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Showing 81 to 100 of 1847 Records
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2018 (6) TMI 1769
Levy of Service Tax - “Watch and Ward“ services provided to Metro Railways - security agency or not - period March 01 to May 05 - HELD THAT:- The Appellant have been providing services related to security, manpower supply for cleaning, washing, sweeping, gardening, upkeep, watch and guard, grass cutting, checking, watch and ward, mechanized cleaning, driving , office assistance etc. The services provided by the said appellant are classifiable under two categories viz. “Security Agency Service” and “Manpower Recruitment or Supply Agency’s service.” They are rendering “security service” to their clients. The service was made taxable under the category of “security Agency” w.e.f. 16.10.98 vide clause 94 of Section 65 of chapter v of the Finance Act, 1994.
It is found from the impugned order that the Adjudicating Authority has observed that their functions cannot be restricted to checking of tickets of the passengers only. The personnel deployed by them must have done the overall supervision of passengers including watching the property of Metro Railway and watching that any passenger cannot make any damage to any property. The personnel deployed must have under taken the job related to security of Metro property. They are also to ensure smooth movement of passengers in the Metro Station - the services provided by the appellant to Metro Railway, Kolkata surely falls under the category of “Security Agency Service.
The appellant has argued that for non-taxable services, section 11D of Central Excise Act, 1944 has no application. They have also mentioned that Section 73A of the Finance Act, 1994 has been introduced w.e.f 18.04.06 and that according to sub-section(2) of Section 73A, service tax collected on non–taxable service is demandable/payable to Government exchequer. This provision is only applicable w.e.f 18.04.06.During the material period the provision of Section 11D of the Central Excise Act, 1944 was applicable.
Appeal dismissed - decided against appellant.
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2018 (6) TMI 1768
Refund of excess duty paid on FOB value - Requirement to challenge the assessment of Bill of Entry in order to claim refund of excess duty paid - exports of Pig Iron and Iron Ore Fine - Board Circular No.18/2008 dated 10.11.2008 - HELD THAT:- There is no dispute on the eligibility of the exemption notification which holds the position that there is no lis between the assessee and the revenue. The appellant is therefore not required to challenge the assessment of Bill of Entry for claiming the refund of excess duty paid.
From the judgment of the Hon’ble High Court of Delhi in AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT], it is seen that if the duty is paid and borne by the assessee, refund is admissible without challenging the Bill of Entry - In the present case also the excess duty was paid and borne by the appellant.
Thus, if the excess duty is paid in excess under self-assessment of bill of entry and borne by the appellant for claiming of refund of excess duty paid, the appellant was not required to challenge the self assessed bill of entry - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1767
Reopening of assessment u/s 147 - assessment beyond the period of 4 years from the end of the relevant assessment year - HELD THAT:- When the AO has not found any infirmity in the claim of the assessee of receiving share application money against allotment of shares to M/s. Lexus Infotech Ltd. and M/s. Vanguard Jewels Ltd. while completing the assessment under section 143(3) on 7th December, 2009 then the reopening after 4 years in the absence of failure on the part of the assessee to disclose fully and truly all material necessary for assessment is not valid.
As mandatory condition as per the proviso to section 147 that when the assessment is completed under section 143(3) then no action shall be taken under this section after expiry of 4 years from the end of the relevant assessment year until and unless income chargeable to tax has escaped assessment by the reason of failure on the part of the assessee to disclose all the material facts necessary for assessment.
When the AO himself has not made any allegation against the assessee to disclose fully and truly all material facts necessary for the assessment then the reopening after 4 years is without jurisdiction of the AO as the existence of the jurisdictional condition precedent to exercise of power to reopen the assessment beyond the period of 4 years from the end of the relevant assessment year has not been established. We hold that the reopening in the case in hand is not valid and the same is quashed. Thus the consequential reassessment order passed by the AO is set aside. - Decided in favour of assessee.
