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Showing 161 to 180 of 1597 Records
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2022 (3) TMI 1437 - BOMBAY HIGH COURT
Addition u/s 68 - bogus LTCG - shares were bought/acquired from off market sources and thereafter the same was demated and registered in stock exchange and increase in share price of Ramkrishna Fincap Ltd. is not supported by the financials - HELD THAT:- There is a finding of fact by the Tribunal that the transaction of purchase and sale of the shares of the alleged penny stock of shares of Ramkrishna Fincap Ltd. (“RFL”) is done through stock exchange and through the registered Stock Brokers. The payments have been made through banking channels and even Security Transaction Tax (“STT”) has also been paid. The Assessing Officer also has not criticized the documentation involving the sale and purchase of shares. The Tribunal has also come to a finding that there is no allegation against assessee that it has participated in any price rigging in the market on the shares of RFL.
We find nothing perverse in the order of the Tribunal. Reliance on a judgment of NRA Iron & Steel (P.) Ltd.. [2019 (3) TMI 323 - SUPREME COURT] does not help the revenue in as much as the facts in that case were entirely different. No substantial question of law. - Decided against revenue.
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2022 (3) TMI 1436 - PATNA HIGH COURT
Seeking grant of anticipatory bail - Money Laundering - siphoning of the funds - it is alleged that the bank accounts were misutilized in connivance with the Bank Officials, in as much as, huge amount of cash was deposited and transferred to other accounts without their knowledge and consent - HELD THAT:- The applications and implications of Section 45 of the Act needs to be considered while granting anticipatory bail and the privilege of anticipatory bail may be given only if the High Court is of the view that accused has not committed any offence under the PML Act. Whereas, in the instant case there are sufficient materials to prove the complicity of the petitioner. Charge against accused persons has not been proved by Special (PMLA) Court, Patna due to non- appearance of the accused persons of this case including the petitioner - The offence of money laundering damages the economic and financial system of the country and it can put the economy on hold or can derail it. It is more serious than the murder. The money laundering is not only used for the drug trading but also for terrorist activities and such crime affect the integrity and sovereignty of the country.
It reveals that the bank accounts in the name of the complainant and others were misused in connivance with the bank officials of G.B. Road, Gaya inasmuch as huge amount of cash was deposited and transferred to different other accounts without knowledge and consent of the account holders and thereby making such deposits/transfers illegal and unlawful in violation of the rule, regulation and law as well as Section 4 of Money Laundering Act. Money is being siphoned off immediately from the account to conceal its origin and to project it as untainted against this petitioner- accused along with others.
The petitioner cannot be enlarged on anticipatory bail - application dismissed.
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2022 (3) TMI 1435 - DELHI HIGH COURT
Reopening of assessment u/s 147 - scope of mandatory procedure prescribed u/s 148A - relation between Relaxation Act, 2020 and Finance Act, 2021 - enhanced/reduced time limit specified in Section 149 - initiation of reassessment proceedings prior to coming into force of the Finance Act, 2021 - substitution made by the Finance Act, 2021 - legality and validity of only the Explanations to the two Notifications, being Notification No.20/2021 dated 31st March, 2021 and Notification No.38/2021 dated 27th April, 2021, issued by Central Government in exercise of powers vested under Section 3(1) of Relaxation Act, 2020 - reformative changes to Sections 147 to 151 - income escaping assessment - onset of Covid-19 pandemic followed by nationwide lockdown in March, 2020 - Relaxation of certain provision of specified Act - HELD THAT:- Explanations A(a)(ii)/A(b) to the Notifications dated 31st March, 2021 and 27th April, 2021 are declared to be ultra vires the Relaxation Act, 2020 and are therefore bad in law and null and void.
Consequently, the impugned reassessment notices issued u/s 148 of the Income Tax Act, 1961 are quashed and the present writ petitions are allowed. If the law permits the respondents/revenue to take further steps in the matter, they shall be at liberty to do so.
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2022 (3) TMI 1434 - ITAT MUMBAI
TDS u/s 195 - payments to non-resident - payment made to Facebook - disallowance u/s 40(a)(ia) - Whether payment made by the assessee to Facebook are in the nature of Royalty and not as fee for technical services (FTS) ? - HELD THAT:- The assessee company is engaged in the business of providing a platform for online gaming, more particularly that of Rummy. The assessee company incurred advertisement expenses for banner advertisement on the website of Facebook. It is pertinent to note that for the purpose of uploading the banner advertisement on Facebook the advertisement related information is put up at the interface provided by the Facebook, Ireland in the required format. Facebook, Ireland, after due verification of the advertisements, upload the advertisement on its server. While uploading the advertisement on Facebook it is an admitted position that the assessee company does not have any control over the functioning of the interface provided by the Facebook, Ireland. The entire operation and maintenance of the server while providing the advertisement platform is under the control of Facebook, Ireland. It is an admitted fact that the assessee company makes use of standard facility which is provided for displaying advertisement on the website of Facebook, Ireland which was also provided to its other global customers in the like manner.
