|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1473 Records
-
2022 (11) TMI 1453 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Seeking revision of the Financial Statement of the Company for the F. Y. 2018-2019 and to file the same with the Registrar of Companies, Gujarat at Ahmedabad - Section 131 of the Companies Act, 2013 - HELD THAT:- It is noted that the Applicant has proposed the rectification in the Financial Statement ending as at 31.03.2019. which has been proposed to be rectified by revised financial tax audit report prepared and issued by M/s Rakesh Choksi and Company, Chartered Accountant on 10.09.2020. The same has been duly approved by the Board of the Company on 10.09.2020. It is noted that notices have been issued to the Regional Director, the Registrar of Company and the Income Tax Department and the observations of Regional Director has been duly replied by the Applicant Company. It is also noted that there are no pending dues of Income Tax Department with respect of the Applicant Company. Hence, the present Application is complied with sub-section 1 and 2 of Section 131 of Companies Act, 2013.
Application allowed.
-
2022 (11) TMI 1452 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Rejection of section 9 application - dispute raised in letter regarding poor quality and deficiency in service - preexisting dispute or not - HELD THAT:- Submission of the Appellant that payment was never denied and contract continued even after letter dated 18.02.2015 also does not negate the dispute between the parties, since poor quality of service was explained by Corporate Debtor by letter dated 18.02.2015, hence, the dispute was very much there from the said date at least. Section 9 application was also objected by the Respondent and reply was filed raising dispute and refuting the claim of the Appellant. The Adjudicating Authority had come to the conclusion that there being pre-existing dispute application deserves rejection. The disputes pertaining to contractual issues are not to be resolved in Section 9 proceedings. Present is not a case where there is undisputed debt for which insolvency can be asked by the Appellant to be initiated.
No error has been committed by the Adjudicating Authority in rejecting Section 9 application, there being a preexisting dispute - There is no merit in the Appeal - Appeal is dismissed.
-
2022 (11) TMI 1451 - DELHI HIGH COURT
Restraining the respondents from leaking and disseminating any information to the print or electronic media relating to court proceedings including in-camera proceedings - HELD THAT:- The Court at this stage deems it appropriate to observe that it hopes and trusts that the news and broadcasting agencies shall bear in mind the aforesaid salutary principles which have been duly enunciated and noticed above while covering the criminal proceedings in question.
Pending further consideration, the Court directs the respondent No.5 to 9 to ensure that all broadcasts that are carried with respect to ECIR are in tune with the official Press Releases that may be issued either by the CBI or the Enforcement Directorate and comply with the directives which govern and are noticed in paragraph 7 of this order.
Let the matter be called again on 07.02.2023.
-
2022 (11) TMI 1450 - SC ORDER
Seeking grant of bail - it was held by High Court that In the present case, if the applicant is released on bail, it will give setback to the efforts which are being done by the Government as well as the local administration for release of the land in favour of members of the society. In view of the above, I do not find a case for grant of bail to the applicant at this stage - HELD THAT:- SLP disposed off.
-
2022 (11) TMI 1449 - MADRAS HIGH COURT
Maintainability of Refund claim - Seeking to quash the public notice issued for modification of a self-assessed Bill of Entry - application filled for re-assessment of the Bills of Entry in terms of Section 149 read with Section 154 of the Customs Act, 1962 - Notification No. 45/2005-Cus - Exemption of duty at 4% for clearance of the goods from Special Economic Zone (SEZ) to Domestic Tariff Unit (DTA) - non-agricultural intermediate products, wastes and scrap - HELD THAT:- Unless or otherwise, Bill of Entry submitted by the petitioner with regard to the clearance of the goods from SEZ to DTA area, is modified/corrected, to which, the petitioner is entitled to by filing Application u/s 149, the petitioner would not be entitled to avail the benefit available under the Notification for exemption.
Therefore, even assuming without admitting that, if the application filed by the petitioner for modification/correction of Bill of Entry was cancelled/rejected and the petitioner preferred any Appeal before the Appellate Authority, even then, the error committed by the petitioner while filing the Bill of Entry cannot be corrected, and the repondent-Department would proceed to assess, as if, the petitioner has not claim exemption. Therefore, for the purpose of getting exemption as per Notification, it is necessary to get Bill of Entry modified/corrected by filing application u/s 149 of C.A. Act, and re-assessment has to be made by the Authorities concerned, in the event, the petitioner is entitled for refund claim.
The petitioner has filed an application for refund and in terms of Section 149, the petitioner also filed application for modification of the Bill of Entry. In such view of the matter, this Court is of the view that the impugned order passed by the first respondent is unsustainable and the same is liable to be set aside.
