EIH LIMITED,KOLKATA vs. DCIT, CIR-8(1)KOL., KOLKATA

In the result, assessee’s appeal stands partly allowed for statistical purpose

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmedassessment Year :2012-13 Eih Ltd V/S. Dcit, Circle-8(1), 4, Mangoe Lane, Aayakar Bhawan, P-7, Kolkata-700 001 Chowringhee Square, [Pan No.Aaace 6898 B] Kolkata-69 .. अपीलाथ" /Appellant ""यथ"/Respondent Shri Ravi Sharma, Ar अपीलाथ" क" ओर से/By Appellant Shri P.K. Srihari, Cit-Dr ""यथ" क" ओर से/By Respondent 27-02-2018 सुनवाई क" तार"ख/Date Of Hearing 16-05-2018 घोषणा क" तार"ख/Date Of Pronouncement आदेश /O R D E R Per Waseem Ahmed:- This Appeal By The Assessee Is Directed Against The Order Of Dispute Resolution Panel-2, (Drp For Short) Dated 17.10.2016. Assessment Was Framed By Dcit, Circle-8(1), Kolkata U/S 144C(13)/143(3) Of The Income Tax Act, 1961 (Hereinafter Referred To As ‘The Act’) Vide His Order Dated 29.11.2016 For Assessment Year 2012-13 & Grounds Raised By Assessee Read As Under:- “1.0 Determination Of Arm'S Length Price For Corporate Guarantee Fees 1.1 On The Facts & In The Circumstances Of The Case & In Law, The Learned Transfer Pricing Officer (Hereinafter Referred To As "Ld, Tpo") & Accordingly Learned Assessing Officer (Hereinafter Referred To As "Ld. Ao") Erred In Treating The Corporate Guarantee Extended By The Appellant To Its Associated Enterprise (Ae) As International Transaction & Dispute Resolution Panel (Hereinafter Referred To As "Ld, Panel") Erred In Confirming The Same As An International Transaction Without Appreciating The Fact That It Does Not Fall Within The Ambit Of "International Transaction" U/S 92B Of The Act. 1.2 The Ld.Ao/Tpo & The Ld. Panel Failed To Appreciate The Fact That Corporate Guarantee Has Been Advanced By The Appellant As A Matter Of Commercial Prudence To Protect The Business Interest Of The Group By Fulfilling

depreciable assets can be set off against long term capital loss u/s 74 of the Act. 5.3. Respectfully following the decisions of the Hon’ble Supreme Court and Hon’ble Bombay High Court supra, we hold that the assessee is indeed entitled to set off the brought forward long term capital loss of Rs 9,77,54,843/- against

M/S VODAFONE EAST LTD.(FORMERLY KNOWN AS VODAFONE ESSAR EAST LIMITED),KOLKATA vs. A.D.I.T RANGE - 7,KOL., KOLKATA

In the result, the appeal of the revenue in ITA No

Bench: Shri Mahavir Singh & Shri M. Balaganesh

9(1)(vii)(b) of the Act and are not liable to tax in India. The Learned AR further argued that even under the tax treaty, since the roaming services do not make available any technical knowledge, skill, knowhow, etc., to the telecom operators which can be applied by assessee on its own and hence, the payments do not qualify

DCIT, CIRCLE - 8, KOLKATA, KOLKATA vs. M/S. EIH LIMITED, KOLKATA

In the result, the appeal of the assessee in ITA No

Bench: Shri Mahavir Singh, Jm & Shri M. Balaganesh, Am]

vii) of the Act. (c ) Payment to Clifford Chance, LLP, UAE – Covered by Article 14 of the treaty (Independent Personal Services) (d) Payemnt to Atanoskovic Hartnell, Australia – Covered by Article 14 of the treaty . (e) Payment to Kurtz Ahlers & Associates , USA – Covered by Article 12 of the treaty. (f) Payment to Victoria King Public Relation Inc, USA – Covered by Article

EIH LIMITED,KOLKATA vs. DCIT, CIRCLE - 8, KOLKATA, KOLKATA

In the result, the appeal of the assessee in ITA No

Bench: Shri Mahavir Singh, Jm & Shri M. Balaganesh, Am]

vii) of the Act. (c ) Payment to Clifford Chance, LLP, UAE – Covered by Article 14 of the treaty (Independent Personal Services) (d) Payemnt to Atanoskovic Hartnell, Australia – Covered by Article 14 of the treaty . (e) Payment to Kurtz Ahlers & Associates , USA – Covered by Article 12 of the treaty. (f) Payment to Victoria King Public Relation Inc, USA – Covered by Article

