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2022 (11) TMI 1475 - ITAT JAIPUR
Estimation of income/GP determination - unexplained sales - difference in the sale amount as appeared in the delivery memo / sale bill issued by the assessee and purchase amount stated by the customers in reply to notices issued u/s 133(6) - difference in term of percentage was of 12.15% - HELD THAT:- Suppression of sale, it is seen that such an enhancement was not justified which is not based on any cogent material placed on record and in the light of rival contentions - we find that looking to the quantum of sale of Rs.40 cr and no. of customers 1459, the sample size of 113 cases, is grossly insufficient so as to draw a justifiable inference to be applied on all the cases.
As carefully pursued the chart submitted before us and also the related material and find that except a minor variation, there is no case successfully made out by the AO of suppression of sale. Behind the minor variations there may be various reasons however, merely based on some small cases, without anything more, the AO was not justified in enhancing the sale to a huge Rs. 7.58 cr.
There was no difference between the total amount as accounted for by the assessee and those paid by the customer hence there is no suppression at all - Except a minor variation, there is no case successfully made out by the AO of suppression of sale. Behind the minor variations there may be various reasons however, merely based on some small cases, without anything more, the AO was not justified in enhancing the sale. We find nothing on the record to justify the case of suppression of sale i.e., though amount was received but was not recorded. To effect the sale to such an extent, corresponding purchases of the vehicles are also required by the assessee, however, neither the claimed purchases have been discussed nor it is alleged so. At the best, it was a case of mere suspicion which was not substantiated with the help of strong evidences, wherein the revenue has completely failed. The authorities below this year also alleged the deferment of the sale which is not justified.
Correctness of the application of the GP rate of 3.25% by the AO - We find that the AO in this year, taking the declared GP rate at 0.05% and considering the case of Rellan Motors Pvt. Ltd for AY 2013-14 which has declared GP rate of 3.92%, applied 3.25%. Firstly, we find that it was a case of AY 2013-14 which is later to the year under consideration. Needless to say that the result of the subsequent year cannot be applied in the preceding year. Otherwise also the case of Rellan Motors could not be used against the assessee because a perusal of the orders does not show that the assessee was ever confronted with the material used against him hence no reliance can be placed on the so called comparable case. Secondly, we find force in the contention of the ld. AR that the correct and revised GP rate stood at 4.20% and not mere 0.05% because the assessee has been consistently considering the target incentives, turnovers, cash discounts, warranty etc. as a part of the receipts directly related to the trading activities and accordingly such direct income credited to the P/L account should have been considered with the declared turnover resulting into the revised gross profit of Rs.1,70,55,357/- and 4.20% in terms of percentage to Sales.
As decided in the case of Gotan Lime Khaniz Udyog [2001 (7) TMI 19 - RAJASTHAN HIGH COURT] that where the accounts are rejected, it is not always necessary for the AO to make addition over and above the declared income, if considering the books of accounts, past history and material collected by the AO, no interference is warranted. Thus, we don’t find any justification on the application of enhanced GP rate of 3.25% which is completely without furnishing any justified grounds hence, the trading results as declared by the assesseeare hereby accepted.
Therefore, the authorities below were completely unjustified in applying higher GP rate of 3.25%. Thus, the enhancement of the sale (due to suppression and deferment) and application of GP rate of 3.25% is not approved and the resultant addition to the extent of Rs.2,26,41,521/- is hereby deleted. However, in the peculiar facts of the case and the reasoning adopted by the authorities below, we upheld the rejection of the accounts and taking an overall view of the entire matter it is felt justified that an ad hoc addition of Rs. 2,00,000/- shall cover up the possible leakage of the income, if any. This ground of the appeal No. 1 is therefore partly allowed.
Addition of advances taken from customers - no corresponding sale have been shown either in the current year or in the subsequent years - HELD THAT:- Admittedly vide letter assessee had furnished the complete name and address of all the 7 persons. However, as stated, no sale of vehicle could be effected to these customers and ultimately the amount had to be refunded back. It is not uncommon in this trade that some of the customers for one reason or other take back the amount of advance.
Looking to the declared turnover which is of more than Rs.40 cr, the advances are of very small amount simply because the amount had to be refunded in absence of sale, could not have been considered as undisclosed income of the assessee, more particularly, when admittedly complete name and address of all such customers are already on record and no contrary material has been brought on record by the AO after making enquiries. Hence, all the advances are to be considered as trade advances. Moreover S.68 uses the word ‘may’ which confers a discussion to be exercised judiciously the amount received. The AO was having some doubt, he could have made enquiries, which he has not done therefore, we do not find any justifiable reason and the subjected addition is directed to be deleted.
