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Showing 21 to 40 of 1393 Records
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2020 (12) TMI 1377 - SC ORDER
Nature of receipt - Refund of excise duty claimed from DGFT - Business receipt or capital gain - As decided by HC refund or drawback would go to ultimately reduce the cost of the project and had therefore to be treated as a capital receipt - HELD THAT:- Special Leave Petition is dismissed on the ground of delay.
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2020 (12) TMI 1376 - SUPREME COURT
Seeking grant of anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 - misbehaviour with the deceased on account of dowry - demand of dowry on earlier occasions - unnatural death or alleged suicide - HELD THAT:- There is no cogent basis for the Single Judge to have arrived at any of the three prima facie findings. The informant had suffered a loss of his own daughter due to an unnatural death in close proximity to the lodging of his complaint. The FIR contains a reference to the previous incident of October 2017, to the demands for dowry, payments of money in cheque by the informant to the groom‟s family and the telephone calls received by the informant from the father-in-law of the deceased and later from the deceased in close proximity to the incident, on the same day that she died. The FIR contains specific allegations against the accused, commencing with the incident of October 2017. Whether such an incident, as reported by the deceased to the police on 1 October 2017 did take place, leading to her suffering injuries which were examined at the Government Hospital, is a matter for investigation.
The trail of monies alleged to be received by the deceased for her professional work is a matter to be investigated. Similarly, the transfer of monies by the deceased to her father-in-law and the nexus, if any, with the funds which she had received from her parents is a matter for serious investigation. The death was unnatural which took place within seven years of the marriage. The alleged phone calls received by the informant from some of the accused and by the deceased on the day when she was found to be hanging are matters which required to be probed. The alleged absence of an external injury on the body of the deceased is a matter for investigation. The approach of the High Court is casual - The observation of the High Court that no specific role is assigned in the FIR to the accused is based on a misreading of the FIR. The entire approach of the High Court is flawed. It is contrary to the record and, as we shall now explain, contrary to settled principles of law governing the exercise of discretion on the grant of anticipatory bail in a case involving the alleged commission of a serious offence.
It is a well settled principle of law that the setting aside of an “unjustified, illegal or perverse order” granting bail is distinct from the cancellation of bail on the ground of the supervening misconduct of the accused or because some new facts have emerged, requiring cancellation - In PURAN AND ORS. VERSUS RAMBILAS AND ORS. [2001 (5) TMI 971 - SUPREME COURT OF INDIA], this Court has held that where an order granting bail ignores material on record or if a perverse order granting bail is passed in a heinous crime without furnishing reasons, the interests of justice may require that the order be set aside and bail be cancelled.
The judgment of the Single Judge of the High Court of Judicature at Allahabad is unsustainable. The FIR contains a recital of allegations bearing on the role of the accused in demanding dowry, of the prior incidents of assault and the payment of moneys by cheque to the in-laws of the deceased. The FIR has referred to the telephone calls which were received both from the father-in-law of the deceased on the morning of 3 August 2020 and from the deceased on two occasions on the same day- a few hours before her body was found. The grant of anticipatory bail in such a serious offence would operate to obstruct the investigation. The FIR by a father who has suffered the death of his daughter in these circumstances cannot be regarded as “engineered” to falsely implicate the spouse of the deceased and his family.
Transfer of further investigation to the CBI - HELD THAT:- Selective disclosures to the media affect the rights of the accused in some cases and the rights of victims‟ families in others. The media does have a legitimate stake in fair reporting. But events such as what has happened in this case show how the selective divulging of information, including the disclosure of material which may eventually form a crucial part of the evidentiary record at the criminal trial, can be used to derail the administration of criminal justice. The investigating officer has a duty to investigate when information about the commission of a cognizable offence is brought to their attention. Unfortunately, this role is being compromised by the manner in which selective leaks take place in the public realm. This is not fair to the accused because it pulls the rug below the presumption of innocence. It is not fair to the victims of crime, if they have survived the crime, and where they have not, to their families. Neither the victims nor their families have a platform to answer the publication of lurid details about their lives and circumstances - the insinuation that the FIR had not doubted or referenced the suicide note, despite its publication in the news media, is rejected. The daughter of the appellant had died in mysterious circumstances. The family had completed the last rites. To expect that they should be scouring the pages of the print and electronic media before reporting the crime is a mockery of the human condition. The apprehension of the appellant that A-2 and his family have a prominent social status in Agra and may have used their position in society to thwart a proper investigation cannot be regarded to be unjustified - The CBI is directed to conduct a further investigation of the case arising out of case Crime No. 0623 of 2020 registered at Police Station Tajganj, District Agra, dated 7 August 2020.
