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Showing 41 to 60 of 1545 Records
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2017 (2) TMI 1509 - KERALA HIGH COURT
Establishment of NCLT Bench in the State of Kerala - Seeking direction to continue hearing of Company Cases having jurisdiction in State of Kerala by the Hon'ble High Court till NCLT Bench is established at Ernakulam for hearing of Company Cases - seeking direction to the 1st respondent to establish NCLT Bench at Ernakulam on a time bound basis in the interest of justice - HELD THAT:- While the Benches at New Delhi, Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata and Mumbai have been notified, those at the seats of other High Courts will be established in due course - Since such a decision is taken by the Government of India, proposing to establish NCLT Benches at the places wherein other High Courts are situated, in due course, he submits that necessary direction need to be issued to the Government of India. He further relies upon Annexure R1(a) dated 19.12.2016 produced along with the statement filed by the 1st respondent, Union of India and submits that in the next phase, after making the requisite infrastructure available and appointment of Members, it has been planned to constitute a Bench of NCLT at Kochi.
If Government of India has proposed and planned to constitute Bench of NCLT at Kochi, and the authorities have found the infrastructure at Kochi suitable, hopefully the same will be established at an early date so as to mitigate the problem faced by the litigants in company matters - it is for the authorities concerned to verify the infrastructure and to take a decision in the matter. Since the matter is being considered by Government of India, as is clear from the records produced along with the writ petition, hopefully the grievance of the Kerala High Court Advocates' Association will be met at an early date.
Petition disposed off.
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2017 (2) TMI 1508 - ITAT DELHI
Disallowance u/s 14A r.w.s. 8D - HELD THAT:- Disallowance made by the AO is more than the exempted income claimed by the assessee. On a similar issue the ITAT Delhi Bench ‘D’ in the aforesaid referred to case of M/s Global Capital Ltd., New Delhi [2015 (11) TMI 1667 - ITAT DELHI] by following the earlier decision in the case of Indus Valley Investment & Finance (P) Ltd.[2015 (4) TMI 1171 - ITAT DELHI].
As relying on GLOBAL CAPITAL LTD. VERSUS ACIT, CIRCLE-12 (1) , NEW DELHI. [2015 (11) TMI 1667 - ITAT DELHI] direct the AO to make the disallowance to the extent of the income claimed by the assessee as exempt - Appeal filed by the assessee is partly allowed.
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2017 (2) TMI 1507 - ITAT AHMEDABAD
Penalty u/s.271D - assessee received cash loans from his two partnership firms - violation u/s 269SS - proof of bonafied belief - whether transactions between a firm and partner do not attract the rigor of 269SS and 269T? - HELD THAT:- Revenue fails to dispute all the stated decisions holding that Section 269SS is not attracted in transactions between a partnership firm and its partner not partaking the character of a loan and deposit in general law as held in another co-ordinate bench decision in ITO vs. Bharat kumar Dayaram Patel[2010 (10) TMI 1228 - ITAT AHMEDABAD]. We accordingly draw support therefrom and uphold the CIT(A)’s order under challenge deleting Section 271D penalty in question. - Decided against revenue.
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2017 (2) TMI 1506 - SECURITIES APPELLATE TRIBUNAL MUMBAI
Sale transactions without holding the scrips - Suspension of the trading membership of the appellant - ban/prohibition from trading for 5 days - HELD THAT:- We have not permitted counsel for the appellant to raise that plea, because, firstly, no such plea was raised in the Review Application filed by the appellant before the DAC of NSE. Secondly, even if there are some discrepancies in the quantum of amounts moved from the clients beneficiary accounts, very fact that the appellant has moved funds and securities from the clients beneficiary accounts itself is sufficient to hold the appellant to be guilty of violating the norms required to be followed by a member of the exchange.
In the present case Naveen Kumar Gupta, operating on behalf of the appellant had executed sale transactions without holding the scrips and in fact, the appellant has accepted that the sale obligations of Naveen Kumar Gupta were met by using securities of other clients. Thus, it is established that in the present case securities belonging to the clients’ of the appellants have been utilized to meet the pay in obligation of Naveen Kumar Gupta which is in gross violation of the code of conduct prescribed for members of the exchange. Reliance placed by the appellant on the Circular of NSE dated June 27, 2013 is totally misplaced. The said circular clearly stipulates that serious action could be taken depending upon the gravity of the violations committed. In the present case, the violations committed by the appellant being serious DAC of NSE was justified in taking stern action.
