|
Advanced Search Options
Case Laws
Showing 81 to 100 of 2034 Records
-
2018 (3) TMI 1957 - ITAT DELHI
Disallowing deduction in respect of Employee Stock Option Plan (‘ESOP’) scheme - HELD THAT:- Respectfully following the order of the Hon’ble Delhi High Court in Lemon Tree Hotels Ltd [2014 (7) TMI 165 - ITAT DELHI] and Biocon Ltd. [2013 (8) TMI 629 - ITAT BANGALORE] we set aside the order of the Ld. CIT(A) on this issue and direct the Assessing Officer to allow claim of ESOP expenses.
Depreciation on intangible assets - non-refundable deposit paid to IRCTC - HELD THAT:- Ends of justice would be met by directing the Assessing Officer to allow depreciation @25% as directed by the Ld. CIT(A).
-
2018 (3) TMI 1956 - ITAT CHENNAI
TDS u/s 195 - non-deduction of Tax at Source towards payment made for reimbursement of Warranty - HELD THAT:- In the case of the assessee, the assessee is a manufacturer of motor cars in India and exports the motor cars to other countries and sells them in those countries through its sister concerns who acts as the dealer of the assessee company - assessee company also provides warranty to the end customers who purchase the car - assessee's sister companies who acts as the dealers of the assessee company maintains the cars sold by them according to the terms of the warranty promised by the Assessee Company, towards which the dealer companies incurs expenditure. As per the contractual obligation, the assessee company reimburses such expenses incurred by its "dealer – sister companies". Thus the assessee company incurs expenditure outside India for the purpose of earning income from source outside India. Therefore by virtue of Section 9(1)(vii)(b) the payment made by the assessee company to a person outside India for earning income from any source outside India, and the income arising from such payment to the recipient shall be excluded from the deeming provision of Section 9(1) of the Act.
Hence we are of the considered view that the assessee company will not be liable to deduct tax u/s.195 - Decided in favour of assessee.
Non-deduction of Tax at Source towards payment made for purchase of software from non- residents - HELD THAT:- From the facts of the case it is apparent that the assessee has obtained license only for the usage of the software for a limited period and does not have the right to change or modify the software. This issue is squarely covered by the decision in the case DCIT Vs. Atmel R&D India (P) Ltd [2008 (11) TMI 9 - AUTHORITY FOR ADVANCE RULINGS] as held merely authorizing or enabling a customer to have the benefit of data or instructions contained therein without any further right to deal with them independently does not, amount to transfer of rights in relation to copyright or conferment of the right of using the copyright. The transfer of rights in or over copyright or the conferment of the right of use of copyright implies that the transferee/licensee should acquire rights either in entirety or partially co-extensive with the owner/transferor who divests himself of the rights he possesses in his favour.
The license granted to the licensee permitting him to use the programme for its business purpose is only incidental to the facility extended to the licensee to make use of the copyrighted product for its internal business purpose. The said process is necessary to make the programme functional and to have access to it and is qualitatively different from the right contemplated by the said paragraph because it is only integral to the use of copyrighted product. Apart from such incidental facility, the licensee has no right to deal with the product just as the owner would be in a position to do.
There is no transfer of any right in respect of copyright by the Assessee and it is a case of mere transfer of a copyrighted article. The payment is for a copyrighted article and represents the purchase price of an article and cannot be considered as royalty either under the Income Tax Act or under the DTAA.
What is transferred is neither the copyright in the software nor the use of the copyright in the software, but what is transferred is the right to use the copyrighted material or article which is clearly distinct from the rights in a copyright. The right that is transferred is not a right to use the copyright but is only limited to the right to use the copyrighted material and the same does not give rise to any royalty income and would be business income - the shelf computer programme to be used in their business and no right was granted to the assessee to utilize the copy right of the programme and, therefore, consideration cannot be treated as royalty. As held by the CIT(A), the payments made by the assessee company cannot be held as 'royalties' coming into the ambit of Article 12 of DTAA or 'fee for technical services' u/s 9(1 )(vii) of the IT Act and accordingly no tax need to be deducted u/s 195 - We, therefore, uphold the order of the CIT(A) on this count and dismiss the grounds raised by the revenue in this regard.
In the case of the assessee, the payment made for obtaining license to use the software cannot be held as royalties coming into the ambit of the DTAA or fees for technical services under Section 9(1)(vii) of the Act and accordingly tax need not be deducted at source u/s.195 of the Act.
