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Showing 161 to 180 of 2100 Records
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2019 (2) TMI 1944 - ITAT LUCKNOW
No notice under section 143(12) - HELD THAT:- As evident from the above notice, it was served not on the assessee, but on one Abdul Wahid. The Department has not been able to show this notice to have been served on either the assessee, or on his agent. Therefore, the assessee is correct in contending that no notice under section 143(2) of the Act was served on him.
Thus as relying HARSINGAR GUTKHA P. LTD. [2008 (5) TMI 443 - ALLAHABAD HIGH COURT] on the entire proceedings in the present case, culminating in the impugned order, are held to be null and void and are quashed.
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2019 (2) TMI 1943 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The order (s) passed by Ld. Adjudicating Authority appointing ‘Interim Resolution Professional’, declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by the 1st Respondent under Section 9 of the I&B Code is dismissed.
The ‘Corporate Debtor’ is diirected to pay the total sum of ₹ 14.5 Lakhs towards fee and cost incurred by Mr. Sandeep Chandna, (Resolution Professional) within two weeks. So far as the ‘Financial Creditors’ who wanted to intervene and other ‘Operational Creditors’ who applied pursuant to the advertisement, this order will not come in their way to take recourse in accordance with law.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1942 - ITAT DELHI
PE in India - net global profits - Attribution of profits to the PE in India in respect of hardware components of the telecom equipments and the mobile handsets as business profits under article 7 of the Indo-China DTAA - Measurement of profit - HELD THAT:- As decided in own case [2016 (6) TMI 329 - ITAT DELHI] we find that the level of operations carried out by assessee through its PE in India are considerable enough to conclude that almost entire sales functions including marketing, banking and after sales were carried out by PE in India and, therefore, keeping in view th decision of Rolls Royce [2007 (10) TMI 321 - ITAT DELHI-C] and Nortel Networks India International Inc. [2014 (6) TMI 941 - ITAT DELHI] we are of the opinion that it would meet the ends of justice if 35% of net global profits as per published accounts out of transactions of assessee with India are attributed to PE in India in respect of both hardware and software supplied by assessee to Indian customers. At this juncture we may point out that while deciding the department's appeal in subsequent part of this order, we have upheld the findings of ld. CIT(A) to tax the income from sale of software as business income and not royalty. We may point out that in AY 2009-10 the AO estimated the operating profits at 7.5% as against the weighted average of net operating profit at 2.53% as per the global accounts.
Taxability of software as royalty - HELD THAT:- As decided in own case [2016 (6) TMI 329 - ITAT DELHI] Receipts on account of supply of software were integrally connected to the supply of hardware and, therefore, AO was not right in taxing such receipts as royalty. In view of the decision of Hon'ble Delhi High Court in the case of DIT v. Nokia India [2012 (9) TMI 409 - DELHI HIGH COURT] software supplies could not be taxed even under the amended law - as per the provisions of Article 12(5) of the DTAA the supply of software being integral to the supply of hardware and the finding of existence of a PE of assessee in India, Article 12(5) of the DTAA would cease to apply and the provision of Article 7 would be applicable and, therefore, the income from software is to be taxed as business income. - Decided in favour of assessee
Levy of interest u/s 234B - Held that:- We find that the facts are almost identical to the facts as obtaining in the case of GE Packaged Power Inc. [2015 (1) TMI 1168 - DELHI HIGH COURT] which is the latest decision of Hon'ble Jurisdictional High Court on this issue and, therefore, respectfully following it we hold that assessee was not liable to pay interest u/s 234B.- Decided in favour of assessee
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2019 (2) TMI 1941 - KERALA HIGH COURT
Dishonor of Cheque - Suit for realization of money - rebuttal of presumption - It is the definite case of the plaintiffs that Ext. A1 cheque was issued by the defendant to Ramachandran in discharge of a liability - HELD THAT:- It has come out in evidence that the proceedings under Section 138 of the N.I. Act was initiated against the defendant at the instance of the plaintiffs as C.C. No. 1500 of 1996 before the Judicial First Class Magistrate Court, Koyilandy. At the time of examining the defendant (accused in that case) under Section 313 of Cr.P.C., he has practically admitted that the statement given by the Bank Manager that signature seen on Ext. A1 is that of the defendant's own signature. This admission in a judicial proceedings by the defendant is a relevant piece of evidence. The defendant has not tried to explain away the admission in a manner known to law. Therefore, appreciation of evidence by the court below cannot be said to be proper in this case.
