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Showing 141 to 160 of 1414 Records
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2021 (8) TMI 1275 - DELHI HIGH COURT
Seeking direction to transfer to the Petitioner 11 % of the equity capital of the Respondent No. 5 - seeking directions to transfer, order or direct the Respondent No. 1 to 4 to pledge their entire equity holding in Respondent No. 5 to the Petitioner - seeking restraint on Respondents No. I to 4 from transferring, alienating, disposing, or in any manner dissipating the equity capital of RSIL held by them to the extent of an aggregate 11 % and/or in any manner dealing with such shares - seeking direction to Respondents No. I to 4 to get 11 % of the equity capital of RSIL (from among RSIL's shares held by them), released from the pledge to the lenders by paying off the requisite debt.
HELD THAT:- Mr Chandhiok, learned Senior Counsel appearing for respondent nos. 1 to 4 states that the claims raised by the petitioner and the contentions advanced on its behalf are seriously disputed. He states that the respondent no.1 neither accepts that there is any agreement to refer the subject disputes to arbitration nor do respondent nos. 1 to 4 acknowledge that they have any obligation to transfer or otherwise make available shares of respondent no.5 to the petitioner. He, however, fairly states that notwithstanding the objections, the respondent nos. 1 to 4 will continue to hold majority shares in respondent no.5 for at least a period of 90 (ninety) days from today and will not further encumber the same during the said period - The respondent nos. 1 to 4 are bound down to the statements made on their behalf.
Application disposed off.
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2021 (8) TMI 1274 - DELHI HIGH COURT
Applicability of Equalization Levy on payments to be received by the Petitioner - Whether the Respondents erred in law and on facts in re-characterizing the nature of payments to be received by the Petitioner from Indian Customers as “Fee for Technical/Included Services” under the Income-tax Act, 1961 / India-USA Double Taxation Avoidance Agreement (DTAA) rather than “business income”? - HELD THAT:- Issue notice. Mr.Ruchir Bhatia, Advocate accepts notice. He prays for and is granted six weeks time to file the counter affidavit. Rejoinder affidavit, if any, be filed before the next date of hearing.
Since the petitioner has prayed for refund of taxes and this Court is of the view that the said prayer would adequately protect the interest of the petitioner, the prayer for interim stay is declined. List the matter before the Joint Registrar (Judicial) for completion of pleadings on 10th December, 2021.
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2021 (8) TMI 1273 - DELHI HIGH COURT
Application for restoration of appeal - amount towards pre-deposit has already been paid and the money has been realized by the Respondent - waiver of the pre-deposit not required - seeking the matter be heard on merits - HELD THAT:- Appellant has made the pre-deposit, in accordance with law, the appeal deserves to be restored.
The order dated 01.10.2019 passed in Customs Appeal No. 50401/2019 (Annexure-A to the memo of this appeal) by the CESTAT is set aside and appeal restored to its original number. A further direction is issued to the learned Tribunal to decide the appeal on merits in accordance with law, as expeditiously as possible.
Appeal disposed off.
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2021 (8) TMI 1272 - ITAT MUMBAI
TP Adjustment - comparable selection - HELD THAT:- Asit C Mehta be excluded from the list of comparables as this company is, the company is having more than one segment. Whereas, separate segmental data is not available in the public domain - the employee cost of the company works out to 22.78% of the total cost as compared to assessee’s employee cost of 48.27%. Further, the turnover of the assessee is more than eighty times of the turnover of the company. See DBOI GLOBAL SERVICES PVT. LTD. [2016 (8) TMI 1292 - ITAT MUMBAI], ZAVATA INDIA PRIVATE LIMITED [2013 (6) TMI 405 - ITAT HYDERABAD] and STREAM INTERNATIONAL SERVICES PRIVATE LIMITED [2014 (10) TMI 393 - ITAT MUMBAI]
Infosys BPO Ltd is to be excluded for the reason that it is engaged in rendering software development and related technical activities. We have also found from record that the facts based on which the company was rejected in assessment year 2006-07 are no different in the impugned assessment year. In view of the aforesaid, we exclude this company from the list of comparables.
Vishal Information Technologies Ltd be excluded for the reason that instead of performing the work itself, it outsources the work to third party vendors.