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2018 (6) TMI 1766
Failure to refund the deposit amount , which was deposited with Co-operative Societies - cheating general public/investors by misappropriation of the fund deposited - HELD THAT:- It is not in dispute that the petitioner Society is a registered Co-operative Society under KCS Act, 1959. Admittedly, the petitioner-Society is not an assisted Society under the KCS Act. Even though the petitioner Society is required to file its audit returns to the Registrar of Cooperative Societies and with respect to its accounts, it is subject to the provision and control of the Registrar of Cooperative Societies under Section 2A(6) of the KCS Act. Still it cannot be ignored of the fact that the society would have its own management to run its business and its entire management would vest in the Board constituted under Section 28A of the KCS Act.
The Society would run its activities as per the bye-law framed by it. As such, the Society will frame the bye-law though on par the model bye-law, to conduct its business in the manner recognized under the law. Its internal management and affairs will be governed and controlled by the Board of Management constituted under Section 28(A) of the KCS Act. Merely because the society is required to be registered under a particular statute or that it is required to submit its audited report to the particular Department of the Government annually, would by itself not make the society as the one under the direct control of the State.
Even though the present petitioner Society is also a Body Corporate, but under KCS Act, the final Authority of the said Society vests in the General Body of its members and under Section 28A of the KCS Act. The Societies managed by the Managing Committee constituted in terms of the bye-laws. Final Authority so far as the petitioner-Society is the general body and not the Registrar of Co-operative Societies or State Government. Therefore, merely because the petitioner-Society is regulated in its activities by the Registrar or Joint Registrar of Co-operative Societies, but the same cannot be said that the said regulatory act is by any means a direct or indirect control over the affairs of the Society bringing it within the ambit of the definition of Section 2(4) of KPID Act as the Co-operative Society controlled by the State.
There are no merits in the petition - petition dismissed.
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2018 (6) TMI 1765
Maintainability of petition - demand of 50% of the demand amount less the amount already paid by them - HELD THAT:- Though the learned counsel for the parties, assailed the correctness of that portion of the order impugned in the appeals, as stated supra and accordingly sought for reversal, having regard to the facts and circumstances of the case, we are not inclined to interfere with the interim direction issued in the year 2013, directing to pay 50% of the demand amount, as the same has not been complied with and consequently, respondents are yet to consider the application, as directed. Both the parties have not complied with the directions issued.
Appeal dismissed.
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2018 (6) TMI 1764
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Creditor has also initiated SARFAESI Proceedings against the Corporate Debtor by issuing Demand Notice - existence of debt and dispute or not - HELD THAT:- The loans were recalled and further reassigned to ARCIL vide Assignment Agreement dated 28.03.2014, and in their opinion, the Company has defaulted in repayment of its dues, the details of the principal and interest amount are also recorded in the said para of the Annexure. The Auditors' report along with its annexure is placed at pages 251 to 274 of the typed set filed with the Application. This clearly establishes that the Corporate Debtor has defaulted in making payment to the outstanding debt due to the Financial Creditor - the Counsel has admitted the liability of the Corporate Debtor with regard to the debt claimed.
However, the Counsel for the Corporate Debtor did not place any authentic document on record to substantiate her objection. Therefore, the objections raised by the Counsel for the Corporate Debtor stand rejected.
This Authority has ascertained the existence of a default on the part of the Corporate Debtor. The Financial Creditor has fulfilled all the requirements of law and has also proposed the name of IRP after obtaining his written consentin Form-2. Therefore, is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.
Application admitted - moratorium declared.
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2018 (6) TMI 1763
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - shares of the Financial Creditor in M/s. Sun Networks Private Limited came to be pledged to India Bulls for the loans availed by the Corporate Debtor - existence of debt and dispute or not - HELD THAT:- It is an admitted fact that the shares of the Financial Creditor in M/s. Sun Networks Private Limited came to be pledged to India Bulls for the loans availed by the Corporate Debtor. As per the agreement between the Financial Creditor and the Corporate Debtor and the Corporate Guarantor, the amount realized by India Bulls and on the sale of shares came to be treated as loan by the Financial Creditor in the books of account of the Corporate Debtor - It is also an admitted fact that the Corporate Debtor failed to repay the loan amount as per the agreements entered into between the Financial Creditor and the Corporate Debtor. The Corporate Debtor in turn admitted that it has no financial wherewithal to pay off the liabilities. The Corporate Debtor has also accepted that Arbitral Award is in existence and also accepted its inability to pay its debts.