Penalty of ₹ 10 lac and suspending the trading membership of the appellant for 5 trading days cannot be said to be unreasonable or excessive.
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2017 (2) TMI 1505 - SUPREME COURT
Seeking permanent injunction against the original tenant - restraint from constructing any permanent structure on the tenanted premises and further from subletting the same or transfer it in any manner - HELD THAT:- Filing of the plaint of earlier suit and proving it as per law is imperative to sustain the plea of Order 2 Rule 2 Code of Civil Procedure. Unless that is done, the stand would not be entertainable.
Though Mr. Tanmay Agarwal, learned Counsel for the Respondents has made enormous effort to distinguish the decision in GURBUX SINGH VERSUS BHOORALAL [1964 (4) TMI 110 - SUPREME COURT], the same is not distinguishable. It is mandatory that to sustain a plea under Order 2 Rule 2 of the Code of Civil Procedure, the Defendant is obliged under law to prove the plaint and the proof has to be as per the law of evidence.
Matter remanded to the High Court for proper appreciation of the material on record and to deal with the contentions raised by the Appellants therein in accordance with law within the parameters of the revisional jurisdiction - appeal allowed by way of remand.
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2017 (2) TMI 1504 - ITAT BANGALORE
Levying Dividend Distribution Tax (“DDT”) u/s 115-O - buy back of equity shares was treated as Distribution of Dividend under Section 2(22)(d) of the Act and consequently levy of Dividend Distribution Tax (‘DDT’) - Applicability of Section 115QA - amount remitted by the Appellant to its shareholders on account of buy-back of shares made in accordance with the provisions of section 77A of the Companies Act, 1956 - AO alleging that Appellant resorted to the use of colourable device to avoid payment of tax in India while distributing profits to its shareholders - HELD THAT:- There is no dispute that the holding company of the assessee based in Mauritius is holding more than 99.99% of the shares of the assessee. Therefore if any payment is made by the assessee to the holding company, the same would be treated and deemed as dividend in view of the provision of Section 2(22) of the Act however, in this case the payment in question has been made by the assessee to the holding company on account of buy back of shares. Therefore to the extent of the transaction of buy back of shares, the same cannot be classified as dividend as per the provisions of Section 2(22) when the exclusion clause (iv) of Section 2(22) has specifically excluded such a payment on purchase of its own shares from a shareholder in accordance with the provisions of Section 77A of the Companies Act from the definition of dividend.
After the insertion of Section 115QA, the purchase of its own shares by the company in accordance with the provisions of section 77A of the Companies Act shall be charged to DDT. Since this transaction in the case of the assessee is prior to 1.6.2013 therefore the said provision of Section 115QA is not applicable in the case of the assessee as it is explained by the CBDT vide Circular No.3/16.
CBDT has clarified that the consideration received on buy back of shares between the period 1.4.2000 to 31.5.2013 would be taxed as capital gain in the hands of the recipient in accordance with the provisions of Section 46A of the Act and no such amount shall be treated as dividend in view of the provisions of Section 2(22)(iv) - AO has accepted that the capital gain in the hand of the holding company is not chargeable to tax as per the provisions of Article 13(4) of Indo-Mauritius DTAA. Therefore on principle we are of the view that the transaction of buy back of shares prior to 1.6.2013 does not attract Section 115QA as well as Section 2(22) of the Act.
Payment on account of buy back made by the assessee to its holding company to the extent of the fair market price of the share of the assessee company - same would be treated as capital gain in the hand of the holding company as per the provisions of Section 46A and in view of the provisions of Indo-Mauritius DTAA the capital gains on account of sale of share is not chargeable to tax in India. The payment in the name of buy back of shares made by the assessee over and above the fair market price of the share of the assessee would not be treated as part of the purchase price because the transaction is between the two closely related parties and therefore the payment which is in excess of fair market price of the share of the assessee company would certainly fall in the ambit of Section 2(22)(e) of the Act. There is no dispute regarding the other condition of the holding company having a voting power of not less than 10% as it holds the shares of the assessee to the extent of 99.99%. In case the buy back price is not based on the real valuation and it is artificially inflated by the parties then it is certainly a device for transfer of the reserves and surplus to the holding company by avoiding the payment of tax and therefore it will be treated as a colourable device.