In the present case, the assessee was very well aware that Facebook, Ireland is a non-resident and the advertisement payment made to Facebook, Ireland will not come under the purview of TDS and, therefore, has chosen not to deduct tax at source.
It is pertinent to note that the assessee has given specific task of advertisement banner to the Facebook Ireland. The element of fees for technical services is determined if there is any technical aspect involved by providing services by the company from whom the services are rendered. As per letter dated 19.01.2015, Facebook Ireland stated that no servers that host the Facebook.com product are located in India. In the present case, the assessee has demonstrated before us that the assessee is taking the privilege of platform of Facebook, Ireland which is not either in the nature of royalty or technical services. The payment terms were specifically defined in the payment agreement with Facebook Ireland which clearly indicates that the Facebook Ireland will provide platform banner for advertisement to the assessee-company. Thus there is no element of fees for technical services or royalty is involved in this case. Thus, the Assessing Officer as well as the CIT(A) has totally ignored the actual fact of the present case without demonstrating that the services are coming under the purview of FTS or royalty. Therefore, the appeal filed by the assessee is allowed.
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2022 (3) TMI 1433 - ITAT MUMBAI
Addition of sales tax incentive/subsidy holding it as capital in nature - HELD THAT:- As decided in own case A.Y.2013-14 [2020 (12) TMI 165 - ITAT MUMBAI] allow the assessee's claim for treatment of Notional Sales tax as Capital receipt not liable to tax.
Depreciation claim - Whether the claim of depreciation for the year was optional in nature? - HELD THAT:- CIT(A) noted that current year issue is consequential. Accordingly, following earlier orders of ITAT in assessee‘s own case, he decided the issue in favour of the assessee. It is not the case that earlier years decision of ITAT has been reversed by Hon'ble High Court. Learned Departmental Representative also did not dispute that this issue is covered in favour of the assessee. Hence, we uphold the order of learned CIT(A). The Revenue‘s ground is dismissed.
Disallowance u/s 14A r. w. Rule 8D(2)(iii) - AO grievance that CIT(A) has erred in directing the Assessing Officer to take into account only such investments as having yielded dividends during the year under consideration - HELD THAT:- We find that this issue is covered, in favour of the assessee, by several decisions of the coordinate benches, in assessee’s own case, for the assessment years 2010-11 to 2012-13. DR does not dispute this position, nor does he point out any specific reasons for our not following these coordinate bench decisions, but he relies upon the stand of the Assessing Officer nevertheless. We see no reasons to take any other view of the matter than the view so taken by the coordinate benches, in assessee’s own cases for the assessment years 2010-11, 2011-12 and 2012-13, and, respectfully following the same, we confirm the conclusions arrived at by the CIT(A) on this point as well, and decline to interfere in the matter.
MAT computation - disallowance u/s 14A r.w Rule 8D(2)(iii) to the amount calculated by the assessee for the purpose of income u/s. 115JB - HELD THAT:- We find that in the immediately preceding assessment year in assessee’s own case note that this issue is covered in favour of the assessee by the decision of honourable Bombay High Court in the case of Commissioner of income tax vs Bengal finance and investment private limited [2015 (2) TMI 1263 - BOMBAY HIGH COURT] wherein the honourable High Court by the order dated 5/1/18 held that disallowance u/s 14A cannot be added under section 115JB - Decided in favour of assessee.
Deduction u/s. 80IB(9) - Disallowance of deduction as assessee shall be eligible to claim deduction u/s. 80IB(9) of the Act in respect of profits “not allowed as deduction u/s. 10 AA - HELD THAT:- Issue decided in favour of the assessee, by a decision of the coordinate bench in the assessee’s own cases for the assessment years 2011-12 and 2013-14 [2020 (12) TMI 165 - ITAT MUMBAI] as held that the assessee shall be eligible to claim deduction u/s. 80IB(9) of the Act in respect of profits “ not allowed as deduction u/s. 10AA”. Accordingly, we set aside the vide taken by CIT(A) and A.O. on this issue. Decided in favour of the assessee.
Addition of aborted blocks of other contract areas underproduction Sharing contracts other than KGD - HELD THAT:- As decided in assessee own case for the assessment year 2013-14 [2020 (12) TMI 165 - ITAT MUMBAI] the deduction u/s 80IB(9) has to be computed after ascertaining profits and gains of eligible business in terms of sec. 80IA(5). Hence there is no scope to adjust expenses relating to other “undertaking” while computing deduction u/s 80IB(9) - Hence, we are of the view that the decision rendered by CIT(A) does not call for any interference and accordingly we uphold the same.
Deduction u/s 80IB(9)(ii) - whether natural gas is mineral oil and is eligible for deduction u/s. 801B(9)? - HELD THAT:- As the term 'mineral oil', for the purpose of claiming deduction u/s 80-IB(9) of the Act includes natural gas and condensate and therefore the assessee claim for deduction us 80IB(9) in respect of both natural gas and condensate is accordingly allowed. Accordingly, this ground of appeal is accordingly allowed.