The Petition as the Applicant has made out a case and the petition is admitted and it is also satisfied that the Adjudicating Authority in admitting the Petitions. It is also proved that there is a debt due payable by the Corporate Debtor/Respondent 1 and both the Corporate Debtor (R-1) and Corporate Guarantor/Respondent 2 have defaulted in making the payments.
Petition admitted - moratorium declared.
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2018 (6) TMI 1762
TP Adjustment - change in the method of accounting - transfer pricing adjustment has to be made with respect to international transaction only and not on entire sales of RTS segment - assessee has assailed the directions of DRP in not accepting gain/loss arising from foreign exchange fluctuations as non-operating in nature - HELD THAT:- Reason for accepting change in the method of accounting is concerned, we are satisfied that the change has been made by assessee for the bona-fide reasons. The assessee has changed the method of accounting of foreign exchange fluctuations as non-operating item in line with the judicial pronouncements. The assessee after the change of method in assessment year 2009-10, has been regularly treating foreign exchange fluctuations as non operating item. Therefore, objection raised by the ld. DR against change of treatment given by assessee to foreign exchange fluctuations in the past as operating and now shifting its stand to treat the same as non operating item without any bona-fide reason, is not sustainable. We are of consider view that the assessee has changed method of treating foreign exchange fluctuation as non-operating item for bona-fide reasons. Hence, ground No. 1 raised in appeal by assessee is allowed.
Entire RTS segment for calculation of PLI - HELD THAT:- The assessee has prayed for restricting the adjustment on the basis of value of international transactions only. It has been brought to our notice that identical grounds were raised in the appeal for assessment year 2008-09. The Co-ordinate Bench of Tribunal in assessee’s own appeal [2016 (4) TMI 1125 - ITAT PUNE] remitted the issue back to the file of Assessing Officer for recomputation. The Tribunal in principle accepted that transfer pricing adjustment has to be made with respect to international transaction only and not on the entire sale of RTS segment. We remit the issue back to the file of Assessing Officer/TPO to decide the issue de-novo on similar lines. Accordingly, ground Nos. 2 & 3 raised in appeal by the assessee are allowed for statistical purpose.
Rejection of comparables by TPO by applying export turnover filter - AR contended before us that export turnover filter of 75% has been applied by the TPO for the first time in the assessment year under appeal - HELD THAT:- Neither the filter was applied in earlier assessment years nor it is applied in the subsequent assessment year. We observe that after applying export turnover filter of 75%, out of total ten comparables selected by assessee in TP study, nine comparables have been rejected by the TPO. TPO has not selected any other company as comparables while determining ALP. The TPO determined ALP by considering ADF Foods Ltd. as only comparable. The Assessing Officer in the first instance should not have applied a filter to select/reject comparables that was neither used in the past nor in the subsequent years. ‘Rule of consistency’ demands that uniform filters should be applied to bench mark the international transactions, if there is no material difference in the facts of different assessment years.
We remit this issue back to the file of Assessing Officer/TPO to consider M/s.Haldiram Bhujiawala Ltd. and M/s.Capital Foods Ltd. as comparables along with ADF Foods Ltd and thereafter, determine ALP of the international transactions entered into by assessee with its AEs. Accordingly, ground No. 4 raised in appeal by assessee is allowed for statistical purpose.
Incorrect computation of operating margin of ADF Foods Ltd.- As pointed that the correct operating margin of ADF Foods Ltd is 10.31%, whereas the TPO computed the same as 13.83% - HELD THAT:- This issue requires verification of the calculations. Accordingly, we remit this issue back to the file of Assessing Officer/TPO to correctly compute the operating margin of the said company before applying the same for determining ALP. Accordingly, ground No. 5 raised in appeal by assessee is allowed for statistical purpose.
Granting benefit of ±5% variation - HELD THAT:- AO/TPO is directed to allow benefit of ±5% tolerance to the assessee in accordance with law.