Buy back price paid by the assessee to its wholly owned holding company does not represent true fair market price of the share of the assessee then it is nothing but a dubious method of avoiding the tax in the garb of buy back. Thus if the buy back price paid to the holding company is unrealistic and highly inflated then to that extent the transaction of payment to the holding company has been given a colour of payment towards buy back. We find that neither the Assessing Officer nor the DRP has decided this issue of actual fair market price of the share of the assessee as on the date of buy back to ascertain whether the payment made by the assessee @ ₹ 2,85,108 per share is unrealistic and artificially inflated with the motive to avoid tax. Hence this issue of examination of the fair market price of the share vis-à-vis the buy back price of the assessee is set aside to the record of the Assessing Officer for adjudication as per law - Appeal of the assessee is partly allowed.
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2017 (2) TMI 1503 - DELHI HIGH COURT
Compliance with the directions - HELD THAT:- A detailed affidavit of the Director, CBI shall be filed in this regard informing compliance of the directions contained in the order dated 18.04.2015 as well as directions contained in the order dated 23.09.2016.
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2017 (2) TMI 1502 - MADRAS HIGH COURT
Validity of assessment order - orders of assessment were passed by confirming the proposal in the show cause notices on the ground that the petitioner had not submitted any reply - years 2010-11 to 2015-16 - TNVAT Act - HELD THAT:- The postal acknowledgment produced by the petitioner shows that the communication sent by the petitioner was received by the office of the first respondent on 12.1.2017. If that is the case, the first respondent should have furnished documents sought for by the petitioner or at least given a reply stating as to for what reasons, the documents cannot be furnished. That apart, the assessment orders could not have been passed before the cut off date given in the show cause notices i.e 15 days from the date of receipt of the notices. Hence, this Court is of the considered view that the first respondent was not justified in completing the assessments.
This Court is not inclined to set aside the assessment orders because the assessment orders are, in fact, a verbatim reproduction of the show cause notices. Therefore, the petitioner can be directed to treat the impugned orders as show cause notices and submit their reply/objections - the writ petitions are disposed of by directing the petitioner to treat the impugned orders as show cause notices.
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2017 (2) TMI 1501 - ITAT DELHI
Disallowance of deduction u/s 36(1)(viii) - claim was based on the belief that the main object of the assessee is to promote Housing Finance Companies - as contented deduction u/s 36(1)(viii) is available to the assessee to the extent of amount not exceeding 20% of the profits derived from eligible business - whether refinancing activities can be considered as provision of long term finance for construction and purchase of houses in India for residential purposes or not? - HELD THAT:- As our answer to this is in negative because whenever govt the legislature wanted to include refinancing activities also eligible for deduction u/s 36(1)(viii) it has amended the provisions in the similar manner in which the amendment is made by Finance (2) of the Act of 2009. As the agricultural refinance activity was not eligible for deduction u/s 36(1)(viii) prior to Finance No. (2) Act, 1971 and the eligible business inserted was “industrial or agricultural development‟ by which agricultural refinance activities were made eligible for deduction. The amendment by Finance No. (2) Act of 2009 is also the similar amendment where the eligible business is included as “development of Housing in India” from “construction or purchase of houses in India”. Therefore, it is apparent that prior to this assessee was not eligible for deduction u/s 36(1)(viii) of the Act. in view of this Ground Nos. 1 and 2 of the appeal of the assessee which are against sustenance of disallowance u/s 36(1)(viii) of the Act are dismissed.
Nature of loss - Loss of the security transaction - disallowing the loss with respect to securities - money been lost by assessee in Shri Harshad Mehta scam - revenue or capital loss - HELD THAT:- In the present case the lower authorities have viewed it as loss arising on purchase of securities but in fact there is no information about whether the securities were at all purchases by the assessee or not. if the assessee has lost sum paid by it for purchase of security i.e. advance for security and the same has been lost then it would be business loss allowable in the year in which it is incurred. It is undoubtedly this money has been lost by assessee in Shri Harshad Mehta scam. This aspect is also required to be examined with respect to the provisions of National Housing Bank Act wherein section 14 of that act provides nature of business it can carry on.