Disallowance of Expenses - CIT(A) restricted part addition - HELD THAT:- As some disallowance out of various expenses was required to be made by the AO. However, the disallowance made by the AO appears to be on higher side. CIT(a) is of considered view that it would be fair and reasonable to restrict the disallowance out of these expenses Hence the disallowance sustained by the ld. CIT(A) is hereby confirmed.
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2022 (11) TMI 1474 - ITAT JAIPUR
Disallowance of Prior Period Expenses - CIT(A) confirmed the disallowance alleging that there is no evidence showing that such liability crystalized this year - HELD THAT:- There is no dispute that in the accrual basis of accounting the expenditure may pertain to an earlier year but corresponding liability relating thereto has crystallized during the current year, wherein such expenditure can be booked and claimed. However, the evidence supporting the fact of crystallization of the liability in a particular year has to be produced by the assessee. But in the instant case, there appears no evidence placed on record to support this contention and therefore, we are in agreement with the CIT(A) who rightly confirmed the disallowance. Thus Ground No. 1 of the assessee is dismissed.
Unexplained customer Advanced - onus to prove - HELD THAT:- There was no valid ground for making the impugned addition for more than one reasons. Though the AO has not specifically mentioned S.68, at the same time however, he has not citied the provision of law conferring jurisdiction in absence of which he was not legally justified to make the addition. But otherwise also considering the issue in the light of the provision of S.68, no doubt the law is well settled it is that only initial onus lay upon the assessee, but he is not required to prove to the hilt and the moment such initial onus is discharged the same then gets shifted to the AO.
The facts are not disputed that the assessee acted as a dealer of Maruti Suzuki for Ajmer District and as per usual practice, it was in receipt of advances towards booking of various vehicles of Maruti Suzuki. We find the advances so received have been adjusted towards the sale of the vehicle, sometime within the year or sometime in the later year/s. In some cases, it is claimed that the advance was refunded back to the customer. Looking to nature of transaction, thus, it the case of trade creditor but not a case of cash creditors hence, to prove the capacity of the customer is neither practicable nor desirable under law. But otherwise also we are satisfied that the identity, the capacity of the creditor and also the genuineness of the transactions in the facts of the present case, are fully established and evident from the material available on record in as much as copies of the ledger accounts and sales bill raised against the customer, were submitted in more than 1400 cases
We also find that there is no merit in the allegation of deferring the sale of the current year to the later years for the reasons that though such allegation has been made by the AO in all the three years however, the figures were arrived at in other two years only. Such working could not be considered as full proof or beyond reasonable doubts, because mostly such working has been done merely on estimate basis and the assessee was never confronted of estimations made of the figures towards deferment of sale. Therefore, the conclusion that the sales of the current year were deferred in later years cannot be accepted on the face value.
It is also noticed, that the assessment was made hastily as apparent from the record that even though return of income was filed on 08.11.2011, the assessment proceedings were commenced sometime in January 2013 and assessment was completed on 28.03.2013 which means that within a short span of 3 months only the AO completed the assessment. It appears difficult as to how one can make enquiries w.r.t. 1500 customers from whom advances were received. And reach to a just conclusion to burden the assessee with a huge tax liability. Such approach on part of the AO cannot be approved.
Thus the subjected amount of advance receive from the customers cannot be considered in-genuine and the lower authorities erred in making addition of the entire amount. Therefore, the impugned addition is directed to be deleted. Thus Ground No. 2 of the assessee is allowed.
Disallowance on account of commission expenses - HELD THAT:- We find that the disallowance under challenge was rightly made in view of the contradictory facts in case of Smt. Kamlesh Devi, hence the authorities below were justified in making the disallowance.. Thus Ground of the assessee is dismissed.
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2022 (11) TMI 1473 - DELHI HIGH COURT
Accomodation for evacuatee from Pakistan - Gadgil Assurance Scheme - prove of refugee status - whether Late Shri Madan Lal was in occupation of the site before August 1950, as per the criteria under Category-A of the Scheme - HELD THAT:- In the facts of this case, since the Respondents herein have not been able to conclusively prove the refugee status of Late Shri Madan Lal, and the factum of squatting at the said site, they cannot claim to have a right under the Scheme. The learned Single Judge has, in fact, cast a reverse burden on the DDA to show how the Respondents are entitled to the benefit of the Scheme while the burden is on the Respondents to demonstrate that they are entitled to the benefit that has been given to the persons falling in Category A.