Appeal disposed off.
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2020 (12) TMI 1375 - ITAT BANGALORE
Settlement of dispute under Direct Taxes Vivad Se Vishwas Act, 2020 - Assessee has filed Form No.1 & 2 for the appeal filed by the assessee and it has also received Form No.3. - HELD THAT:- Since the issues contested in the appeal of the assessee have been settled under the Direct Taxes Vivad Se Vishwas Act, 2010, we dismiss the appeal of the assessee as withdrawn. However, we give liberty to the assessee to seek recall of this order in accordance with law, if the circumstances so warrant.
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2020 (12) TMI 1374 - SC ORDER
Seeking grant of Interim Bail - HELD THAT:- Issue notice restricted to the question of propriety of the order cancelling the bail - The petitioner is directed to be released on interim bail subject to the satisfaction of the trial court.
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2020 (12) TMI 1373 - BOMBAY HIGH COURT
Money Laundering - Locus of the petitioner-ED in a closure report filed by the State of Maharashtra before the Magistrate, in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. - HELD THAT:- Admittedly, the respondent No. 2-Akbar Travels (India) Pvt. Ltd. filed a private complaint as against respondent Nos. 3 to 5 in the Court of the learned Metropolitan Magistrate at Ballard Pier, Mumbai, praying therein for an order under Section 156(3) Cr.P.C. The learned Magistrate was pleased to pass an order under Section 156(3), pursuant to which, the M.R.A Marg Police Station registered an FIR being C.R. No. 66 of 2020 as against respondent Nos. 3 to 5 for the alleged offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120-B of the IPC. The said offences being scheduled offences under the PMLA, the petitioner-ED registered an ECIR as against the respondent Nos. 3 to 5 under the PMLA and proceeded with its investigation - It appears that the petitioner-ED, on being informed by the respondent No.2 about the closure report, also filed a Protest Petition before the learned Magistrate and prayed that they be heard before any order could be passed on the closure report filed by the respondent No.1-State.
It is thus evident that an informant/complainant is entitled to a notice before any orders are passed on the closure report by the Magistrate, whereas, an injured or in case of death, the relative of the deceased can be heard, even without notice i.e. in cases where the police file a closure report, or a `C’ summary report in respect of a complaint. Thus, the three categories of persons whose `locus’ has been recognized are the complainant, injured persons or the relatives/heirs of the deceased.
The petitioner-ED is an independent investigating agency, empowered to investigate offences under the PMLA and FEMA and in the facts, cannot be termed as a victim or aggrieved/injured/interested person, having regard to the judicial pronouncements. There is no provisions in law which supports the claim of the petitioner-ED with respect to its locus to intervene and contest the closure report filed by the respondent No.1- State. Thus, the petitioner cannot be permitted to intervene and contest in the closure report filed by the respondent No.1-State - it is clearly evident that Magistrates having no inherent powers cannot entertain applications/ petitions from any person other than a victim/complainant/injured person or relative of the deceased.
The petition, being devoid of merit, is dismissed and accordingly disposed of.
