principles of law laid down by the Delhi High Court in the case of Yogesh Kumar Gupta would apply to the facts of this case. The views expressed by the Delhi High Court in the said judgment, is to be agreed upon.
The limitation prescribed under Article 137 of the Schedule to the Limitation Act, 1963 which applies to an application under Section 11(6) or Section 11(9) of the Arbitration Act filed before the High Court or before the Hon'ble Supreme Court cannot be mixed up with the period of limitation applicable to the claims prescribed in various other Articles of the Schedule to the Limitation Act, 1963. Both these periods of limitation i.e. one applicable to the claims being made and another being applicable to the application under Section 11(6) or Section 11(9) of the Arbitration Act to which Article 137 of the Schedule to the Limitation Act, 1963 applies, are two different periods of limitation and cannot be made applicable to each other.
Whether the applicant has made out a sufficient cause for condonation of delay of 536 days in filing this arbitration application without prejudice to the rights and contention of the applicant that there was no delay in filing this application under Section 11(6) of the Arbitration Act? - HELD THAT:- The applicant was prosecuting the application under Section 9 relying upon the said agreement which is relied upon in this arbitration application for the purpose of appointment of an arbitrator in good faith and due diligence. The applicant is thus entitled to take the benefit of the principles of Section 14 of the Limitation Act, 1963 for the purpose of computing the limitation under Article 137 of the Schedule to the Limitation Act, 1963 in filing this arbitration application under Section 11(6) of the Arbitration Act. There is thus no delay in filing this arbitration application. This Court thus need not consider a separate relief in the notice of motion filed by the applicant.
It is not in dispute that this Court has been assigned the matters under Section 11(6) of the Arbitration and Conciliation Act, 1996 and also the arbitration applications under the provisions of the Commercial Courts Act, 2015. However, since this Court is of the view that the terms and conditions of the agreement and the pleadings and documents clearly reflects the commercial dispute between the parties and also reflects that the property in question was used for commercial purposes, this application filed before the commercial division of this Court is maintainable. There is thus no need to grant leave to amend to convert the said commercial arbitration application into the arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Since there is no dispute about the existence of arbitration agreement and since the respondents did not appoint any arbitrator inspite of receipt of notices invoking arbitration agreement by the applicant, this commercial arbitration application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 is maintainable - Mr. Snehal K. Shah, a counsel of this Court is proposed to be appointed as an arbitrator on behalf of the applicant.
Application disposed off.
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2018 (11) TMI 1866 - DELHI HIGH COURT
Compliance with the directions, contained in the impugned order - violation of provisions of the Income Tax Act, 1961 - tripartite agreements with the banks and the liabilities towards the banks - HELD THAT:- Issue notice to the respondent, returnable on 13th December, 2018.
Till the next date of hearing, there shall be an ad interim stay of operation of the impugned order dated 23rd October, 2018.
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2018 (11) TMI 1865 - ITAT BANGALORE
Addition u/s 14A - admission of additional evidence in terms of Rule 46A of the Rules - as argued CIT(A) has not taken note of the written submission filed by the assessee dated 23/8/2017 along with annexure - HELD THAT:- As in the written submission dated 23/8/2017, the assessee has specifically referred to the fact that the CIT(A) in the earlier hearing had directed the assessee to file the documents which were being filed along with the written submission. In terms of Rule 46A(4), the CIT(A) has power to call upon the assessee to produce certain documents with a view to enable him to dispose off the appeal or for any other substantial cause.
Since the submissions have not taken cognizance of CIT(A), we are of the view that it would be just an appropriate to set aside the order of the CIT(A) and remand the issue of disallowance u/s 14A of the Act for fresh consideration by the CIT(A) after affording opportunity of being heard to the assessee on the admissibility of additional evidence filed by the assessee before the CIT(A) in accordance with law and thereafter adjudicate on the issue of disallowance u/s.14A of the Act. The grounds of appeal are treated as allowed for statistical purposes.
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2018 (11) TMI 1864 - ITAT LUCKNOW
Exemption u/s 11 and 12 - salary paid to three persons/employees as excessive u/s 13 - CIT-A deleted the addition - HELD THAT:- To find out whether the payment of salary is excessive then same has to be examined on commercial considerations i.e. in comparison to market value of services rendered. The AO has not brought anything on record to show that salary paid to these three persons was excessive in comparison to the market value of services rendered. Merely because there is increase in salary by 15% compared to earlier year will not lead to conclusion that salary paid is excessive or it is personal benefit as envisaged in Section 13(1) of the Act Excessive salary has to be shown not with reference to increase in salary over earlier year but with reference to excessiveness in comparison to market value of the services that is with reference to commercial considerations. Such a finding is clearly missing in the assessment order.