Furthermore, the DDA was benevolent enough to give a plot to the father-in-law of the Respondent No. 1, i.e Late Shri Ram Dass, under Category-A of the Scheme previously as well - there exists nothing on record to indicate conclusively that Madan Lal had been residing on the site prior to 1950. The suggestion that Madan Lal ought to be granted the benefit under Category-B does not establish any right to claim benefit under Category-A, as suggested by the Ld. Single Judge, and is simply a benevolent act of the DDA.
In any event, DDA, in terms of the materials available before it, which are uncontroverted documents, has given the benefit of the Scheme to Madan Lal under Category B. The principle of preponderance of probabilities cannot be evoked in this case enabling the ancestors of Ram Dass to a plot under Category A. By applying the principle of preponderance of probabilities, the learned Single Judge has actually reversed the burden of proof on the DDA to establish that Madan Lal was not entitled to the benefit of Category A.
It is evident that the questions before the Ld. Single Judge were hotly disputed questions of fact, best adjudged before a civil forum. Furthermore, the Respondents do not have a right to be given the benefit under category A, as the Scheme is a largesse of our welfare State. Hence, the Impugned Judgment ought not to conclusively decide the rights of the Respondents.
Appeal allowed.
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2022 (11) TMI 1472 - BOMBAY HIGH COURT
Alternate remedy of appeal against penalty/recovery proceedings - notices are issued under Section 274 r/w Section 271F - case of the petitioner is that the assessment in question pertain to the period, during which the winding up proceedings against the petitioner was at large and subsisting when the petitioner was under the control of the Official Liquidator - HELD THAT:- As petitioner is well conscious as clearly seen from prayer clause (c), that an alternate remedy of appeal is available to the petitioner which needs to be filed before the CIT(Appeals) as per the provisions of Section 246 of the Income Tax Act. However, as the immediate concern of the petitioner is with regard to the penalty and recovery proceedings thereof, the present petition was moved contending that the alternate remedy is not an efficacious remedy. However, considering the peculiar facts of the case, we are of the opinion that the petitioner needs to avail of the alternate remedy as available to the petitioner in law i.e. by filing appeal before the Commissioner of Income Tax (Appeals).
Insofar as the apprehension of the petitioner in regard to the penalty/recovery proceedings are concerned, in our opinion, it would be appropriate that the said proceedings shall not be taken forward till the Appellate Authority decides the appeals.
The petitioner is permitted to file an appeal assailing the impugned re-assessment orders before the Appellate Authority (Commissioner of Income Tax (Appeals)). The Appeals be filed within a period of two weeks from today.
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2022 (11) TMI 1471 - RAJASTHAN HIGH COURT
Maintainability of petition - alternative remedy of appeal before the Co-operative Appellate Tribunal under Section 101 of the Rajasthan Co-operative Societies Rules, 2003 - HELD THAT:- The Hon’ble Supreme Court in the matter of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has been held that 'The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.'
This writ petition filed by the petitioner deserves to be dismissed as the petitioner is having efficacious alternative remedy of appeal before the Tribunal, therefore, no case is made out for interference by this court under Article 226 of the Constitution of India.
This writ petition is dismissed.
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2022 (11) TMI 1470 - DELHI HIGH COURT
Maintainability of petition - availability of alternative remedy - Direction to vacate the land in question, remove encroachments or fixtures installed by it on the same, identify, delineate or demarcate the boundaries of the land - HELD THAT:- Non-entertainment of the writ petitions in existence of an alternate remedy is a manifestation of self-restraint by the High Court to avoid the exercise of extraordinary powers in each and every case at the throw of a hat, and to reserve the same for cases where the interests of justice and the Court’s conscience requires them to be exercised. Hence, it is found that there is an efficacious remedy available to the petitioner which he has failed to avail and in view of the foregoing discussion, this Court does not find any merit to allow the prayers which the concerned and competent authority has the power to adjudicate upon. This Court does not find any cogent reason to direct an authority, to carry out any action, which is yet to be approached by the petitioner and be communicated his grievances.
This Court does not find any reason to pass any directions to any authority in favour of the petitioner. The petitioner has not been able to establish that there exists a legal right in his favour and a corresponding duty of the respondent. Neither has he exhausted his remedies before invoking the writ jurisdiction of this Court. Moreover, the disputed facts pertaining to the title and ownership of the petitioner in land in question cannot be adjudicated by this Court in its writ jurisdiction.
