|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1718 Records
-
2019 (6) TMI 1721 - ITAT CHENNAI
Deduction u/s. 36(1)(viia) - assessee has not made any provision for bad and doubtful debts in its original return of income, but filled in its revised return - AO held the bank have not created any provision for bad and doubtful debts before filing the original return - HELD THAT:- Before creating reserve for bad and doubtful debts the same should be got approved by the Directors / Member of the bank. As the assessee has not created any reserve for bad and doubtful debts in the original return of income, it is clear that, the bank has not created any reserve for bad and doubtful debts during the year. The fact is also evident from the statement of Break-up of the Details of income furnished in support of the original return of income which was signed by the Managing director and General Manager of the bank, wherein no such reserve was created.
It s clear from the decision of the Hon’ble High Court of Punjab & Haryana in the case of State Bank of Patiala [2004 (5) TMI 12 - PUNJAB AND HARYANA HIGH COURT] that making of provision equal to the amount claimed as deduction, in the account books is necessary for claiming deduction u/s. 36(1)(viia). Since the assessee has not made any provision in the books of accounts, as admitted by the assessee before the AO by its letters dated 21.12.2016, in the respective assessment years, the assessee is not entitled for the impugned deductions for the respective assessment years. Further, the relevant portion of the order of the co-ordinate Bench of this Tribunal in the case of M/s.The Salem Dt. Central Co.Op Bank Ltd., Salem [2017 (6) TMI 1386 - ITAT CHENNAI] Circular is very clear that the deduction is permissible only to the extent of provisions actually created in the books of accounts for the relevant Assessment Year. This view is supported by the decision of the Hon’ble Punjab & Haryana High Court cited supra. Therefore, we do not find any infirmity in the order of the Ld.CIT(A) and the same is allowed. Appeals filed by the assessee are dismissed.
-
2019 (6) TMI 1720 - MADRAS HIGH COURT
Tax Recovery notices sent to tenants/lessees of the writ petitioners - it is the case of the writ petitioner that the moneys payable to them by their lessees cannot be appropriated by the Department towards alleged dues of writ petitioner's father's brother Late Mr.P.N.Subramaniam - HELD THAT:- This Court deems it appropriate to pass an order directing the second respondent to consider all objections raised by the writ petitioners in the aforesaid representation dated 20.06.2019, give an opportunity of personal hearing to the writ petitioners, as also opportunity to submit supporting documents and thereafter pass a considered order qua the impugned notices. The second respondent, in the course of this exercise, shall also hear out others, who are deemed necessary more particularly, the children of late Mr.P.N.Subramaniam. The second respondent is directed to complete this exercise within a period of eights weeks from the date of receipt of a copy of this order.
On disposing of the representation, the order disposing of the representation shall be served on each of the writ petitioners under due acknowledgement within seven working days from the date of disposal/order. The impugned notices shall, therefore, be kept in abeyance till the disposal of the representation of the writ petitioner dated 20.06.2019 in the aforesaid manner. If the outcome is in favour of the writ petitioners, that will be the end of the matter and the impugned notices will stand dropped. If the outcome is otherwise, the impugned notices shall be kept in abeyance for a further period of a fortnight from the date of communication of disposal of representation to the petitioner under due acknowledgement.
-
2019 (6) TMI 1719 - MADRAS HIGH COURT
Recovery proceedings - notice has been issued to the tenants of the petitioners u/s 226(3) - as inter-alia contended that the prohibitory order i.e., impugned notice, has been issued to the tenants of the petitioners, but the petitioners are not partners in the said firm - as contended in the representation that without proceeding against the partners of said firm, who are still available and who have means, it is unfair to proceed against the petitioners who are only legal heirs/daughters of one of the partners, who is no more and whose demise was more than two decades ago - HELD THAT:- It would serve the ends of justice if the respondent i.e, Tax Recovery Officer-8, Greams Road, Chennai, is directed to consider all the objections raised by writ petitioners in the aforesaid representation dated 27.05.2019, give an opportunity of personal hearing to the writ petitioners, as also opportunity to submit supporting documents and thereafter pass a considered order qua the impugned notice.
The aforesaid Tax Recovery Officer in the course of this exercise, shall also hear out the four partners of said firm. The respondent is directed to complete the exercise within a period of eights weeks from the date of receipt of a copy of this order. On passing orders, a copy of the order shall be served on each of the writ petitioners within 7 working days under due acknowledgement.