Exclusion of amount of notional sales tax incentive while computing Book Profit u/s. 115JB - HELD THAT:- As where a receipt is not in the nature of income at all it cannot be included in book profit for the purpose of computation under Section 115JB of the Income Tax Act, 1961. For the aforesaid reason, we hold that the interest and power subsidy under the schemes in question would have to be excluded while computing book profit under Section 115 JB of the Income Tax Act, 1961.
Weighted deduction at 200% in respect of R&D expenditure u/s. 35(2AB) as claimed by the assessee - HELD THAT:- We see no reasons to interfere in the findings of the CIT(A)- particularly as there are now a number of decisions of the coordinate benches holding that so far as assessment years prior to 2016-17 are concerned, the DSIR’s limitingthe quantification of expenditure incurred on research and development expenses on a DSIR approved facility would not come in the way of weighted deduction under section 35AB. We are of the considered view that as long as the expenditure is actually incurred in the DSIR approved facility, which is not even in dispute in the present case, the entire expenses will have to be allowed as a deduction.
TP adjustment in respect of interest on delayed realization of receivables - whether the assessee’s benchmarking of the interest on the delayed realization of debts at 200 bps above the LIBOR is correct or not? - HELD THAT:- We find that in the immediately preceding assessment years, consistently this approach of the assessee, at the even lower spread of 150 bps, has been all along accepted by the coordinate benches. In any case, no case has been made out that the spread of 200 bps is lower than the arm’s length price. As regards the cost-plus method on the cost of funds, we find it is fundamentally flawed inasmuch as it treats all the types of borrowing at par and proceeds on the erroneous assumption that the arm’s length price of the debt has, at its basis, cost of funds available to the tested party- particularly when these funds are of significantly different tenures and different currencies. In view of these discussions, as also bearing in mind the entirety of the case, we approve the conclusions arrived at by the learned CIT(A)- which is, in any event, in harmony with the decisions of the coordinate benches in assessee’s own, and decline to interfere in the matter.
Transfer pricing adjustment on Provision of support services for drilling operations to AE - HELD THAT:- One of the critical factors in determining the ALP, as recognized by rule 10B(2)(d), is conditions prevailing in the market in which AEs operate, and once it’s a legal condition precedent in entering the transaction in the respective PSC market is that the AE’s affiliates are not allowed to have any mark up on a supply of services to the AE, the determination of ALP is required to be having regard to this condition. Viewed thus, the cost to cost rendition of services can be indeed be viewed as an arm’s length transaction. In view of these discussions, and being consistent with the co-ordinate bench decisions, we uphold the action of the CIT(A) and decline to interfere in the matter.
TP adjustment of corporate guarantee fee which is split into 50:50 as against the split of 60:40 charged by the TPO - HELD THAT:- We find that this is a purely factual matter, which permeates from year to year, and once the coordinate benches have consistently held, right from 2011-12 onwards, that 50:50 allocation is reasonable, and there is no change in the material facts, we see no reasons to take any other view of the matter than the view so taken by the coordinate benches in assessee’s own cases for the preceding assessment years. We, therefore, approve the conclusions arrived at by the learned CIT(A) and decline to interfere in the matter.
Nature of expenses - expenses incurred on corporate social responsibility (CSR) - HELD THAT:- As in assessee’s own case for the immediately preceding assessment year, deleted the similar disallowance. We see no reasons to take any other view of the matter than the view so taken by the coordinate benches, and, in any case, no specific reasons for doing so have been pointed out to us. We have also noted that there is not even doubt on the bonafides and reasonableness of the expenses, and that the dispute before us, as elaborated earlier, is confined to the nature of the amendment being clarificatory. That issue, for the detailed reasons set out above- with which we are in considered agreement, must be held to only prospective in effect. In this view of the matter, and respectfully following the esteemed views of the coordinate benches, we delete the impugned disallowance.
Disallowance of investment allowance under section 32AC deleted.
Deduction in respect of export profits of SEZ unit u/s 10AA with reference to the income computed under the head 'profits and gains of business or profession' of the SEZ unit instead of 'gross profits and gains' of SEZ unit, as interpreted by Supreme Court in the recent judgement in the case of Vijay Industries [2019 (3) TMI 171 - SUPREME COURT] - Thus we direct the assessing officer to grant the deduction under section 10 AA with reference to the profit and gains as determined by the honourable Supreme Court in the case of Vijay Industries (supra).
Reference to the Transfer Pricing Officer ('TPO') under section 92CA - CIT(A) erred in confirming the action of the learned AO in not demonstrating that the course of business between the Appellant and the closely connected person was so arranged that it produces to the Appellant more than ordinary profits which might be expected to arise in its eligible business.
Inter-unit transfer of Power - As definition of the market value shall change for the purpose of domestic transfer pricing regimen is not at all sustainable. Accordingly, in the background of the aforesaid discussion and precedent, we set aside the orders of the authorities below and decide issue in favour of the assessee.