Error in computation of interest payable u/s.201(1A) - HELD THAT:- Since we have held that, in the case of the assessee, tax need not be deducted at source with respect to payment made towards reimbursement of warranty and payment made towards purchase of software and deleted the addition made on account of non-deduction of tax at source, this ground raised by the assessee does not survive because the assessee is not liable for payment of interest u/s.201(1A).
-
2018 (3) TMI 1955 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - insufficiency of funds - discharge of a legally enforceable debt or not - cross-examination of the complainant on the question as to what was the source of money allegedly lent by her to the accused - HELD THAT:- The court enjoys vast power to summon any person as a witness or recall and re-examine a witness provided same is essentially required for just decision of the case. Moreover, such exercise of power can be at any stage of inquiry, trial or proceedings under the Code, meaning thereby applicant can file an application at any time before conclusion of trial. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society. Otherwise also, it is well established principle of criminal jurisprudence that discovery, vindication and establishment of truth are main purposes of underlying object of courts of justice.
Hon'ble Apex Court in Raja Ram Prasad Yadav v. State of Bihar and another, [2013 (7) TMI 1178 - SUPREME COURT], has held that power under Section 311 Cr.P.C. to summon any person or witness or examine any person already examined can be exercised at any stage provided the same is required for just decision of the case.
A fair trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right - In the case at hand, there is no dispute that complainant was cross-examined by accused but perusal of Annexure P-3 i.e. cross-examination, conducted upon complainant clearly suggests that counsel representing accused failed to cross-examine complainant on material points. Though, accused by way of cross-examination of complainant has made an endeavour to prove that no cheque was issued by him but no suggestion qua the same was put by the counsel to the complainant. Similarly, suggestion was put to the complainant that accused had not signed the cheque but signatures on cheque were never put to complainant by accused.
Having carefully perused averments contained in the application filed under Section 311 CrPC and discrepancies in cross-examination of complainant pointed out by the learned counsel representing the accused, this Court is inclined to agree with the submissions having been made by learned counsel representing accused that relevant material could not be brought on record inadvertently by the learned counsel representing the accused before court below - this Court has no hesitation to conclude that learned court below miserably failed to look into/consider the averments contained in the application vis-à-vis cross-examination of complainant already conducted by accused.
Application allowed.
-
2018 (3) TMI 1954 - CESTAT KOLKATA
Recovery of CENVAT credit - credit availed in excess - certain facilities provided to supplier and the cost thereof had been incorrectly included assessable value for levy of duties of central excise on the clearances effected to appellants - HELD THAT:- The dispute stands settled by the decision of the Tribunal in COMMISSIONER OF C. EX., HYDERABAD VERSUS AUROBINDO PHARMA LTD. [2009 (3) TMI 908 - CESTAT BANGALORE] where it was held that eligibility for credit arises on payment of duty and wage in manufacture of excisable goods, the recovery of CENVAT credit in impugned order is not proper.
Appeal allowed - decided in favor of appellant.
-
2018 (3) TMI 1953 - DELHI HIGH COURT
Assessment u/s 153A - Whether any incriminating material seized or discovered during the search? - Whether the Tribunal fell into error in disallowing of interest and making addition in completed assessment of the assessee/respondent? - HELD THAT:- CIT(A) and the ITAT in the present case were of the opinion that in the absence of any incriminating material seized in the course of search operations, the AO could not have brought to tax the amounts that were already disclosed and part of the record. The lower appellate authorities relied upon case of Commissioner of Income Tax vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT]. Hence, no question of law arises. Appeal dismissed.
-
2018 (3) TMI 1952 - KARNATAKA HIGH COURT
Seeking grant of Bail - petitioner has argued that a drunken brawl in a bar and restaurant has unnecessarily been given a hype by the media, both print and electronic, just because the petitioner happens to be a son of sitting MLA - offences punishable under sections 506, 506B, 326, 141, 143, 144, 146, 147, 341 read with section 149 of IPC - HELD THAT:- The petitioner is the son of a sitting MLA. The station house officer showed no interest in registering the complaint lodged before him at 11.45 p.m. There is also an endorsement made by the station house officer, showing that FIR was registered at 3.30 a.m. on 18.2.2018 in Crime No. 22/2018. There is no explanation as to why the station house officer delayed to register the complaint although it was made at 11.45 p.m. on 17.2.2018. In the meantime one Arun Babu made a complaint against Vidwat and it was registered at 5.30 a.m. on 18.2.2018 in Crime No. 23/2018. Though this complaint was registered at 5.30 a.m., this Arun Babu was taken to Bowring Hospital for treatment and there this Arun Babu would disclose history of assault on him at 12.00 a.m. on 18.2.2018, but by that time Vidwat had already been admitted to Mallya Hospital, Therefore, the incident alleged by Arun Babu cannot be per se believed and as rightly argued by the Special Public Prosecutor, it could be a stage managed complaint at the instance of the petitioner - the very registration of a case at the instance of Arun Babu appears to be due to intervention of a police officer. Inference can be drawn to this effect and therefore unhesitatingly it can be said that from the first hour itself, the petitioner tried to manage the police and definitely it was an act of interference.