Thus impugned notice shall be kept in abeyance till the disposal of the aforesaid representation dated 27.05.2019 in the aforesaid manner, which shall be done as expeditiously as possible and in any event within a period of eight weeks as stated above. If the outcome is in favour of the writ petitioners, that will be the end of the matter and the impugned notice will stand dropped. If the outcome is otherwise, the impugned notice shall be kept in abeyance for a further period of a fortnight from the date of communication of disposal of representation to the petitioner under due acknowledgement. Though the petitioner counsel says that there are four partners, this Court is informed that it there are nine partners in said firm. It may not be necessary go into those aspects of the matter and suffice to say that all the partners of said firm who are now available shall also be heard.
-
2019 (6) TMI 1718 - ITAT MUMBAI
Estimation of income - bogus purchases - purchase from the grey market - quantification of the profit element embedded in making of such bogus/unsubstantiated purchases - HELD THAT:- As decided in M. Haji Adam & Co. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] the addition in respect of bogus purchases is to be limited to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases
Thus we set aside the matter to the file of the assessing officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases - Appeals by the assessee allowed for statistical purposes.
-
2019 (6) TMI 1717 - ITAT DELHI
Nature of expenses - Repair and Maintenance to Building - revenue or capital expenditure - expenditure is eligible either u/s 30 or u/s 37(1) of the Income Tax Act as per the submissions of the Ld.AR - HELD THAT:- Assessee incurred expenditure for fixing Alco Bond Sheets on outside wall of the factory building to maintain the present structure and also incurred expenditure in respect of interior work. The assessee incurred expenditure only for keeping an existing asset into its present condition. Besides this, the assessee has not carried out any extension to the existing building, which could classify the said expenses as capital expenditure.
AO has not brought any material on record to show that it is an adverse material contrary to the bills and the work carried out by the assessee and the said expenses were giving an enduring benefit to the assessee. All these repairs are done to preserve and maintain an already existing asset. In the course of such repairs, if they have upgraded the facilities by fixing of Alco Bond sheets on outer walls of the building, which do not constitute a new asset or a new advantage.
The contention of the Ld. AR that expenditure cannot be covered as current repairs, the same is eligible u/s 37(1) of the Income Tax Act as revenue expenditure as the repairs were done to preserve and maintain an already existing asset and to improve its longevity. There was no new assets created by the assessee. Therefore, CIT(A) as well as the Assessing Officer was not right in making disallowance of current repairs out repairs & maintenance of building. Decided in favour of assessee.
-
2019 (6) TMI 1716 - ITAT PUNE
TP Adjustment - adoption of PBIT/Sales instead of PBDIT/Sales - inclusion of amount of depreciation in total operating costs for the purpose of determination of the operating profit rate - Depreciation ought to have been excluded from the ambit of total costs in applying the TNMM - It is clarified that there is no dispute on the application of TNMM as the most appropriate method. The mechanism for determining the ALP under the TNM method has been enshrined in clause (e) of rule 10B(1) - not allowing appropriate adjustment on account of excess amount of depreciation in the case of the assessee vis-à-vis other comparables - HELD THAT:- No adjustment on account of difference in the amount of depreciation of two companies is called for when the operating profits are determined because in the case of a company having purchased new asset, there will be higher depreciation and simultaneously lower repair cost and vice versa. The effect of all the individual items of operating expenses and incomes culminates into the overall operating profit margin. That is why, the legislature has provided for comparing the ratio of ‘operating profit margin’ to a similar base of the assessee with that of its comparables, thereby dispensing with the need for making any adjustment on account of higher or lower amount of individual items of expenses or incomes.
Merely because the amount of depreciation of one enterprise is more or less than the other, can never be a ground for seeking adjustment. Such higher amount of depreciation may be due to large scale of the company and host of other factors. By considering percentage of operating profit margin under the TNMM of the assessee as well as comparables, the higher or lower volume of two companies becomes immaterial and so is the quantum of depreciation.
The nitty-gritty of the matter is that no adjustment can be allowed simply for the reason that one company has charged higher amount of depreciation vis-a-vis its comparable companies. Not only no adjustment on this score is permissible, the assessee cannot also seek an exclusion or inclusion of a company on the ground that the ratio of its depreciation to total expenses or sales etc. is more or less in comparison with comparables. It is so for the reason that such higher percentage of depreciation to total expenses is marginalized by the lower percentage of repairs and other incidental costs of the assets and vice versa. Thus the contention of the ld. AR in this regard, being devoid from any substance, is liable to be and is hereby jettisoned.