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2020 (12) TMI 1372 - SUPREME COURT
Perversity principle - agreement to supply certain quantities of freshly mined and washed "German Creek", "Isaac" (Blend of 65% Moranbah North and 35% German Creek coking coals) and "Moranbah North" coking coal to the Respondent - dispute regarding shipments or "stems" that were to be covered by the Fifth Delivery Period, which ranged from 01.07.2008 to 30.06.2009, the parties mutually extending this period to 30.09.2009 - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The present case is that of an international commercial arbitration, the Majority Award being delivered in New Delhi on 12.05.2014. Resultantly, this case has been argued on the basis of the law as it stood before the Arbitration and Conciliation (Amendment) Act, 2015 ["Amendment"] added two explanations to Section 34(1) and Sub-section (2A) to Section 34 of the Arbitration Act, in which it was made clear that the ground of "patent illegality appearing on the face of the award" is not a ground which could be taken to challenge an international commercial award made in India after 23.10.2015, when the Amendment was brought into force. We, therefore, proceed to consider this case on the pre-existing law, which is contained in the seminal decision of Associate Builders [2014 (11) TMI 1114 - SUPREME COURT].
The judgment in Associate Builders examined each of the heads set out in Renusagar Power Co. Ltd. v. General Electric Co., [1993 (10) TMI 232 - SUPREME COURT], together with the addition of the fourth head of "patent illegality" laid down in ONGC Ltd. v. Saw Pipes Ltd., [2003 (4) TMI 438 - SUPREME COURT] - it was held in the case that It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts.
Given the parameters of judicial review laid down in Associate Builders [2014 (11) TMI 1114 - SUPREME COURT], it is obvious that neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence.
In Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd., [2019 (6) TMI 2 - SUPREME COURT], after referring to the parameters of review in Associate Builders [2014 (11) TMI 1114 - SUPREME COURT] and other cases, this Court found that with respect to the first claim, relating to price adjustment/escalation, the arbitrator interpreted the relevant clauses of the contract and came to a certain finding. The High Court, in interfering with that finding, was wrong in doing so merely because some other view could have been taken, as the interpretation made by the arbitrator was a possible one. The High Court's judgment was, therefore, set aside to this extent. However, insofar as the second and third claims were concerned, on the facts of that case, the finding was said to be so perverse or irrational that no reasonable person could have arrived at the same, based on the material/evidence on record, as a result of which, the High Court's judgment was upheld.
In South East Asia Marine Engg. & Constructions Ltd. (SEAMEC LTD.) v. Oil India Ltd., [2020 (5) TMI 242 - SUPREME COURT], a three Judge Bench of this Court referred to the judgment of this Court in Dyna Technologies [2019 (12) TMI 842 - SUPREME COURT] and found that the interpretation of the arbitral tribunal in expanding the meaning of Clause 23 of the contract to include a change in rate of high-speed diesel, not being even a possible interpretation of the concerned contract, the High Court in setting aside the award, could not be said to be incorrect. Also, other contractual terms when seen together with this interpretation would also render such finding perverse.
All the aforesaid judgments are judgments which, on their facts, have been decided in a particular way after applying the tests laid down in Associate Builders and its progeny. All these judgments turn on their own facts. None of them can have any application to the case before us, as it has been found by us that in the fact situation which arises in the present case, the Majority Award is certainly a possible view of the case, given the entirety of the correspondence between the parties and thus, cannot in any manner, be characterised as perverse.
Appeal allowed.
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2020 (12) TMI 1371 - ITAT BANGALORE
TP Adjustment - selection of comparable - HELD THAT:- As observed that DRP/TPO for year under consideration did not consider objections raised by assessee against comparables selected by Ld.TPO and simply followed DRP directions issued for AY 2014-15.
As AY: 2014-15 has been set aside by this Tribunal, we deem it fit and proper to remit the issues to file of Ld.AO/TPO for taking necessary action of passing a speaking order by granting fair opportunity to assessee of being heard. It is also observed that all these are pending before lower authorities and we find no reason adjudicate these issues at this stage - we set aside all issues to Ld.AO for readjudication of issues in the light' of the findings given in earlier years.
Disallowance of provision for onerous contract - HELD THAT:- AR could not prove from the records that the same has been debited to profits & Loss account. Accordingly we reject this ground. However, assessee may claim such amount in relevant year of Accrual. Accordingly Ground stands dismissed.