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2018 (6) TMI 1761
Denial of the benefit of deduction u/s 10A - Whether approval of the Director, STPI, was sufficient and conclusive evidence to be eligible to claim deduction u/s 10A ? - HELD THAT:- Since the facts forming the basis for the addition made for all these years are similar, in view of the decision of the Hon’ble Apex Court in the case of Radha Saomi Satsang [1991 (11) TMI 2 - SUPREME COURT] the Department has to take a consistent view, in the absence of any compelling reasons. On a reading of the record and the orders for all these years, we do not find any compelling reasons to depart from the view taken by the learned AO in the orders dated 29.3.2016 for the AYs 2003-04 to 2007-08.We, therefore, hold the issue in favour of the assessee and direct the learned AO to allow deduction u/s 10A .
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2018 (6) TMI 1760
Disallowance u/s.40(a) (i) in respect of non-deduction of TDS on software expenses - impossibility of performance - HELD THAT:- It is not impossible for the assessee to deduct the tax at source at the time of making the payment in the assessment year under consideration as law interpreted by the Hon'ble jurisdictional High Court in. [2009 (9) TMI 526 - KARNATAKA HIGH COURT] was holding the field at the relevant time and thereafter, subsequent decision was holding the field w.e.f. 15.10.2011. Further the assessee can always deduct the tax in the subsequent payment made by the assessee to the same party in terms of proviso to Section 40(a)(i) of the Act. Therefore it will not be fair on the part of the CIT(A) or the assessee to say that there was impossibility of performance.
The decision of coordinate bench and Judgment (supra) relied upon by the Ld. AR, are not applicable as none of these aspects were considered or brought to notice of the Tribunal.
We do not find that the case of the assessee falls within the four corners of the doctrine of impossibility of performance because-
a) The judgment of the Hon'ble Karnataka High Court in the case of Samsung Electronics Co. [2011 (10) TMI 195 - KARNATAKA HIGH COURT] and the return of income was filed by the assessee on 30.11.2011. It is not the case of the assessee that the payments without TDS were made before this judgment of the Hon'ble High Court of Karnataka.
b) Even if the payment was already made prior to 15.10.2011 then also, the tax could have been deducted in subsequent period against subsequent payments because, as per the Ld. DR the assessee had continued the business with the same party in the subsequent period also and the Ld. AR has not controverted this claim of the Ld. DR by establishing that no business was undertaken with the same party during the subsequent period.
c) As per Section 40(a)(ia), if the assessee fails to deduct the tax in the relevant year and pay to the credit of the central government the assessee can deduct the tax in the subsequent period and make the payment to the credit of the central government. If the assessee does so, deduction is allowable u/s. 40(a)(ia) in the year of payment.
d)Hence when TDS can be deducted in subsequent period and the assessee has not shown that the assessee was not dealing with the same party during the subsequent period, this claim of the assessee that there was impossibility of performance has no merit. The assessee can very well discharge its obligation by subsequently deducting the TDS in subsequent year and hence there is no impossibility of performance as claimed.
The law was in the statute book, when there was an obligation to deduct the tax by the assessee and law continues to be so by the decision rendered by the Hon'ble jurisdiction in the matter of Samsung Electronics. [2009 (9) TMI 526 - KARNATAKA HIGH COURT] and thereafter also law continues to be the same in Samsung Electronics Co. Ltd. [2011 (10) TMI 195 - KARNATAKA HIGH COURT] In view of the above, we find force, substance and merit in the contention of the Ld. DR and accordingly the order passed by the CIT(A) is reversed and that of the AO is restored.
Delayed payment of employees' contribution to ESI and PF u/s. 43B - HELD THAT:- Revenue in the present case has relied upon the decision in the matter of Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT]. However, the said judgment was considered by the jurisdictional High Court in the matter of Essae Teraoka P. Ltd. v. DCIT [2014 (3) TMI 386 - KARNATAKA HIGH COURT] and had expressed that it is difficult to endorse the view taken by the Hon'ble Gujarat High Court. The Tribunal falls within the territorial jurisdiction of the Hon'ble High Court of Karnataka and is bound and governed by the judgment and law decided by the Karnataka High Court. Therefore respectfully following the judgment of the jurisdictional High Court, the issue of disallowance of delayed deposit of employees' contribution to PF and ESI is decided in favour of the assessee and against the Revenue.