The position may be different when there is a difference in the rates of depreciation charged by two companies on similar category of assets. One company may adopt the policy of charging depreciation on its assets in conformity with the rates prescribed in Schedule XIV of the Companies Act and other company may adopt a policy of charging depreciation at the higher rates than those prescribed under Schedule XIV. In such a situation, although both the companies use similar type of assets and everything else is also equal, but their respective operating profit percentages undergo change due to higher or lower rate of depreciation, thereby distorting their comparability. It is this difference in the amounts of depreciation due to different rates of depreciation and not due to different quantums of depreciation simplicitor, which calls for bringing both the companies at par. It is an agreed proposition on behalf of the assessee that the TPO himself allowed adjustment on account of excess rate of depreciation claimed by the assessee in its accounts.
We, therefore, uphold the impugned order in sofaras the numerator of PBIT in the TNMM is concerned, that is, inclusion of depreciation in the operating costs; and also in not allowing any further adjustment on account of higher amount of depreciation (other than higher rates for which suitable adjustment was granted by the TPO). The grounds taken by the assessee in this regard, therefore, fail.
Exclusion of Federal-Mogul Bearings India Ltd. (FMBIL) from the list of comparables drawn by the assessee - Separate profitability and benchmarking has been done for the Trading segment. The extant Manufacturing segment is exclusive of trading goods and has only the profit from the manufacture and sale of bearing products. Thus, in order to make a comparison of the Manufacturing segment with another company, it is sine qua non that such other company should also be engaged in manufacturing activity only of similar products or if it is engaged in both the manufacturing and trading, then segmental information qua the manufacturing segmental should be discernible from its Annual report. It is observed that FMBIL is engaged both into trading and manufacturing and further no segmental information of its manufacturing segment is available and the assessee has considered this company at entity level as comparable with its manufacturing segment. Once the position is such, we are unable to hold this company as comparable.
In view of the foregoing discussion, we are of the considered view that this company was rightly excluded by the authorities below from the list of comparables on the ground of functional differences. In view of the functional dissimilarity at the threshold, there is no need to examine certain other factors taken note of by the TPO making it incomparable. We, therefore, uphold the exclusion of this company from the list of comparables.
Grant of +-5% margin in determining the ALP - Second proviso to section 92C(2) provides that if the variation between the ALP and the price at which the international transaction has actually been undertaken does not exceed the specified margin, which at the material time was 5%, then the price at which the international transaction has actually been undertaken shall be deemed to be the ALP.
The effect of this proviso is that so long as the difference between the ALP as determined by applying one of the specified methods and the price at which the international transaction was undertaken is within the prescribed percentage, no transfer pricing adjustment can be made. This proviso was substituted by the Finance (No.2) Act, 2009 w.e.f. 01-10-2009. Explanation to sub-section (2) of section 92C has clarified : “that the provisions of the second proviso shall also be applicable to all assessment or reassessment proceedings pending before the AO as on 1st October, 2009”. Thus, it is overt that even for the assessment year under consideration, namely, 2009-10, the benefit of the second proviso would be available by virtue of the Explanation given at the end of sub-section (2) of 92C. We, therefore, hold that the ld. CIT(A) was justified in extending the benefit of +/-5% margin in determining the ALP of the international transactions. This ground of the Revenue fails.
Comparability - inclusion of certain companies in the list of comparables, which as per the Revenue are not comparable - TPO tinkered with the list of comparables drawn by the assessee for this segment which led to the recommendation of the transfer pricing adjustment of Rs.4.69 crore. The AO made this addition, which was challenged by the assessee before the ld. CIT(A). The ld. first appellate authority directed the TPO to include certain companies in the list of comparables, which as per the Revenue are functionally incomparable.
AR, at the very outset, submitted that even if all the companies directed to be included by the ld. first appellate authority, against which the Revenue has come up in appeal before the Tribunal, are excluded, its profit margin would be within the permissible range of +/-5%. DR candidly accepted this proposition. In view of the rival but common submissions, though we technically accept the ground of the Revenue, but it would not lead to increase in the total income by reason of any transfer pricing addition under the Trading segment.