Accordingly, the Writ Petition No. 4222 of 2020 is allowed, the impugned order dated 27.01.2020 is set aside and the first respondent is directed to consider the Modification Application filed by the petitioner dated 01.01.2020, and permit the petitioner to make corrections in the Bills of Entry and thereafter, re-assess the income of the petitioner, so as to enable the petitioner to claim refund, in terms of Notification No. 45/2005 Cus., which the petitioner claimed vide Application dated 14.09.2016.
Insofar as Writ Petition No. 4223 of 2020 is concerned, wherein, the challenge is to the Public Notice issued by the second respondent, which is also nothing but an outcome of wrong interpretation of the decision of the Hon'ble Supreme Court in ITC Ltd's case [2019 (9) TMI 802 - SUPREME COURT], this Court is of the view that, in the light of the observations made in W.P. No. 4222 of 2020, wherein, the issue as to whether the petitioner is entitled to file application u/s 149 of C.A. Act seeking for correction/modification of the Bill of Entry is decided in favour of the petitioner, the Public Notice impugned in W.P. No. 4223 of 2020 has to be given a go by.
Accordingly, W.P. No. 4223 of 2020 is also allowed and the impugned public notice is quashed.
In the result, both the Writ Petitions are allowed.
-
2022 (11) TMI 1448 - CALCUTTA HIGH COURT
Revision u/s 263 set aside by ITAT - computation of capital gain - findings recorded by the PCIT that no enquiry was conducted by AO - Tribunal deciding the appeal against the Revenue by holding that the Assessment Order is neither erroneous nor prejudicial to the interest of the Revenue
HELD THAT:- After considering the submission made by the assessee to all the notices issued by the AO the computation of capital gain as done by the assessee was accepted by the AO That apart the assessee has also reckoned the findings recorded by the PCIT alleging that the computation of capital gain is prejudicial to the interest of revenue.
Assessee has submitted all details in a tabulated form and has demonstrated that if the view taken by the PCIT is to be accepted it would result prejudice to the interest of revenue.
Unfortunately, the PCIT though extracted the elaborate submissions made by the assessee to the show-cause notice issued u/s263 of the Act, has not dealt with any of the contentions raised but merely concluded that the assessing officer has not made due enquiry. This aspect of the matter is factually incorrect, as the PCIT has committed a serious error in assuming jurisdiction under Section 263 of the Act.
Tribunal has re-appreciated the facts and circumstances and has held that the assessing officer did conduct enquiry, which in our opinion was an elaborate enquiry conducted by the assessing officer. Tribunal had also considered the calculation of capital gain in the manner observed by the PCIT and has recorded a categorical factual finding that if the said method is adopted it will be prejudicial to the interest of revenue.
Tribunal rightly granted relief to the assessee - Decided against revenue.
-
2022 (11) TMI 1447 - ITAT DELHI
Disallowance being amortization of lease payment - HELD THAT:- Finding parity on facts, respectfully following the findings of the co-ordinate bench, amortization portion of the lease taken from Noida authority is decided against the assessee and the challenge in respect of land at Vishakapatnam and Tuticorn is restored to the file of the Assessing Officer to be decided as per directions given in Assessment Year 2012-13.
Disallowance u/s 14A - Assessee has not earned any tax free income which may trigger application of provisions of section 14A - HELD THAT:- Facts on record show that during the year, the assessee has not earned any tax free income which may trigger application of provisions of section 14A of the Act. Such issue has now been decided in favour of the assessee and against the Revenue by the decision of Era Infrastructure [India] Pvt Ltd [2022 (7) TMI 1093 - DELHI HIGH COURT] wherein following the decision in the case of IL & FS Energy Development Company Ltd.[2017 (8) TMI 732 - DELHI HIGH COURT] held that no disallowance u/s 14A of the Act can be made if the assessee had not earned any exempt income.
Disallowance of deemed tax credit - HELD THAT:- This issue was also decided in assessee’s own case [2017 (4) TMI 1035 - DELHI HIGH COURT] as held tax exemption on dividend is granted with the objective of promoting economic development within Oman by attracting investments.
-
2022 (11) TMI 1446 - ITAT DELHI
Disallowance of deduction claimed u/s 80IA - six projects executed by the contractee companies are neither Central Government nor State Government or a local authority nor any other statutory body and therefore, the assessee is not entitled for deduction u/s 80IA - HELD THAT:- Assessee filed all the agreements entered into by it in respect of various projects with various undertakings for developing the infrastructural projects and made elaborate submissions as to why the assessee fulfills the conditions specified in Section 80IA(4) of the Act.
Assessee contended that the Corporations with which it had entered into agreements are public sector undertakings of State/Central Governments, therefore, fulfills the basic condition u/s 80IA(4) of the Act. The assessee also explained the various clauses of the agreements entered with various entities to prove that assessee is a developer and not merely a contractor. The basic objection of the AO in denying the claim u/s 80IA was that the enterprise with which the assessee entered into agreement for developing the projects are not statutory bodies. The submissions and evidences placed on record suggest that these Companies/Entities were formed under various Ministries of Government of India and, therefore, the contention of the AO that the basic condition of provisions of Section 80IA(4) of the Act was not fulfilled by the assessee is not correct.