The instant petition is dismissed for being devoid of merit.
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2022 (11) TMI 1469 - MADRAS HIGH COURT
Permission for construction of a new Mosque there by contributing for the same along with his relatives - Section 83 of the Waqf Act, 1995 - HELD THAT:- Learned Senior Counsel appearing for the Petitioner has not been able to demonstrate from the facts of this case as to how it would fall under any of the exceptional circumstances mentioned therein or that the Petitioner has been impeded from canvassing what is sought to be agitated in this Writ Petition in an application under Section 83 of the Act, and the affidavit filed in support of the Writ Petition is also bereft of any details in that regard.
This Court is not inclined to delve into the merits of the controversy involved in this case which touches upon disputed questions of fact for effectual and complete adjudication of the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2022 (11) TMI 1468 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Admission of the application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Operational Creditor - validity of the impugned order challenged on the ground that it has been passed by a single member (Judicial Member) though the entire matter was heard by two members (Judicial Member and Technical Member) - whether the application filed either under section 7, 9 or 10 of the Code is heard by a bench comprising of two members of the Tribunal till the date it was reserved by a single bench who ultimately pronounced the order is in violation of the provisions of Section 419(3) of the Act?
HELD THAT:- A bare reading of Section 419(3) of the Act provides that the powers of the Tribunal is to be exercised by benches having strength of two members out of whom one shall be a Judicial Member and the other a Technical Member. However, in order to meet the exigency, there is a proviso to this section which says that, a member of the Tribunal, who is authorized by the President to function as a bench, consisting of single Judicial Member bench, in order to exercise the powers of the Tribunal in respect of a particular class of cases or particular matters pertaining to such class of cases.
In so far as, Rule 151 of NCLT Rules, 2016 is concerned, it provides that any member of the bench may pronounce the order for and on behalf of the Bench and when an order is pronounced in terms of Rule 151, the Court Master shall make a note in the order sheet, that the order of the Bench consisting of President and Members was pronounced in open court on behalf of the Bench. There is no such note even in the impugned order at the instance of the Court master in compliance with Rule 151 of the NCLT Rules - Rule 152 deals with the situation where the member who had heard the matter is not available or ceased to be member of the Tribunal then with the authority conferred by the President any other member of the Tribunal may pronounce the order on his behalf after being satisfied that the order has been duly prepared and signed by all the members who heard the case.
There is no other alternative but to set aside the order because the order passed is nonest in the eyes of law and cannot be followed in any Court. Consequently, the appeal is allowed and the impugned order is set aside.
The application filed under Section 9 of the Code is restored to its original number. The matter is remanded back to the concerned Adjudicating Authority to decide it again in accordance with law.
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2022 (11) TMI 1467 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Approval of Scheme of amalgamation - section 233(6) of the Companies Act, 2013 - HELD THAT:- After analysing the Scheme in detail, this Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie will not be in any way detrimental to the interest of the shareholders of the Company.
The scheme is approved - application allowed.
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2022 (11) TMI 1466 - KARNATAKA HIGH COURT
Murder - conviction of accused - failure to establish the guilt of accused persons - receiving supari - possession of deadly weapons - dying declaration - motive factor - HELD THAT:- It is revealed that Accused Nos.1 to 5 went in an autorickshaw bearing No.KA-05/AA-2742 of Accused No.7 by holding deadly weapons. Similarly, Accused Nos.6 and 10 had come in a Hero Honda vehicle bearing No.KA-01/ER-6249 and reached Bhakthamarkandeya Layout at around 6.45 a.m. Accused Nos.1, 2 and 3 are alleged to have assaulted Lingaraju and done him to death. During investigation, PW-81 being an I.O. in part had seized a Tata Sumo bearing No.KA-41 / 3600 and so also a Zen car bearing No.KA-04/MA-224 said to be used by Accused No.4. The said vehicles were seized through Accused Nos.6 and 7. These are all the circumstances indicating that accused persons had involved in committing the murder of deceased Lingaraju and also that they received supari amount from Accused No.8 / C. Govindaraju to eliminate the deceased Lingaraju, an RTI Activist and the Editor of ‘Mahaprachanda’, as contended by the learned Spl. PP.
