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Showing 41 to 60 of 1677 Records
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2019 (12) TMI 1640 - MADRAS HIGH COURT
Refusal to register a settlement deed - refusal on the ground that the subject property had been agreed to be sold in favour of the second respondent by an agreement of sale - HELD THAT:- The unenforceability of the agreement cannot be decided by the first respondent. Given the present circumstances, the only remedy for the petitioner is to seek for a declaratory relief by filing a suit before the competent Civil Court stating that the registered agreement of sale is a nullity and is unenforceable and that therefore, it should be set aside.
There cannot be any difficulty to present a plaint to declare the agreement of sale as unenforceable because the cause of action for doing so has arisen only now when the petitioner executed a gift deed in favour of her granddaughter.
The writ petition is disposed of by granting liberty to the petitioner to approach the competent Civil Court to declare the agreement of sale as null and void and unenforceable. If such a plaint is presented, the competent Civil Court is directed to entertain the suit and take a decision on merits and in accordance with law.
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2019 (12) TMI 1639 - ITAT KOLKATA
Revision u/s 263 - opportunity of being heard should be given to the assessee - HELD THAT:- As per the provision of sub-section (1) of section 263, an opportunity of being heard should be given to the assessee which in the assessee’s case is absent.
We note that legal maxims, “Audi alteram partem” literally means “hear the other party”. This maxim is based on the principle of natural justice. It means that a person deciding on issue should hear both sides and give each an opportunity of hearing what is being alleged against him. A decision taken without affording both the parties an opportunity to be heard violates the principles of natural justice. An award made in violation of the above said rule may be set aside. On laying of charges, an opportunity to answer it must be given to an individual alleged to have committed an offence. Sufficient notice also should be given to the person against whom the charge is laid. This rule has a universal acceptance and is founded upon the plainest principles of justice.
Therefore keeping in mind the principle of natural justice, we are of the view that one more opportunity should be given to the assessee to plead his case before the ld PCIT. Hence, we think it fit and appropriate to remit this issue back to the file of ld. PCIT for de novo adjudication after giving sufficient opportunity of being heard to the assessee. Appeal of the assessee is allowed for statistical purposes.
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2019 (12) TMI 1638 - BOMBAY HIGH COURT
Seeking grant of leave of absence - seeking to confirm the minutes of the previous Board Meeting - seeking to take on record of the notices given by PP Bafna Ventures Private Limited and replies given there for - seeking to Review the operations and status of the Company - seeking to consider and Appointment of Additional Directors to strengthen the Board - seeking to appoint signatories to operate Bank Accounts - seeking to take such steps to immediately start the operations of the Company and to save the Company - seeking to consider and appoint Auditors - seeking to consider and approve the Draft Directors Report - seeking to approve the draft Notice to convene the Annual General Meeting.
HELD THAT:- All contentions are expressly left open - It is clarified that nothing in this order will operate to prevent the 1st Respondent from paying all statutory dues, workmen’s dues and other liabilities including for utilities such as power, water, municipal and land taxes and the like.
Petition disposed off.
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2019 (12) TMI 1637 - ITAT BANGALORE
TDS u/s 195 - payment to non residents - exception to Section 9(1)(vi)(b) and 9(1)(vii)(b) - assessee has made payments to non-residents after grossing up the invoice amount and deducted tax at source as per provisions of Section 195A - Assessee submitted that the CIT (Appeals) has erred in treating the payment to non-resident as royalty and further CIT (Appeals) has not considered the exception to Section 9(1)(vi)(b) and 9(1)(vii)(b) - as payments are made to non-residents and the assessee seeks declaration under Section 248 of the Act under the provisions of Section 206AA of the Act, the rate of 25% is not applicable to assessee for the purpose of grossing up u/s 195A - HELD THAT:- We found strength in the submissions of the learned Authorised Representative. On perusal of the order of CIT (Appeals), we find the CIT (Appeals) has dealt on the other grounds of appeal raised before him but there was no specific observation in particular to provisions and Section as envisaged by the learned Authorised Representative.