Asessee is only an EPC contractor for carrying out work awarded by NHAI to Mokama-Munger Highway Ltd. and, therefore, the basic condition of sub-section (4) of Section 80IA is not fulfilled - LOA clearly specifies that assessee JV shall promote and incorporate the concessionary as a Limited Liability Company under the Companies Act as the NTT which shall undertake and perform the obligations and exercise the rights of the builder under LOA including the obligation to enter into the concession agreement pursuant to the LOA for executing the project. This clearly shows that MokamaMunger Highway Ltd. was incorporated as a pre condition for execution of the project as per the terms of LOA issued by NHAI to the assessee JV. Therefore, since NHAI through LOA has put a condition for incorporation of Limited Liability Company under the Companies Act for the purpose of undertaking and performing the obligation and exercise the rights of the builder under LOA and also to enter concession agreement pursuant to LOA for executing the project we are of the view that the assessee fulfills the basic condition under sub-section (4) of Section 80IA of the Act.
Assessee is only a contractor and not a developer - Assessee is liable for all risks for loss, damage to physical property, personal death insurance in consequence of performance of contract liable for liquidated damages to the employer due to delay in execution of contract, liable for cost of repairs for the loss or damages to the works or materials. Assessee is responsible for whole work from the date of takeover of the site till completion responsibility for maintenance of the road portion including the portions where the work is not started. All these clauses goes to show that the assessee is not a simplicitor contractor rather the assessee is a developer of the project. Therefore, the contention of the AO that the assessee is not a developer but only a contractor is misconceived.
Thus we hold that the assessee is entitled for deduction u/s 80IA(4) in respect of projects executed by the assessee and awarded by DFCCIL, IRCON, PGCIL.
TP Adjustment - interest receivables on the advance given to AE of the assessee JV - HELD THAT:- As held in Kusum Healthcare (P) Ltd [2017 (4) TMI 1254 - DELHI HIGH COURT] very item of “receivables” appearing in accounts of entity which may have dealings with foreign AE would not automatically be characterized as an International Transaction. As observed that there has to be a proper enquiry by the TPO by analyzing the statistics for a period of time to discern a pattern which would indicate that vis-à-vis the “receivables” for the supplies made to an AE, the arrangement reflects an International Transaction intended to benefit the AE in some way.
On perusal of the TPO’s order, we find that no such exercise has been carried out by the TPO in benchmarking the interest on “receivables”. Further, we observed from the order of the DRP none of the submissions or additional evidences were considered nor is there any finding by the DRP though the assessee has produced additional evidences before the DRP and made its submissions which were not made before the AO. Therefore, in the interest of justice, we are of the view that this matter should go back to the AO/TPO for deciding this issue afresh.
TP adjustment being Arm’s length Price of interest on loan received from Mr. B. Krishnaiah - When once the bankers do not provide loans towards working capital requirements to the JV Companies the interest rate cannot be compared to the base rate of State Bank of India. At the same time, we are in agreement with the TPO that Arm’s Length Price of specified domestic transactions need to be determined as per Section 92 & 92C of the Act w.e.f. the AY 201314.
TPO did not bring in any comparables for benchmarking the ALP interest on loan received from Mr. B. Krishnaiah. We further find that the TPO has not examined the CUP submitted by the assessee in its transfer pricing study. Therefore, in the interest of justice, we restore this issue also to the file of the AO/TPO to determine the ALP of the interest on the loan taken from B. Krishnaiah by bringing on record the comparables in similar circumstances and after analyzing the CUP adopted by the assessee in benchmarking the ALP on the interest paid to B. Krishnaiah and also keeping in view the observations in Kusum Healthcare (P) Ltd [2017 (4) TMI 1254 - DELHI HIGH COURT] after providing adequate opportunity of being heard to the assessee. This ground is allowed for statistical purpose.
Late deposit of Employees contribution to Provident Fund - deposits beyond the due date specified in the PF Act but before the due date of filing the Income tax return - HELD THAT:- We find that this issue is decided against the assessee in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] Respectfully following the said decision, we uphold the disallowance. This ground is dismissed.
Disallowance on account of retention money released by the employer of the assessee - assessee submits that this amount has already been disallowed by the assessee in its revised return of income filed and if the AO makes the final computation of total income taking into account the income shown in the revised return no separate disallowance is called for - HELD THAT:- Considering the rival contentions, we direct the AO to verify the claim of the assessee with reference to the revised return of income filed and in case if the Assessee had already considered the retention money for disallowance in its revised return no separate disallowance once again is called for. AO is thus directed to verify the claim of the assessee and act accordingly.