It is true that the seizure panchanamas do not disclose seizure of knuckle rings. But in the complaint made by Praveen Venkatachalaiah, there is a reference to employing the rings for hitting. If the I.O. did not seize rings, it cannot be a ground to suspect the prosecution case at this stage. It is well established principle, even the learned counsel for the petitioner argued, that for constituting an offence punishable under section 307 of IPC, a weapon need not always be used - Even if the intention was not there, if the prosecution is able to prove, that the accused had such kind of knowledge of the consequences of their act, the offence punishable under section 307 of IPC would get attracted. The stage is too early to examine the prosecution case in detail. For the purpose of granting bail, the materials placed by the prosecution before the court must be considered. Therefore, non seizure of knuckle rings is of no consequence.
There are prima facie materials to connect the petitioner with non-bailable offences such as section 326 or section 307 of IPC - The CC TV footages show the horrendous atmosphere created when the incident took place and there is no guarantee that such people will remain quiet without tampering with evidence once they come out of jail.
The Bail is rejected - Petition is dismissed.
-
2018 (3) TMI 1951 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL DELHI
Seeking permission to withdraw the appeal - HELD THAT:- Without going into the ground shown in their affidavit for withdrawal, the Appellant is allowed to withdraw the Appeal, without any liberty to challenge the same very impugned order.
Application allowed.
-
2018 (3) TMI 1950 - MADRAS HIGH COURT
Violation of principles of natural justice - opportunity of hearing not provided - seeking Writ of Certiorari to call for the records on the file of the respondent dated 15.04.2016 for the assessment year 2014-15 - HELD THAT:- Since the mandatory requirement under section 22 (4) of the Tamil Nadu Value Added Tax Act, has not been complied with by the respondent by giving an opportunity of personal hearing to the petitioner, the impugned order is liable to be set side solely on that ground.
The matter is remitted back to the respondent for fresh consideration. The respondent is directed to decide the matter afresh, after giving due opportunity of personal hearing to the petitioner, on merits and in accordance with law - Petition allowed by way of remand.
-
2018 (3) TMI 1949 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- In the facts and circumstances of the case, this Bench is satisfied that the petitioner being a Financial Creditor has a claim against the Corporate Debtor which has remained unpaid. Accordingly, the petition merits consideration and is Admitted.
Application admitted - moratorium declared.
-
2018 (3) TMI 1948 - ITAT RAIPUR
Reopening of assessment u/s 147 - Addition u/s 68 - notice issued beyond 4 years from the end of the assessment years - HELD THAT:- We are unable to understand when in the reasons so recorded, the A.O. himself is stating that the accommodation entries from the various parties mentioned above, which did not find place in the assessee’s books of account, therefore, he has reasons to believe that the income chargeable tax has escaped assessment. When the entries are not found in the books of the assessee how the same could be made basis for reopening the completed assessment. In our understanding of the law, veracity of the notice u/s. 148 of the Act has to be tested on the basis of the notice itself
The mandate of First proviso to section 147 is that income that has to be taxed must have escaped assessment by reasons of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. There is not even a whisper in the reasons recorded for the reopening of the assessee relating to non disclosure of full and true facts by the assessee - See HARYANA ACRYLIC MANUFACTURING COMPANY [2008 (11) TMI 2 - DELHI HIGH COURT]
Coming back to the reasons recorded for reopening of the assessment as mentioned elsewhere, it can be seen that there is no independent application of mind by the A.O. It appears that the A.O. has borrowed the investigation made by the Investigation Wing under the DIT (Investigation), New Delhi - we have no hesitation to hold that the notice issued u/s. 148 of the Act is without jurisdiction and the same is set aside.