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2020 (12) TMI 1370 - ITAT DELHI
TP Adjustment - bench marking AMP functions of the assessee - HELD THAT:- On careful consideration of the finding of the learned dispute resolution panel we note that it has issued direction following the decision of the honourable Delhi High Court in Sony Ericsson mobile Co private limited. [2015 (3) TMI 580 - DELHI HIGH COURT] - DR could not point out ny infirmity in the direction of Ld DRP where in it has rejected Bright line test approach in bench marking AMP functions of the assessee. In view of this, we do not find any infirmity in the direction of the learned dispute resolution panel. Accordingly ground of the appeal of the learned assessing officer are dismissed.
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2020 (12) TMI 1369 - MADRAS HIGH COURT
Termination order - purchase orders raised, without following the procedures laid down in G.O. No.149, dated 16.07.1998 - It is the grievance of the petitioner that the 1st respondent as well as the 2nd respondent have passed a non-speaking order, which is unsustainable and the punishment imposed on him is disproportionate to the delinquency - HELD THAT:- The non-following of the guidelines mandated in G.O. No.149, dated 16.07.1998 is admitted by the petitioner, but the case of the petitioner is only to the extent that he was not aware of the said Government Order. The said government order relates to purchases to be made above a threshold limit and in the case on hand, the purchases made are above the threshold limit and, therefore, the permission of the competent authority is required - In the instant case, it is not in dispute that the petitioner has not followed the procedures laid down in G.O. No.149. It is further pointed out that ignorance of the petitioner of the said Government Order cannot be a ground for this Court to interfere with the impugned order.
A perusal of the materials available on record, more so the counter affidavit filed by the respondents reveal that the act of the petitioner has not caused any financial loss to the respondents, though the act of the petitioner is a lapse on his part. Further, the materials on record also reveals that the petitioner has not been given sufficient opportunity to put forth his defence and defend himself as the enquiry has not been conducted in a manner known to law. Proper enquiry by placing oral and documentary evidence has not been conducted, while finding the petitioner guilty of the charges - a perusal of the order passed by the 2nd respondent / appellate authority clearly reveals that the said order is a non-speaking order, as it has merely extracted the opinion given by the Tamil Nadu Public Service Commission, without entering into the merits of the appeal filed by the petitioner. No separate finding has been rendered by the appellate authority on the basis of the materials available before him. The order has been passed by the appellate authority mechanically without applying his mind to the materials available before him. In such a backdrop, this Court is of the considered view that this is a fit case where the matter has to be remanded back to the respondents.
This Court is of the considered view that this is a fit case where the matter has to be remanded back to the respondents. However, this Court is also oblivious of the fact that almost a to remand back the matter to the respondents - the writ petition is allowed.
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2020 (12) TMI 1368 - ITAT DELHI
TP Adjustment - technical services segment - Comparable selection - HELD THAT:- Exclude ‘Engineers India Ltd.’ being a public sector undertaking and not comparable with the assessee.
CEIL is a wholly-owned subsidiary of ‘Engineers India Ltd.’, which is a government of India undertaking. The ‘Engineer India Ltd.’ has already been held by the Tribunal as a government of India undertaking.
We find that ‘Wapcos’ has been mentioned as government of India undertaking-Ministry of water resources. Similarly, Projects and Development India Ltd. is also one of the Government of India undertakings as evident from the Annual Report of the Company. The Projects and Development India Ltd. is Mini Ratna Company under the Department of Fertilizers, Government of India. In view of the above factual position, respectfully following the finding of the Tribunal in 2010-11 these companies being Government of India undertakings, are directed to be excluded from the set of the comparables. The Learned AO/TPO is accordingly directed to re-compute the transfer pricing adjustment after excluding above for companies.