-
2022 (11) TMI 1445 - ITAT MUMBAI
Taxability of interest on income tax refund received - CIT(A) upholding the assessment order taxing the interest on income tax refund as business income u/A 7 of the India- Malaysia DTAA @40% + surcharge @ 5% + cess @ 3% - contention of the assessee is that such interest is taxable under Article -11(2) of the DTAA @10%.
HELD THAT:- We find that issue of taxability of interest on income tax refund was considered by the Special Bench in the case of Clough Engineering Ltd. [2011 (5) TMI 562 - ITAT, DELHI] held that interest on income tax refund would be taxable under Article-11 and not as business profits connected with the PE of assessee. Also see Hon'ble Bombay High Court in the case of DIT vs. Credit Agricole Indosuez [2015 (6) TMI 974 - BOMBAY HIGH COURT].
We find merit in ground of appeal by the assessee. Accordingly, the Assessing Officer is directed to tax interest on income tax refund under Article 11(2) of India- Malaysia DTAA. Consequently, ground no.1 to 3 of appeal are allowed.
-
2022 (11) TMI 1444 - CESTAT MUMBAI
Clandestine removal - undervaluation or not/short payment of duty - value shown on the Central Excise Invoices at the time of removal of excisable goods is 'transaction value' or not - price escalation clause - clandestine removal of excisable goods manufactured at their Satara factory in the disguise of goods shown to have been manufactured by KC Goa - Demand on the basis of presumptions - liability to pay CENVAT duty on escalation bills issued.
HELD THAT:- The appellant are not in business of supply of the off the shelf goods or consuming the goods captively or supplying the goods through the any of their related person. Admittedly in all the case the appellant have supplied the goods to their customer against contractual agreement and the goods have been tailor made as per the requirements/ specifications of the Customer. In the present case after analyzing the Contracts impugned order adopts the value as determined by the cost auditor, for the demanding the duty. It is settled preposition in law that in case of the supplies made under the contractual agreement the contract price is the basis for determination of the assessable value as per section 4 of the Central Excise Act, 1944.
During the course of arguments revenue has relied upon the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS M/S FIAT INDIA PVT LTD & ANR [2012 (8) TMI 791 - SUPREME COURT]. It is not the case that the appellant was selling the goods at price lower than the cost of production and incurring loss. Even the cost auditor has not concluded that the appellant was selling the goods and earning loss. Hence the ratio of this decision cannot be directly applied to the present case.
Demand on the basis of presumptions - HELD THAT:- Commissioner has in the impugned order nowhere concluded that appellants had in case of any contract received any amount over and above the agreed contractual value. That being so there cannot be any reason for the rejection of the transaction value/ contractual value. Commissioner has in the impugned order referred to 41 contracts against which the supplies were made by the appellant to their customers, but have no where concluded to this effect in a single case. Interestingly it is seen that such a conclusion has not been arrived in the impugned order even in the cases where the supplies were made to the group companies. The demand seem to be made on the basis of the presumptions only contrary to values determined as per the contract/ agreement entered into by the purchaser and seller. The said approach is totally contrary to the concept of transaction value introduced from 2000 - Impugned order seeks to reject the contract value/ transaction value without even showing what was additional commercial consideration flowing from the buyer to seller for the sale of the goods. The impugned order nowhere concludes that appellant has received any amounts over and above the declared transaction value for the payment of duty. The demand thus made contrary to the settled position in law cannot be sustained.
Charge of undervaluation has been made against the appellant on the basis of the cost auditor report who has concluded that appellant was supplying the bought out items bought from various entities - HELD THAT:- The entire analysis done is not as per any prescribed standard of The Institute of Cost and Work Accountant of India and is also not based on the CAS-4, standard prescribed for determining the cost of production - The cost auditor report relied upon being bereft of the analysis of the cost records and the cost statement cannot have much sanctity in law. The costing studies could have been done either contract wise or the project wise, in case of company undertaking turnkey projects, whereas the cost auditor has in general determined the quantum of undervaluation only by referring to the total cost of sales and sales revenue - The cost auditor report do not point to any accounting standard and the accounting policies of the appellant which are the part of Financial Statements of the company. Accordingly the reliance placed on the Cost Audit report in the impugned order, is contrary to the specific direction given by the tribunal while remanding the matter back to original authority.
The show cause notice not only makes the demand by alleging the undervaluation of the manufactured goods by overvaluing the brought out items, it also alleges that appellant has removed the clandestinely removed the bought out items as per the cost auditor report from their premises clandestinely - HELD THAT:- The difference between the selling price and purchase price is claimed to be trading profit by the appellant. The total value of the bought out items as per the show cause notice which have been purchased by the appellant from their sister concern as percentage of the total purchase value of bought out items is in range of 17% to 28% for the three years where the data is free from defect. In the year 2003-04 and 2004-05 the purchases from sister concern exceed the total purchase value of bought out item hence left out from the analysis. Further from the figures as above it is observed that constantly from the year 2000-01 to 2003-04 the purchase value of bought out items have declined - Further as per the terms of contract, appellant were required to produce the invoices/ gate passes of the sub vendor to the purchaser to claim the duty paid against the said supplies and the goods/ the sub vendor facilities were open for inspection by the purchaser before dispatch. The findings recorded in the impugned order go contrary to this extent as provided in the contract. No instance has been pointed out where the purchaser has raised any query for non fulfillment of said conditions.