Assessment u/s 153A - Coming to the merits of the case as mentioned elsewhere, there is no dispute that no incriminating material has been found at the time of search and therefore it is now settled proposition of law that no assessment u/s. 153A of the Act can be framed in the absence of any incriminating material found at the time of search. For this proposition, we draw support from the decision of the Hon’ble High Court of Delhi in the case of Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT] - Decided in favour of assessee.
-
2018 (3) TMI 1947 - MADHYA PRADESH HIGH COURT
Sanction for prosecution to file a complaint - principles of vicarious liability - it is submitted by the State counsel that the applicant is the nominee of the Company and, therefore, he can be prosecuted even in absence of the Company - Section 66 of the Food and Safety and Standards Act, 2006 - HELD THAT:- It would be clear that Satya Sai Agroils Private Limited is the manufacturer of soya products, however, the Company has not been made an accused and the applicant is being prosecuted in the capacity of nominee of the Company. The applicant cannot be held vicariously liable for offence committed by the Company in absence of prosecution of Company. Therefore, this Court is of the considered view that as the Company which is the manufacturer of soya products, has not been arraigned as an accused, the applicant cannot be held vicariously liable. There is no allegation against the applicant in his personal capacity. Therefore, the prosecution of the applicant, is bad in law.
Application allowed.
-
2018 (3) TMI 1946 - SUPREME COURT
Prevention of Money Laundering Act, 2002 - attachment orders - HELD THAT:-Leave granted.
Pending appeal, the impugned judgment and order will not operate as a precedent.
-
2018 (3) TMI 1945 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Recovery during the moratorium period - debit of any amount from Corporate Debtor account during moratorium period - HELD THAT:- The appellant cannot debit any amount from the ‘Corporate Debtor’s account’ after the order of moratorium, as it may amount to recovery amount in spite of the order of moratorium passed by the Adjudicating Authority in violation of Section 14 of the Insolvency and Bankruptcy Code.
Post the matter for further hearing on 26th March, 2018.
-
2018 (3) TMI 1944 - GUJARAT HIGH COURT
Maintainability of prosecution - only argument canvassed by the learned counsel appearing for the writ-applicants that the Court below could not have taken cognizance of the offence under the Act on the police report - HELD THAT:- The issue raised in this writ-application is squarely covered by an order passed by this Court in PATEL DHARMENDRAKUMAR MADHAVLAL & 2 VERSUS STATE OF GUJARAT & 1 [2015 (4) TMI 1326 - GUJARAT HIGH COURT] where it was held that whatever materials have been collected by the Investigating Officer could be used by the authority for the purpose of filing a complaint before the competent court.
There are no hesitation in accepting the submission canvassed by the learned counsel appearing for the writ-applicants having regard to the settled position of law, which has been explained in the referred order - application allowed.
-
2018 (3) TMI 1943 - ITAT CHANDIGARH
Addition of sale consideration of half portion of the property - whether CIT (A) has erred in confirming the action of the Assessing Officer in adopting the sale consideration of Vi portion of property (sold during the year) on the basis of first agreement of sale? - HELD THAT:- Since no reasons have been specified in the order, the matter is being referred back to the file of the Ld. CIT(A) with directions to pass a speaking order on the issue. Both the Representatives of the parties have also conceded to the proposal of setting aside the matter back to the file of the Ld. CIT(A).
-
2018 (3) TMI 1942 - ITAT CHANDIGARH
Deduction u/s 54F for investments - benefit of deduction under section 54F for investments made outside India - Scope of amendment - HELD THAT:- We find that in the peculiar facts of the present case the claim of the assessee has to be allowed. It is seen that the amendment by the Finance Act of 2014 in section 54F comes into effect only from 01/04/2015. Thus from the said date the benefit of deduction under section 54F for investments made outside India undisputedly can be denied as it can be said to be limited to the investment in residential house property made only within India.
Prior to the said date when the amendment kicks in, there is no statutory bar for the taxpayer to make investments outside India in residential house property in order to get the benefit of deductions 54F provided other conditions were fulfilled. Thus, since the assessment year under consideration is prior to the amendment of section 54F by the Finance Act, 2014 the law as on date stands that the claim of the assessee has to be allowed. - Decided in favour of assessee.