Adjustment for interest on receivables - TPO observed that assessee has received payment against invoices raised on Associated Enterprises after delay of substantial period, which in case of some invoices has been allowed for more than 200 days - HELD THAT:- In the case of Kusum Healthcare Private Limited [2017 (4) TMI 1254 - DELHI HIGH COURT] held that wherever working capital adjusted margin of comparables has been taken into consideration while benchmarking the main international transaction of sales to AEs, no separate adjustment on account of interest on receivable is required as same get subsumed in working capital adjustment. In the instant case, pursuant to the direction of the Learned DRP, the Learned TPO has computed mean margin of the comparables at 19.93 % , which is available on page 44 of the appeal set. This average margin has been computed using working capital adjusted OP/OC for comparable companies. Thus it is evident that in the instant case working capital adjusted margin of the comparable companies has been considered for determination of arm’s-length price of the international transaction and therefore, following the decision of the Hon’ble jurisdictional High Court (supra), no separate adjustment for interest on receivable is required.
Disallowance u/s 40(a)(ia) - travelling and conveyance cost and salaries paid to the seconded employees constitute fee for technical services - HELD THAT:- As in earlier year identical expenses incurred on travel and conveyance and salary on seconded employees has not been found is liable for disallowance u/s 40(a)(ia) of the Act. This action of the Assessing Officer has not been found erroneous or fraud by the higher authorities of the Income Tax Department and, therefore, once the AO has accepted that the payments are not liable for disallowance, we do not find any reason for agitating those very payments by the Assessing Officer in the year under consideration. Accordingly, we direct the AO to delete the disallowance made under section 40(a)(ia) of the Act on payments reimbursed to foreign AEs towards travel and conveyance cost on salary cost of the seconded employees. The grounds of the appeal are accordingly allowed.
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2020 (12) TMI 1367 - ITAT BANGALORE
TP Adjustment - adjustment has been made without properly appreciating the business model of the assessee - HELD THAT:- This issue was there in the appeal for the assessment year 2014- 2015, wherein the Tribunal in [2020 (2) TMI 1642 - ITAT BANGALORE] after examining the facts of the case, had accepted the contention of the assessee that the TPO conducted transfer pricing analysis on erroneous understanding of the business model of the assessee. Accordingly, the entire transfer pricing issue was set aside to the TPO with a direction that the transfer pricing analysis may be carried out having regard to the business model of the assessee - we restore the entire transfer pricing analysis for de novo consideration to the AO / TPO. Appeal filed by the assessee is allowed for statistical purposes
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2020 (12) TMI 1366 - ITAT BANGALORE
TP Adjustment - MAM selection for distribution segment - assessee has taken Resale Price Method (RPM) to anlayse the segment - TPO said that RPM method can be used only for pure traders who do not do any local value addition - HELD THAT:- In this case, the TPO himself has recorded that the assessee manufactured goods at Rs.83,35,010 and traded goods of Rs.1,73,77,415. However he clubbed the entire turnover and applied TNMM method to determine the ALP.
With regard to sale of traded goods, it is appropriate to apply the RPM method if there was no value added to the traded goods. In case pure sale of traded goods, RPM method is Most Appropriate Method and it does not involve any manufacturing activity. Accordingly, we remit this issue to the file of AO/TPO with direction to the assessee to furnish the segmented details of sale of traded goods and then the AO/TPO shall apply RPM method in respect of sale of traded goods. This additional ground is partly allowed for statistical purposes.
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2020 (12) TMI 1365 - ITAT MUMBAI
Penalty imposed u/s 271AA and 271BA - adjustment to the arm's length price of the international transaction, the TPO has observed that the assessee has not complied with the provisions of section 92D and 92E - HELD THAT:- Transfer pricing provisions would not be applicable. Consequently, the assessee is not required to comply with the provisions contained u/s 92D and 92E.
Though, the assessee was unsuccessfully on the aforesaid stand before the AO, TPO as well as the DRP, however, the Tribunal while considering assessee’s contention [2019 (1) TMI 1999 - ITAT MUMBAI] has restored the issue to the DRP for re–considering assessee’s claim that there was no international transaction of revenue nature between the assessee and the AE in the relevant financial year.