Wipro Limited (Seg) be excluded on the ground that it has exceptionally high turnover compared to assessee’s turnover.
eClerx Services Ltd incurred a major part of its expenses towards outsourcing of services, whereas, the assessee is a routine BPO service provider without outsourcing any of its activities. Thus, in our view, this company cannot be comparable to the assessee.
Moldtek Technologies Ltd be excluded as this company is providing structural engineering and design services of construction of building. Further, the company has undertaken expansion vigorously. Thus, there is extraordinary growth which could have resulted in abnormal profit margin of 113.49%. Further, the employee cost of the company as a percentage of the total cost works out to meager 8.41% as compared to assessee’s employee cost of 48.27%. Thus, these factors, in our view, do not make the company comparable to the assessee.
Informed Technologies India Ltd company serves the needs of the financial content sector in the USA. It collects and analyses data on financial fundamentals, corporate governance, structures/executes compensation and capital market. The company caters to the niche market segment of financial content and its targeted clientele include well known and respected American Corporate. Thus, as it appears, the company is functionally dissimilar to the assessee.
Caliber Point Business Solutions Ltd and HCL Comnet Systems Pvt Ltd (Seg) be excluded on the ground that their related party transaction (RPT) is substantially high compared to assessee - we find, HCL Comnet Systems India Ltd (Seg) has been rejected by different benches of the Tribunal in case of other assesses for the reason of having a different financial year ending, different business model and super normal profit. Thus we exclude these two companies from the list of comparables.
I Services India Pvt Ltd company is engaged in providing remote data entry services to its clients in USA. Further, it has reported a profit margin of 50.27% for the year under consideration, which is exceptionally high in terms of industry norms. Due to the super normal profit earned by the company for the year under consideration, the Tribunal excluded it from being considered as a comparable in case of Pentair Water India P Ltd [2016 (5) TMI 137 - BOMBAY HIGH COURT], which is for the very same assessment year - thus we exclude this company from the list of comparables.
Deduction on account of Education Cess paid by the appellants - HELD THAT:- We find that the issue raised in the additional ground stands decided in favour of the assessee by the decision of Hon’ble jurisdictional High Court in case of Sesa Goa Ltd . [2020 (3) TMI 347 - BOMBAY HIGH COURT]. Respectfully following the aforesaid decision of the Hon’ble jurisdictional High Court, we direct the assessing officer to verify the facts and allow deduction of education cess paid by the assessee.
Benefit of -5% relief to the assessee - HELD THAT:- As per settled legal principle, the benefit of (+)/(-) 5% under section 92C(2) cannot be allowed as standard deduction. With the aforesaid observations, these grounds are dismissed.
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2021 (8) TMI 1271 - MADHYA PRADESH HIGH COURT
Seeking termination of the mandate of originally constituted Arbitral Tribunal - seeking appointment of a new Arbitrator - Section 14 read with Sections 11 and 15 of the Arbitration and Conciliation Act, 1996 - whether sub-section (5) of Section 12 read with Seventh Schedule appended to the Act of 1996 can be relied by a party which had already appeared before the Arbitral Tribunal? - petitioner, who had already appeared before Arbitral Tribunal and participated in the proceedings, can now seek termination of the mandate of the Arbitral Tribunal or not? - HELD THAT:- In SP SINGLA CONSTRUCTIONS PVT. LTD. VERSUS STATE OF HIMACHAL PRADESH AND ORS. [2018 (12) TMI 1929 - SUPREME COURT] the chief Engineer, H.P. PWD appointed Superintendent Engineer pursuant to request of appellant as arbitrator in terms of Clause 65 of agreement but appellant-petitioner challenged such appointment on premise that arbitrator had not been appointed by name but had been appointed by designation. Reliance in that case was also placed on Section 12(5) as amended with effect from 23.10.2015 by Amendment Act 3 of 2016. It was held that Amendment Act shall not apply to the Arbitral Tribunal which had commenced its proceedings before its enforcement, inasmuch as same cannot have retrospective operation in arbitral proceedings already commenced unless parties otherwise agree.
In the present case also when on invocation of arbitration clause by the petitioner, the Arbitral Tribunal consisting of the officers named by designation had already been appointed and has been acted upon, it cannot be said that there ever remained any vacuum in the Arbitral Tribunal because mere change of incumbents by reason of transfer or retirement would not make any difference as they were made members of the Arbitral Tribunal by designation and not by name. Therefore, there does not arise any necessity to appoint another Arbitral Tribunal.