M/S. SAREGAMA INDIA LIMITED,KOLKATA vs. ACIT, (TDS) CIRCLE - 59, KOLKATA, KOLKATA

In the result, the appeal of assessee is allowed

Bench: Shri Mahavir Singh, Jm & Shri Waseem Ahmed, Am]

depreciation was claimed. I find no substance in the submission of the appellant that the payments made by it are not covered under the definition of Royalty because as per clause (v) of Explanation-2 of section 9( l)(vi) of the 1. T. Act "Royalty" means consideration including a lump sum consideration ------- for the transfer

BINAYAK IMAGINE & DIAGNOSTIC PVT. LTD.,KOLKATA vs. DCIT, CIR. 7(1), KOLKATA

In the result, appeal of the assessee ispartly allowed for statistical purposes

Bench: Shri Rajesh Kumar&Shri Sonjoy Sarma]

vii) Vascular Angiography system including Digital subtraction Angiography viii) Ventilator used with annaesthesia apparatus ix) Magnetic Resonance Imaging System x) Surgical Laser xi) Ventilators other than those used with anesthesia xii) Gamma Knife xiii) Bone marrow transplant equipment including silasticlogn standing intravenous catheters for chemotherapy 4 I.T.A. No.519/Kol/2021 Assessment Year: 2008-09 Binayak Imaging & Diagnostic Pvt. Ltd. xiv) Fibreoptic endoscopes

DCIT, CIRCLE - 3(1), KOLKATA, KOLKATA vs. M/S. TATA METALIKS LIMITED, KOLKATA

In the result, the appeal of the assessee is partly allowed

9(1)(i) covers direct and indirect transfers of capital assets" ... The language of the section is unambiguous and there is no doubt regarding its interpretation particularly when there is specific mechanism provided in sec.115JB, which is a code in itself for computation of deemed income of MAT companies. The exclusion of the impugned capital receipts sought by the appellant

TATA METALIKS LIMITED,KOLKATA vs. DCIT, CIRCLE - 3(1), KOLKATA, KOLKATA

In the result, the appeal of the assessee is partly allowed

9(1)(i) covers direct and indirect transfers of capital assets" ... The language of the section is unambiguous and there is no doubt regarding its interpretation particularly when there is specific mechanism provided in sec.115JB, which is a code in itself for computation of deemed income of MAT companies. The exclusion of the impugned capital receipts sought by the appellant

SURESH KUMAR PODDAR,KOLKATA vs. I.T.O., WARD - 63(4), KOLKATA, KOLKATA

In the result, appeal of the assessee is allowed

Bench: SHRI RAJESH KUMAR (Accountant Member)

depreciation allowance or any other allow- ance or deduction for such assessment year and for which a prior no- tice under Section 148 would be required to be issued. Section 147 does not contemplate an eventuality which Section 153A or Section 153C contemplates, the basis of which is inter alia a search action un- der Section 132 being resorted

MEGA ENGINEERS & BUILDERS,PORT BLAIR vs. DCIT, CIR. 3(2) , PORT BLAIR

In the result, the appeal of assessee is allowed

Bench: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]

vii) Bank of India –vs.- Addl. CIT [ITA No. 1498/Mum./2011] The amendment made in section 115JB by the Finance Act, 2012 by inserting Explanation 3 was also taken into consideration by the Tribunal in its order for A.Y. 2002-03 and it was held that the provisions of section 115JB of the Act were not applicable in the case

DCIT, CIR-3(1), KOLKATA, KOLKATA vs. M/S TATA METALIKS LTD., KOLKATA

In the result, Revenue’s appeal is dismissed

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmed

9(1)(i) covers direct and indirect transfers of capital assets" ... The language of the section is unambiguous and there is no doubt regarding its interpretation particularly when there is specific mechanism provided in sec.115JB, which is a code in itself for computation of deemed income of MAT companies. The exclusion of the impugned capital receipts sought by the appellant

TATA METALIKS LTD.,KOLKATA vs. ITO,WD-3(2), KOLKATA, KOLKATA

In the result, Revenue’s appeal is dismissed

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmed

9(1)(i) covers direct and indirect transfers of capital assets" ... The language of the section is unambiguous and there is no doubt regarding its interpretation particularly when there is specific mechanism provided in sec.115JB, which is a code in itself for computation of deemed income of MAT companies. The exclusion of the impugned capital receipts sought by the appellant

ACIT, LTU - 2, KOLKATA , KOLKATA vs. M/S. UCO BANK, KOLKATA

In the result, the appeal of the Revenue is dismissed

Bench: Shri P.M. Jagtap, Vice- & Shri A.T. Varkey

vii) Bank of India –vs.- Addl. CIT [ITA No. 1498/Mum./2011] The amendment made in section 115JB by the Finance Act, 2012 by inserting Explanation 3 was also taken into consideration by the Tribunal in its order for A.Y. 2002-03 and it was held that the provisions of section 115JB of the Act were not applicable in the case