The prosecution has given more credentiality to the motive factor and also dying declaration termed as an affidavit of Exhibit P-26 and Exhibit P-116. The contents of the affidavit reveals that prior to the death of Lingaraju, his life was under threat. In order to prove the motive factor and dying declaration, the prosecution has relied on the evidence of PW-22, PW-69 and PW-87 and has banked upon the evidence of those witnesses inclusive of the materials got marked at Exhibits P26, P116, P39, P27, P28, P29, P349, P222, P220, P223 and Exhibit P391. The prosecution has proved the contents in the mahazar through the evidence of PW-18, PW-15 in respect of the mahazar at Exhibit P2, Exhibit P178 and Exhibit P308 and so also Test Identification Parade conducted has been proved by the evidence of PW-1 / Uma Devi and PW-2 / Karthik and PW-52 by getting marked documents at Exhibits P74, P75 and P179 inclusive of photo identification through the evidence of PW1, PW-2, PW-57, PW-64 and PW-88 and relating to Exhibits P30, P74, P75 and P34 to P70 and Exhibit P170, Exhibit P194 and Exhibit P179. Insofar as the mobile conversations it has to be established by the prosecution through the evidence of PW-70 to PW-74, PW-54, PW-57, PW-64 and so also the exhibited documents at Exhibits P-135, 172, 173 to 177, Exhibit P194, P184-192, Exhibit P138 to 195, Exhibit P196 and 225 to 295 and such other evidence.
The Trial Court has referred to certain circumstances appearing on the part of the prosecution. The medical evidence disclosed antemortem injuries over the person of the deceased Lingaraju. Recovery of material objects is at the instance of the accused persons and so also the mobile conversations of the accused persons is also incriminating evidence. Further, accused persons were staying in the lodge and had hatched criminal conspiracy among themselves to execute the murder of Lingaraju and they had used the recovered vehicles for the said purpose. Further, the Accused No.8 / C. Govindaraju had given supari amount to commit the murder of Lingaraju, his relative by hatching criminal conspiracy by staying in Ranganatha Hotel. These are all the circumstances as appearing against the accused according to paragraph 229 of the impugned judgment of acquittal rendered by the Trial Court.
As regards the motive factor to indicate that there was an animosity developed between them and conspiratorial meetings were held among the persons arraigned as accused to eliminate the deceased Lingaraju by engaging supari killers, there is no evidence forthcoming on the part of the prosecution to prove the guilt against the accused. There is no cogent, corroborative and positive evidence relating to the said aspect on the part of the prosecution.
The Trial Court has arrived at a conclusion and convicted Accused Nos.1 to 12 for offences reflected in the operative portion of the order relating to offences under the IPC, 1860. But it is settled position of law that when doubt arises in the evidence of the prosecution, benefit of doubt shall be extended to the accused. In all these appeals pertaining to Accused Nos.1 to 12, though several witnesses have been subjected to examination including the material witnesses namely PW-1 and PW-2 who are eyewitnesses, it is seen that both PW-1 and PW-2 have given a go-by to the versions of their statements inclusive of the substance in the FIR said to be recorded by the Investigating Agency. Even the official witnesses who have been examined on the part of the prosecution relating to drawing of mahazar and also for having seized material objects marked as MO-1 to MO-54, but benefit of doubt has accrued on the part o the prosecution. In the criminal justice delivery system, when doubt arises in the mind of the Court, the said benefit shall be extended to the accused alone.
Even though voluntary statements have been recorded and investigation has been carried out by the I.O. relating to laying of the charge-sheet against the accused and drew the seizure mahazar in their presence and in the presence of panch witnesses and though evidence has been adduced by the prosecution by subjecting to examination several witnesses, there are no worthwhile evidence to connect the accused with the crime. But the Trial Court has erroneously arrived at conviction by taking into consideration the charge-sheet material, which is inadmissible in evidence unless there is credible evidence. But law is clear and also well-settled that in order to prove the case, the prosecution needs to adduce worthwhile evidence. However, in the instant case, the prosecution has failed to bring any iota of worthwhile evidence to hold that appellants / Accused Nos.1 to 12 guilty of the alleged offences and that they are responsible for eliminating the deceased Lingaraju, an RTI Activist and the Editor of ‘Mahaprachanda’ newspaper.
In the instant case, the prosecution has failed to establish the guilt of the accused persons by facilitating worthwhile evidence. Consequently, the accused persons, namely appellants, deserve to be acquitted - appeal allowed.
