Mr. Vimal Gupta, Advocate for appellant revenue contends that the amount of Rs. 8.65 lacs being the difference between Rs. 80.00 lacs shown in the seized document and Rs. 71.35 lacs shown in the document evidencing to purchase of Candy House property represents unexplained cash paid by the respondent for purchase of the Candy House and has to be added as her undisclosed income. It is his submission that it was for the respondent to discharge the onus on her to explain the noting found during the search of the premises which indicated Rs. 80.00 lacs as the value of the Candy House property. In view of the failure of the respondent to discharge the burden an amount of Rs. 8.65 lacs has to be added as undisclosed income of the respondent Mr. Subhash Shetty learned counsel for the respondent supports the order.
Tribunal by the impugned order followed its order in the matter of WNS North America Inc rendered on 25th November, 2011. The Tribunal while upholding the order of the CIT(A) held that the amount of Rs. 2.93 Crores was received by the Respondent-Assessee as reimbursement of lease line charges and would not classify either as royalty or as income attributed to a Permanent Establishment in India.
Insofar as question (b) is concerned, it becomes academic as if the eight comparables selected by the TPO are found not to be functionally comparable then the difference between the operating margin of the respondent at 15.05% as against the 18.97% of comparable companies being within the range of +/ – 5% the amounts received by the respondent – assessee is within the statutory limits. Therefore, we see no reason to entertain question (b).
On 27 July, 2009, Notification No.24/2009-Service Tax, the Central Government in the Ministry of Finance issued a Notification under section 93(1) of the Finance Act, 1994 exempting the Notification No.24/2009-Service Tax taxable service referred to in section 65(105)(zzg) provided to any person by any other person in relation to management, maintenance or repair of roads, from the whole of the service tax leviable thereon. The earlier Notification was amended on 21 January, 2010 to expand the scope of the exemption to cover, inter alia, the management, maintenance or repair of roads, bridges, tunnels, dams, airports, railways and transport terminals.
Moreover, this Appeal is filed from an order rejecting a Misc. Application for rectification. An appeal from an order dismissing a Misc. Application for rectification is not maintainable as held by this Court in the matter of Chem Amit v/s. ACIT reported in 272 ITR 397.
The objection of the Revenue that the deduction under Section 80IA(4)(iii) of the Act is available to an industrial park only on CBDT notifying the industrial park under Rule 18C of the Income Tax Rules, 1962 (‘the Rules’ for short). This the CBDT did only on 5th June 2006. Therefore, according to the Revenue the benefit of Section 80IA of the Act in terms of sub-section (4)(iii) thereof would be available as from Assessment Year 2007-08 and not earlier.
The grievance of the revenue is that the mistake ought to have been rectified by filing a revised return of income. The Tribunal held that the time to file a revised return had expired. In any event, it is not disputed that it was a bonafide mistake on the part of the respondent-assessee. In that view of the matter, imposition of penalty was not warranted.
A petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under sub-section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of sub section (1).
Though recognising that the company court (now CLB) would be the court of exclusive jurisdiction for applications for rectification of register of members, it is held that if the issues arose whether the plaintiff was the owner of the shares, whether there was fraud or forgery or there was dispute on the very title of the shares, those issues would be beyond the jurisdiction of the company court and would have to be decided by the civil court. This would be upon the issues that arise in an application. It may be mentioned that an issue arises when a material fact is alleged and disputed. Hence, mere mention of fraud may not take the matter out of the exclusive jurisdiction granted by the statute to the CLB, but when the “very title to the shares” is challenged and the court sees that that is at least prima facie shown, the civil court’s jurisdiction would not stand barred.
It is an admitted position that under the provisions of Section 391 the Central Government and the IT Authority do not have any powers to intervene or to be heard on any scheme which is filed seeking sanction of this Court u/s 391 of the Companies Act. This question was considered and decided by the learned Single Judge in case of Jindal Iron & Steel Ltd. (supra) and in the case of AVM Capital Services (P.) Ltd. (supra).