ACIT, LTU - 2, KOLKATA , KOLKATA vs. M/S. UCO BANK, KOLKATA

In the result, appeal of the Revenue is dismissed

Bench: Shri S. S. Godara, Jm & Dr. A.L. Saini, Am Vs. M/S Uco Bank Acit, Ltu-2, Kolkata 10, Btm, Sarani, Kolkata – 700001. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacu3561B .. (अपीलाथ" /Appellant) (""यथ" / Respondent)

vii) Bank of India –vs.- Addl. CIT [ITA No. 1498/Mum./2011] The amendment made in section 115JB by the Finance Act, 2012 by inserting Explanation 3 was also taken into consideration by the Tribunal in its order for A.Y. 2002-03 and it was held that the provisions of section 115JB of the Act were not applicable in the case

DCIT, CIRCLE - 3(1), KOLKATA, KOLKATA vs. M/S. TATA METALIKS LIMITED, KOLKATA

Bench: Shri S.S.Godara & Dr. A.L. Saini

vii) of Explanation 1 to section 115JB of the Act and thus cannot be reduced from book profits u/s. 115JB of the Act. The finding by the A.O denying the exclusion of impugned sales tax incentive of Rs. 3,98,70,574/- and state capital investment subsidy of Rs. 59,75,000/- is confirmed. This ground of appeal is dismissed

M/S TATA METALIKS LTD.,KOLKATA vs. DCIT, CIR-3(1), KOLKATA, KOLKATA

Bench: Shri S.S.Godara & Dr. A.L. Saini

vii) of Explanation 1 to section 115JB of the Act and thus cannot be reduced from book profits u/s. 115JB of the Act. The finding by the A.O denying the exclusion of impugned sales tax incentive of Rs. 3,98,70,574/- and state capital investment subsidy of Rs. 59,75,000/- is confirmed. This ground of appeal is dismissed

SREI INFRASTRUCTURE FINANCE LIMITED,KOLKATA vs. DCIT, CIRCLE-11(2), KOLKATA, KOLKATA

In the result, the appeal filed by the assessee and Revenue are allowed to the extent indicated above

Bench: Shri A. T. Varkey, Jm & Dr. A.L. Saini, Am Srei Infrastructure Finance Ltd. Vs. Addl. Cit, Range-9, New Delhi D-2, 6Th Floor, Southern Park, Saket Place, New Delhi-110017. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Assessee) .. (Revenue/Department) Addl. Cit, Range-9, New Delhi Vs. Srei Infrastructure Finance Ltd. D-2, 6Th Floor, Southern Park, Saket Place, New Delhi-110017. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Respondent) .. (Appellant) Srei Infrastructure Finance Ltd. Vs. Dcit, Circle-11(2), Kolkata 86C, Vishwakarma, Topsia Road(South), Kolkata-700046. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Appellant) .. (Respondent) Acit, Circle-11(2), Kolkata Vs. Srei Infrastructure Finance Ltd. 86C, Vishwakarma, Topsia Road(South), Kolkata-700046. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Respondent) .. (Appellant)

1,371 lakhs was added back by AO in the computation of total income. ITA No.1318/Del/2012, ITA No.1302/Del/2012 & We note that Ground No.2 of the assessee’s appeal and question no. (iii) of High Court’s order is in relation to disallowance of Provision for Non-performing assets (NPA) of Rs. 13,71,00,000/- made in accordance with

ACIT, CIR-11(2), KOLKATA, KOLKATA vs. M/S SREI INFRASTRUCTURE FINANCE LTD., KOLKATA

In the result, the appeal filed by the assessee and Revenue are allowed to the extent indicated above

Bench: Shri A. T. Varkey, Jm & Dr. A.L. Saini, Am Srei Infrastructure Finance Ltd. Vs. Addl. Cit, Range-9, New Delhi D-2, 6Th Floor, Southern Park, Saket Place, New Delhi-110017. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Assessee) .. (Revenue/Department) Addl. Cit, Range-9, New Delhi Vs. Srei Infrastructure Finance Ltd. D-2, 6Th Floor, Southern Park, Saket Place, New Delhi-110017. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Respondent) .. (Appellant) Srei Infrastructure Finance Ltd. Vs. Dcit, Circle-11(2), Kolkata 86C, Vishwakarma, Topsia Road(South), Kolkata-700046. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Appellant) .. (Respondent) Acit, Circle-11(2), Kolkata Vs. Srei Infrastructure Finance Ltd. 86C, Vishwakarma, Topsia Road(South), Kolkata-700046. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaacs1425L (Respondent) .. (Appellant)

1,371 lakhs was added back by AO in the computation of total income. ITA No.1318/Del/2012, ITA No.1302/Del/2012 & We note that Ground No.2 of the assessee’s appeal and question no. (iii) of High Court’s order is in relation to disallowance of Provision for Non-performing assets (NPA) of Rs. 13,71,00,000/- made in accordance with