The court below had wrongly dismissed the suit - Appeal allowed.
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2019 (2) TMI 1940 - ITAT KOLKATA
Bogus LTCG - Addition u/s 68 - rejection of claim of exemption made u/s 10(38) - HELD THAT:- As assessee has filed all necessary evidences in support of the transactions. Some of these evidences are (a) evidence of purchase of shares, (b) evidence of payment for purchase of shares made by way of account payee cheque, copy of bank statements, (c) copy of balance sheet disclosing investments, (d) copy of demat statement reflecting purchase, (e) evidence of sale of shares through the stock exchange, (f) copy of demat statement showing the sale of shares, (g) copy of bank statement reflecting sale receipts, (h) copy of brokers ledger, (i) copy of Contract Notes etc.
The proposition of law laid down in various cited case laws by the Jurisdictional High Court as well as by the ITAT Kolkata on these issues are in favour of the assessee.
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2019 (2) TMI 1939 - PATNA HIGH COURT
Jurisdiction to hear the present case - Restraint from invoking/encashing the bank guarantee - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is evident that on the date, the District Judge, Patna transferred the case to the court of 5th Additional District Judge, Patna - There are no substance in the submission of learned counsel for the respondent that once the District Judge transferred the case to the court of learned 5th Additional District Judge, Patna who has concurrent jurisdiction with the District Judge, the order cannot be faulted on this ground alone. Since the statutory court was already notified by the State Government in exercise of power under Section 3 of the Commercial Courts Act and it was the District Judge posted in the Civil Court at Divisional Headquarter alone and no other District Judge or Additional District Judge. Hence, the court below had no jurisdiction to pass the impugned order. Therefore, impugned order is fit to be set aside on this ground alone.
Misconduct of proceedings - material irregularity - HELD THAT:- The impugned order would not reveal that what was the submission of the appellant before the court below. The appellant had raised the issue of locus of the respondent herein to bring the case. Appellant had raised the issue of jurisdiction of the court below to pass the order but nothing has been discussed in the impugned order - There is no dispute that every judicial order should contain objective reasons supported by material on the record and should also depict that there is no violation of natural justice. The impugned order suffers from aforesaid infirmity, hence, the same is not sustainable on this ground also.
Whether the respondent had no locus to bring the case for arbitration or to file application under Section 9 of the Arbitration and Conciliation Act, 1996? - HELD THAT:- Submission of the appellant is that M/s. SPML Infra Limited was the real party and the respondent herein was a proforma party as per the agreement for the reason that only a successful bidder could have been appointed as distribution franchisee and successful bidder was M/s. SPML Infra Limited and M/s. SPML Infra Limited had undertaken its liability under the agreement. Therefore, in absence of M/s. SPML Infra Limited, no order could have been passed or should have been passed by the court below.
The matter is remitted back to the Commercial Court, Patna to hear and pass necessary order according to law - Appeal allowed by way of remand.
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2019 (2) TMI 1938 - SUPREME COURT
Rejection of renewal of consent to operate - Section 27 of the Water Act and Section 21 of the Air Act - HELD THAT:- An appeal is a creature of statute and an appellate tribunal has to act strictly within the domain prescribed by statute. It is obvious that an appeal would lie from an order or decision of the appellate authority Under Section 28 of the Water Act to the NGT only Under Section 33B(a) of the Water Act read with Section 16(a) of the NGT Act. Similarly, an appeal would lie from an order or decision of the appellate authority Under Section 31 of the Air Act to the NGT only Under Section 31B of the Air Act read with Section 16(f) of the NGT Act. Obviously, since no order or decision had been made by the appellate authority under either the Water Act or the Air Act, any direct appeal against an original order to the NGT would be incompetent. NGT's jurisdiction being strictly circumscribed by Section 33B of the Water Act, read with Section 31B of the Air Act, read with Section 16(a) and (f) of the NGT Act, would make it clear that it is only orders or decisions of the appellate authority that are appealable, and not original orders.