-
2019 (6) TMI 1715 - SUPREME COURT
Violation of principles of natural justice - no reasons were given either while rejecting its tender or the appeals - HELD THAT:- The only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as 'SS' Class Contractors. It is urged on behalf of the Petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as 'SS' Class contractors. This contention cannot be agreed upon. The note quoted clearly indicates that only incorporated companies can be enlisted as 'SS' Class contractors. Furthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MES.
It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class 'SS' MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria.
There are no merit in the petitions which stand dismissed.
-
2019 (6) TMI 1714 - BOMBAY HIGH COURT
Interest credited to “Interest Suspense Account” taxed in earlier years now written off during the year - whether the interest is taxable in the year of credit of the suspense account or in the year of recovery? - disallowance of contribution to SBI retired employees medical fund u/s 40(9) - ITAT directing AO to delete addition - HELD THAT:- Both these questions form part of the revenue’s grounds of appeal in Income Tax Appeal [2019 (6) TMI 1183 - BOMBAY HIGH COURT] which by an order passed today we have dismissed.
-
2019 (6) TMI 1713 - ITAT KOLKATA
Rejecting the books of accounts - estimating the net profit of the assessee for both the years at 8% - assessee is a Government Contractor performing civil jobs viz. construction of roads, culverts etc. in the remote areas of North Bengal including national and international border areas - main plea of the assessee is that the net profit of 8% is very high and relied on certain decisions of the Tribunal wherein lesser net profit has been accepted by the Tribunal in the cases of Contractors - HELD THAT:- CIT(A) has given notice to the assessee vide order sheet dated 15.05.2017 wherein he conveyed his desire to reject the books of accounts based on the discrepancies noted therein and his intention to estimate net profit at 8%. Pursuant to which, the assessee pleaded that the estimate of net profit should be determined at 5%.
We note that the CIT(A) has estimated the income at 8% instead of 5.79% declared by the assessee (excluding material supplied by the Government) and also it was made clear by the CIT(A) that assessee will get deduction at Rs. 7,23,906/- and Rs. 53,543/- which were added by the AO though not contested by the assessee.
We note that the Ld. CIT(A) has not taken into consideration any comparable cases similar to that of assessee to determine net profit at 8%. We note that from the assessee’s own performance and net profit declared from A.Y. 2011-12 to 2014-15, an estimate of 6.75% on the contractual turnover of the assessee could be just, fair and reasonable and we order accordingly. Likewise for A.Y. 2014-15, we direct the estimation of the net profit at 6.75% on the contractual turnover of the assessee. Appeal of the assessee is partly allowed.
-
2019 (6) TMI 1712 - MADHYA PRADESH HIGH COURT
Rejection of application of discharge filed under Section 227 of Cr.P.C. - Fraud and cheating against the complainant by showing resignation from the Board of Directors - forgery of signatures - meeting of the company not called - preparation of forge resignation letter of complainant Mukesh as well as Radheshyam and accepted their resignation.
Application filed by the applicants rejected on the ground that under the provisions of Companies Act cognizance of matter can only be taken if complaint is made by Registrar of Companies or shareholders, therefore, the provisions of Companies Act, 2013 are not applicable in the present case and this court is having jurisdiction to try the case registered by the police against the applicants for the offence punishable under Indian Penal Code.
HELD THAT:- According to the notification dated 18.05.2016 in exercise of the powers conferred by Sub-section 1 of section 435 of Companies Act 2013 the Central Government after obtaining the concurrence of the respective of Chief Justices of the High Court designates the courts mentioned in the table as special court for the purpose of trial of offence punishable under the Companies Act, 2013 with imprisonment of 2 years or more in terms of section 435 of the Companies Act, 2013. As per Serial No. 6 of the table IX Additional Sessions Judge Gwalior has been designated as Special Judge for the State of Madhya Pradesh to try the offences punishable under the Companies Act, 2013. Provision of Section 436(2) also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial - However, in the present case, no offence under the Companies Act has been registered by the police. The police has registered the offence against the applicants punishable under Section under Section 420, 467, 468, 471, 120-B of I.P.C. therefore, after completion of the investigation, police filed charge-sheet against the applicants before the Court of Judicial Magistrate First Class Indore who committed the case to the Sessions Court, which was transferred to the 12th Additional Sessions Judge, Indore for the trial.