The present application fails and it is hereby dismissed.
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2021 (8) TMI 1270 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, NEW DELHI
Rectification of mistake - error apparent on the face of record - typographical error - HELD THAT:- In the ruling, in the line number third from the bottom which appears as “procedure would not be consistent with the provisions of the Customs Act.” may be read as “procedure would not be inconsistent with the provisions of the Customs Act”.
Application allowed.
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2021 (8) TMI 1269 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Seeking exclusion of time of 165 days from the timelines prescribed under the Code - seeking to grant an additional time period of 15 days as extension of the CIRP period for the Corporate Debtor - seeking to exclude the time period, until the date of disposing of this Application - HELD THAT:- It is seen that extension of CIRP in relation to the Corporate Debtor is not only granted once, but twice in the present matter - Further, the exclusion as sought for by the Applicant is for a total of 165 days and also the Applicant has sought for an extension of 15 days.
As to the facts of the present case, already two time exclusion has been sought and given for to the Applicant in relation to the CIRP. Hence, the exclusion as sought by the Applicant for any period before 31.05.2021 as adumbrated in the table supra cannot be granted by this Adjudicating Authority. However, due to the second wave of Covid-19 which was prevailing in the country, nationwide lockdown was imposed on 08.05.2021, which was full lifted only on 27.06.2021. Hence as per Section 40C of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the said period from 08.05.2021 till 27.06.2021 can be excluded from the CIRP timelines. Further, the present Application was filed before this Tribunal on 25.05.2021 and till the date it was pending i.e. 30.07.2021 can be excluded from the CIRP timelines. Thus, a total of 83 days can be excluded from the CIRP timelines. If the said 83 days are excluded the CIRP in relation to the Corporate Debtor would come to an end on 22.08.2021.
The CIRP in relation to the Corporate Debtor is extended only upto 22.08.2021 and the Applicant is required to finalize the accounts of the Corporate Debtor and also as per the order dated 26.02.2021 the Applicant may file an Application for liquidation after the expiry of the said period in terms of Section 33 of IBC, 2016 - Application allowed.
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2021 (8) TMI 1268 - DELHI HIGH COURT
Search executed u/s 132 - Seeking release of jewellery and cash seized by the Respondents from the Locker - HELD THAT:- As order dated 13.08.2021, we had tried to balance the interest of the petitioner i.e., the assessee as well as the respondents/revenue.
On 13.08.2021, we had refrained from passing a final order, though the legal issue was considered and a view was taken, with the hope that, the respondents/revenue would agree with the proposed directions, which are contained in paragraph 6.1 of our order dated 13.08.2021.
Respondents/revenue, says that, his instructions are that, the respondents/revenue seem to be constrained by the language of Section 132B of the Income Tax Act, 1961 (in short “the Act”).
In our view, such a stand is untenable, and the reasons for the same are set forth in the order, dated 13.08.2021.
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2021 (8) TMI 1267 - ITAT DELHI
Reopening of assessment u/s 147 pursuant to the order of the ld. CIT u/s 264 - Unexplained expenditure - HELD THAT:- In the case in hand, again pursuant to the order of the ld. CIT u/s 264 of the Act, notice u/s 148 of the Act was issued and served upon the assessee and reasons recorded for reopening the assessment are identical to the reasons recorded in the case of M/s Sam Portfolio Pvt Ltd[2020 (2) TMI 1142 - ITAT DELHI], though quantum may differ.
On finding parity on the facts of the case in hand with the facts of the case of M/s Sam Portfolio Pvt Ltd [supra], we have no hesitation in adopting the findings given by this Tribunal in the case of M/s Sam Portfolio Pvt Ltd [supra] considered view that the AO has wrongly assumed jurisdiction in framing the assessment order u/s 143(3) r.w.s 147.
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2021 (8) TMI 1266 - ITAT HYDERABAD
Disallowance of deduction u/s 54F - Denial of natural justice - AR submitted before us by stating that the Ld. CIT (A) has passed ex-parte order without providing proper opportunity to the assessee of being heard - HELD THAT:- CIT (A) had posted the case on four occasions. However, none appeared on behalf of the assessee before the CIT(A) on the dates of hearing. Therefore, the Ld. CIT (A) was left with no other option except to adjudicate the appeals ex-parte. In this situation, We do not find much strength in the arguments advanced by the ld. AR.