On the facts of the present case, it is clear that an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018. This being the case, the NGT's order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction.
In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the Telecom Regulatory Authority of India Act, 1997, in that appeals are against the orders, decisions, directions, or determinations made under the various Acts mentioned in Section 16. It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down Rules or Regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers Under Article 226 of the Constitution of India - the State Government order made Under Section 18 of the Water Act, not being the subject matter of any appeal Under Section 16 of the NGT Act, cannot be "judicially reviewed" by the NGT.
We are cognizant of the fact that the Respondent's plant has been shut down since 09.04.2018. Since we have set aside the impugned judgments of the NGT on the ground of maintainability, the order dated 22.01.2019 passed by the TNPCB, being a consequential order, is also set aside - Appeal disposed off.
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2019 (2) TMI 1937 - SUPREME COURT
Maintainability of appeal - HELD THAT:- The order impugned in the civil appeal need not be interfered. The same is, accordingly, dismissed.
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2019 (2) TMI 1936 - SUPREME COURT
Hawala Transactions - complex economic offence of sending foreign exchange abroad to foreign companies in Dubai and Hongkong through "hawala" - Maintainability of revision petition against order of issue of process - necessity of recording reasons for its satisfaction of sufficient grounds for issuance of summons - cognizance of an offence Under Section 190(1) (b) Code of Criminal Procedure - HELD THAT:- It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the Accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the Accused.
Under Section 190 (1)(b) Code of Criminal Procedure, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process - In a case based upon the police report, at the stage of issuing the summons to the Accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence Under Sections 420, 465, 467, 468, 471, 477A and 120B Indian Penal Code, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.
Whether revision Under Section 397(2) Code of Criminal Procedure against order of issue of process is maintainable? - HELD THAT:- While hearing revision Under Section 397 Code of Criminal Procedure, the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with - while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the Accused.
When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the Accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside.
Appeal allowed.
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2019 (2) TMI 1935 - UTTARAKHAND HIGH COURT
Correction in GST registration certificate - permission to file returns as per provision of the Uttarakhand GST Act, 2017 - permission to submit form GST TRAN-01, through common portal and treat it, filed within time - HELD THAT:- It is settled proposition of law that no one should be left remediless. Since remedy is not available to the petitioner-company, the petitioner- company could not submit its monthly returns and GST TRAN-1 within time solely for the reason that after closure of portal uploading of information is not possible in any way. Besides this, the respondents themselves have allotted defective registration certificate to the petitioner-company and they cannot punish the petitioner-company for their own fault.
This court is of the view that as the petitioner- company could not file its monthly return in regard to payment of GST within time due to no fault of it and the portal got closed and cannot be operated offline, therefore, it is directed that the respondents shall open the portal forthwith so as to enable the petitioner-company to file its monthly returns and GST TRAN-1 within 10 days from today - Petition disposed off.
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2019 (2) TMI 1934 - ITAT PUNE
Depreciation on “license to collect toll" considering it as an intangible asset in terms of section 32(1)(ii) - AO disallowed assessee‟s claim holding that no intangible asset has been acquired by the assessee - HELD THAT:- The issue raised in present appeal was considered by the Co-ordinate Bench of the Tribunal in the case of M/s. Ashoka Infrastructure Limited Vs. ACIT[2013 (8) TMI 588 - ITAT PUNE].wherein held that “right to collect toll‟ is an intangible asset and the assessee is entitled to claim depreciation on same. We find that consistent view has been taken by the Tribunal in various other cases where depreciation has been claimed on “right to collect toll‟, considering it to be an intangible asset.