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2022 (11) TMI 1465 - ITAT DELHI
Addition u/s 56(2)(viib) representing share premium received on sale of shares - Substitution of value of shares - rejection of the valuation done by the assessee from prescribed expert as per the prescribed method - whether the premium charged by the assessee on the face value of share is in excess of the fair market value of share as on the date of sale, so as to, come within the mischief of section 56(2)(viib) of the Act.? - HELD THAT:- On a reading of section 56(2)(viib) of the Act, it becomes clear that fair market value of share as on date of sale has to be determined by applying the methodology provided under rule 11UA. A reading of rule 11UA(2)(b) would make it clear that the fair market value of equity shares has to be determined by applying the methodology as provided under clause (a) or clause (b), at the option of the assessee. Rule 11UA (2)(b) applicable to the relevant assessment year provided an option to the assessee to get fair market value of the shares determined by a merchant bank or an accountant. In the fact of the present case, admittedly, the assessee has got the fair market value of the shares determined through an accountant. Thus, the assessee has acted as per the mandate of section 56(2)(viib) read with rule 11UA. Whereas, the Assessing Officer has substituted fair market value determined by the assessee through his own valuation.
As decided in M/s. Dayalu Iron & Steel Pvt. Ltd [2022 (7) TMI 625 - ITAT DELHI] as held that Income Tax Department cannot sit in the armchair of businessman to decide what is profitable and how the business should be carried out. Commercial expediency has to be seen from the point of view of businessman. Here in this case if the investment has made keeping assessee’s own business objective of projection of films and media entertainment, then such commercial wisdom cannot be questioned. Even the prescribed Rule 11UA (2) does not give any power to the Assessing Officer to examine or substitute his own value in place of the value determined or requires any satisfaction on the part of the Assessing Officer to tinker with such valuation. Here, in this case, Assessing Officer has not substituted any of his own method or valuation albeit has simply rejected the valuation of the assessee. If law provides the assessee to get the valuation done from a prescribed expert as per the prescribed method, then the same cannot be rejected because neither the Assessing Officer nor the assessee have been recognized as expert under the law.
Revenue authorities have committed an error in rejected the valuation done by the assessee from prescribed expert as per the prescribed method. Thus addition made is unsustainable. Decided in favour of assessee.
Disallowance of expenses - business was not fully functional - as assessee has not carried out any business during the year and the interest income is assessable under the head ‘income from other sources’, AO disallowed the expenses - HELD THAT:- As observed that the assessee is in the process of setting up of its business of beauty parlor. However, the business was not fully functional. Irrespective of that, the assessee had to incur certain expenditure to maintain its corporate status. From the details of expenses furnished before me, it is observed that the expenses incurred by the assessee relate to salaries, staff welfare, bank expenses, accounting charges, office expense, rent, audit fee, convenience expenses, electricity expenses, telephone expenses, ROC fees, preliminary expenses etc.
While disallowing expenses, AO has not gone into the details to identify the items of expenditure which is ought to be incurred by the assessee for maintaining the corporate status. The nature of interest income has to be verified to come to a definite conclusion, whether it has any proximate nexus with assessee’s business. Since, these aspects have not been properly examined by the departmental authorities, remit the issue back to the Assessing Officer for fresh adjudication. This ground is allowed for statistical purposes.
Addition u/s 68 by way of enhancement of income made by learned Commissioner - HELD THAT:- As it is a fact on record, all the entities investing in shares of the assessee are companies registered with ROC having active status. Documentary evidences, including, audit report, balance-sheet, confirmation, bank statement, Income Tax return copies etc. of the investors were submitted before the AO. Even, after thorough inquiry, AO did not find anything adverse or deficient in the documentary evidences furnished by the assessee, hence, accepted the investments to be genuine.
As could be seen, without making any further inquiry independently, simply based on the documents available on record, Commissioner (A) has held that the investments made are not genuine, as, the creditworthiness and genuineness is not established. When the assessee has discharged the initial onus by furnishing all documentary evidences to establish the identity and creditworthiness of the investors and also furnished all documentary evidences to establish the genuineness of the transaction done through banking channel, merely on presumption and surmises the investments made cannot be treated as unexplained cash credit. Decided in favour of assessee.
Penalty u/s 271(1)(c) - HELD THAT:- While deciding the quantum appeal of the assessee in the earlier part of the order, couple of additions have been deleted and the addition relating to disallowance of expenses has been restored back to the Assessing Officer. Thus, presently there is no surviving addition which formed the basis for imposition of penalty u/s 271(1)(c) of the Act. Decided in favour of assessee.