The trial court has rightly held that applicants have fabricated and manipulated the records of the company to commit fraud and cheating against the complainant by showing resignation from the Board of Directors by forging the signatures by way of superimposing their signatures in the resignation letter and this fact is also substantiated by the report of the hand writing expert. Therefore, the police registered the offence against the applicants for the offence punishable under Section under Section 420, 467, 468, 471, 120-B of I.P.C. and no criminal trial has been initiated against the applicants for any of the offence which are punishable under the provision of Companies Act, therefore, in absence of the any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Indian Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Section under Section 420, 467, 468, 471, 120-B of I.P.C.
Therefore, this court is of the view that the trial court has not committed any error in rejecting the application under Section 227 of Cr.P.C. filed by the applicants - petition dismissed.
-
2019 (6) TMI 1711 - CESTAT HYDERABAD
Recovery of short-paid service tax under works contract service - inclusion of value shown in the sale-deed and also other reimbursable charges in the nature of registration fee etc. - HELD THAT:- The matter requires to be reconsidered as to whether the amounts included in the sale-deed value of immovable property would be subject to levy of service tax under construction services. The computation in the order-in-original has to be looked into on the basis of the sale-deed executed by the appellant with customer which includes the semi-finished flat. Other charges like registration fee, VAT, etc. needless to say will not be subject to service tax as being reimbursable expenses.
For the period prior to 01.07.2010, the learned consultant submitted that in the appellant’s own case GRANDEUR HOMES PVT. LTD., ALPINE ESTATES, PARAMOUNT BUILDERS, MODI & MODI CONSTRUCTIONS, GREENWOOD ESTATES, SRI KRISHNA VENTURES PVT. LTD., KRISHNA DEVELOPERS VERSUS CCE, C & ST, HYDERABAD–II, HYDERABAD–SERVICE TAX [2019 (2) TMI 772 - CESTAT HYDERABAD] for the earlier period, the Tribunal had held that The self same issue was considered by the Bench in detailed in the case of M/s Mehta & Modi Homes and-as also in the case of M/s Kolla Developers & Builders and held that prior to 01.07.2010 service tax liability will not arise on the builders. We do not find any reason to deviate from such a view already taken on the issue. Accordingly, we hold that all the impugned orders are unsustainable and liable to be set aside and we do so.
The impugned order is modified to the extent of setting aside the demand prior to 01.07.2010 and remanding the matter after 01.07.2010 to the adjudicating authority for reconsideration. The adjudicating authority in such remand proceedings shall also reconsider the issue of penalty.
Appeal is partly allowed and partly remanded.
-
2019 (6) TMI 1710 - CESTAT ALLAHABAD
Exemption form Service Tax - providing certain services to UNICEF - Applicability of N/N. 16/2002-ST dated 02/08/2002 and N/N. 25/2012-ST dated 20/06/2012 - HELD THAT:- The Original Authority has taken Central Excise & Customs Notification into consideration to decide the matter related to service tax and held that since UNICEF is not mentioned in Notification No.16/2002-ST dated 02/08/2002 exemption for services provided to UNICEF is not covered by said service tax Notification - it is noted that this Tribunal has already held in the above stated case of Ballset Entertainment Pvt. Ltd. that UNICEF is covered by said Notification No.16/2002-ST by following said decision of this Tribunal, it is held that the appellants were entitled for exemption under Notification No.16/2002-ST dated 02/08/2002 for services provided to United Nations as also by identically worded Notification No.25/2012-ST dated 20/06/2012 for period subsequent to 01/07/2012.
The impugned order set aside - appeal allowed.
-
2019 (6) TMI 1709 - ITAT PUNE
TP Adjustment - MAM selection in determining ALP of international transactions - payments made to AE's for providing Intra group services i.e. Marketing & Administrative Services at nil and thereby making an upward adjustment - assessee had applied TNMM method and had aggregated all the transactions including transaction of purchase of raw material along with payment for Intra group services and had held that the arm's length price of international transactions were at nil.
HELD THAT:- We find that similar issue of determination of arm's length price of cost of Intra group services arose before the Tribunal in assessee’s own case in assessment year 2009-10 [2018 (3) TMI 2014 - ITAT PUNE] held that where the authorities below had not raised any doubt over the genuineness of payments made by assessee to its parent company, then no adjustment could be made by applying the benefit test. Where the assessee had made payments to AE's for Intra group services at cost, then the authorities below had erred in determining the cost of Intra group services at nil and make the aforesaid adjustment.