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2022 (3) TMI 1432 - ITAT DELHI
Income deemed to accrue or arise in India - collection charges paid by AAI to the assessee - income derived from operation of aircraft - DTAA between India and Germany - Whether the charges paid by Airport Authority of India (for short AAI) to the assessee, for assessee collecting the User Development Fee (for short UDF) from the passengers and passing it on to AAI, is not commission and even if it is so, the same is income from operation of aircraft and not liable for tax as per Article 8 of DTAA between India and Germany? - HELD THAT:- It is not in dispute that the assessee’s income derived from operation of aircraft is not taxable under Article 8 of DTAA between India and Germany. However, the assessee received collection charges from AAI as the assessee collected UDF from the passengers and the same was passed on to AAI. A duty was cast on the assessee to collect UDF from the passengers and pass it on to the AAI. Assessee was paid collection charges wherever the UDF is remitted to AAI within the stipulated time.
As the effective management of the assessee company is situated in Germany the profits from operation of aircraft in international traffic is taxable only in Germany. The UDF is levied at the Indian airports as a measure to increase revenues of the airport operator.
UDF is levied to brdge any revenue shortfall so that the airport operator is able to get a fair rate of return on investment. The quantum of UDF varies from airport to airport and the rate of UDF at airports is determined by the Airports Economic Regulatory Authority of India (AERA) for major airports and ministry of civil aviation for not major airports.
Presently UDF collection charge at a flat rate of Rs.5/- per passenger (all inclusive) is allowed to airlines subject to payment of UDF collection to AAI within 15 days of receipt of bill. Airlines will make full payment of UDF to AAI and raise a separate invoice for the collection charges on UDF to AAI.
The collection charges paid by AAI to the assessee in whatever name called i.e., either discount or commission is nothing but service charges paid, for assessee collecting UDF and passing it on to AAI.
The collection charges paid by AAI to assessee cannot be said to be the income derived from operation of aircraft. Further in assessee’s case on identical facts for the assessment year 2013-14 the Ld. DRP approved the order of the assessing officer in holding that the collection charges received by the assessee from AAI on remitting the UDF within the stipulated time as income from business taxable in India and such income is not derived from operation of aircraft falling under Article 8 of DTAA between India and Germany.
Thus we hold that the collection charges received by the assessee from AAI are not income derived from operation of aircraft falling under Article 8 of DTAA between India and Germany. Thus ground Nos. 1 to 4 raised by the assessee are dismissed.
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2022 (3) TMI 1431 - CESTAT AHMEDABAD
Seeking abatement of appeal - Confirmed resolution plans approved by the committee of the creditors - it is submitted that as regard the NCLT matter, the report would be submitted from the department within 1 month, however, till date no such report was submitted by the department - HELD THAT:- There is no dispute that the approved resolution plan by the committee of secured creditors has been accepted by the NCLT in its order dated 19th March, 2020 and same was upheld by the NCLAT, Delhi, vide order dated 23.12.2020.
This present appeal became infructuous, hence, dismissed accordingly.
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2022 (3) TMI 1430 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking inclusion of additional, belated and unverified claim in the Resolution Plan of the Corporate Debtor - bone of contention between the Appellant and the Resolution Professional and Respondent No. 1 is the amount of Rs. 3,14,81,158/- allowed as CIRP costs by the Adjudicating Authority through the impugned order dated 02nd September, 2021 without verification of costs and other details by Resolution Professional or without recommendation of CoC even seems without any scrutiny by the Adjudicating Authority.
HELD THAT:- The Resolution Professional is to provide for essential supplies which means electricity, water, telecommunication service, and information technology services are to be considered in CIRP cost and as far as other costs are concerned it is be approved by the CoC. Furthermore, the lease schedule working as appearing at Annexure I page 7 of the written submission of the Resolution Professional, the rental start date of the first leased equipment was from 10th June, 2015 to 09th June, 2017 and for the last 23rd equipment, the rental start date was 01st July, 2016 and last rental date was 30th June, 2020. So the term of the lease deed has already expired by June, 2020 prior to public announcement which was made on 13th August, 2020 asking the creditors to submit their claims and the Respondent No. 1 has already submitted its claim 13th January, 2021 of Rs. 1.05 Crore approx., which included Rs. 11 lacs approx. towards lease rental dues and claim towards Fair Market Value - Rs. 43.54 lacs. The Resolution Professional has already considered Rs. 95 lac in total out of Rs. 1.05 Crore.
Thus, we are not in a position to accept even the claim towards extension rental of Rs. 2.71 Crore.
There are the Appeal and the Appeal deserves to be allowed - appeal allowed.