Tribunal in the case of ACIT Vs. M/s. Progressive Construction Limited [2017 (3) TMI 1167 - ITAT HYDERABAD] has held that National Highway constructed on BOT basis gives rise to an intangible asset in the form of right to collect toll charges u/s. 32(1)(ii) and the assessee is eligible to claim depreciation on such asset. Thus, in view of the above decisions of the Tribunal we find no infirmity in the impugned order. Accordingly, the same is upheld and the appeal of Revenue is dismissed being devoid of any merit.
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2019 (2) TMI 1933 - ITAT MUMBAI
Miscellaneous application by Revenue recalling order passed by the Tribunal - HELD THAT:- Perusing the material on record and the order passed by Tribunal we observe that ground No.4 & 5 were not adjudicated by the tribunal while passing the order and to that extent order of the Tribunal needs to be recalled. Accordingly, the order of the Tribunal is recalled to the extent of ground No.4 & 5 to be heard and decided afresh.
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2019 (2) TMI 1932 - ITAT PUNE
Addition u/s 40A(2)(b) - HELD THAT:- We find it is a case of addition both on account of ad-hocism and on account of lack of comparable cases. Neither the Assessing Officer nor the CIT(A) gathered any comparable cases from the open market with similar line of business activity before holding the payments are excessive or unreasonable. In our considered opinion, such ad-hocism is unacceptable and unsustainable. Therefore, in our opinion, grounds raised by the assessee should be allowed in full for want of Assessing Officer failures to discharge the onus. It is a settled legal proposition in matters of principles of provisions to section 40A(2)(b) Assessing Officer is under obligation to prove that the claims made by the assessee are unacceptable. This is a case where the assessee demonstrated the primary onus by furnishing the basic facts.
Disallowance u/s 14A read with Rule 8D(2)(ii) - AO noted that the assessee earned exempt income by way of dividend and PPF interest - CIT(A) directed the Assessing Officer to delete the disallowances and rework the same - HELD THAT:- We find the CIT(A) merely directed to the Assessing Officer to delete the addition and rework the disallowance. In our view, the said direction is fair and reasonable and it does not call for any interference. It is not brought to our notice on the outcome of such direction before the Assessing Officer. Therefore, the Assessing Officer is directed to take a view in this matter at the earliest after considering the existing law on this issue. We do not find any reason why the Assessing Officer should make any disallowance under clause (ii) of Rule 8D(2) of the Rules when the assessee is having adequate interest-free own funds like profits of the year and capital account balances etc. Accordingly, the ground no.4 raised by the assessee is allowed for statistical purposes.
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2019 (2) TMI 1931 - CESTAT NEW DELHI
Maintainability of appeal - non-compliance with the requirement of the pre-deposit - Section 129E of the Customs Act, 1962 - HELD THAT:- A bare perusal of Section 129E indicates that the Tribunal shall not entertain any Appeal unless the appellant has deposited 7½% of the duty, in case where duty or duty and penalty are in dispute, in pursuance of a decision or an Order appealed against. The second proviso stipulates that the provisions of this Section shall not apply to the stay Applications and Appeals pending before any Appellate Authority prior to the commencement of the Finance Act, 2014.
The amended provision of Section 129E of the Act came into force on 6 August, 2014. It provides that Tribunal shall not entertain any Appeal unless the appellant has deposited 7½% of the duty, in case where duty or duty and penalty are in dispute, in pursuance of the decision appealed against. The second proviso makes the position absolutely clear as it provides that the provisions of Section 129E shall not apply to Stay Application and Appeals pending before any Appellant Authority prior to the commencement of the Finance Act 2014. In other words, only those Appeals and stay Application which are pending before the Tribunal before 6 August, 2014 would continue to be governed by the old provisions.
The requirements set out in Section 129E of the Act as amended on 6 August 2014 have to be satisfied in regard to Appeals filed on or after 6 August, 2014. The contention of the learned consultant for the appellant that the provisions of the amended provisions of Section 129E of the Act would apply to Appeals in which show cause notices were issued on or after 6 August, 2014 cannot, therefore, be accepted - appellant has not made the requisite pre-deposit and has made a plea that the unamended provision of Section 129E under which there was a discretion with the Tribunal to waive the requirement of pre-deposit on certain conditions, should be made applicable.