Thus applying the same parity of reasoning above, we reverse the orders of authorities below in applying CUP method to arrive at the arm's length price of transactions of Intra group services at nil. There is no merit in the upward adjustment made in the hands of assessee on account of two segments i.e. Marketing Services and Administrative Services. Reversing the same, we direct the AO/TPO to apply TNMM method to determine and benchmark the transactions on aggregate basis along with other transactions. Appeal of assessee is allowed.
-
2019 (6) TMI 1708 - CESTAT ALLAHABAD
Maintainability of appeal - monetary amounts involved in the appeal - HELD THAT:- As the redemption fine in the present appeal is to the tune of around Rs.11 lakhs and the penalty around Rs.3.5 lakhs and also Rs.25,000/-. The said appeal of the revenue is covered by the litigation policy floated by Government of India.
Accordingly, the appeal is not maintainable and the same is dismissed under litigation policy.
-
2019 (6) TMI 1707 - ITAT MUMBAI
Computation of the interest on refund u/s 244A - Adjustment of part of the refunds granted, first against tax portion of the refund due and then against the interest portion of the refund due, reducing the eligibility of the assessee to claim further interest on the left over portion of the tax refund due - HELD THAT:- There is no need to segregate the refunds granted into tax portion and interest portion and subsequently reduce the tax portion of the refund alone from the refund originally granted for calculation of interest u/s 244A of the Act for the period subsequent to 4.7.1997. This action of the ld AO in our considered opinion, is against the spirit of the provisions of the scheme of taxation.
The provisions of section 140A of the Act specifically provides that any part payment of self assessment tax paid by the assessee would first be appropriated towards the interest portion thereon and thereafter remaining would get adjusted towards the tax portion, meaning thereby, the exchequer should never be deprived of its legitimate dues payable by the assessee in time. The same analogy would equally apply when the refund is to be granted to the assessee with interest u/s 244A /
In the instant case, the entire confusion had arose due to the fact that the full amount of refund as determined by the ld AO was not actually granted to the assessee, thereby making the assessee eligible for further interest for the future periods
As decided in Union Bank of India .[2016 (8) TMI 688 - ITAT MUMBAI] wherein held that since the statute itself has already prescribed a particular method of adjustment in explanation to section 140A(1), then justice, fairness, equity and good conscience demands that same method should be followed while making adjustment for refund of taxes, especially when no contrary provision has been provided - direct the AO to re-compute the amount of interest u/s. 244A by first adjusting the amount of refund already granted towards the interest component and balance left if any shall be adjusted towards the tax component. Decided in favour of assessee.
-
2019 (6) TMI 1706 - ITAT CHENNAI
Loan creditors treated bogus and fictitious transaction - neither the assessee nor the AR filed any written submission before the CIT(A), based on the material available on record CIT(A) dismissed the appeal - Since, assessee pleads that the non appearance before the CIT(A) was in connection with his preoccupation with the fire happened in his office and the impugned transactions happened through proper banking channels which could be proved before the lower authorities, if due opportunity is given to him which would result in a meritorious decision etc. - HELD THAT:- We deem it fit to remit this issue back to the AO for a fresh examination. The assessee shall lay all materials in its support before the AO and comply with his requirements in accordance with law - AO may conduct appropriate inquiry as deemed fit, however, he shall furnish adequate opportunity to the assessee, if any material is likely to be used against him and then, pass appropriate orders in accordance with law.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
-
2019 (6) TMI 1705 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected. Also where the RPT exceeds 15%, such companies should not be taken as comparable companies.
Improper allocation of operating expenditure to ITES segment - TPO has increased the Operative revenue of the Assessee in ITES by adding reimbursements made by AE, which cannot be regarded as part of the operating revenue - TPO has also tampered with the operating expenditure by allocating the total cost of the entity on the basis of proportionate segment revenue of the ITES segment.
While allowing deduction u/s.10A of the Act, the AO has accepted the segmental details as given by the Assessee for the SWD segment and the ITES segment. The question is, can the treatment be different when it comes to determining ALP. The issue requires reexamination by the TPO. The parties therefore agreed that the issue requires to be examined afresh by the TPO in the light of the submissions made by the Assessee before DRP extracted of this order.