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2022 (3) TMI 1429 - DELHI HIGH COURT
Seeking grant of Default Bail - sexual assault - chargesheet has been filed, but cognizance has not been taken by the Court of the offences - Section 167(2) Cr.P.C. - HELD THAT:- Section 167(2) Cr.P.C. provides an indefeasible right to statutory bail to an accused when investigation cannot be completed within the stipulated period of sixty or ninety described, prescribed in the provision. The rationale behind this provision is to ensure that the right to life and personal liberty under Article 21 of the Constitution of India remains preserved. However, once chargesheet has been filed, albeit within the prescribed period, this statutory right to bail of the accused stands extinguished.
In Suresh Kumar Bhikamchand Jain [2013 (2) TMI 821 - SUPREME COURT], the Supreme Court had in detail considered the question as to whether cognizance of the chargesheet was necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete - SC cements the position that once a chargesheet has been filed within the stipulated time, the question of grant of statutory bail or default does not arise.
The issue being discussed herein has further been laid to rest in Serious Fraud Investigation Office v. Rahul Modi [2022 (2) TMI 403 - SUPREME COURT] wherein the Supreme Court has comprehensively dealt with multiple decisions pertaining to whether filing of the chargesheet is sufficient compliance with the provisions of Section 167 Cr.P.C. and whether the accused can demand release on default bail under Section 167(2) Cr.P.C. on the ground that cognizance has not been taken before the expiry of the stipulated period - It was held that the indefeasible right of an accused to seek statutory bail under Section 167(2) Cr.P.C. arises only if the chargesheet has not been filed before the expiry of the statutory period.
In the instant case, the Petitioner was arrested on 20.08.2021. Chargesheet was filed on 14.10.2021, i.e. within the period prescribed by the statutory provision. The material on record indicates that cognizance had not been taken by the Ld. Trial Court on the ground that certain clarifications were required with respect to an FSL report which was pending as well as a video recording of the offences allegedly being committed that had been mentioned by the victim child in his Section 164 Cr.P.C. statement. On 16.12.2021, the Investigating Officer had informed the Ld. Trial Court that further investigation would be conducted and that a supplementary chargesheet would be filed in that regard - it would be pertinent to note that the Petitioner can be convicted on the basis of the testimony of the victim, and the video recording can be collected and filed by way of a supplementary chargesheet and that filing of a chargesheet would entail completion of investigation and that the right to default bail under Section 167 (2) CrPC would not survive.
Petition dismissed.
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2022 (3) TMI 1428 - DELHI HIGH COURT
Reopening of assessment u/s 147 - validity of E-notices issued u/s 148 - HELD THAT:- Allahabad High Court in Daujee Abhushan Bhandar Pvt. Ltd. vs. Union of India [2022 (3) TMI 784 - ALLAHABAD HIGH COURT] held Section 13(1) of the Act, 2000 provides that unless otherwise agreed, the dispatch of an electronic record occurs when it enters into computer resources outside the control of the originator. Thus, the point of time when a digitally signed notice in the form of electronic record is entered in computer resources outside the control of the originator i.e. the assessing authority that shall the date and time of issuance of notice under section 148 read with Section 149 of the Act, 1961.
We hold that mere digitally signing the notice is not the issuance of notice. Since the impugned notice under Section 148 of the Act, 1961 was issued to the petitioner on 06.04.2021 though e-mail, therefore, we hold that the impugned notice under section 148 of the Act, 1961 is time barred. Consequently, the impugned notice is quashed.
Keeping in view the aforesaid judgment, this Court is of the view that the present batch of matters requires detailed examination. This Court is of the view that it would not be possible to pass a judgment prior thereto. Accordingly, proceedings pursuant to the impugned reassessment notices are stayed till further orders.
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2022 (3) TMI 1427 - CALCUTTA HIGH COURT
Benefit of settlement scheme as per Direct Tax Vivad Se Vishwas Act, 2020 - condonation of delay - whether a right to avail the benefit of settlement scheme is a valuable or vested right? - HELD THAT:- Undoubtedly, the scheme has been brought about bearing in mind various factors. There is no compulsion on the assessee to avail the benefit of the scheme as it is purely optional. Therefore, an assessee may choose or may not choose to avail the benefit of the scheme. The assessee has filed an affidavit stating that she was advised to avail the benefit of scheme in the event the revenue prefers an appeal before this Court against the decision of the Tribunal which was in favour of the assessee.
We cannot examine the case on abstract propositions or what would have been the intention of the assessee. On careful reading of all the provisions of Act 3 of 2020, it is clear that the benefit provided is optional, an assessee exercising such option is not automatically entitled to the benefit under the scheme and the authority is empowered to consider and refuse to entertain the application for reasons to be assigned. Section 9 has also enumerated the cases where the Act will not apply.
Thus, on a complete reading of Act 3 of 2020 it is clear that the scheme propounded therein not only is optional but can never construed to be a vested or a valuable right. Therefore, on the assessee contemplating of going under the scheme cannot be said to have suffered prejudice only because the revenue preferred the appeal belatedly as we find the scheme does not confer any vested right on the assessee.