We are of the substantive opinion that there is no finding on this disputed issue as submitted by the learned Authorised Representative by appellate authority. Therefore we considering the submissions of the learned Authorised Representative and findings of the CIT (Appeals) order, consider it appropriate to restore all the disputed issues raised by the assessee in the grounds of appeal to the file of CIT (Appeals) and decided against the assessee, to adjudicate afresh and the assessee should be provided adequate opportunity of hearing to substantiate the case with evidence and shall co-operate in submitting the information for early disposal of appeal and allow the grounds of appeal of assessee for statistical purposes.
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2019 (12) TMI 1636 - ITAT MUMBAI
Estimation of income - Bogus purchases - income tax officer in this case has made 12.5% addition on account of bogus purchase - HELD THAT:- It is settled law that when sales are not doubted, hundred percent disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported from honourable jurisdictional High Court decision in the case of Nikunj Eximp Enterprises [2014 (7) TMI 559 - BOMBAY HIGH COURT] In this case the honourable High Court has upheld hundred percent allowance for the purchases said to be bogus when sales are not doubted.
However in that case all the supplies were to government agency. In the present case the facts of the case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer.
As regards the quantification of the profit element embedded in making of such bogus/unsubstantiated purchases by the assessee, we find that as held by honourable High Court of Bombay in its recent judgement in the case of M. Haji Adam & Co [2019 (2) TMI 1632 - BOMBAY HIGH COURT] the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases.
We set aside the matter to the file of the assessing officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases. Assessee's appeal is partly allowed.
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2019 (12) TMI 1635 - ITAT DELHI
TP Adjustment - Arm’s Length Price (ALP) of the transaction of the interest on loan - DRP directed the TPO to apply LIBOR plus 500 basis points given by the taxpayer’s company to its AE - HELD THAT:- We are of the considered view that transfer pricing adjustment qua the transaction of advancing loan by the taxpayer to its AE is to be determined at US LIBOR plus 170 basis points. Consequently, the TPO is directed to recompute the interest at US LIBOR plus 170 basis points to benchmark the international transactions qua interest on loan by the taxpayer to its AE. Consequently, the appeal filed by the taxpayer is allowed.
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2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.
Winding up petition under Section 271-272 of Companies Act, 2013 - reasonable opportunity of making representation - Whether the Central Government has accorded the sanction as per law? - HELD THAT:- Undisputedly the Central Government ordered investigation into the affairs of M/s NKS Holdings Pvt Ltd to SFIO and the report was submitted on 31.03.2016 to the Ministry of Corporate Affairs. It is nowhere on record that during the investigation Respondent No.1 company was noticed. Therefore, the argument advanced by the Learned Sr. Counsel of Respondent No.1 that Respondent No.1 received notice on 07.07.2017 then only they came to know that in the report involvement of Respondent No.1 was found. The SFIO’s report runs in more than 7000 pages incriminating 49 companies including Respondent NO.1. The Respondent No.1 company in reply to notice dated 07.07.2017 requested for supplying the copy of such report but copy has not been supplied to Respondent No.1. That even without considering this reply which was received on 01.08.2017 by the Respondent No.2 on 29.08.2017 sanction was accorded against the Respondent No.1.
This sanction order does not contain what are the allegations against the Respondent No.1 company and to substantiate the allegations what documents were placed before him. It is also not mentioned that before according sanction the company has been given reasonable opportunity of making representations. It is also not mentioned that the sanctioning authority prima facie satisfied with the allegations against the Respondent No.1 company.
It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been granted that too without applying the mind thus we find no ground to interfere in the order passed by the NCLT - Appeal dismissed.
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2019 (12) TMI 1633 - ITAT KOLKATA
Unexplained cash credits u/s 68 - undisclosed loan taken - creditworthiness of share applicants not proved - HELD THAT:- As come on record that the learned coordinate bench has already applied its mind in assessee’s appeal [2019 (9) TMI 146 - ITAT KOLKATA] whilst deleting the impugned addition in case of the very parties by holding that it had proved identity, creditworthiness and genuineness of all four related parties (supra). We therefore adopt the above detailed reasoning mutatis mutandis and affirm the CIT(A)’s findings under challenge deleting the balance addition in issue. Revenue’s appeal is dismissed.