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2018 (6) TMI 1759
Depreciation on the asset “Right to collect Toll” - Intangible asset eligible for depreciation u/s.32(1)(ii) - HELD THAT:- In consideration of developing, constructing, maintaining the facility for a specified period and thereafter transferring it to the Government of Madhya Pradesh free of charge, assessee was granted a Right to collect Toll' from the motorists using the said infrastructure facility during the specified period. The said Right to collect the Toll' is emerging as a result of the costs incurred by the assessee on development, construction and maintenance of the infrastructure facility. Such a right has been adjudicated by the Tribunal in the aforesaid precedents to be in the nature of 'intangible asset' falling within the purview of section 32(1)(i/) of the Act and has been found eligible for claim of depreciation.
It is wrong to say that impugned right acquired by the assessee was without incurrence of any cost. In fact, it is quite evident that assessee got the right to collect toll for the specified period only after incurring expenditure through its own resources on development, construction and maintenance of the infrastructure facility. Secondly, section 32(1)(ii) permits allowance of depreciation on assets specified therein being 'intangible assets' which are wholly or partly owned by the assessee and used for the purposes of its business. The aforesaid condition is fully satisfied by the assessee and therefore considered in the aforesaid perspective we find no justification for the plea raised by the Revenue before us.
We hold that the assessee is entitled to claim the depreciation on intangible assets as provided under section 32(1)(ii) of the Act. The second part of the order of Assessing Officer in amortizing the expenditure over the period of facility and allowing the same stands reversed. The Assessing Officer is thus, directed to allow the claim of assessee vis-à-vis depreciation on intangible asset under section 32(1)(ii) of the Act.
Thus we hold that the assessee is entitled to depreciation @25% on the “Right to Collect Toll” being an intangible asset. - Appeal of the Revenue is dismissed.
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2018 (6) TMI 1758
Seeking appropriate orders on or before 5th June, 2018 and the order would be sent by e-mail to the petitioner and his counsel - HELD THAT:- In view of the statement made by the counsel for the parities, the writ petition is disposed of without any comments and observations on merits.
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2018 (6) TMI 1757
Seeking directions of this Tribunal for dispensation of meetings of shareholders and creditors of Auxinite Marketing Limited (Transferor Company) with Bajaj Polyblends Private Limited - HELD THAT:- The meetings of the Equity Shareholders of the Applicant Companies are hereby dispensed with, as Learned Counsel for the Applicant Companies submit that All the Shareholders of Applicant Companies has given affidavit duly notarised signifying their consent to the proposed Scheme and has also consented to waiver/dispensation of holding of meeting for considering said Scheme. which are annexed to this Company Petition.
Application disposed off.
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2018 (6) TMI 1756
Rectification of mistake u/s 254 - determination on the exclusion of M/s. Motilal Oswal Private Equity Advisors Pvt. Ltd. is absent - HELD THAT:- We find that the omission to determine the dispute regarding exclusion of M/s. Motilal Oswal Private Equity Advisors Pvt. Ltd. from the final list of comparables is an inadvertent mistake, which has crept into the order of the Tribunal. Therefore, to the said extent the order of Tribunal is recalled qua the Ground of appeal no. 10 relating to exclusion of M/s. Motilal Oswal Private Equity Advisors Pvt. Ltd. from the final list of comparables.
Inclusion of M/s. ICRA Online Ltd. and M/s. IDC India Ltd. - After considering the rival stands, we find that assessee has raised a ground relating to the inclusion of M/s. ICRA Online Ltd. and M/s. IDC India Ltd., which have been left out for determination, and the same constitutes a mistake within the meaning of Sec. 254(2) of the Act. Therefore, our order is recalled qua the Ground of appeal no. 2 to the limited extent of considering assessee’s plea for inclusion of M/s. ICRA Online Ltd. and M/s. IDC India Ltd. in the final set of comparables.
Accordingly, both the parties were informed that the appeal shall be listed before a regular bench for hearing the parties on the aforesaid two aspects and appropriate determination thereof. The date of hearing was announced in the open court as 19.09.2018. Since the date of hearing has been announced in the open court, the requirement of issuance of formal notice of hearing is hereby dispensed with.