Assessee placed reliance on the order passed by this Court in the case of Nitu Agarwal [2021 (12) TMI 1385 - CALCUTTA HIGH COURT] the revenue had not placed any submission as to the effect of the provisions of Act 3 of 2020 nor there was any dispute raised on the submission of the assessee that they wanted to avail the benefit of the scheme. In any event it is an order passed in a miscellaneous application refusing to exercise discretion and the same cannot be treated as precedent as each case has to be considered on the facts and circumstances contained therein.
Upon going through the affidavits filed in support of the applications and bearing in mind the facts and circumstances set out above, we are satisfied that the revenue has shown sufficient cause for not being able to prefer the appeal within the period of limitation.
We are of the considered view that cause of justice would be served if the delay in filing the appeal is condoned and the appeals are heard on merits so that the Court can consider as to whether any substantial question of law arises for consideration.
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2022 (3) TMI 1426 - CALCUTTA HIGH COURT
Seeking grant of bail - bail sought on the medical grounds - physically fit to face the trial procedures or not - Section 439 of the Code of Criminal Procedure - HELD THAT:- On 23rd February, 2021, the Medical Board of NIMHNS observed that the accused is maintaining improvement and is fit to face the trial procedures. Considering the said report, the prayer of the accused for bail was earlier rejected by a coordinate bench of this Court on 13th April, 2021. The Special Leave Petition filed by the petitioner challenging the said order was rejected on 19th April, 2021. The accused was thereafter shifted to the Institute of Psychiatry and his health status was under constant monitoring. The Medical Board in its report dated 3rd December, 2021, observed that the petitioner is alert, conscious and cooperative. In the reports dated 20th December, 2021 and 25th January, 2022 it has inter alia been stated that the accused is maintaining well on medication and that no neurological and neurosurgical intervention is necessary.
Prima facie, it is thus not acceptable that the health status of the accused had deteriorated. He had been kept under constant monitoring by doctors and whenever required, he had undergone treatment in one of the best institutes of Psychiatry in the State. The State had discharged its duty by providing specialised medical treatment to the accused in one of the best institutes in the State and has been bearing the necessary expenditure.
As the ailment of the accused has not aggravated and as he has been kept under constant monitoring by the authorities, the bail, as prayed for, at this stage, cannot be granted - application dismissed.
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2022 (3) TMI 1425 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Maintainability of application - initiation of CIRP - Seeking resolution of an unresolved Financial Debt - Corporate Debtor failed to make repayment of its dues - Financial Creditors - letter of guarantee executed by the Corporate Debtor is insufficiently stamped or not - letter of guarantee fall under the definition of guarantee as defined under Section 126 of the Indian Stamp Act, or not - existence of debt and dispute or not.
Sufficient stamping or not - HELD THAT:- Similar issue fell for consideration before the Division Bench of the Hon'ble Bombay High Court headed by Hon'ble Chief Justice, Manjula Chellur, and Hon'ble Justice M.S. Sonak, J. in Classic Diamonds Vs. ICICI Bank [2016 (11) TMI 1703 - BOMBAY HIGH COURT] while dealing with a winding up petition has held that If that stamp duty is not paid, according to the appellant, the document cannot be admitted in evidence, and cannot be acted upon. We fail to understand this stand of the appellant in the present Appeal, since we are not concerned with the insufficiency of stamp duty payable on documents of corporate guarantee, but we are concerned with the issue whether the appellant Company deserves to be wound up or not - thus, the issue of stamp duty raised by the Corporate Debtor is not legally sustainable and is liable to be rejected.
Validity of the letter of guarantee - HELD THAT:- The contention of the Corporate Debtor to the effect that there was no consent of the principal borrower to the letter of guarantee executed by Corporate Debtor has no force of law. It is also appropriate to mention here that the Financial Creditor had issued a recall notice dated 30.07.2018 to the principal borrower as well as the Corporate Debtor and another personal guarantor Mr. Rishi Agarwal which was duly received by them. The Corporate Debtor having received the said notice did not raise any objection nor sent any reply disputing the liability and therefore the Corporate Debtor is stopped from raising all the above pleas in this Company Petition.
Value of pledged shares and other securities - HELD THAT:- It is not the case of the Corporate Debtor that the pledged shares have been sold by the Financial Creditor. The pledged shares are claimed to have been transferred in the name of Financial Creditor and the Financial Creditor is exercising certain voting rights under the transferred shares. It is settled proposition of law that the proceedings before the NCLAT are in the nature of "resolution" and not for "recovery." It is not the case of the Corporate Debtor that the amount due and payable to the Financial Creditor is less than the threshold limit for admitting the Section 7 Application.
This Bench is of the considered opinion that none of the above please raised by the Corporate Debtor pass the test of legal scrutiny and are liable to be rejected - the existence of "debt" and "default" in this case are proved beyond doubt and the above Company Petition being filed on 18.06.2019 is well within period of limitation from the date of sanction of the loan as well as the recall notice invoking the guarantee.
The present Company Petition satisfies all the necessary legal requirements for admission - Petition admitted - moratorium declared.