AO has just made a general comment that salary given is excessive and disallowed ₹ 50,000/- out of salary given. No finding has been given as to why it is excessive or what is the basis of making the disallowance. No comparative case has been given to justify the disallowance. A disallowance based on a general comment is not called for. The action of the AO defies the logic. In view of these facts the disallowance u/s 13 made by the AO is hereby deleted.
Addition on account of amounts paid to other partner NFOs - CIT(A) has deleted the addition - HELD THAT:- On this issue the law stands well settled that when a sum has been disbursed to another entity carrying out similar object and registered u/s 12A of the Act then it is application of income for purpose of section 11 and 12 - Hon'ble Jurisdictional High Court in the case of J.K Charitable Trust [1991 (4) TMI 19 - ALLAHABAD HIGH COURT] held that "Donation to another charitable trust out of contributions received by assessee trust is application of income for charitable purpose and such donation cannot be treated as income of assessee trust in year of contribution either under unamended as amended section 12 of the Act. The decision of Hon'ble Gujrat High Court in case of Nirmala Baku Bhai Foundation [1996 (7) TMI 100 - GUJARAT HIGH COURT] too is in favour of the appellant on this issue itself.CIT(A) while deciding the above ground has considered various judicial pronouncements and has exhaustively dealt with the issue which needs no interference from our side.
Addition on account of difference of interest on FDRs and saving bank account - assessee has shown total interest income as different from interest as per certificate issued by the bank - CIT(A) has deleted the additions - HELD THAT:- It is clear that the assessee is following cash system of accounting. The interest actually received during the year is shown under the Interest income. The accrued Interest income is shown in the year of actual receipt. This disputed amount of interest i.e. ₹ 6,17,903/- has been offered for taxation by the assessee in F.Y. 2013-14 relevant to A.Y. 2014-15 i.e. the year of receipt of this interest. If the same sum is added during the year under consideration i.e. A.Y. 2013-14 on accrual basis then it will result in double taxation of the same interest income which is not permissible under the law. In view of these facts, we do not find any infirmity in the findings of learned CIT(A).
Revenue appeal dismissed.
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2018 (11) TMI 1863 - CHHATTISGARH HIGH COURT
Difficulty in logging and filing returns in TRAN-1 Form - Circular No.39/13/2018-GST - opportunity sought to approach the Nodal Officer to show his bonafide of having failed to file their return in question due to reasons not attributable to him, but technical glitches under GST Portal - HELD THAT:- The mechanisms which are required to be followed in such verification is indicated in the notification dated 03.04.2018.
If the Petitioners approaches the competent authority with their grievances with a copy of this order, it will be considered within the framework of the mechanism in place in terms of the notification dated 03.04.2018 or such ancillary notification issued thereof and pass an appropriate direction as the need may be.
Application disposed off.
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2018 (11) TMI 1862 - ITAT MUMBAI
Income accrued in India - PE in India - taxability of fees received from Wockhardt Hospitals Ltd pursuant to Master Service Agreement - whether falls under fees for technical services or royalty? - HELD THAT:- We find that the Tribunal right from the Assessment Year 2002-03 to 2012-13 held that these payments received by the assessee from Wockhardt Hospitals Ltd can neither be said to be royalty nor FTS. It was also held that entire payment received by the assessee from Wockhardt Hospitals Ltd is in the nature of business profits and since the assessee does not have a PE in India the same should not be brought to tax in India
Respectfully following the said order of the Tribunal [2018 (5) TMI 2077 - ITAT MUMBAI] we hold that the consideration received by the assessee pursuant to Master Service Agreement is neither royalty nor FTS but the same are in the nature of business profits and since the assessee do not have a PE in India, the same cannot be brought to tax in India. appeal of the assessee is allowed.
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2018 (11) TMI 1861 - DELHI HIGH COURT
Appeal by former Director - Person describing himself as a former Director of the Company which has already been wound up - HELD THAT:- Way back on 29th August 2003, the winding up order was passed with reference to the company in question. The Official Liquidator (OL) had taken over the entire assets of the company in question many years ago. Thereafter, the learned Single Judge has been dealing with the claims of creditors.
To entertain, at this stage, any appeal by one of the former Directors on the basis that he was a major shareholder, cannot be legally countenanced - Appeal dismissed.
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2018 (11) TMI 1860 - MEGHALAYA HIGH COURT
Refund of sale proceeds of the confiscated goods which were sold in public auction - HELD THAT:- Petitioner in effect seeks implementation of the order of CESTAT for which he has efficacious remedy by laying motion before the CESTAT. Writ petition, as such, is not worth to be entertained is accordingly dismissed with liberty to the petitioner to seek implementation of the order of CESTAT by laying proper motion before the CESTAT.
Petition dismissed.
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