Thus, in our considered opinion, when assessee’s contention regarding not having any international transaction with the AE is still unresolved and is pending before the DRP, it would not be logical and proper to proceed in the matter of imposition of penalty u/s 271AA and 271BA - The requirement of complying with the provisions of section 92D and 92E of the Act only arises in the event of assessee having any international transaction with the AE.
Since, the aforesaid preliminary claim is now pending for decision before the DRP, we are inclined to set aside the impugned orders of Commissioner (Appeals) and restore the issue relating to imposition of penalty under section 271AA and 271BA to the AO - AO, if warranted, may initiate proceedings under the aforesaid provisions on the basis of outcome of the decision of the DRP in the quantum proceedings. Grounds raised by the assessee are allowed for statistical purposes.
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2020 (12) TMI 1364 - ITAT CHENNAI
Exemption u/s 54F - purchase of two residential properties at two different locations on two different dates - HELD THAT:- As per the provisions of the section 54F of the Act, the assessee has violated clause (ii) provided in sub-section (a) of section 54F of the Act, where it is stated that if the assessee purchases any new residential house other than new asset within a period of one year after the date of transfer of original asset, then the assessee is not entitled to claim exemption u/s.54F - In this case on perusal of the facts available on record, lower authorities have recorded categorical findings that assessee has purchased two different residential properties on two different dates and claimed exemption u/s.54F of the Act in contravention of provisions of law. Therefore, we are of the considered view that the assessee is not entitled for exemption u/s.54F of the Act.
We are of the considered view that assessee is not entitled for exemption u/s.54F of the Act for purchase of two residential houses at two different locations on two different dates. The position remains same even after amendment to section 54F by the Finance Act, 2014 w.e.f. 01.04.2015. Therefore, we are of the considered view that the learned CIT(A) has right in denial of exemption claimed u/s.54F of the Act and hence, we are inclined to uphold the findings of the learned CIT(A) and dismiss the appeal filed by the assessee.
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2020 (12) TMI 1363 - ITAT MUMBAI
TP Adjustment - Upward adjustment in respect of international transaction of freight receipts and expenses - benchmarking under CUP - HELD THAT:- As decided in assessee own case [2012 (4) TMI 260 - ITAT MUMBAI] Tribunal has accepted the benchmarking done by the assessee under CUP method and has also held that the profit sharing ratio of 50:50 is prevalent both in respect of agreement entered into between group companies with unrelated parties as well as the assessee.
Respectfully following the same, we uphold the plea of the assessee, and delete the impugned arm’s length price adjustment - The assessee gets the relief accordingly.
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2020 (12) TMI 1362 - ITAT JAIPUR
Validity of Reopening of assessment u/s 147 - non issuing and serving of notice U/s 143(2) - assessee had filed return after stipulated period of 30 days but before finalization of assessment - HELD THAT:- In the present case, the assessee had filed return, though, after stipulated period of 30 days but before finalization of assessment and in case the A.O. had found that there were problems with the return which required explanation by the assessee, then the A.O. ought to have followed up with a notice U/s 143(2).
As no notice U/s 143(2) of the Act was issued which is mandatory requirement in reopen procedure and in our view issuance of notice U/s 143(2) is mandatory in reassessment proceedings initiated U/s 148 which has also been clearly laid down in the case of Alpine Electronics Asia PTE Ltd. [2012 (1) TMI 100 - DELHI HIGH COURT] consedring case of M/S. HOTEL BLUE MOON [2010 (2) TMI 1 - SUPREME COURT] held that Section 143(2) was applicable to a proceedings U/s 147/148 of the Act also. Since, in the present case, no notice U/s 143(2) of the Act was issued or served, therefore, in our view, it relates all the subsequent proceedings as invalid. In view of the above facts and circumstances, we set aside the orders of the authorities below and quash the reassessment proceedings initiated U/s 147 of the Act and allow grounds of assessee.