Alleged clandestine clearance of the goods, by showing them as manufacture of Kay Chandra Goa - It is also the case of the revenue while alleging undervaluation, that the Appellant 1, was overvaluing the value of bought items from M/s Kay Chandra Goa, while issuing the invoices in respect of these goods to the purchaser - HELD THAT:- While alleging the goods to be clandestinely cleared by the Appellant the duty is being demanded on the purchase value of the goods from Goa Unit and not on the sale value indicated in the invoices issued by the appellant. If these goods were the manufactured at Satara unit, then the transaction value between the appellant and its customer at the time and place of clearance as per section 4 of the Central excise Act, 1944 would be the sale price of the impugned goods and CENVAT duty paid on the purchase price would be available as CENVAT Credit to the appellant.
Even if the charge of clandestine clearance of the goods in garb of the goods manufactured at Goa is to be upheld, tribunal has categorically held that the amounts paid at Goa need to be offset against the duty payable by the appellant at Satara. There is no challenge to the above by the revenue and accordingly in our view the amount paid at Goa needs to be offset against the amount payable by the appellant in respect of the goods alleged to be cleared clandestinely. Undisputedly against the impugned order records that an amount of Rs 95,01,741/- has been paid by K C Goa against the clearance of the said goods. A demand of Rs 1,02,69,756/-, has been made and confirmed against the appellant. Thus after offsetting the amount paid in the name of K C Goa registered with Goa Commissionerate during the relevant period an amount of Rs 7,68,015/- is demandable from the appellant 1.
Demand made on the escalation bills - HELD THAT:- The escalation bills are not even finalized till today. On the contrary applicant has produced the letter dated 03.03.2008 from the Commissioner for Cane Development and Director of Sugar Bangalore. Against the escalation bills raised by the appellant as reflecting in Show Cause Notice to M/s Shree Dhanalaxmi SSK for an amount of Rs 1,77,83,308/- having duty component of Rs. 28,45,330/- as per the letter dated 03.03.2008, the escalation amount allowed is Rs. 29,88,940/- having the component of duty and taxes of Rs 7,08,565/-. This clearly establishes that the escalation amount as claimed by the appellant in the escalation bills is not the amount received by them but is the amount which is subsequently determined and agreed to by the purchaser - Undisputedly the appellant is required to pay the duty on the escalation amount received by them along with the interest from the date when the goods against which these escalation bills are raised were cleared by them from the place of clearance as have been held by the Hon’ble Supreme Court in M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2019 (5) TMI 657 - SUPREME COURT]- the demand made in respect of undetermined escalation amount is pre-matured and needs to be set aside.
Demand on the issue of limitation and penalties on the two appellant - HELD THAT:- The demand made cannot be upheld on the merits of the case except for adjustment which is indicated with regard to escalation price, the issue of limitation and penal action becomes irrelevant and is not discussed further.
Appeal disposed off.
-
2022 (11) TMI 1443 - ALLAHABAD HIGH COURT
Reopening of assessment u/s 148 - Period of limitation - review application has been filed praying for review of the judgment and order dated [2022 (5) TMI 1614 - ALLAHABAD HIGH COURT] on the ground that the Assessing Officer has also put signature on the notice under Section 148 of the Income Tax Act, 1961 - HELD THAT:- We have perused our judgment and order above we find that it was passed after affording opportunity of hearing to the applicants, i.e. the Department. Departmental counsel argued the matter after obtaining instructions dated 04.05.2022 from the concerned authority.
We have also noted in our aforesaid judgment and order dated 06.05.2022 that in the aforesaid instructions it is admitted that the impugned notice through e-mail was sent to the petitioner on 01.04.2021. Thus, it was admitted by the respondents that the impugned notice under Section 148 of the Income Tax Act, 1961 was issued to the petitioner on 01.04.2021 i.e. after expiry of limitation on 31.03.2021.
In view of the aforesaid, we do not find any manifest error in our judgment dated 06.05.2022. We find no merit in this review application.
-
2022 (11) TMI 1442 - SC ORDER
Levy of GST on the value of by-products i.e., broken rice, bran and husk - HELD THAT:- Issue notice - Tag with SLP (C) No 4146 of 2021.
In the meantime, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 10 November 2021 in Writ Petition No 26163 of 2021.
