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Sony India (P) Limited Vs. Deputy Commissioner of Income Tax

Court : Income Tax Appellate Tribunal ITAT Delhi

..... . subsequently, the relaxation extended by the above circular was, in substance, brought on the statute by the finance act, 2002 by amending the proviso to section 92c(2) of the act with retrospective effect from 01.04.2002 so as to provide that besides the arithmetical mean of the prices, the arm's length price shall be a price which varies from the arithmetical mean up to 5% ..... . the proviso to the said section 92c(2), as it stood originally before its amendment by the finance act, 2002, provided that where more than one price is determined by the most appropriate method, the arm's length price shall be taken to be arithmetical mean of such prices ..... in the assessment order, interest under section 234d was levied by the ao on the amount of excess refund granted to the taxpayer company while processing its return of income originally under section 143(1).the learned cit(a), however, noted that the provisions of section 234d have been introduced in the statute by the finance act, 2003 w.e.f.1.6.2003. ..... . it is, thus, evident that the legislative intent of the amended proviso to section 92c(2) of the act is to remove hardship in cases of marginal variation up to 5% between the transfer price declared by the taxpayer and the mean alp determined by the tpo ..... . the main reason of dispute lies in divergent interpretations of the proviso to section 92c(2) of the act which contains relevant provisions dealing with such adjustment .....

Sony Ericsson Mobile Communications India Pvt. Ltd Vs. Commissioner o ...

Court : Delhi

..... amendment by the finance act, 2012 incorporating sub-section 2b to section 92ca was retrospective and applicable with effect from 1st june, ..... -section 2a to section 92c was inserted by the finance act, 2012 with retrospective effect from 1st april, ..... be inserted after the second proviso to subsection (2) of section 92c by the finance (no.2) act, 2014, w.e.f ..... definition of the expression transaction in clause (d) to rule 10a read with sub-section (1) to section 92c, therefore, does not bar or prohibit clubbing of closely connected or intertwined ..... . however, not being perfect or infallible, first and the second proviso to sub-section (2) along with stipulations in subsection (2a) and 2(b) of section 92c posit a getaway clause when the arm s length price so determined and the controlled price does not ..... . at this stage and before we examine the tnm method exhaustively, we deem it necessary to interpret and refer to in some detail sub-section (1) to section 92c and reference to the term transaction with the vowel an , which has been interpreted by the majority judgment of the tribunal to mean a single independent transaction and not ..... -sections (1) and (2) to section 92c are applicable to the assessed, as well as the assessing officer invoking power under sub-section (3) to section 92c of the ..... . the use of expression class of transaction , functions performed by the parties in section 92c(1) illustrates to the contrary, that the word transaction can never include and would exclude .....

Marubeni India Pvt. Ltd. Vs. Dit

Court : Delhi

..... need not detain us any more, as it has been put at rest by the amendment made to section 92c by the insertion of sub-section (2a) by the finance act, 2012 with retrospective effect from 01.04.2002. ..... the said sub-section is as under: (2a) where the first proviso to sub-section (2) as it stood before its amendment by the finance (no.2) act, 2009 (33 of 2009), is applicable in respect of an international transaction for an assessment year and the variation between the arithmetical mean referred to in the said proviso and the price at which such transaction has actually ..... the argument is that considering the nature of the powers of the transfer pricing officer under section 92c of the act, particularly, clause (c) of subsection (3), the tpo ought to have considered the data relating to the earlier ..... proceedings before the tpo in its transfer pricing report which it was required to submit by section 92e of the act, the assessee chose five comparable companies and the average margin came to 8.37%. ..... rightly noted that the fact that the memorandum of association gave powers to the assessee to earn interest by making investments is relevant only for the purpose of determining the appropriate head of income under section 14 of the income tax act, 1961 under which the interest would fall to be assessed. ..... was scrutinised and an assessment order was passed under section 143(3) of the income tax act, 1961 (hereinafter referred to as the act) determining the total income at `2,35,01,470/-. .....

Merit Enterprises Vs. Dy. Commissioner of Income Tax

Court : Income Tax Appellate Tribunal ITAT Hyderabad

Reported in : (2007)288ITR226(Hyd.)