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2022 (3) TMI 1424 - ITAT DELHI
Maintainability of appeal before ITAT - Low tax effect - HELD THAT:- We find the tax effect involved in the grounds raised by the Revenue is admittedly below Rs.50 lakhs. In view of the CBDT Circular No.17/2019 dated 8th August, 2019 raising the monetary limits for filing of the appeals by the Revenue before the Tribunal to Rs.50 lakhs and the subsequent clarification dated 20th August, 2019 to the effect that the said Circular is applicable even to pending appeals, the appeal filed by the Revenue is not maintainable. Accordingly, the same is dismissed.
If the Revenue at any point of time finds that the tax effect involved in the grounds of the Revenue is more than Rs.50 lakhs or that the same is falling under the exceptions provided in the said Circular, the Revenue may move necessary application for recall of this order.
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2022 (3) TMI 1423 - DELHI HIGH COURT
Applicant seeking deletion of his name from the array of parties - Seeking deletion on the ground that he is no longer in-charge of the management of petitioner No.1 company as well as on the ground that he is not an accused - Section 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- Issue notice.
The present application is allowed. Petitioner No.3, namely, Sameer Gehlaut, is deleted from the array of parties. The amended memo of parties filed along with the present application is taken on record.
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2022 (3) TMI 1422 - ITAT HYDERABAD
Disallowance u/s 36(1)(iii) interest expenditure alleging diversion of interest bearing funds for non business purposes - HELD THAT:- No reason to accept either parties’ stand in entirety. This is for the clinching reason that both the learned lower authorities appear to have placed reliance on alleged concession made by the group concern M/s. Indur Developers and Agencies Pvt. Ltd wherein there is no clarity as to whether the same specifically covered all other group activities or the said assessee only which are specifically assessed; or not.
Assessee’s stand all along is that the impugned advances by way of non-current investments nowhere carried out any interest-bearing funds at all. Revenue’s contentions on the other hand is that the assessee had itself sought to claim finance costs pertaining to its borrowing regarding development of plots. Be that as it may, this is apart from the fact that the clinching issue as to whether the assessee’s borrowings or advances in plotting activity contain interest stipulation or not has nowhere been examined in light of all relevant facts. We therefore deem it appropriate to restore this entire instant issue back to the Assessing Officer for his afresh factual verification. It is made clear that the assessee shall be very much at liberty to raise all factual as well as legal arguments in consequential proceedings as per law.
Validity of reopening of assessment u/s 147 or u/s 153A r.w.s. 153C - HELD THAT:- We find no merit in assessee’s instant legal ground since there is no material found in the Assessing Officer’s reopening reasons suggesting the impugned proceedings as based on any seized material belonging, pertaining or relating to this taxpayer. We thus hold that the Assessing Officer had rightly initiated section 147 / 148 reopening herein. This first and foremost issue is decided in Revenue’s favour therefore.
Addition of notional interest on debentures income - HELD THAT:- There is no material on record in either the Assessing Officer or the CIT(A)’s detailed discussion throwing light in the corresponding details of the debentures scheme in issue which could be taken as benchmark for making the impugned addition. It further transpires that the assessee’s stand from day one was that it had neither credited the corresponding interest income nor actually received the same in the relevant previous year. We rather note that it had sought to file its additional evidence under rule 46A of the Income Tax Rules which stands declined in the CIT(A)’s order. We thus are of the opinion that larger interest of justice would be met in case the instant issue is also restored back to the Assessing Officer to first examine the corresponding debentures scheme if any; followed by the actual credit or payment of interest in assessee’s favour.
Validity of reopening of assessment u/s 147 - Notice beyond a period of four years - HELD THAT:- DR would hardly rebut the clinching fact that the Assessing Officer had initiated the impugned proceedings after a lapse of more than 4 years from the end of the relevant assessment year without recording any reason that the assessee had not disclosed all the relevant particulars “fully” and “truly” in light of section 147 1st proviso. We make it clear that there is hardly any scope for addition or deletion or substitution in such reopening reasons in light of hon’ble Bombay high court’s landmark decision in Hindustan Lever Ltd Vs. R.B. Wadkar [2004 (2) TMI 41 - BOMBAY HIGH COURT] holding that re-opening reasons recorded by the Assessing Officer have to be read on standalone basis only. We thus quash the impugned reopening for this sole reason.
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2022 (3) TMI 1421 - BOMBAY HIGH COURT
TP adjustment u/s 92C - ALP determination - international transactions relating to receipts in respect of investment advisory services - selection of comparable - HELD THAT:- As substantial questions of law proposed in this appeal are covered by the two judgments namely; CIT Vs. Carlyle India Advisors (P) Ltd .[2013 (4) TMI 486 - BOMBAY HIGH COURT] and CIT Vs. Temasek Holding Advisors India Pvt Ltd. [2016 (11) TMI 1510 - BOMBAY HIGH COURT]
Appeal disposed.