Considering the prayer of the Ld. AR, in the interest of justice, We hereby remit the matter back to the file of Ld. CIT (A) in order to consider the appeals afresh on merits by providing one more opportunity to the assessee of being heard. At the same breath, We also hereby caution the assessee to promptly co-operate before the Ld. CIT (A) in the proceedings failing which the Ld. CIT (A) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials on the record. It is ordered accordingly. Appeals filed by the assessee are allowed for statistical purposes
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2021 (8) TMI 1265 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Constitution of Committee of Creditors - HELD THAT:- It is clarified that the matter is adjourned only to ascertain who will represent the Appellant. However, Ld. Counsel Mr. Sharma is not satisfied and interrupting in dictating the order sheet and not ready to maintain the decorum of the Tribunal.
Let the matter be fixed on 16th August, 2021, for personal appearance of the Appellant to ascertain who will represent the Appellant.
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2021 (8) TMI 1264 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time limitation - HELD THAT:- There was OTS proposal dated 28.02.2018 (page 389) between the FC and the CD. From the said proposal it appears that the proposal was sent by the CD on 19.02.2018 for one time settlement of the financial debt. It was considered and accepted by the FC with regard to the existing liability subject to the terms and conditions as contained in the Annexure to the said OTS Proposal dated 28.02.2018. This OTS Proposal has been accepted along with all the terms and conditions by the authorised signatory of the CD - Since the Balance Sheets for Financial Year 2017-18 clearly show the secured borrowings from the Financial Creditors, which constitutes acknowledgment of debt, there are no merit in the contention of the CD as regards the point of limitation. Accordingly, the argument that the petition is filed belatedly and it is barred by limitation, is dismissed.
Further the Corporate Debtor has signed and acknowledged One Time Settlement dated 28.02.2018 (page 389) along with its Annexure describing the liability of the CD. The said documents have not been controverted by the CD. However, the OTS Proposal was not complied with by the CD and they failed to pay the OTS amount within the stipulated period and thereby committed a default, as a result of which the OTS was revoked by the FC on 07.06.2018.
This Adjudicating Authority admits this petition under section 7 of the IBC, 2016 - petition admitted - moratorium declared.
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2021 (8) TMI 1263 - GUJARAT HIGH COURT
Petition under “The Direct Tax Vivad se Vishwas Act, 2020 - as displayed on the E-filing portal of the Respondent that the said Declaration was rejected on 26.04.2021, mainly on the ground that the First Appeal was filed belatedly and there was no information received from the Assessing Officer, as to whether, the delay occurred in filing the Appeal before the Appellate Authority was condoned or not - HELD THAT:- As decided in [2021 (7) TMI 1267 - GUJARAT HIGH COURT] there remains no shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the Appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the ‘specified date’ i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law.
In view of the above, the impugned communication dated 26.04.2021 rejecting the Declaration filed by the petitioner under the said Act, deserves to be quashed and set aside, and is accordingly quashed and set aside. The respondent is directed to accept the said Declaration under the said Act for the assessment year under consideration, if otherwise it is valid.
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2021 (8) TMI 1262 - DELHI HIGH COURT
Assessment u/s 144C - timeline for filing of objections before the DRP - notice for initiating penalty proceedings under Section 271AAC(1) - HELD THAT:- Since an advance copy of the present writ petition had been served upon the petitioner, this Court has no other option but to proceed with the matter. However, the respondents are given liberty to seek variation/modification of the order in the event facts have been suppressed from this Court or facts have been mis-stated by the petitioner.
Having perused the paperbook, this Court finds that the Assessment Order has been passed in violation of mandatory procedure prescribed under Section 144C of the Act as well as the aforementioned CBDT Circular inasmuch as without waiting for the decision of the DRP, Respondent No. 1 has passed the final Assessment Order.
Keeping in view the aforesaid, the final Assessment Order dated 15th May, 2021, notice of demand issued under Section 156 and notice for initiating penalty proceedings under Section 271AAC(1) of the Act passed by Respondent No. 1 under Section 143(3) read with Section 144C for the assessment year 2017-18 are set aside and the proceeding is restored at the level of the DRP. With the aforesaid direction, the present writ petition along with pending applications stand disposed of.