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2018 (6) TMI 1755
Unexplained credit u/s 68 - HELD THAT:- We find that the share application money has been received by the assessee through the banking channels and therefore, the identity of the parties is established. As far as the genuineness and the creditworthiness are concerned, the AO had issued notice to all the three parties. The assessee has also filed confirmation letters from two of the parties and we find that the PAN of the said companies is also given in the said letters.
AO has recorded that there is no response from Basukinath Developers (P) Ltd, inspite of service of notice, and the notices to other parties has been returned unserved. There is no evidence on record that this fact has been confronted to the assessee and that the assessee was asked to produce the parties and prove the creditworthiness of the said parties. In such circumstances, when the assessee is not confronted with the return of notices, it is not understandable as to how the assessee is expected to discharge its onus. However, the assessee also has not submitted any evidence with regard to Uplink Vyapar Pvt. Ltd and the copy of the confirmation letter filed in paper book, cannot be considered, as it was not filed before the authorities below earlier.
We confirm the addition allegedly received from Uplink Vyapar Pvt. Ltd, Kolkata. As far as the other two parties are concerned, we deem it fit and proper to remand the issue to the file of the AO for reconsideration in accordance with law after giving the assessee due opportunity of producing the parties to prove their creditworthiness.- Assessee’s appeal is partly allowed for statistical purposes.
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2018 (6) TMI 1754
Admission of additional ground of appeal - CIT- A not granting sufficient opportunity and in rejecting the additional evidence filed before Hon'ble CIT(A) - HELD THAT:- In interest of justice we are inclined to admit that the additional ground of appeal in the light of decision of Hon'ble Supreme Court in the case of National Thermal Company Ltd. vs. CIT [1996 (12) TMI 7 - SUPREME COURT] wherein it was held that additional ground of appeal can be admitted where the issue involved is pure question of law not involving any investigation of facts.
We are of the view that these additional evidences are necessary for proper appreciation of the issue under appeal and would cause of substantial justice. Such evidence may ultimately turn out to the benefit of either taxpayer or the Revenue. We admit the additional ground of appeal and additional evidence filed by the assessee and restored issue back to the file of AO to decide afresh. AO, is therefore, directed to decide the issue after examining additional evidence and any other evidence as may be filed by the assessee before him in support of his claim. AO may decide the issue after making such enquiries as necessary as deem fit and required further evidence as required in the interest of justice. Accordingly, entire assessment is set-aside to the file of the AO for denovo consideration after affording proper opportunity of being heard.
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2018 (6) TMI 1753
Gain on sale of plot - LTCG or STCG - date of acquisition of asset - period of holding of asset - ownership rights in an asset like leasehold rights - HELD THAT:- In the present case by obtaining the orders of the Noida Authority of transfer memorandum on 17.09.2002, the assessee got a right to get the lease hold right for 90 years from that date. It conferred the right upon the assessee to hold that particular property from that date. Such is also the view taken in case of Madhu Kaul Vs. CIT [2014 (2) TMI 1117 - PUNJAB & HARYANA HIGH COURT].
Therefore, the view taken by the ld AO that the assessee held property only from 05.06.2006 is devoid of any merit. In fact assessee got the right over the property on 17.09.2002. Therefore, the property was held by the assessee for more than 36 months and its transfer resulted into long term capital gain to the assessee. Therefore respectfully following the above decisions, we hold that the assets sold by the assessee is a “long term assets‟.
Deduction as cost of improvement paid by the assessee for leveling of the land etc. - CIT(A) has made a detailed finding vide para No. 5.6 which shows that the assessee has failed to prove incurring of such cost by documentary evidence. The assessee has just supported it by evaluation report merely on information. Therefore, in absence of any information of incurring any cost of improvement deduction cannot be allowed to the assessee. No merit in the argument of the assessee that cost of improvement of ₹ 925000/- should be allowed to the assessee as deduction from the sale consideration.