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2019 (12) TMI 1632 - SUPREME COURT
Possession of assets disproportionate to the known sources of income - preliminary inquiry before the registration of the crime done or not - delay in the completion of the investigation prejudicing the rights of the Accused Officer - HELD THAT:- In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the Accused Officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed.
The preliminary inquiry warranted in LALITA KUMARI VERSUS GOVT. OF UP. & ORS. [2013 (11) TMI 1520 - SUPREME COURT] is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.
There are no merit in the reasonings recorded by the High Court in respect of contentions raised by the Accused Officer. The arguments raised by the Accused Officer cannot be accepted in quashing the proceedings under the Act - appeal allowed.
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2019 (12) TMI 1631 - ITAT AHMEDABAD
Depreciation on goodwill arising on demerger - whether additional ground could be raised in a cross objection filed by the assessee u/s 253(4)? - HELD THAT:- The issue is squarely covered by the judgment passed by the Co-ordinate Bench [2019 (7) TMI 1547 - ITAT AHMEDABAD] AO has simply disputed the quantification of eligible depreciation spanning over various financial years on the ground that depreciation is eligible from the appointed date as sanctioned by the Hon’ble Gujarat High Court . Thus, on account of such reworking, the assessee has presented a new claim towards depreciation on goodwill in the impugned AY 2009-10 on the ground that al l the relevant facts are available on record which are duly admitted by the Revenue. Therefore, the assessee cannot be deprived of the eligible depreciation as computed by the AO himself concerning AY 2009-10.
Additional ground could be raised in a cross objection filed by the assessee u/s 253(4) - We find ourselves in agreement with the propositions made on behalf of the assessee that in a cross objection, there is no bar to raise legal issues for the first time before ITAT. A cross object ion is like an appeal. It has al l the trappings of an appeal It is filed in the form of memorandum and it is required to be disposed in same manner as an appeal. Even where the appeal is withdrawn or dismissed for default, cross object ion may nevertheless be heard and determined. Cross object ion is nothing but an appeal, a cross appeal at that. This apart, raising of additional ground would only enable the authority concern to correctly assess the tax liability of the assessee. Simi lar view has been expressed in the case of ITO vs. Jasjit Singh [2014 (9) TMI 1166 - ITAT DELHI]. We thus do not see any impediment in entertaining the additional grounds. The relevant facts are available on
Additional ground is concerned, we observe that where the AO has readjusted the quantum of depreciation in the subsequent assessment year, the assessee is within its legitimate rights to be granted depreciation in AY 2009-10 as per the figures worked by the AO himself . We do not see any perceptible reason for not admitting such claim of the assessee. We also find bonafides in the plea of the assessee for raising new claim on account of depreciation by way of additional ground at this belated stage.
The order for the AY 2012-13 was passed on 29.03.2015. By virtue of this order, the assessee came to know about the revision in the claim of depreciat ion concerning AY 2012- 13. By that time, the order of the CIT(A) dated 13.12.2013 was already passed. Therefore, the assessee was incapacitated to put forward such new claim towards depreciation on goodwill amounting for which relevant facts are duly available on record in the light of the decision of Hon’ble Supreme court in the case of Goetze ( India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] & NTPC [1996 (12) TMI 7 - SUPREME COURT]
Disallowance under section 14A Rule 8D - HELD THAT:- Disallowance made u/s. 14A r.w.r 8D is pertained to disallowance of administrative expenditure incurred towards earning exempt income. CIT(A) has restricted the disallowance - After perusal of the material on record we observe that it is not possible to earn huge volume of exempt income without incurring administrative expenses, therefore, we do not find any unreasonableness and infirmity in the decision of Ld. CIT(A). Accordingly, the appeal of the assessee on this issue is dismissed
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2019 (12) TMI 1630 - PUNJAB AND HARYANA HIGH COURT
TP Adjustment - MAM selection - TNMM Method OR CUP Method - HELD THAT:- The conclusion of the ITAT could not be faulted as the same was inconsonance with the provisions of the Act and the Rules. The contention of the Counsel for the revenue cannot be accepted as the Tribunal while upholding the TNMM Method has observed that the other methods prescribed under the Act namely the CUP or Cost Plus Method being not applicable in the facts and circumstances of the case, the Respondent Assessee could only resort to TNMM as the most appropriate method to show that its profit margin from international transactions was at arm’s length.