It is necessary to examine whether the assessee has incurred loss on account of securities transactions entered transaction or it is a case of loss of advances given by the assessee for purchase of securities. If the transaction of securities are backed by physical possession of security notes or securities in Demat form then only it can be considered as loss on transaction in securities. If it is advance given by the assessee for the purchase of security and lost then it may be considered as business loss provided same is incurred during the course of the business of the assessee. If the same is incurred during the course of the business of the assessee then same shall be allowable as revenue loss in the year in which it is incurred.
In the present case it is not available before us that assessee was engaged in business of trading of the securities for which money was paid to the state bank of India. As the assessee itself claims that it is managing two portfolios of securities: one as trader and another as investor then if the funds were given for purchase of securities which are to be held as stock in trade then it can be considered as allowable loss and if it is given for the purpose of purchase of securities to be held as investor it cannot be allowed as business loss - if the loss is held to be business loss then it can be allowed only in the year in which it is incurred. As the reason for the loss is Shri Harshad Mehta Scam it also needs to be examined whether the loss is allowable in the year it is detected or in the year in which it crystallized. All these issues needs to be examined afresh along with the year incurring of the loss - we set aside the whole issue to the file of ld Assessing Officer to reexamine the claim of allowability of the loss of the security transaction during the year. Appeal of the assessee is allowed with above direction.
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2017 (2) TMI 1500 - ITAT BANGALORE
Disallowance of claim of Section 80P - interest on Fixed Deposits with the Bank - assessee is a co-operative society which provides credit facilities to the farmers. The assessee earned interest on fixed deposits from SBI, Agriculture Development Bank, Station Road Branch, Bellary - AO denied the claim under Section 80P in view of the decision of the Hon'ble Supreme Court in the case of Totgars Co-operative Sales Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] - HELD THAT:- Hon'ble Supreme Court in the case of Totgars Co-operative Sales Society Ltd. Vs. ITO [2010 (2) TMI 3 - SUPREME COURT] and held that when the society has surplus funds which were made fixed deposit in the bank to earn interest, the same is eligible for deduction under Section 80P of the Act.
When the amount which was deposited in the bank was not an amount due to members and it was not the liability of the society to the members then the interest earned from the deposits in the bank was held to be eligible for deduction under Section 80P (1) as well as 80P(2)(a)(i) of the Act. In the case on hand, the assessees are co-operative societies providing the credit facilities to its members. The Assessing Officer has noted that the assessee has earned interest on funds which are not required for the business deposited in the fixed deposit in the bank. - Decided in favour of assessee.
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2017 (2) TMI 1499 - SUPREME COURT
Time stipulated Under Section 13 of the Consumer Protection Act, 1986 for filing written statement - mandatory time limitation or not - any flexibility is available with the Court in the interest of justice or not - HELD THAT:- It has been brought to notice that in view of uncertainty in law, proceedings in number of cases is held up before the Consumer Fora.
It is considered appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter.
Appeal disposed off.
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2017 (2) TMI 1498 - ITAT CHANDIGARH
Deduction u/s 80IC - profits relating to outsourced process - sale of products got manufactured from others through job work - Manufacturing of SS Flats - assessee was in the business of manufacturing stainless steel flats - gross total income declared by the assessee for the year included profit and gains from its industrial undertaking at Kala Amb,Himachal Pradesh - HELD THAT:- After considering the facts of each case, the courts ruled that it is not essential for the assessee to carry out the entire manufacturing activity itself, for the purpose of claiming deduction on the profits earned thereon and even if a part of the activity is outsourced or for that matter even if the whole manufacturing activity is outsourced, but carried on under the supervision and control of the assessee, it would still tantamount to manufacturing being carried out by the assessee itself, making it eligible to claim deduction of profits earned thereon.
Entire manufacturing activity of SS flats was under the supervision and control of the assessee itself and took place either in its own premises or was outsourced as per its own specification - it can be said without any hesitation that it was the assessee who was indulging in the manufacturing of SS flats - it is not the case of the Revenue that the assessee was buying SS flats from an outside party and then selling it. Therefore, for the aforesaid reasons, we hold that the assessee undertook the manufacturing of SS flats and was entitled to claim deduction on entire profits earned from the same.