Applicability of section 50C - In the present case as the consideration has been passed on the same date on which the agreement of sale has been entered into, therefore, stamp duty rate as on the date of agreement shall be applied. We draw support from the order of DHARAMSHIBHAI SONANI [2016 (9) TMI 1259 - ITAT AHMEDABAD] wherein, it has been held that the proviso to section 50C inserted by Finance Act 2016 w.e.f 01.04.2017 applies retrospectively. Therefore, we direct ld AO to take stamp value of the property as on the date of the agreement.
In view of this ground NO. 1 and 2 of the appeal of the assessee are partly allowed by holding that assets sold by the assessee is a “long term capital asset‟ and the circle rate if any for the purpose of computing the capital gain in accordance with section 50C, shall be taken as on the date of the agreement entered into by the assessee. However, the claim of the assessee for deduction of cost of improvement is rejected in absence of any evidence of incurring of those expenses. Accordingly, ground No. 1 and 2 of the appeal are partly allowed. Ground No. 3 is consequential in nature and hence, dismissed.
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2018 (6) TMI 1752
TP Adjustment - adjustment made in engineering design services provided by the assessee to its associated enterprises - selection of MAM - assessee had selected TNMM method as most appropriate method by taking itself as the tested part as rejected by TPO - HELD THAT:- As already taken a view in the case of DCIT Vs. Man Trucks India Pvt. Ltd[2018 (4) TMI 501 - ITAT PUNE] and [2018 (4) TMI 501 - ITAT PUNE] relating to assessment year 2009-10, order dated 03.04.2018, where the costs are identical for providing services, then even if the costs borne for associated enterprises and non-associated enterprises or the domestic parties are same, the same can be ignored in order to benchmark arm's length price of international transactions undertaken by the assessee.
Accordingly, we find merit in the plea of assessee that hourly rates charged by it in providing specialized services to its associated enterprises can be the basis for verifying its stand as to whether the services provided by the assessee to its associated enterprises were at arm's length. However, the stand of Assessing Officer / TPO in rejecting the said plea of assessee was the tainted transactions vis-à-vis costs incurred by the assessee both for associated enterprises and non-associated enterprises.
In the totality of the above said facts and circumstances, where the stand of assessee has not been looked into by the TPO and has been brushed aside, we in the interest of justice, direct the Assessing Officer/TPO to determine arm's length price of international transactions undertaken by the assessee by applying most appropriate method i.e. internal TNMM method of man hourly rates. The assessee has also asked for various other adjustments for carving out differences which may also be looked into by the TPO, who shall decide the issue after affording reasonable opportunity of hearing to the assessee and determine arm's length price of international transactions.
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2018 (6) TMI 1751
Determining the tax liability in terms of Sec. 115JB - MAT computation - disallowance of reduction on account of the provision made for premium on redemption of preference shares while computing the book profits u/s 115JB - As per the CIT(A), the redeemable Preference shares in question were not in the nature of ‘debt’ and, therefore, any liability thereof could not be considered to be an ‘ascertained liability’ - HELD THAT:- There is a complete explanation which reflects the nature and character of the Provision and it clearly underlines the obligation or the liability to pay over and above the face value of the Preference shares at the time of redemption. Therefore, in our view, no fault can be found with the conclusion that the impugned Provision was indeed an ‘ascertained liability’ of the nature referred to in clause (c) of Explanation-1 to Sec. 115JB of the Act. We may also add here that there is nothing to distract from applying the ratio of the judgment of the Hon'ble Bombay High Court in the case of Raymond Ltd. [2012 (4) TMI 127 - BOMBAY HIGH COURT]to conclude that the impugned amount is to be understood as a known liability and not as a Reserve
In our considered opinion, it is a well-settled proposition of law that in order to address a legal point, what is of relevance is the applicable legal position as emerging from the statutory provisions and the attendant jurisprudence and not merely the stand taken by the parties at a particular point of time. Thus, we are not going into the efficacy of the contradiction that is sought to be pointed out by the ld. CIT-DR as, in our view, the same is not germane to decide the controversy before us.