Tribunal has concluded that the expenses paid to the employees of the A.E. were in the nature of reimbursement of their salaries without any mark up. Thus, the payment per se was to third party employees and not to any related party for services rendered. In light of the findings of the fact arrived at by the ITAT, the questions of law raised are answered against the revenue and in favour of the assessee.
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2019 (12) TMI 1629 - PUNJAB AND HARYANA HIGH COURT
Seeking provisional release of seized goods - terms and conditions of seeking bank guarantee, restraining of challenge to valuation etc are arbitrary or not - it is urged that the petitioner (s) have already deposited cash amounts of Rs.15,00,000/- each qua two different seizures, which have not been taken into account while ordering the amounts under proposed Bank Guarantees - HELD THAT:- The authorities are directed, through counsel, to re-examine the issue and pass supplementary/modified order of release. The authorities may also consider giving an opportunity to explain to the petitioner as well before passing any such order.
List for consideration on 15.01.2020.
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2019 (12) TMI 1628 - ITAT MUMBAI
TP Adjustment - Addition in respect of technical know-how fees - international transaction was benchmarked by using TNMM as the most appropriate method - HELD THAT:- We noted that the above issue has already been considered by Tribunal in assessee’s own case [2019 (11) TMI 705 - ITAT MUMBAI] and there is no distinguishable facts rather facts are exactly identical and the same agreement i.e. consultancy agreement dated 16.03.2008 was under consideration by virtue of which the assessee has made payment of technical know-how fee to its AE or group concerns Merck KGAA. In view of the above, we direct the AO to delete this addition. This issue of assessee’s appeal is allowed.
Disallowance of expenses relatable to exempt income u/s 14A read with Rule 8D(2)(ii) and under Rule 8D(2)(iii) - HELD THAT:- Assessee stated that the assessee has earned dividend income of ₹86,979/- and disallowance more than this cannot be made in view of the decision of the Hon’ble Delhi High Court in the case of Joint Investment Pvt. Ltd. [2015 (3) TMI 155 - DELHI HIGH COURT] wherein it is held that the window for disallowance was indicated in section 14A of the Act and was only to the extent of disallowing expenditure incurred by the assessee in relation to the exempt income. This proportion or portion of the exempt income surely cannot swallow the entire amount. In view of the above Delhi High Court decision, the learned Counsel for the assessee fairly conceded that the disallowance under Rule 8D(2) can be retained only to ₹ 86,979/- to the extent of dividend income.
As the issue is covered by Hon’ble Delhi High Court (supra), respectfully following the said decision, we direct the AO to restrict the disallowance of expenses qua the exempt income at ₹86,979/-. We direct the AO accordingly. This issue of assessee’s appeal is partly allowed.
Disallowing depreciation in respect of intangible assets purchased by the assessee - HELD THAT:- This issue is also covered by Tribunals decision in assessee’s own case, wherein the same set off of intangible assets purchased was under consideration and Tribunal [2017 (1) TMI 1692 - ITAT MUMBAI] opined that in the interest of justice matter should be restored back to the file of the FAA for fresh adjudication. He is directed to decide the issue afresh after affording a reasonable opportunity of hearing to the assessee.
AO disallowing the merger expenses and allowing only 20% of the total amount - HELD THAT:- We remit this issue to the file of the AO/ DRP for re-adjudication the same. This issue of assessee’s appeal allowed for statistical purposes.