-
2022 (11) TMI 1441 - DELHI HIGH COURT
Validity or reassessment order u/s 148A(d) passed without considering the reply filed by the assessee - Petitioner further states that the impugned notice u/s 148 has been issued beyond the limitation period of six years stipulated in erstwhile Section 149 and the additional timeline prescribed under The Taxation and Other Laws Act, 2020 i.e., till 31st March, 2021 - HELD THAT:- As revenue states that as the impugned order has been passed without considering the reply dated 1st June, 2022, he has no objection if the impugned order u/s 148A(d) and notice u/s 148 both dated 18th July, 2022 are set aside and the matter is remanded back for a fresh decision by the AO. He, however, prays that the petitioner should file a copy of its reply before the Jurisdictional Assessing Officer ("JAO") being Ward 72(1), Delhi instead of Ward 70(1), Delhi.
The argument that the notice under Section 148A(b) has been issued beyond limitation has already been rejected by this Court in Touchstone Holdings Pvt. Ltd. Vs. Income Tax Officer, Ward 25(3), Delhi and Ors [2022 (9) TMI 892 - DELHI HIGH COURT]
Keeping in view the aforesaid, the impugned order u/s 148A(d) of the Act and notice under Section 148 of the Act are set aside and the matter is remanded back to the AO for a fresh decision. AO is directed to consider the replies dated 1st June, 2022 and 2nd June, 2022 filed by the petitioner.
-
2022 (11) TMI 1440 - ITAT JAIPUR
Application of enhanced GP rate - correctness of the application of the GP rate of 3.25% by the AO - HELD THAT:- Generally the result of the subsequent year cannot be applied in the preceding (current) year. Interestingly, whereas Rellan Motors declared GP of 3.92% in that year, the assessee declared (revised) GP rate of around 4%. Secondly a perusal of the orders does not show that the assessee was ever confronted with the material used against him. Hence no reliance can be placed on so called comparable case. Before the CIT(A), we find that the assessee has furnished detailed reason at pages 4 onwards pointing out several facts making the said case of Rellan Motors as completely distinguishable.
On the other hand the trading results as declared in AY 2010-11 were accepted. The Hon’ble Rajasthan HC in the case of CIT v/s Gotan Lime Khaniz Udyog [2001 (7) TMI 19 - RAJASTHAN HIGH COURT] has held that where the accounts are rejected, it is not always necessary for the AO to make addition over and above the declared income, if considering the books of accounts, past history and material collected by the AO, no interference is warranted. Thus, we don’t find any justification on the application of enhanced GP rate of 3.25% which is completely without furnishing any justified grounds hence, the GP rate as declared by the assessee at 1.68% is hereby accepted. Therefore, the authorities below were completely unjustified in applying higher GP rate of 3.25%.
Suppression of sale - We find nothing on the record to justify the case of suppression of sale i.e., though amount was received but was not recorded. Moreover, to effect the sale to such an extent, corresponding purchases of the vehicles are also required by the assessee, however, neither the claimed purchases have been discussed nor it is alleged so.
At the best it was a case of mere suspicion which was not substantiated with the help of strong evidences, wherein the revenue has completely failed. Thus, the enhancement of the sale (due to suppression) and application of GP rate of 3.25% is not approved and the resultant addition to the extent of Rs. 2,26,41,521/- is hereby deleted. However, in the peculiar facts of the case and the reasoning adopted by the authorities below, we uphold the rejection of the accounts and taking an overall view of the entire matter it is felt justified that an ad hoc addition of Rs. 2,00,000/- shall cover up the possible leakage of the income, if any. This ground No. 1 of the appeal is therefore partly allowed.
Estimation of sales - Estimating and considering advance from customers as ‘’SALES’’ & applying ‘’GROSS PROFIT %’’ thereon - HELD THAT:- Before us, the ld.AR vehemently contended the contradictory approach by the AO in different years even though the facts & circumstances are the same and the method & manner of the receipts of the sale proceeds and accounting thereof, are same being consistently followed by the assessee. He also strongly contended that is was not a case of deferred sale and further contended that because of the different approach adapted by the AO in the years under consideration, it has resulted into distorted picture of the income of not only of the given year but also of the other years and also resulted into multiple additions because suitable credit of the sale already booked has not been given. We are in agreement with these contentions however, the ld. CIT(A) rejected the contentions mechanically. It is noticed that similar allegation of deferment of sale was made by the AO in AY 2010-11 also though no quantification was made however, in our order dated 09-11-2022 in ITA no.396/JP/15,we have rejected such contention and the approach. Similarly, the allegation of suppression of sale and enhancement made of 4.14% and application of GP rate of 3.25% have also been rejected by us deleting the resultant addition for the reasoning given in ground of appeal no.1. Since the facts of the case are identical in this year also hence, our findings and the decision therein shall equally apply here also. Accordingly, the impugned addition of Rs. 62,98,437/- is hereby deleted. This ground No. 2 of the appeal is therefore allowed.