Another aspect which has been emphasised by the ld. CIT-DR is that the adjustment sought to be made by the assessee is not in terms of the prescription in Explanation-1 to Sec. 115JB of the Act. We have already examined the said plea and in the context of our aforesaid discussion, find that the claim of assessee of the impugned Provision being in the nature of an ascertained liability is justified on facts as well as on point of law. In any case, this aspect of the matter has also been examined in detail by our coordinate Bench in the earlier year with which we concur. Thus, we conclude by holding that the impugned Provision is in the nature of an ascertained liability and in terms of clause (c) of Explanation-1 to Sec. 115JB of the Act, ‘book profit’ for the purpose of Sec. 115JB of the Act has to be determined net-off of such Provision.
Especially where it has been rendered in assessee’s own case and under identical set of facts. At this stage, we may hasten to add that we are in complete concurrence with the observations of our co-ordinate Bench in the case of Shri Homi K. Bhabha [2011 (9) TMI 104 - ITAT MUMBAI] that to follow an earlier precedent of the co-ordinate Bench or to make a reference to a larger Bench is dependent on the satisfaction of the Bench about the correctness or otherwise of the precedent and not the view of the aggrieved party. As we have indicated earlier, even after examining the pleas set-up by the ld. CIT-DR, we find ourselves unable to disagree with the precedent rendered in assessee’s own case. We find no justifiable reasons for recommending constitution of a Special Bench. Needless to say at this juncture, the aggrieved party is not left without remedy inasmuch as the statute provides for appeal to the Hon'ble High Court against the order. Therefore, the said view of the Department is also negated.
Assessment u/s 153A - CIT(A) deleting the additions made in the assessment order passed u/s.153A r.w.s. 143(3) of the Act on issues not based on any incriminating material found during the course of search - HELD THAT:- Pertinently, on the date of search, i.e. 23.05.2013, the assessment for Assessment Year 2008-09 was not pending and, therefore, in view of the second proviso to Sec. 153A(1) of the Act, such assessment did not abate. Clearly, in such a situation, the additions that are permissible in an assessment u/s 153A of the Act are only those which are based on incriminating material found in the course of search relating to such additions. Assessing Officer is denuded from making additions on matters which have attained finality in the original assessment without there being any incriminating material found in the course of search. The aforesaid proposition is fully supported by the judgment of the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava Sheva Ltd) [2015 (5) TMI 656 - BOMBAY HIGH COURT]
The fact-situation brought out by the CIT(A) is clearly borne out of record inasmuch as a perusal of the assessment order itself reveals that qua the aforesaid additions, there is no reference to any incriminating material found in the course of search. Therefore, we find no reasons to interfere with the factual findings arrived at by the CIT(A) and, in that background, no fault can be found with the CIT(A) for having applied the ratio of the judgment of the Hon'ble Bombay High Court in the case of Continental Warehousing Corporation (Nhava Sheva Ltd) (supra) in order to delete the aforesaid additions. Thus, on facts as well as on point of law, we find no reasons to interfere with the decision of the CIT(A), which we hereby affirm.
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2018 (6) TMI 1750
Seeking direction to reverse amounts that have been debited by ICICI bank after 15.12.2017 from the current account of the Corporate Debtor - seeking to transfer the same to current account of the Corporate Debtor maintained with ICICI - HELD THAT:- If characteristics of ownership is read into the given situation, since right of disposal is the basic characteristic of ownership, as long as monies are at the disposal of a person, such person has to be treated as a person having right of disposal over the given monies - If the same analogy is applied here saying that the corporate debtor is treated as debtor, the creditor will have right of recovery, not right of disposal over the monies lying in its current account. The right of the creditor being a remedy for realization and that remedy being suspended in the period of moratorium, such right of remedy could not be exercised soon after declaration of moratorium. Once the monies lying in current account is construed as the asset of the Corporate Debtor, section 14 will trigger in over the said asset as well.
For it has been admitted that the respondent/the creditor appropriated the monies lying in the account of Corporate Debtor against the loan account soon after moratorium has been declared, such transaction has to be held as hit by sec 14 of the Code, for this reason, this Bench hereby holds that the appropriation of the monies of the Corporate Debtor against the loan account of the Corporate Debtor by the creditor herein is bad in law, hence it is hereby declared invalid directing the Respondent/IClCl Bank to deposit the same in the account of the Corporate Debtor.
Application allowed.
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