Assessee was only required to “manufacture” SS Flats to be eligible to claim deduction u/s 80IC,which since we have already held so above,the assessee was entitled to claim deduction of entire profits earned on the same u/s 80IC of the Act. For the said reason also we are not in agreement with the contention of the Ld. DR that the profits should be apportioned to different activities involved in manufacturing of a product and deduction u/s 80IC thereafter be restricted to profits on manufacturing carried out by the assessee only
While allowing deduction on part of the profits earned by the assessee, the Revenue admits that the assessee is involved in manufacturing activity. Also admittedly the assessee has been allowed deduction of entire profits in earlier years in identical set of facts. DR has not controverted this fact contended by assessee. Therefore also there is no reason to restrict the deduction to the extent of manufacturing activity carried out by the assessee in the impugned year.
DR applied the provisions of section 80 IA(10) - For the applicability of section 80IA(10) it has to be demonstrated that there was an arrangement between the two parties which resulted in the inflation of profits in the case of the assessee. In the absence of both the conditions specified under section 80IA(10) we hold that the said provision of has been incorrectly applied by the Ld. CIT(Appeals) to the facts of the case and the addition made by applying the same is therefore grossly incorrect.
Manufacturing of SS Flats was carried out by the assessee and thus it was entitled to claim deduction of entire profits earned on the same u/s 80IC
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2017 (2) TMI 1497 - ITAT MUMBAI
Capital gain in the hand of members of society - real owner - agreement with a developer for development of said property entered -whether transfer of lease hold was not covered by provisions of section 50C - HELD THAT:- The developer had made payments to the Society as well as to the members and they had offered the amounts, received by them, for taxation. In our opinion, once the members had shown the income received by them in their hands there can - not be any justification for taxing the same in the hands of society. No double taxation and no double deduction is one of the well recognised and fundamental principles of taxation. In our opinion, signing of agreement by the members or society cannot be base for taxing of income. As per the scheme of the Act, income received by any person or income accrued to him has to be taxed. In the case under consideration, income was received by the members and they had offered the same for taxation.
We also hold that Society was only the lessee and what was transferred to the developer was development rights not land or building - No authority is required to hold that terms ‘land or building’ ‘or both’ do not include development rights and that in the case before there was transfer of such rights only. In light of the above discussion and respectfully, following in the case of Raj Ratan CHS [2011 (2) TMI 96 - ITAT MUMBAI] we hold that FAA was not justified in taxing the sum in the hands of the assessee, as same was the income of the members of the society. GOA. 2 is decided in favour of the assessee.
Addition of receipt towards corpus fund - FAA held that payment by the developer to the society could not be treated as payment towards corpus of the society, that the AO had rightly held that the disputed amount was to be assessed as income from other sources - AR argued that the assessee had received only during the year, that the CIT(A) had wrongly assessed the income under the head income from other sources - HELD THAT:- We find that the FAA had held that ₹ 3. 50 crores only were to be taxed during the year under consideration, that the income was to be taxed under the head income from other sources. It is a fact that society had not given possession of land to the developer during the year under consideration. In our opinion, the money received by the assessee during the year i. e. ₹ 3. 50 crores was to be assessed under the head capital gains, as claimed by the assessee. Fourth Ground is decided in favour of the assessee.
Payment to MHADA treated as income of the assessee - HELD THAT:- There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied. We are of the opinion that disputed amount falls in first category. In the case before us, the obligation income was diverted before it reached the assessee. Besides, the payment is not in doubt and it is also a fact that same was made in connection with the development of the property. So, as a corollary, it has to be allowed as an allowable expenditure. - Decided in favour of assessee.
Benefit of deduction u/s 80P(2)(d) and 80P(2)(c)(ii) - AO had invoked the provisions of Sec. 80P (2) (f)and denied the society the benefits claimed by it - HELD THAT:- The sub sections of 80P deal with different claims and operate in different fields. The provisions of one sub section cannot be imported to another sub section. It is a fact that the Registrar of Co-op. Hsg. Society had not cancelled the registration of the Housing Society on the alleged violation of principle of mutuality or bye laws. In these circumstances, in our opinion the FAA has rightly held that deduction claimed by the assessee under sub-sections (d) and (c)(ii) cannot be denied the assessee. Upholding his order, we dismiss the ground raised by the AO.