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2021 (8) TMI 1261 - ITAT MUMBAI
Estimation of income - bogus purchases - HELD THAT:- Hon’ble Gujarat High Court in the case of Bholanath Polyfab Pvt. Ltd [2013 (10) TMI 933 - GUJARAT HIGH COURT held that when the assessee made purchases and sold the finished goods as a natural corollary not the entire amount covered under such purchases would be subject to tax but only the profit element embedded therein.
Similar view has been taken by the Hon’ble Gujarat High Court in the case of CIT v. Simit P. Seth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] - Simply because the parties were not produced the entire purchases cannot be added as held by the Bombay High Court in the case of CIT v. Nikunj Eximp[2013 (1) TMI 88 - BOMBAY HIGH COURT]
We agree with the view of the lower authorities that there should be an estimation of profit element from these purchases and should be estimated reasonably as the assessee could not conclusively prove that the purchases made are from the parties as claimed, especially in the absence of any confirmations from them - keeping in view the nature of business of the assessee i.e. trader in Ferrous and non-Ferrous Metals, it would be justified if the profit element embedded in those purchases are estimated at 4%. Accordingly, we direct the Assessing Officer to estimate the profit element from the non-genuine purchases at 4% for both the Assessment Years i.e., A.Y: 2009-10 and A.Y. 2011-12 and restrict the disallowance of purchases to 4% and compute the income accordingly. Apeals of the assessee partly allowed.
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2021 (8) TMI 1260 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - Notice in the name of a non-existing company - notice in the name of company merged - HELD THAT:- As the notice issued under Section 148 of the Act to a non-existing company is bad in law. Petition, therefore, is allowed.
Whether clerical error which is rectifiable under Section 292-B? - It cannot be a clerical error because in the affidavit-in-reply it is admitted that the order dated 7th November 2014 of this Court with respect to the merger of ECD Electrons and Electrolysis Pvt. Ltd. into Lenient Finvest Pvt. Ltd. and the subsequent order of Lenient Finvest Pvt. Ltd. merging with petitioner under an approved scheme cleared by the National Company Law Tribunal, Mumbai, was available with respondents still respondents persisted with issuing the notice to ECD Electrons and Electrolysis Pvt. Ltd., a non existent company. - Decided in favour of assessee.
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2021 (8) TMI 1259 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Auction - Seeking to direct the Respondent to disclose the entire process of selection of the Anchor Bidder or alternatively to discard the Swiss Challenge Process and adopt the Anchor Bid as reserve price, invite bids accordingly and allow inter se bidding amongst the parties - HELD THAT:- Since, the Liquidator is going for new auction, and the tender document allows him to do so, the objections of the Applicant in various I.As. No. 332 of 2021 and I.A. No. 371 of 2021 will not survive.
It is seen from the record that the sale process is delayed for almost three years. Hence, we direct the Liquidator to complete the entire sale process in consultation with stakeholder committee within three weeks from the date of this order - Application disposed off.
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2021 (8) TMI 1258 - MADRAS HIGH COURT
Seeking rectification of the alleged error apparent on the face of assessment - no personal hearing afforded to the petitioner prior to passing of the impugned intimation - violation of principles of natural justice - HELD THAT:- Since the point involved is short and relates to whether the turnover reported of a sum of ₹ 27,11,740/- was correct or erroneous, let the petitioner be heard on Wednesday the 25th of August, 2021 by the Assessing Officer and orders passed within a period of four (4) weeks thereafter.
List on 27.09.2021 for production of orders.
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2021 (8) TMI 1257 - SUPREME COURT
Stay on order passed by NCLT - HELD THAT:- The appellant submitted a Resolution Plan which was approved by the Committee of Creditors. The adjudicating authority has also approved the Resolution Plan - The NCLAT stayed the order passed by the NCLT and directed the appeals to be listed for hearing on 07.09.2021. We do not intend to express any opinion on the merits of these appeals.
Appeal dismissed.
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2021 (8) TMI 1256 - KERALA HIGH COURT
Maintainability of application - Notice before admission - HELD THAT:- Post after two weeks. In the meanwhile the petitioner is free to approach the proper officer for release of goods.
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