..... indication that the legislation was introduced to explain an earlier finance act or clarify the real intention of the legislature or that the proviso was inserted to supply an obvious omission or to clear up doubts as to the levy of surcharge in question. ..... collect surcharge prior to the amendment by finance act, 2002.5.7 for the proposition that the charging provision, which imposes tax, must be construed strictly, reliance is placed on the following decisions: reliance is placed on the provisions of section 158ba to emphasise that the charge to taxation under the special provisions of chapter xivb get attracted once the search is carried out under section 132 or books are requisitioned under section 132a of the act and the date of initiation ..... and it was, therefore, not a declaratory act.thus, it is well-settled that a tax provision imposing a liability is governed by the normal presumption that it is not retrospective and the settled principle of law is that the law to be applied is that which is in force in the assessment year, unless otherwise provided expressly or by necessary intendment.12.34 a reading of the note to clauses or the amendment to section 113 in the finance act, 2002, extracted above, does not give any .....

themis Pharmaceuticals and ors. Vs. Commissioner of Central Excise

Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in : (2003)(157)ELT569Tri(Mum.)bai

..... (v) amendment of section 35c by the finance act, 2002, places a specific legal restraint on exercise of such incidental power beyond 180 days as per clear wordings of sub-section (2a) of the said secction ..... ration of the aforecited order of the larger bench and reference to the notes on clauses to the finance bill, 2002, also support the view that after enactment of the finance act, 2002, on 11/05/2002, the tribunal does not have power to extend stay orders beyond 180 days.9. ..... we, in fact, note a contrary decision rendered by a three-member bench in the case of cce, bhubaneshwar vs oripof industries -2003(155) elt 278 (tri-lb) in the context of another amendment made through the finance act, 2001 to the effect that after a conscious interference by the legislature to do away with a specific power, the tribunal will not be justified to given an interpretation holding retention of the said power as an inherent ..... extension and repeated extensions beyond 180 days would make the said provision nugatory and frustrate its clear mandate, (c) the legislative change made by the parliament through the finance act, 2002 would become redundant if such extensions beyond 180 days are to be granted by the tribunal. ..... we find that according to notes on clauses to the finance bill, 2002, amendment of section 35c seeks to provide that in cases where stay order has been passed by the tribunal, time-limit for disposing of the appeal shall be 180 days and also to provide for automatic vacation of the .....

Sri Shanmuga Bleaching Works Vs. Commissioner of C. Ex.

Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi

Reported in : (2005)(99)ECC790

..... perused the records and written submissions made by the appellants.sub-section (2) of section 35c of central excise act provided before this amendment by section 140 of the finance act, 2002 that the appellate tribunal may at any time within 4 years from the date of the order, with a view to rectify any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment, if the mistake is brought to its notice by the commissioner or the other party ..... 258-260/2001, dated 9-2-2001 at any time within four years from the said date notwithstanding the amendment to section 35c of the central excise act, 1944 under section 140 of the finance act, 2002?" 2. ..... by the time the application was filed the provisions of section 35c(2) had been amended by section 140 of the finance act, 2002 w.e.f. ..... this time limit of 4 years was substituted to 6 months by section 140 of the finance act, 2002 with effect from 11-5-2002. ..... the learned sdr on the other hand submitted that the provisions of section 35c(2) has been amended on 11-5-2002 reducing the period for filing application for rectification of mistake from 4 years to 6 months; that as the application has been filed in august, 2003 in relation to a final order passed in 2001, it is hit by the time limit specified in section 35c(2) as it exceeded the time limit at the time of filing the application; that law of limitation is not a substantive law as held by the .....

Sri Shanmuga Bleaching Works Vs. the Registrar, Customs Excise and Ser ...

Court : Chennai

Reported in : 2006(194)ELT151(Mad); (2006)1MLJ222

..... apt to refer section 35c(2) of the central excise act, as amended by section 140 of finance act 2002, which reads as follows:'section 35c- orders ..... cce, indore reported in : 2002(142)elt5(sc) and holding that though the final order was passed by the tribunal on 9.2.2001, the petition for rectification of mistake was filed on 19.8.2003 and by the time the application was filed, the provisions of section 35c(2) had been amended by section 140 of the finance act, 2002 with effect from 11.5.20 02, by which time, the period of four ..... the amendment proposed to section 35c(2) of the central excise act as brought in by section 140 of the finance act 2002 is intended to introduce certain procedural restrictions but not to take away any substantial right, such as filing of ..... he also submits that the provisions of section 140 of the finance act, 2002 are prospective in operation and the said amendment does not take away the substantive right to ..... section, the period of six months was substituted with effect from 11.5.2002 by section 140 of the finance act 2002 ..... rectification petition was filed within the time limit of four years from the date of order as per section 35c(2) of central excise act 1944 and though this section has been amended restricting the time limit of filing of miscellaneous petition, the pre-existing right of appeal could not be destroyed by amendment unless the amendment was retrospective in operation and the right of appeal is a substantive right which could not be disturbed .....