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2017 (2) TMI 1496 - ITAT BANGALORE
Condonation of delay in filing of the appeal - HELD THAT:- Assessee is a habitual defaulter as she has not filed the appeal in time either before the CIT(Appeals) or before the Tribunal. The appeal before the CIT(Appeals) was late by 564 days which was not duly explained. Having realized that she has filed the appeal late before the CIT(Appeals), she did not make any effort to file the appeal before the Tribunal in time. No fresh evidence is filed with regard to non-filing of appeal by the ld. Authorized Representative.
If the Authorised Representative has not discharged his duties in time, it amounts to professional misconduct, for which the assessee ought to have lodged a complaint before the Competent Authority in order to justify his act. But, nothing was done. Therefore, the story propounded by the assessee cannot be believed. Since the assessee is a habitual defaulter, she deserves no concession by the authorities.We are therefore of the view that it is a fit case where the condonation of delay in filing of the appeal can be denied. - Appeal of assessee dismissed.
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2017 (2) TMI 1495 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - sick company of not - Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - HELD THAT:- The Insolvency and Bankruptcy Code, 2016 was enacted by Parliament in 67th year of Republic of India. The objective of the Insolvency and Bankruptcy Code is to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all stakeholders, including alteration in priority of payment of government dues and to establish an Insolvency and Bankruptcy Fund, and matters connected therewith or incidental thereto. An effective legal framework for timely resolution of insolvency and bankruptcy would support development of credit markets and encourage entrepreneurship.
The present Petition/Application, (as referred under Section 10(2) and 10(3) of the IBC.2016), which has been filed by the Petitioner, has been complied with all the requirements and thus it is a fit case to admit the Petition/application - application admitted - moratorium declared.
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2017 (2) TMI 1494 - ITAT CHANDIGARH
Penalty u/s 271D - addition invoking the provisions of section 269SS on alleged acceptance of cash deposits - CIT (Appeals) who deleted the penalty levied by holding that the assessee had not accepted any loan or deposit and, therefore, provisions of section 269SS of the Act were not applicable - HELD THAT:- The ratio laid down by the Hon'ble Apex Court in the case of Jai Laxmi Rice Mills [2015 (11) TMI 1453 - SUPREME COURT] squarely applies and with the annulling of the initial assessment order passed in the case of the assessee by the I.T.A.T., the penalty initiated therein u/s 271D also did not survive. Further in the absence of any further satisfaction for levy of penalty the said order levying penalty u/s 271D could not have been passed - Decided against revenue.
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2017 (2) TMI 1493 - ITAT AHMEDABAD
Deduction u/s.80IA - two projects i.e. land filling and incinerator amounted to a composite project for treatment of solid waste meaning thereby that the same were not to be treated as separate projects so as to be independently considered for the purpose of granting Section 80IA deduction - HELD THAT:- It emerges that the assessee has amply demonstrated during the course of lower proceedings that two projects in question are in fact separate ones. We afforded amply opportunity to learned Departmental Representative to rebut all the above extracted evidence / pleadings to the effect that the two projects i.e. land filling and incinerator one are very much separate. The Revenue fails to quote any material against the same. We accordingly find no reason to interfere with the CIT(A)’s conclusion under challenge. This former substantive ground thus fails.
Addition collection by the assessee in the nature of non refundable receipts treated income in the course of assessment and deleted in lower appeallate proceeding - whether the assessee’s advance receipts from its customers in the nature of non refundable receipts are to be treated as income in entirety pertaining to relevant assessment year or not? - HELD THAT:- We find that hon’ble jurisdictional high court’s decision in Unique Mercantile Services Pvt. Ltd. [2015 (1) TMI 525 - GUJARAT HIGH COURT] decides a similar question pertaining to membership fee spreading over to a time span of more than one assessment year to be taxable on prorata basis. We adopt the same reasoning herein as well and direct the Assessing Officer to assess the above stated non refundable receipts by adopting similar proportionate computation formula. This Revenue’s ground is accordingly accepted for statistical purposes.
Excluding interest income and one time membership fee for incinerator plan for the purpose of computing Section 80IA deduction - HELD THAT:- It emerges that the assessee’s interest income in question arises from fixed deposits maintain with bank in order to comply with Gujarat Pollution Control Boards, norms, terms and conditions since it has to upkeep the site in question for a period of 30years of closure date - Both the learned representatives very much agree that a co-ordinate bench in assessees’ cases itself for assessment years 2002-03 to 2004-05 has already reversed similar exclusion thereby treating identical interest income as eligible profits for the purpose of Section 80IA deduction. We quote the very reasoning herein as well assessee’s former limb of the impugned disallowance pertaining to interest income.