Application dismissed.
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2019 (2) TMI 1930 - KARNATAKA HIGH COURT
Dishonor of cheque - petitioners herein were the nominee Directors - in-charge of the affairs of the company or not - HELD THAT:- Undisputedly, the cheques in question were issued by accused No. 1-Company in discharge of the debt alleged to have been due by the company and said cheques have been dishonoured, which has given rise to initiation of the action for the offence under Section 138 of the Act. In the complaint filed under Section 200 of Cr.P.C., the respondent/complainant has specifically averred that the cheques in question were issued by accused No. 1-Company and the same was signed by accused No. 5, who was Deputy General Manager and the authorized signatory of accused No. 1-Company.
The issue no more res-integra in view of the specific provisions contained in Section 141 of the Act and the law laid down in catena of judgments of the Apex Court including the decision referred to by the learned counsel for the petitioners. Section 141 of the Act provides that, when an offence is committed by the company, the officer in-charge, who was responsible to the company for conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
In the instant case, the petitioners herein are sought to be prosecuted solely in their capacity as the Directors of the Company. There is absolutely nothing in the entire complaint to indicate that the petitioners herein were in the management of the affairs of the company either at the time of issuance of cheques or at the time of its dishonour - the prosecution of the petitioners for the alleged offence is contrary to provisions of Section 141 of the Act and is liable to be quashed.
Petition allowed.
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2019 (2) TMI 1929 - MADRAS HIGH COURT
Principles of natural justice - levy of GST as well as penalty - grievances of the writ petitioner is that he has not received any show- cause notice or an opportunity was provided, enabling him to defend his case - HELD THAT:- This Court is of an opinion that the writ petition is fit for remand and accordingly, the impugned order passed by the second respondent in memo dated 22.10.2018 is quashed. The respondents are directed to issue show cause notice, setting out all the details to the writ petitioner, within a period of four weeks from the date of receipt of a copy of this order. On receipt of the show cause notice from the respondents, the writ petitioner is directed to submit their explanations/objections, along with the documents, if any, within a period of two weeks from the date of receipt of the show cause notice and thereafter, the authorities competent shall consider the materials available on record as well as the explanations/objections submitted by the writ petitioner, take a decision and pass orders on merits and in accordance with law, within a period of eight weeks thereafter.
Petition allowed in part.
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2019 (2) TMI 1928 - CESTAT NEW DELHI
Levy of penalty u/s 78 of FA - case of appellant is that instead of adjusting the amount of tax paid earlier with the fresh calculation of tax which paid on fresh deposit they have mistakenly cross receipts with the earlier cross receipts resulting into some differential tax label due to changing of tax - no suppression of facts or evasion of tax - HELD THAT:- There is only venial breach of the provision of Rule 6 (3) of Service Tax Rules, and there is no mis-statement/suppression of facts on the part of the appellant. Further, it is found that they have deposited service tax regularly and filed returns in the ordinary course of business. The differential tax have arisen due to lack of understanding of the rules and law.
The penalty under Section 78 of the Act is seta side - appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1927 - SUPREME COURT
Territorial Jurisdiction - power of High Court to entertain the Special Civil Application filed by the Appellant herein which was entertained and allowed by the Single Judge - whether the Division Bench was justified in holding that the SCA filed by the Appellant was not maintainable for want of territorial jurisdiction of the Gujarat High Court? - HELD THAT:- The Division Bench erred in not noticing Article 226(2) of the Constitution of India while deciding the question arising in this case.
The question as to whether the Gujarat High Court has territorial jurisdiction to entertain the Appellant's petition (SCA) or not, should have been decided keeping in view the provisions of Article 226(2) of the Constitution read with Section 20 of the Code of Civil Procedure, 1908.
In the present case, it is found from the averments of the petition (SCA) that firstly, Respondent No. 1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the Appellant-Union and Respondent No. 1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition (SCA) pertains to non-payment of outstanding wages payable to the workers by Respondent No. 1-Company - thus, the part of the cause of action as contemplated in Article 226(2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition (SCA) to claim appropriate reliefs in relation to such dispute against Respondent No. 1-Company.