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2020 (12) TMI 1361 - MADRAS HIGH COURT
Transfer of case u/s 127 - As submitted Authority to whom the proceedings were transferred has already passed the Assessment Order and the same has been served on the Appellant Assessee also - HELD THAT:- We are of the opinion that the Writ Appeal has become infructuous in view of the Assessment Order having been passed by the Assessing Authority in pursuance of the impugned transfer order under Section 127 - We are further of the opinion that the Transfer Order passed under Section 127 is more in the nature of an administrative order rather than quasi-judicial order and the Assessee cannot have any right to choose his Assessing Authority, as no prejudice can be said to have been caused to the Assessee depending upon which Authority of the Department passes the Assessment Order.
Assessee can only be concerned with getting an opportunity of hearing before the concerned Assessing Authority and adduce his evidence and make his submissions before the concerned Assessing Authority. The Income Tax Department has recently introduced a Scheme of Faceless Assessments which will avoid personal hearing and physical interaction of Assessee and Assessing Authority altogether.
Assessee need not even know the name of the Assessing Authority who will deal with his case. The process of hearing appears to have been undertaken by the Assessing Authority who passed the order on 30.12.2016 during the pendency of the writ petition with the permission of the Court, and the Assessment Order to be kept in sealed cover and which was served on the Assessee after the dismissal of the Writ Petition on 05.12.2017.
We do not see anything wrong in the Assessing Authority passing the Assessment Order in the present case and for other years with the due permission of the Court itself and keeping that in a sealed cover until the writ petition was dismissed on 05.12.2017. Even thereafter, the orders were sought to be served only along with a communication dated 21.01.2019 to which the Assessee responded by his letter dated 07.02.2019 and thereafter, another letter by the Chartered Accountants of the Assessee, Mr.R.Balachandran, a response for payment of outstanding tax was given by stating that they were not liable to pay the tax as assessed in the orders in question merely because the Writ Appeal was pending before this Court. It is made clear that there was no stay order from the Division Bench of this Court either against the recovery or passing of the order itself or service thereof on the Assessee.
In our opinion, therefore, there was an abuse of process of the Court in the writ proceedings by the Assessee and taking advantage of the pending litigation, the Assessee has tried to ride roughshod over the Departmental Authorities which it was not entitled to do. An assessment of the tax liability under the Income Tax Act is an obligation of the Assessing Authority and equally obliged is the Assessee to abide by it subject to his right to avail remedy by way of appeals as provided in the Law. Instead of choosing either availing of those remedies or paying the tax as assessed by the Assessing Authority, the Assessee seems to be resting upon the pendency of the litigation in this Court which in our considered opinion was wholly misconceived in the first instance, and infructuous in any case with the passing of the Assessment Order on 30.12.2016.
Therefore, we dismiss this Writ Appeal without interfering with the order of the learned Single Judge in any manner or the Assessment Order passed by the Assessing Authority or the Transfer Order passed by the Revenue Authorities under Section 127.
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2020 (12) TMI 1360 - ITAT DELHI
TP Adjustment - Comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee AND companies did not passing 25% threshold of RPT filters need to be deselected.
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2020 (12) TMI 1359 - ITAT BANGALORE
Direct tax Vivad Se Vishwas Scheme - order of CIT(A) passed under sections 201(1) and 201(1A) - HELD THAT:- As assessee has moved an application in which it is stated that the assessee has filed Form 1 under direct tax Vivad Se Vishwas Scheme, 2020 in respect of the present appeals. The assessee has also obtained Form 3 certificate containing particulars of tax arrears and the amount payable in Form 3 from the Income Tax Department. In the circumstances, the assessee has prayed for withdrawing the appeals.
The appeals are accordingly dismissed as withdrawn.
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2020 (12) TMI 1358 - ITAT MUMBAI
TDS u/s 194J - Disallowance of deduction claimed towards payment made to National Stock Exchange (NSE) and Bombay Stock Exchange (BSE) for lease line charges/V–SAT and transaction charges - As per AO payment made to NSE and BSE is in the nature of fee for technical and managerial services requiring deduction of tax at source - Disallowance u/s 40(a)(ia) for non–deduction of tax at source - assessee objected to the proposed disallowance by stating that the payment made is not for availing technical or managerial services - whether the payment made by the assessee towards online trading service made available by NSE and BSE is in the nature of technical services? - HELD THAT:- As relying on Hon'ble Supreme Court in case of CIT Vs. Kotak Securities Ltd [2016 (3) TMI 1026 - SUPREME COURT] we hold that the payment made by the assessee towards lease line/V–SAT and transaction charges not being in the nature of fee for technical services will not be amenable to section 194J of the Act. Accordingly, we delete the disallowance made under section 40(a)(ia). Ground no.1, raised by the assessee is allowed.