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2022 (11) TMI 1464 - ITAT INDORE
Correct head of income - rental income from letting out of properties - Categorizing the income derived from the activities of the Shopping Mall - “income from business” or “income from house property” - HELD THAT:- Main object of carrying out of business of the assessee is of constructing, owning, acquiring, developing, managing, running, hiring, letting out, selling or leasing multiplex, cineplex, cinema halls, theatres, shops, shopping malls, etc. as per the Memorandum of Articles and Associations. The above facilities and amenities provided by the assessee is for carrying out the business of Shopping Mall in a systematic and organized way for earning profit and not particularly letting out the property on rental basis. Considering that particular aspect of the matter the First Appellate Authority accepted the categorization of the income derived from such Shopping Mall of the assessee under head income from “Income from Business” under Section 28.'
Hon’ble Apex Court in the judgment passed in the matter of Chennai Properties & Investment Ltd. [2015 (5) TMI 46 - SUPREME COURT] categorically held that where an income has been derived by the assessee for the commercial exploitation of the properties and in lieu of its professed objects then the same is required to be recorded as business income and not income from house property. The same view has been reiterated in the case of Rayala Corporation Pvt. Ltd. [2016 (8) TMI 522 - SUPREME COURT] by the Apex Court. The Hon’ble Kerala High Court in the case of CIT vs. Oberon Edifices and Estates Pvt. Ltd., [2019 (3) TMI 1468 - KERALA HIGH COURT] on an identical facts and circumstances of the case has been pleased to hold that income derived by the assessee by letting out of the shops in the Mall has to be assessed as income from business and not income from house property.
Thus no irregularities and/or ambiguity in the order passed by the Ld. CIT(A) considering the income derived by the appellant company from leasing out properties in the mall falls under the head income from business and not under the head income from house property so as to warrant interference.
Addition on determining gross rent - CIT(A) deleted addition - HELD THAT:- Admittedly, the AO has made estimation of rent on ALV upon invocation of provisions of Section 23 of the Act which can only be invoked if the income is computed under Section 22 of the Act. As we have already seen in the earlier ground that the income from leasing out of properties in the mall has been held to be chargeable to tax under the head “Income from Business or Profession” under Section 28 of the Act which has also been confirmed by us, the rental income estimated under the provision of Section 23 of the Act by the Ld. AO is bad in law and thus liable to be quashed in the present facts and circumstances of the case. Hence, the order passed by the Ld. CIT(A) as above is according to us is just and proper so as to warrant interference. Ground filed by the Revenue dismissed.
Restricting depreciation on fixed assets - Asset put to use - AO held that rental income from leasing out the areas in the Mall was assessable as “Income from House Property” and therefore, the depreciation in respect of those areas was disallowed - HELD THAT:- The income from leasing out properties in the Mall has been held to be chargeable to tax under the head “Income from Business”. In that view of the matter the appellant is eligible for claim of depreciation of all the business assets which were either actually put to use or were ready to be put to use by the appellant for the purpose of its business of leasing out the properties.
The entire property including the right of leasing were owned by the appellant and the same were put to use for business purposes or ready to put use. The assessee has restricted the claim of depreciation at 50% of the prescribed rate of depreciation as the assets were put to use for a period of less than 180 days.
For the purpose of allowance of depreciation under Section 32 of the Act actual user of the property is not the precondition and depreciation can be allowed even for a passive user of the property if it is ready for use for the intended purpose the claim of depreciation of such assets, since has been made at the rates and on the prescribed manner, the claim of the appellant of depreciation of 50% of the building Phase-1 has been rightly allowed by the Ld. CIT(A) which is found to be just and proper, without any ambiguity so as to warrant interference. Hence, the order passed by the Ld. CIT(A) is hereby upheld. This ground of appeal preferred by the Revenue is found to be devoid of any merit and thus dismissed.
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2022 (11) TMI 1463 - ITAT CHENNAI
Revision u/s 263 - revision was done with a view to withdraw excess deduction allowed to the assessee u/s 36(1)(viia) and to examine the assessee’s claim on issue of OTS-interest waiver with reference to the records of the assessee - HELD THAT:- We are of the considered opinion that the order passed by Ld. AO was an appealable order before Ld. CIT(A). Accordingly, as first appellate authority, independent findings should have been rendered by Ld. CIT(A) by way of speaking order considering all the aspects. However, Ld. CIT(A) has chosen to follow the directions given in Sec.263 which is not the correct approach.