Unitech Prefab Ltd. Vs. Commissioner of C. Ex.

Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in : (2003)(158)ELT330Tri(Mum.)bai

1. these three applications have been filed for extension of stay granted earlier. we have since dealt with this very same issue in the case of m/s. themis pharmaceuticals and others [2003 (157) e.l.t. 569 (tri. - mumbai)] holding as follows :- (i) section 35f requires pre-deposit of duty and penalty pending appeal. (ii) proviso to the said section 35f gives statutory power to the tribunal to waive such pre-deposit in suitable cases. (iii) since no amendment has been made to section 35f, tribunal's power to waive pre-deposit during the pendency of appeal remains unaltered. (iv) power of the tribunal to stay recovery and to grant stay of an order appealed against is incidental to exercising its appellate function. (v) amendment of section 35c by the finance act, 2002 places a specific legal restraint on exercise of such incidental power beyond 180 days as per clear wording of sub-section (2a) of the said section 35c. (vi) tribunal being a creature of the same statute cannot question the vires of the said sub-section (2a).2. following our earlier finding in the said case, we reject these miscellaneous applications seeking extension of the stay orders earlier granted by the tribunal. however, we clarify that waiver of pre-deposit granted under section 35f will continue. we also direct the registry to fix the regular hearing of the connected appeals out of turn in these cases.

Price Water House and Anr. Vs. Commissioner of Income Taxxix and Ors.

Court : Kolkata

..... of the it act was amended by the finance act, 2002, with effect from 1 april, 2002. ..... of this submission mr.pal referred to the memorandum to the finance bill, 2002, the relevant extracts whereof are as follows: it is proposed to amend sub-section (2) of the said section to clarify that the mere fact of participation by one enterprise in the management or control or capital of the other enterprise, or the participation of one or more persons in the management or control or capital of both the enterprises shall not make them associated enterprises, unless the criteria specified in sub-section (2) are fulfilled. ..... 92a:-meaning of associated enterprise_(1) for the purposes of this section and sections 92, 92b, 92c, 92d, 92e and 92f, associated enterprises , in relation to another enterprise, means an enterprise(a) which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or (b) in respect of which one or ..... income tax, delhi, (1997) 3 scc472 in support of his submission that the memorandum to the finance bill can be used as an aid to interpret a particular section of the finance bill. ..... officer considers it necessary or expedient so to do, he may, with the previous approval of the principal commissioner or commissioner, refer the computation of the arm s length price in relation to the said international transaction or specified domestic transaction under section 92c to the transfer pricing officer. .....

New Okhla Industrial Development Authority Vs. Chief Commissioner of I ...

Court : Supreme Court of India

..... from the supply of a commodity or service [(not being water or electricity) within its own jurisdictional area or from the supply of water or electricity within or outside own jurisdictional area; which from its its from 10(20) section after amendment by the finance act, 2002 the income of a local authority is chargeable under the head income house property , capital gains or income from other sources or from a trade or business carried on by it which accrues or arises from the supply of a commodity ..... question as to whether the adityapur industrial area development authority was covered within the meaning of local authority as per section 10(20) as amended by the finance act, 2002, the high court held that the appellant authority could not have claimed benefit under the provisions after 01.04.2003. ..... in adityapur industrial area development authority (supra) after considering section 10(20) as amended by the finance act, 2002 and consequences of deletion of section 10(20a) has laid down following in paragraph 13: 13. ..... held that the definition of local authority in general clauses act under section 3(31) is no longer applicable after the amendment of section 10(20) by finance act, 2002. ..... now, reverting back to section 10(20) as amended by finance act, 2002, the same has also come for consideration before different ..... proceed further, it is necessary to notice the provisions of 10 which section 10(20) which existed prior to its amendment by finance act, 2002 and after amendment w.e.f. .....