Set off of losses prior to relief under section 10A of the Act - HELD THAT:- As decided in M/S YOKOGAWA INDIA LTD. [2016 (12) TMI 881 - SUPREME COURT] Provision of set off and carry forward as contemplated under Chapter-VI of the Act would not be attracted and therefore intra head set off sought by seeking to rely on the provision of section 70(1) of the Act and seeking to restrict the deduction u/s 10A and 10AA of the Act to the extent of gross total income as contemplated u/s 80A(2) of the Act, cannot be sustained.
We therefore hold that deduction u/s.10A of the Act has to be allowed without setting off losses of non-10A unit before allowing the deduction under section 10A of the Act. In view of the aforesaid decision of the Hon’ble Supreme Court, the AO is directed not to set off the losses of non-10A units against profits of 10A units before allowing deduction u/s. 10A of the Act.
Grant of lower deduction u/s 10A - As taking into consideration the decision rendered in the case of Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that it would be just and appropriate to direct the Assessing Officer to exclude the charges referred to in Gr.No.10 referred to above both from export turnover and total turnover, as has been prayed for by the assessee in the alternative.
In view of the acceptance of the alternative prayer, we are of the view that no adjudication is required on the ground whether the aforesaid sums are required to be excluded from the export turnover. Moreover, the order of the Hon’ble Karnataka High Court has been upheld by the Hon’ble Supreme Court in the case of CIT v. HCL Technologies Ltd.[2018 (5) TMI 357 - SUPREME COURT]
Credit for tax deducted at source not having been allowed - We direct the AO to verify the certificates filed by the Assessee for TDS and allow credit after due verification and in accordance with law.
-
2019 (6) TMI 1704 - KARNATAKA HIGH COURT
Levy of tax - movement of goods occasioned from Thane, Maharashtra for executing the works contract in the State of Karnataka would be construed as local sale or not - HELD THAT:- The primary issue involved in these petitions as aforesaid is squarely covered by the order of this Court in W.P.No.13607/2017 and allied matters (D.D. 24.04.2018) [2018 (5) TMI 84 - KARNATAKA HIGH COURT] in the very same assessee’s case relating to the assessment year 2010-11 and the present petitions may be disposed of, in terms of the decision rendered by this Court in the writ petitions as far as this issue is concerned.
It is apparent that other issues relating to TDS etc., requires to be adjudicated by the Appellate Authority.
Petition disposed off.
-
2019 (6) TMI 1703 - ITAT JAIPUR
Disallowing deduction claimed u/s 80P/80P(2)(d) - interest income on FDR(s) with Kota Nagrik Sehkari Bank Ltd. and others - HELD THAT:- As interest earned on the deposits of the assessee’s own fund made in the banks is eligible for deduction u/s 80P(2)(a) being the said income is attributable to the business activity of the assessee.
Though there are divergent views on this issue, however, by following the decision of Rajasthan Rajya Sahakari Kray Vikray Sangh Ltd [2016 (9) TMI 1385 - RAJASTHAN HIGH COURT] as well as the decision of Totagars Cooperative Sale Society [2010 (2) TMI 3 - SUPREME COURT] we decide this issue in favour of the assessee and allow the deduction under section 80P/80P(2)(d) in respect of interest earned on deposits made with the banks/cooperative banks - Decided in favour of assessee.
-
2019 (6) TMI 1702 - ITAT AMRITSAR
Validity of order passed by CIT(A) u/s 250(6) - method of accounting approved - CIT(A) deleted the addition made by AO in the assessment order framed u/s 143(3) - AO applied the gross profit margin @ 36.63% to the costs of sales to work out the gross profit earned by the assessee on the goods which have been sold during the year - HELD THAT:- As realized from the impugned order that the Ld. CIT(A) not only considered and respectfully followed the judgment of jurisdictional Bench of ITAT in the assessee’s own case for Asst.Year:2008-09 but also considered the other three orders passed qua assessment years i.e. 2010-11, 2011-12, & 2012-12, for coming to right and logical conclusions, therefore, in our considered view once there are judgments of the jurisdictional Bench on the identical issues then the Ld. CIT(A) is not under obligation to follow the different reasoning and the order contrary passed by other CIT(A) if any as relied upon by the Ld. CIT-DR for the Asst. Year 2014-15.
CIT(A) has followed the judgments of the jurisdictional Bench, hence the order under challenge does not requires any inference as the same does not suffers from perversity, impropriety and illegality and therefore liable to be sustained and resultantly the appeal of the Revenue Department deserves dismissal.
........
|