One time membership fee for incinerator plant - There can hardly be any dispute that the assessee charges the above fee for its enrolments of members for the incinerator plant in question. We observe in these facts that the said fee is very much liable to be treated as business profits as accepted in assessee’s books as profit and gain of business and profession which have nowhere been rejected in course of the lower proceedings. We accordingly accept assessee’s arguments against this latter exclusion as well.
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2017 (2) TMI 1492 - ORISSA HIGH COURT
Dishonor of Cheque - vicarious criminal liability of a Director or other Officer of a Company - Section 141 of the N.I. Act - HELD THAT:- In the present complaint filed before the learned S.D.J.M. and in the affidavit evidence-in-chief as per Section 145 of the N.I. Act by the complainant, it is clearly averred that accused No. 2 (Managing Director) of the accused company has the absolute controller the business of the Company and he is responsible for the day-today activities. In respect of the petitioner, it is simply averred that she is the Director of the accused-company and, therefore, all the accused persons are jointly liable for the offence.
There is no averment whether the petitioner was a Director of the accused-company on the date of issuance of the cheques in question, which were admittedly signed by accused No. 2, the Managing Director. There is no other specific allegation against the petitioner.
The question whether the accused-company committed the offence is quite distinct from the question whether the complaint against the company is maintainable or not. The questions need not be gone into in the present proceeding which has been initiated by the petitioner, a Director of the accused-company - Application disposed off.
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2017 (2) TMI 1491 - ITAT AHMEDABAD
Characterization of income - Entertainment tax receipt - revenue receipt OR capital receipt - HELD THAT:- We find that the claim of subsidy at various Multiplexes from Serial No. 1 to 9 above have been accepted as capital receipt in earlier years. This has not been disputed by any of the lower authorities. The only dispute relates to the subsidy received from the Government of Rajasthan . It is also not in dispute that in pursuance of the terms of scheme introduced by the Government of Rajasthan to encourage construction of new cinema halls, assessee was running a cinema hall. It is also not in dispute that the assessee could receive the subsidy only after the fulfillment of the mandatory conditions. These facts have not been controverted by any of the lower authorities. Thus we direct the A.O. to treat the amount as a capital receipt.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- It is not in dispute that the assessee has not received any exempt income during the year under consideration. The disallowance has been made on finding of the fact that the assessee has made certain investments out of borrowed funds. In our considered opinion, since the assessee has not earned any exempt income, no disallowance u/s. 14A read with Rule 8D is called for. Our view is also fortified by the decision of the Hon’ble High Court of Gujarat in the case of Corrtech Energy Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT]held “that the Tribunal had recorded the finding of fact that the assessee did not make any claim for exemption of any income from payment of tax. Hence, no disallowance could be made u/s. 14A.
Deduction of amortization of value of stock options to employees - HELD THAT:- As relying on First Appellate Authority derive support from the findings of the Special Bench of the Tribunal in the case of Biocon Ltd [2013 (8) TMI 629 - ITAT BANGALORE]amount being remuneration to employees by way of Employees' Stock Option Plan debited to profit and loss account is an allowable expenditure u/s 37(1).
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2017 (2) TMI 1490 - CESTAT NEW DELHI
Refund of SAD - denial of refunds on the ground that the respondent had not paid Value Added Tax (VAT) on this stock transfer to their DTA unit - 22/2006-CE dated 01.03.2006 - HELD THAT:- The Revenue’s appeal has no merits for the simple reason that identical issue has been settled by the Tribunal in the case of M/S MICRO INKS VERSUS CCE. & ST. DAMAN [2014 (2) TMI 207 - CESTAT AHMEDABAD] wherein the bench, after considering all the arguments made in Para 10, specifically dwelled into the entire issue of notification and exemption of sales tax and held that The inter unit clearance from EOU to DTA are not exempted from payment of sales tax by the state government by any notification and as revenue unable to bring on record any notifications issued by the state government or otherwise to indicate that inter unit transfers from EOU to DTA are exempted.
The credit taken by the respondent is correct and legal and does not require any interference - Appeal dismissed - decided against Revenue.
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