Disallowance of Security Transaction Tax (STT) u/s 43B(a) - assessee has not actually paid STT during the year under consideration, the Assessing Officer invoked the provisions of section 43B(a) of the Act and disallowed the deduction claimed - HELD THAT:- As section 101 r/w rule 6 and 7, requires ever recognized Stock Exchange and mutual fund to furnish prescribed return to pay STT to the credit of Central Government. Thus, on a conjoint reading of the aforesaid provisions, it is very much clear that the liability to pay STT is on the Stock Exchanges. Assessee is merely acting as an agent of the Stock Exchanges for collecting STT from the buyers and sellers of the shares while facilitating those transactions as a broker. Thus, it is very much clear that the liability to pay STT is not on the assessee. As evident, the assessee has not debited the STT to the Profit & Loss Account. Rather, he has shown it as a Balance Sheet item under the head Liability. That being the case, the liability of STT which the assessee is merely a custodian of, cannot be treated as liability of the nature coming within the ambit of section 43B(a) of the Act. The decisions relied upon by assessee also supports this view. Accordingly, we direct the deletion of disallowance made under section 43B(a) of the Act. These grounds are allowed.
TP adjustment on brokerage commission - adjustment relates to brokerage commission charged to the AE for providing broking services - TPO has made the disputed adjustment by applying the commission charged to non–AE @ 0.28% as CUP - HELD THAT:- On a perusal of the decision of the Tribunal in assessment year 2013–14, [2020 (12) TMI 1051 - ITAT MUMBAI] we find that the disputed issue on which the Tribunal has restored back the issue to the AO/TPO relating to arm's length price adjustment of intra group services. It is very much clear from the reading of the said order, wherein, it has been discussed that while the assessee had determined the arm's length price of intra group service applying TNMM, TPO, though, had applied CUP, however, ultimately he had determined the arm's length price by estimating the cost of employee on man–hour basis. Therefore, it is very much clear that the issue dealt with and decided by the Tribunal in assessment year 2013–14 is not similar to the issue with which we are presently concerned. Rather, on appreciation of relevant facts, we are of the view that the issue arising in these grounds is squarely covered by the decision of the Tribunal in assessment year 2011–12 as reproduced above. In view of the aforesaid, we delete the addition made by the Assessing Officer. The grounds raised are allowed.
TP Adjustment on the brand fee - HELD THAT:- As decided in own case 2002–03 [2013 (11) TMI 927 - ITAT MUMBAI] expenditure incurred by the assessee on royalty and business development could not be considered as excessive compared to the comparable parties. CIT(A) has also applied the TNMM method for benchmarking international transactions. There are 29 comparables selected details of which have already been given earlier which gave an average margin of -5.5% and, in case, loss making companies were excluded, the average margin came to 16.06% whereas in case of the assessee the margin declared was 57.58%. CIT(A) has therefore held that no TP adjustment is required to be made in case of the assessee with which, on the facts of case, we fully agree. We, therefore, see no infirmity in the order of CIT(A) in deleting the addition made and the same is therefore, upheld - Thus we delete the addition made on account of transfer pricing adjustment. This ground is allowed.
Non–grant of credit of TDS - HELD THAT:- We direct the AO to consider the claim of the assessee by verifying the material on record and allow credit for TDS as per law.
Levy of dividend distribution tax (DDT) - HELD THAT:- The submission of assessee that the assessee has already paid the DDT, we direct the Assessing Officer to verify assessee’s claim of payment of DTT and decide the issue accordingly. The ground raised by the assessee is allowed for statistical purposes.
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