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2019 (12) TMI 1627 - CESTAT CHENNAI
Valuation of imported goods - rejection of declared value - redetermination of value in terms of Section 14 of the Customs Act, 1962 read with Rule 4 of the Valuation Rules, 2007 - demand of differential duty alongwith interest and penalty - extended period of limitation - HELD THAT:- Revenue before us has not brought anything on record as evidence to support its contentions that there has been no valuation or that the value of the imported goods declared did not represent the true and correct price. On a perusal of the SCN also do not reveal any justification for invoking the larger period.
It is well settled that the valuation, if doubted by the revenue, like here, the valuation Rules prescribes guidelines that are to be followed whereby the officer could reject the declared value as not representing the transaction value and proceed to determine the value sequentially in accordance with Rule 4 to 9 of Valuation Rules 2007. Revenue cannot jump at its convenience and propose a demand alleging under valuation. Further, the SCN had only proposed rejection of declared value, but however, while adjudication, Ld. Commissioner has found that there was no suppression of the transactional value in the first place and has proceeded to accept the declared value. Thus, the under-valuation of the imported goods in the case on hand has not at all been established with the support data/evidences, in the first place.
Appeal of Revenue dismissed.
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2019 (12) TMI 1626 - ITAT AHMEDABAD
TP Adjustment - selection of MAM - assessee has benchmarked its transaction by applying TNMM method that has been changed by the TPO and he determined ALP by following CUP method - HELD THAT:- Since there is no disparity on facts, more particularly, when the ld.CIT(A) has not made any detailed analysis except putting reliance upon the order of his predecessor in the Asstt.Year 2007-08 and 2008-09, therefore, we are of the view that the issue is squarely covered in favour of the assessee by the order of the Tribunal passed in the Asstt.Year 2008-09[2019 (5) TMI 174 - ITAT AHMEDABAD]
Respectfully following the order of Co-ordinate Bench, we delete the impugned ALP adjustment - Since we have upheld the computation of ALP of international transaction of sale of finished goods according to TNMM method, consequently, ground no.1 and 2 of the Revenue’s appeal would be redundant.
ALP adjustment - payment made for availing of sales promotion and marketing services - TPO worked out ALV of this expenditure at NIL. He has assigned three reasons for taking ALP of this transaction as NIL - HELD THAT:- We find that the assessee has produced evidence in the shape of agreement between it and the AE showing that AE would charge commission at the rate of 5% on non-AE export sales for rendering these services. The assessee has not debited other expenditure for marketing and sales with regard sales made to non-AE. It is also pertinent to note that turnover of the assessee has increased with regard to non-AE sales also. Its export sales to non-AE have increased from ₹ 9 crores approx. in F.Y.2005- 06 to ₹ 44.56 crores in the F.Y.2008-09.
We are of the view that no adjustment could have been made at the recommendation of the TPO on this issue because it was not in the jurisdiction of the TPO to question requirement of services, and also ascertain rendition of services, and on these two reasoning, he cannot benchmark the ALP of these services at NIL. It is also pertinent to observe that in A.Y.2010-11, assessee has paid ₹ 160,16,780/- to its AE for these services and that transaction was referred to the TPO. The ld.TPO did not recommend any adjustment in A.Y.2010-11. Therefore, no adjustment is required in the Asstt.Year 2009-10. We allow this ground also, and delete adjustment recommended at ₹ 2,24,01,998/-. Accordingly, ground no.2 of the assessee’s appeal in the Asstt.Year 2009-10 is allowed.
Disallowance of depreciation - HELD THAT:- As expenditure was allowed to be capitalized in the cost of plant & machinery and depreciation was granted. In view of the above Tribunal’s order in the Asstt.Years 2007-08 and 2008-09, we are of the view that no interference is called for in the finding of the ld.CIT(A). This ground of appeal is rejected. Appeal of the Revenue is rejected.