TDS u/s 194A - Disallowance of Interest u/s 40(a)(ia) - interest expenses for repayment of loan -AO observed that the assessee has not deducted TDS on the payments made to the said parties - HELD THAT:- Though various contentions have been raised to convince that it was not a case of making disallowance u/s 40(a)(ia) r/w S.194A however we shall confine ourselves to only one argument that where the payee had already paid the taxes, no further disallowance can be made. It is noticed that all the payees are public limited companies or corporations being M/s Maruti Udhyog Ltd. is the Public Limited Companies. Moreover, M/s Sundaram Finance, AU Finance and Mahindra & Mahindra Finance are Non-Banking Finance Corporation, which are renowned companies of their field. They must have already filled the return of income and paid tax due thereon considering the subjected amount paid to them of Rs. 6,96,201/- in their respective declared income.
Therefore, no disallowance should have been made in view of the binding decision of the Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. [2007 (8) TMI 12 - SUPREME COURT] which, has very categorically held and rather prohibited the department to make recovery of the taxes again.
Now, the second proviso to S.40(a)(ia) has taken care of a situation where payee has already paid taxes, no disallowance should be made. We are satisfied that the authorities below were not justified in making the impugned disallowance hence the same is directed to be deleted.
-
2022 (11) TMI 1439 - ITAT CHANDIGARH
TDS u/s 194C - Assessee in default u/s 201(1) & 201(1 A) for not deducting tax at source on payment made as External Development Charges to Greater Mohali Development Authority (GMADA) - HELD THAT:- We find that an identical issue has been decided by the Coordinate Chandigarh Benches in the case of M/s Sukham Infrastructure Pvt Ld. Chandigarh [2018 (6) TMI 1847 - ITAT CHANDIGARH] held that GMADA has been authorized to collect the EDC charges as per the policy decision of the Government and not out of free consent of the parties to the contract which has been executed between the assessee and the Govt. and therefore, it cannot be said that assessee has paid the EDC charges to GMADA out of any contractual obligations and liability towards GMADA. Though the developer contributes towards the proportionate cost of infrastructure development by way of EDC Charges, the work so carried out by the local authority is not in consequence of specific performance of the contract but out of its own obligations and duties towards the public and thus, the contract cannot be said to be a work/service contract and thus, on both accounts, the provisions of section 194C are not attracted.
Nothing has been brought on record or to our notice during the course of hearing that the aforesaid findings of the Coordinate Benches have been disturbed by an order of a Higher Court and therefore, taking the same into consideration and following the principle of consistency, we are of the considered view that the provisions of section 194C are not attracted on payment of EDC charges to GMADA and thus, the demand raised u/s 201(1) read with Section 201(1A) of the Act are hereby set aside. Decided in favour of assessee.
-
2022 (11) TMI 1438 - CALCUTTA HIGH COURT
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - constitutionality of Sections 3 and 5 of the 1988 Act - HELD THAT:- The issue involved in these writ petitions are covered in favour of the petitioners by a recent judgment in the case of Union of India & Anr. Vs. M/s. Ganpati Dealcom Pvt. Ltd [2022 (8) TMI 1047 - SUPREME COURT] as held that Section 3(criminal provision) read with Section 2(a) and Section 5(confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place. Such provisions were still-born law and never utilized in the first place. In this light, this Court finds that Sections 3 and 5 of the 1988 Act were unconstitutional from their inception. Thus WP are disposed of by setting aside the impugned notices under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are quashed and all legal consequences will automatically follow.
-
2022 (11) TMI 1437 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
Corporate Insolvency - application filed u/s 10 of IBC, 2016 r/w rule 7 of AAA Rules by directors authorized vide board resolution for initiation of Corporate Insolvency process in respect of Corporate Debtor being the Corporate Applicant itself - Appointment of Resolution Professional proposed in the Application u/s. 7 or 10 of the Code - HELD THAT:- This Bench is of the view that the Corporate Applicant has defaulted in making payment of its debt to the creditors. Hence, this application is admitted.
Sub-section (3) (b) of Section 10 mandates the Corporate Applicant to furnish the name of an Interim Resolution Professional. Mr. Raman Devarajan has agreed to accept the appointment as the interim resolution professional and has signed a communication in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 dated 27.04.2022. Accordingly, it is seen that the requirement of Section 10(3)(b) of the Code has been satisfied.
As a consequence of the application being admitted, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force.
We direct the Corporate Applicant to deposit a sum of Rs. 2 lacs (Rs. Two Lacs) with the Interim Resolution Professional, namely Mr. Raman Devarajan to meet out the expenses and perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the applicant. The amount however, be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Applicant.
A copy of the order shall be communicated to the Applicant by the Registry. The said order shall be communicated to the IRP above named. Applicant is also directed to provide a copy of the complete paper book with copy of this order to the IRP. In addition, a copy of said order shall also be forwarded to IBBI for its records and to RoC for updating the Master Data.