The Appellant's petition (SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the Appellant herein (Petitioner) within the territorial jurisdiction of the Gujarat High Court - the SCA was required to be decided on merits by the Gujarat High Court - Appeal allowed.
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2019 (2) TMI 1926 - ITAT COCHIN
Demand u/s 201(1) and u/s 201(1A) - defects in Form No.15G and 15H - Powers of the Commissioner (Appeals) - CIT-A remitting back the issue to the AO with the direction to give a final opportunity to the assessee to produce form 15G /15H collected before the due date from the deductees and give credit to the same - HELD THAT:- . As per section 251(1)(c) of the Act, the CIT(A) may pass such order as he thinks fit. In other words, he can confirm, reduce, enhance, annul or remit the issue back to the file of A.O. for fresh consideration. Since the impugned order under which the assessee is in appeal is not an assessment order or penalty order, the provisions empowers the CIT(A) to pass an order as he thinks fit. Therefore, the CIT(A) did not travel beyond the scope of section 251(1)(c) of the I.T. Act. Hence, we do not find any infirmity in the orders of the CIT(A) with regard to remitting the issue to the file of A.O. to give an opportunity to the assessee to produce Form No.15G / 15H collected before the due date from the deductees and grant due credit for the same.
Whether CIT(A) was correct in directing the Assessing Officer to grant an opportunity to the assessee to furnish the correct PAN No’s of the deductees? - CIT(A) correctly directed the Assessing Officer to re-compute the tax u/s. 201 of I.T. Act at the rate of 10% for those deductees, where the assessee furnished the PAN Nos. This direction of the CIT(A) is in the interest of justice and equity. Further, we make it clear that the assessee has to produce correct Permanent Account Number (PAN) of the deductee, so as to get corresponding credit. With these observations, the appeals of the Revenue are dismissed.
Jurisdiction of the Assessing Officer to pass an order u/s 201 and 201(1A) - assessee is treated as an ‘assessee in default’ - assessee contented that there should be proceedings against the deductee/payee and the finding to be rendered by the revenue that the taxes are not recoverable from the deductees and only in such an eventuality, the assessee can be declared as an ‘assessee in default’ - HELD THAT:- Section 201 has been amended with effect from 01.07.2012 whereby the burden of proving that the payee / deductee had paid the taxes is on the assessee / deductor. In other words, the assessee is to provide proof that payee / deductee has filed the return declaring the income on which the TDS ought to have been deducted and duly paid the taxes on the same. The relevant amendment in section 201 introduced by the Finance Act, 2012 with effect from 01.07.2012.
In view of the above amendment, the burden is cast on the assessee to prove that the deductee / payee had duly paid the taxes on the income which ought to have been subjected to TDS by the assessee-deductor. In the instant cases, the relevant assessment years are 2013-2014 to 2016-2017, and the amended provision has application. Therefore, this ground raised by the assessee is rejected.
TDS u/s 194A - Liability on the correct person who is responsible for the deduction of tax at source - so many managers who is actually responsible for the actual payment in firm - HELD THAT:- In the instant case, the liability to pay taxes as per section 201 of the Act has been fastened on the assessee’s firm and the managing partner, as its representative. For proceedings u/s. 201 of the Act, the liability to pay taxes is on the assessee who had failed to deduct tax at source. It has been correctly done so in the instant case. Therefore, this ground raised by the assessee is also rejected. It is ordered accordingly.
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2019 (2) TMI 1925 - BOMBAY HIGH COURT
Maintainability of appeal - Low tax effect - HELD THAT:- This Appeal under Section 260A of the Income Tax Act, 1961 has been filed challenging the order passed by the Income Tax Appellate Tribunal.
The learned counsel appearing in support of the appeal, states that he has been instructed to withdraw this appeal. This is for the reason that the tax effect involved in this appeal is less than the threshold limit of ₹ 50 Lacs as provided in CBDT Circular No. 3 of 2018 dated 11.7.2018. In view of the above submission, the appeal is dismissed as not pressed.
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