-
2018 (3) TMI 1941 - MADRAS HIGH COURT
Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed - mismatch in books - HELD THAT:- The issue involved in these writ petitions is mismatch and such issue is already covered by the decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. This Court, in the said decision, has directed the Assessing Officer to evaluate a centralised mechanism exclusively to deal with the cases of mismatch and to do some exercise, before issuing a notice - It was held in the said case that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection. Matters are remanded to the respective Assessing Officers, to undertake a fresh exercise by conducting a thorough enquiry in consultation with the Assessing Officers of the other end dealer.
Considering the fact that the Assessing Officer has to re-do the assessment, in view of the said decision of this Court, this writ petitions are allowed and the impugned orders are set side. Consequently, the matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal, after following guidelines/procedures issued by this Court in the above referred order. The Assessing Officer shall also give personal hearing to the petitioner before finalizing the order of assessment.
Petition allowed by way of remand.
-
2018 (3) TMI 1940 - KERALA HIGH COURT
Maintainability of petition - Refusal to refund the amount covered by the fixed deposit receipt to the petitioner bank - whether a writ petition is maintainable or not against a co-operative society? - HELD THAT:- A Full Bench of this court has held in John v. Liquidator [2005 (11) TMI 528 - KERALA HIGH COURT] that a writ will lie against a co-operative society where the duty owed by the society is of a public nature or when there is infringement of any statutory provision by the society. The decision of the Full Bench in John's case [2005 (11) TMI 528 - KERALA HIGH COURT] has been confirmed by a Larger Bench of this court in ASSOCIATION OF MILMA OFFICERS VERSUS STATE OF KERALA [2014 (12) TMI 1385 - KERALA HIGH COURT]. There is no pleadings in the writ petitions regarding violation of any statutory provisions by the appellants or breach of any public duty by them. In the absence of such pleadings, we do not think it proper or necessary to enter on a finding on the issue regarding maintainability of writ petition against a co-operative society.
The expression 'dispute' is defined in Section 2(i) of the Act. Section 2(i) reads thus: "dispute" means any matter touching the business, constitution, establishment or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not. A bare perusal of this definition would show that a claim in respect of any sum payable to or by a society is dispute whether the claim is admitted or not.
The discretionary jurisdiction under Article 226 of the Constitution is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. If alternative statutory remedies are available, a writ petition under Article 226 of the Constitution shall not be entertained. This is the normal rule. But, there are exceptions to this rule. Where the statutory authority has not acted in accordance with the provisions of the enactment in question, the writ jurisdiction of the Court shall be exercised. Where the statutory authority acts in defiance of the fundamental principles of judicial procedure or when it acts in total violation of the principles of natural justice, the High Court will entertain a petition under Article 226 of the Constitution. Where statutory remedies are entirely ill -suited to meet the demands of extraordinary situations, then also the High Court would be justified in invoking the writ jurisdiction.
In the instant cases, the writ petitions do not satisfy any of the conditions for invoking the jurisdiction of the Court under Article 226 of the Constitution. The pleadings in the writ petitions contain no statement that the grievances fall within any of the well-defined exceptions. The writ petitioners have no case that the appellants have violated any statutory provisions or that they have not acted in accordance with the provisions of the statute or that they have acted in total violation of the principles of natural justice.
Writ appeals allowed.
-
2018 (3) TMI 1939 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Application for condonation of delay in filing application - defective appeal was preferred by the Appellant after delay of more than six months on 22nd September, 2017 without any application for condonation of delay - HELD THAT:- It is found that the Appellant has not explained as to what action the Appellant had taken between 15th March, 2017 and 18th August, 2017 i.e. between the day of judgment and the day the application for certified copy was filed.
As per Section 421 of the Companies Act, 2013, if an appeal is preferred under Section 421 of the Companies Act, 2013, the Appellate Tribunal counts the period of limitation from the date on which a copy of the order is made available by the Tribunal in terms of sub-section (3) of Section 421 of the Companies Act, 2013 - the appeal is required to be filed within thirty-days, means within thirty-days from the date of knowledge of the order against which appeal is preferred.
In the present case, as Appellant had knowledge of the impugned order as on the date of pronouncement of the said order i.e. 15th March, 2017. It is not the case of the Appellant that its Lawyer has not informed Company Appeal (AT) (Insolvency) No. 223 of 2017 of the order passed by the Adjudicating Authority - application for condonation of delay being not satisfactory, it is fit to be rejected.
Appeal dismissed.
-
2018 (3) TMI 1938 - 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 [2016 (12) TMI 1868 - 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.
........
|