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2019 (12) TMI 1625 - ITAT SURAT
Revision u/s 263 - As per CIT AO failed to examine the liabilities and accounting of TCS method - whether the AO has made enquiries about issue under consideration? - HELD THAT:- Merely just because the view taken by the AO was not found acceptable does not mean that the AO has failed to make requisite enquiries. If the answer is affirmative then second question arises whether the acceptance of the claim by the AO was a plausible view or on the facts of the finding on the facts that the said finding of the AO can be termed as sustainable in law. We find that vide questionnaire, the assessee regarding current liabilities and details of TCS were asked for. The assessee had furnished his reply, which is placed found placed in Paper Book Pages as referred above. The assessee has explained that the TCS is being accounted separately and no deduction of the same has been claimed in the Profit & Loss Account.
Therefore, it the method of accounting, which does not mean that income has escaped assessment or order being erroneous, because if TCS are considered as part of sale then corresponding debit of TCS was to be claimed in the Profit & Loss Account. There is no revenue loss. In view of these facts and circumstances, we find that the AO has made due enquiries and had taken a plausible view, hence, same, cannot be disturbed by Pr.CIT in the name of verification. Since the AO has made during enquiry and examined the issues, hence, invocation of Expln 2 of section 263 is not justified as same is applicable where the AO had not made enquiry and applied his mind which should have been done in the opinion of Pr.CIT. However, the Pr. CIT has not done any enquiry and not suggested what enquiries were to be carried out, therefore, Explanation 2 of section 263 is not applicable. Appeal of the assessee stands allowed.
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2019 (12) TMI 1624 - SUPREME COURT
Rejection of prayer of the Appellant for dispensation with his personal appearance/attendance in a case that pertains to the charge-sheet - offences punishable Under Sections 120-B read with Sections 420, 409 Indian Penal Code and Sections 9, 12, 13(2) read with 13(1)(c) and Section 12 of the Prevention of Corruption Act - HELD THAT:- At the outset, it is required to be noted that the Appellant is required to appear before the learned Trial Court on every Friday and the Appellant as such is appearing before the learned Trial Court on each and every Friday since 2013. Nothing is on record that at any point of time the Appellant has tried to delay the trial. The Appellant is represented through his counsel. The Appellant is a permanent resident of Delhi. He is the Director on the Boards of several companies. The distance between Delhi and Hyderabad is approximately 1500 kms. Therefore, the Appellant sought for exemption from personal appearance before the learned Trial Court on each and every Friday and submitted the application Under Section 205 Code of Criminal Procedure and submitted that on all dates of adjournments, his counsel Sri Bharadwaj Reddy shall appear and no adjournment shall be asked for on his behalf.
In the case of Bhaskar Industries Ltd. [2001 (8) TMI 1407 - SUPREME COURT] this Court has observed that if a Court is satisfied that in the interest of justice the personal attendance of an Accused before it need not be insisted on, then the court has the power to dispense with the attendance of the Accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an Accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an Accused in the matter of facing the prosecution proceedings. It is observed and held by this Court in the aforesaid decision that the normal Rule is that the evidence shall be taken in the presence of the Accused. However, even in the absence of the Accused, such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court.
The impugned judgment and order passed by the High Court as well as that of the learned Trial Court rejecting the application submitted by the Appellant Under Section 205 Code of Criminal Procedure are hereby quashed and set aside - Appeal allowed.
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2019 (12) TMI 1623 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
CIRP - Seeking direction to RP to accept its claim - The Adjudicating Authority noticed that earlier claims of the Appellant were dealt with by the ‘Resolution Professional’ and were rejected. - HELD THAT:- we are not inclined to decide any matter relating to claim of one or the other claimant entitled to premises as a Home buyer as no proof was laid before the Adjudicating Authority reflecting that against such claims monies were paid to the ‘Corporate Debtor’. As regards the plea that if one or the other individual including the Appellant has made full payment, the learned Counsel may bring it to the notice of the ‘Resolution Professional’ or the ‘Successful Resolution Applicant’. We are not inclined to express any opinion with regard to the same.
Appeal dismissed.