-
2022 (11) TMI 1436 - SUPREME COURT
Time Limitation - Appellant relying upon Section 122 of the Army Act submitted that the trial by Court Martial was vitiated being barred by the period of limitation prescribed under the said provision - HELD THAT:- In the instant case, having regard to the contents of the letter dated 13.08.2015 written by the aggrieved person i.e., Col. Ramneesh Singh to the concerned authority, it clearly transpires that he was aware of the alleged act of the Appellant having stolen the affection of his wife on the date of the said letter. He had specifically mentioned in the said letter that it was for bringing to the notice of the concerned authority about the Appellant's act of stealing affection of his wife.
The date 13.08.2015 would be the crucial date on which the aggrieved person had the knowledge about the commission of the alleged offence. Therefore The time had started running from the said date for the purpose of Section 122 of the said Act. In that view of the matter, the submission of the learned Senior Advocate appearing for the Respondents that date of aggrieved person's knowledge about the commission of the alleged offence by the Appellant, should be construed as the date when the Respondents prima facie concluded after the Court of Inquiry that the Appellant had committed the offence, cannot be accepted. The date 13.08.2015 therefore would be the date on which the aggrieved persons i.e., Col. Ramneesh Pal Singh had the knowledge about the commission of the alleged offence by the Appellant. The Convening Authority having directed the trial by General Court Martial vide order dated 22.11.2018, the same was clearly beyond three years and therefore barred Under Section 122 of the Act.
The trial by the General Court Martial directed vide the order dated 22.11.2018 was clearly barred Under Section 122 of the Army Act. The said proceedings deserve to be quashed and set aside and are accordingly set aside.
The appeal stands partly allowed.
-
2022 (11) TMI 1435 - CALCUTTA HIGH COURT
Alleged changes in management in the petitioner Company from 1.4.2017 to 31.3.2022 without notice to the Collector of Excise - whether appointments, resignation, expiry of term and death of directors would amount to “change in management” under the West Bengal Excise (Change in Management) Rules, 2009? - HELD THAT:- In the facts of the present case, changes in the Board of Directors as a result of appointment, death or retirement cannot imply rendering of any service by the Excise authorities since the changes happened in the usual course of business. Thus, the justification of demanding an amount of Rs. 1.45 crores for such routine events in the usual course of business is contrary to the law laid down by the courts.
Even if the petitioners are brought within the purview of the amended Rule 3 under the later Notification of 11th February, 2020, the petitioners would be protected by Rule 3(i)(d) where ‘Change in Management’ in the case of a public limited company has been defined as any change in directorship other than appointment/cessation of independent directors within the meaning of The Companies Act, 2013 or any change of shareholding amongst shareholders beyond 10% of the existing shareholding pattern - There is admittedly no change in the shareholding pattern of the first petitioner in the period stated in the impugned letter of 24.6.2022.
The petitioners agreeing to pay the composition fee in lieu of having their license suspended cannot be seen as waiver of the petitioners’ rights under the prevailing laws.
There is no justification for the Excise Authorities in demanding the amount of Rs. 1.45 crores from the petitioners on the ground of changes in management - It is clear that the demand of fees for appointment, resignation, retirement and death of the directors of the petitioner no. 1 has no nexus with the perceived changes in the management and control of the petitioner no. 1. The respondents are seeking to interpret the 2009 Rules in a manner which is contrary to the settled law on the subject. The respondents cannot unjustly enrich themselves in a manner extraneous to the Rules and the law pronounced by the Courts.
Petition allowed.
-
2022 (11) TMI 1434 - SC ORDER
Maintainability of SLP - Applicability of stamp duty - certificate of sale - can be regarded as conveyance or not - HELD THAT:- Reference made to the judgments by the Madras High Court in the Board of Revenue No.2 of 1875 (In Re: Case Referred) dated 19.10.1875 opining that a certificate of sale cannot be regarded as a conveyance subject to stamp duty, by the Allahabad High Court in Adit Ram v. Masarat-un-Nissa [1883 (5) TMI 1 - ALLAHABAD HIGH COURT] opining that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable and this Court’s view in ESJAYPEE IMPEX PVT. LTD. VERSUS ASST. GENERAL MANAGER AND AUTHORIZED OFFICER, CANARA BANK [2021 (1) TMI 1308 - SUPREME COURT] opining that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchase with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act and order of this Court in REALTY ASSOCIATES VERSUS THE ASST. GENERAL MANAGER AND AUTHORIZED OFFICER & ANR. [2021 (10) TMI 1424 - SUPREME COURT] opining that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action.
It is time that the authorities stop filing unnecessary special leave petitions only with the objective of attaining some kind of a final dismissal from this Court every time. Costs this time has been spared but will not be spared the next time.
The special leave petitions are dismissed.
........
|