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2022 (3) TMI 1420 - SC ORDER
Validity of reopening of assessment u/s 147 - Addition u/s 68 - as per HC reasons for the formation of the belief by the Assessing Officer in the instant case, appear to have a rational connection with or relevant bearing on the formation of belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts - HELD THAT:- SLP dismissed.
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2022 (3) TMI 1419 - ITAT DELHI
Benefit of tax credit - whether exemption to dividend was granted to dividends with a view to promote economic development and consequently holding that the assessee was entitled to tax credit under Article 25(4) of the DTAA? - ITAT had accepted the letter of Secretary General of taxation that interpreted the Article 25(4) of DTAA which is within the domain of two Governments and thus inserted words “designed for economic development” in Omani Tax Law - as per revenue F.A.A. has failed to take note of correct position of law and gave benefit to the assessee on the basis of letter of Secretary General of Taxation - HELD THAT:- As letter of Secretary General of Taxation, which goes to the core of controvery, it was observed in para no. 26 that the clarification given by Secretary General of Taxation has to be regarded as conclusive. If the tax authorities had any doubts they could not have proceeded to elevate them into findings, but rather addressed them to Omani Authorities, if not directly then through Indian Diplomatic Channels. In not doing so, but proceeding to interpret the laws and the certificate of Omani Authorities, the revenue, specially the Commissioner fell into error.
In assessee’s own case of AY 2010-11 [2016 (11) TMI 1360 - ITAT DELHI] a Cordinate Bench has held “It is seen from the assessment orders u/s.143(3) for the assessment years 2008-09 to 2009- 10 that the Revenue had consistently adopted the view that the assessee is entitled to tax credit on the deemed dividend which would have been payable in Oman. The Revenue had taken a conscious view after considering the provisions of the Omani Tax Laws, Section 90 of the I.T. Act, Article-25 of the DRAA and the clarifications issued by the Royal decree of the Omani Government. Copies of the assessment orders for A.Ys. 2007-08 to 2009- 10 have been placed before us from pages 495 to 558 of the Paper Book. On perusal of the same, it is seen that the Revenue has, after thoroughly examining the issues on hand and examining the provisions, considered the dividend income as exempt.”
Thus, this bench of considered opinion that matter rests at peace in regard to these grounds no. 1, 2 & 3 by assessee’s own case for the assessment year 2010-11, accordingly these grounds are decided against the revenue.
Disallowance/reallocation of interest under section 36(1 )(iii) under the head Work-in-capital/ Investments - application of debt-equity ratio for calculation of interest to be capitalised/disallowed on addition made to fixed assets and capital work in progress and amount of investment - HELD THAT:- As in appellant’s own case for assessment year 2010-11 [2016 (11) TMI 1360 - ITAT DELHI] Closing CWIP and Investments (excluding GOI Bonds issued in lieu of Subsidy in the nature of Trade Receivable ) are less than the Own Funds available with the assessee, thus no amount of Interest on such borrowings can be notionally disallowed under Section 36(l)(iii).
Revenue appeal dismissed.
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2022 (3) TMI 1418 - ITAT BANGALORE
Reopening of assessment u/s 147 - Addition u/s 68 - denial of capital gains earned by assessee u/s 10(38) - Information from investigation wing was received by intimating the organised racket involved in generating bogus entries of long term capital gains which was exempt from capital gains tax - HELD THAT:- In present facts of the case we note that, the Ld.AO received information from investigation wing regarding the company Blue Circles Services Ltd being penny stock. And it is an admitted fact that assessee had sold the shares in Blue Circles Services Ltd and had earned LTCG. Therefore in order to investigate regarding the purchase/sale of shares in Blue Circles Services Ltd., by assessee, the assessment was reopened by the Ld.AO. The decisions by Ld.AR by Honble Courts on challenge of the validity of reopening in the paper book are distinguishable on facts based on the above discussions. We therefore do find any infirmity in the reopening of the assessment.
Bogus LTCG/STCG - Each case has to be decided on facts and circumstances of that case. In our considered opinion, relevant factors to be considered are surrounding circumstances, objective facts, evidence adduced, presumption of facts based on common human experience in life and reasonable conclusions.
Assessee was liable to discharge its onus regarding purchase of shares by way of cogent documentary evidences. We note that assessee has not placed anything on record regarding the source of investments and capacity to invest such huge monies during the year in which the investments were made - The assessee having invested huge monies in these alleged companies, has not been able to provide any documents to establish sound financial of these companies and that, the fluctuation in price was market driven. Assessee is therefore directed to provide all relevant documents to establish source of investment and capacity to invest in the alleged companies in the year of investment. Ld.AO shall take all evidences into consideration and then decide the issue as per law.
Statements recorded are secondary and subordinate evidence, and therefore cross examination is not relevant. Ld.AO is directed to re-examine the case of assessee in the light of aforestated direction in accordance with law. Needless to say that proper opportunity shall be granted to assessee to represent its case as per.
We allow grounds on merits raised by assessee for statistical purposes for all the years under consideration.
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