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2019 (12) TMI 1622 - SUPREME COURT
Sexual Offence - framing of charges - examination of witnesses - execution of death sentences - Section 313 of Cr.P.C. - HELD THAT:- In the present case, the Amicus Curiae, was appointed on 19.02.2013, and on the same date, the counsel was called upon to defend the accused at the stage of framing of charges. One can say with certainty that the Amicus Curiae did not have sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed - the concerned provisions viz. Sections 227 and 228 of the Code contemplate framing of charge upon consideration of the record of the case and the documents submitted therewith, and after ‘hearing the submissions of the accused and the prosecution in that behalf’. If the hearing for the purposes of these provisions is to be meaningful, and not just a routine affair, the right under the said provisions stood denied to the appellant.
The Trial Court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the Trial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.
Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.
We have no hesitation in setting aside the judgments of conviction and orders of sentence passed by the Trial Court and the High Court against the appellant and directing de novo consideration. It shall be open to the learned counsel representing the appellant in the Trial Court to make any submissions touching upon the issues (i) whether the charges framed by the Trial Court are required to be amended or not; (ii) whether any of the prosecution witnesses need to be recalled for further cross-examination; and (iii) whether any expert evidence is required to be led in response to the FSL report and DNA report. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law.
Appeal disposed off.
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2019 (12) TMI 1621 - ITAT DELHI
Validity of order passed u/s 143(3) pursuance to the direction passed by DRP u/s 144C(5) - TP Adjustment on AMP expenditure - DRP power to confirm, reduce or enhance the variations proposed in the draft order - arm’s length value of international transactions on account of AMP expenditure by the taxpayer by applying BLT - HELD THAT:- DRP is not empowered to set aside any proposed variation or issue any direction under sub-section (5) for further enquiry for passing of the assessment order. So, in the instant case, the ld. DRP has indirectly remanded the case back to the AO by observing that these (AMP) expenses are to be disallowed u/s 37(1) and directed the AO to allow the taxpayer an opportunity to file its submissions and thereafter to pass final assessment order, which certainly amounts to remand of the case as there was no such observations made by TPO or AO, as the case may be.
AO is not empowered to make fresh determination while passing final assessment order which was not proposed by him in his draft assessment order. So, on these grounds also, disallowance made by the AO u/s 37(1) is not sustainable.
Coordinate Bench of the Tribunal while deciding the identical issue in case of PGS Geophysical as (Successor of PGS Exploration (Norway) AS) v [2014 (10) TMI 143 - ITAT DELHI] held that, “DRP has no authority either to direct the AO/TPO to make further enquiry and to decide the matter and at the best, the DRP can call for the remand report from the Income-tax authority.” Also “in terms of section 144C (8), DRP does not have power to set aside any proposed variation or issue for further enquiry to the AO”.
So, we are of the considered view that disallowance made by the AO u/s 37(1) of the Act pursuant to the directions issued by the DRP is not sustainable in the eyes of law. So, question framed is answered in affirmative.
Allowability of AMP expenditure - Assessee has undisputedly incurred advertisement and sales promotion expenses periodically, and not at once just to refresh the product and quality to be sold in the memory of its customers. So, it cannot be held to be in the nature of enduring benefit for a trader - Advertisement and sales promotion expenses have been incurred by the assessee just to enhance its sales and profit and cannot be treated as capital in nature. Consequently, advertisement and sales promotion expenses debited by the assessee are ordered to be treated as revenue in nature and addition made/confirmed by the ld. AO/CIT (A) on this score is ordered to be deleted.
Thus we are of the considered view that AMP expenditure cannot be considered as capital expenditure by any stretch of imagination, hence the same are revenue in nature having been incurred for commercial expediency.
When undisputedly identical AMP expenses have been incurred by the taxpayer since 2009-10 and has been allowed by the Tribunal in AYs 2009-10 & 2010-11, converse stand taken by the taxpayer in AY 2011-12 is not sustainable being hit by rule of consistency as has been hel in Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] and Municipal Corporation of City of Thane vs. Vidyut Mettalics Ltd. [2007 (9) TMI 399 - SUPREME COURT]
In view of what has been discussed above, disallowance made by the AO/DRP on account of AMP expenses is not sustainable, hence ordered to be deleted. - Decided in favour of assessee.
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