Be that as the case may be, remitting the matter back to the file of Ld. CIT(A) would not serve much useful purpose considering the fact the issue of deduction u/s 36(1)(viia) has already been decided by Tribunal in assessee’s own case [2021 (4) TMI 1374 - ITAT CHENNAI] AY 2014-15 wherein as clear ratio laid down that to claim deduction making of provision for bad and doubtful debt equivalent to an amount claimed as a deduction in account books is necessary for claiming deduction u/s. 36(1)(viia) of the Act. Thus we confirm the disallowance made by Ld. AO u/s 36(1)(viia). The corresponding ground stand dismissed.
The issue of OTS-interest waiver has apparently been not contested by the assessee before Ld. CIT(A) and therefore, no findings have been rendered in the impugned order in that respect. Since, the assessee has contested this issue before us, we admit the issue and restore this issue back to the file of Ld. CIT(A) for adjudication by way of speaking order. The grounds thus raised stand allowed for statistical purposes.
Appeal stand partly allowed for statistical purposes.
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2022 (11) TMI 1462 - MADHYA PRADESH HIGH COURT
Seeking withdrawal of this application with liberty to file a fresh application, if occasion so arises - HELD THAT:- This application is dismissed as withdrawn.
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2022 (11) TMI 1461 - SUPREME COURT
Recovery of demurrage charges - whether the demurrages imposed on the Corporation by the Railways can be, in turn, recovered by the Corporation from the contractors as "charges" recoverable Under Clause XII (a) of the contract? - does contractors' liability for "charges", if any, include demurrages? - HELD THAT:- The contracts delegating the responsibility of loading and unloading of foodgrains from railway wagons, as an integral part of the contract, include a clear and distinctive Clause for the imposition of liability, inter alia, on account of demurrages. Evidently, the liability Clause in these contracts, termed the Handling and Transport Contracts, is starkly distinct from the present Road Transport Contracts.
There are reason to believe that the Corporation, statutorily obligated to procure and distribute foodgrains across the nation, enters into contracts depending on the services it requires. These contracts naturally vary depending on the needs and purposes of the Corporation. With the aid of the provisions in the Handling and Transport Contract from 2010, we are able to understand the intention of the parties while entering into the present Road Transport Contracts. As the present contracts do not involve the task of loading and unloading of foodgrains from the railway wagons as a part of the contractors' responsibility, there is no Clause enabling the recovery of demurrages from them by the Corporation. Thus, our interpretation of the expression "charges", as exclusive of liability for demurrages, stands confirmed.
The Handling and Transport Contract from 2018, similarly involved loading and unloading of foodgrains from the railway wagons within the scope of contractors' duties, thereby necessitating the inclusion of demurrages as a penalty for non-performance of contractual duties. Thus, the present Road Transport Contract is distinct from the Handling and Transport Contract from 2018, as the responsibility of loading and unloading of foodgrains from railway wagons is absent in the present contract. For this reason, the Corporation in the present contract has chosen not to include the power to recover demurrages and as such the expression "charges" cannot be interpreted to include demurrages.
Appeal dismissed.
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2022 (11) TMI 1460 - CESTAT MUMBAI
CENVAT Credit - inputs written off or in respect of which provision has been made to write off, whether fully or partially - Extended period of Limitation - interest - penalties - HELD THAT:- The intention for insertion of Rule 3(5B), was to plug those situations, wherein the assessee is availing benefit of Cenvat Credit on the inputs which are not intended to be used and are written off or provisioned for written off in the books of accounts, but still lying in the factory. Rule 3 (5B) is part of the CENVAT Credit scheme, and should be interpreted in a manner to fulfill the basic objective of scheme. On a plain reading of the aforesaid provision, it is clear that the assessee shall be liable to pay the amount of Cenvat credit availed on the inputs, which are either written off fully or partially or any provision for write off fully or partially has been made in the books of accounts. This provision shall only apply in respect, of those goods which are written off the input in the books of accounts of the appellants for the reason that they have been lost, destroyed or become obsolete. It cannot be applied to case where the value of goods for any reason is written down in the books of account.
From the plain reading of the definitions of the term "write off", it can be construed that write off is term used wherein the asset is permanently lost on account of pilferage, obsolescence or otherwise and is required to be removed from the books of accounts. Thus it is quite evident that the impact of “write off”, or “making the provision to write off” an asset (including the inputs) would be reflected as loss or an expense in the book of accounts of the appellant and shall be admissible as deduction while computing the income of the appellant.
Whether the valuation of inventories as per the accounting standards and the accounting policies followed by the appellant would amount to “write off” or “making the provisions to write off”? - HELD THAT:- Admittedly the goods in respect of which demand for reversal of CENVAT credit has been made have been used in the production of the finished goods which are cleared on payment of duty. Further revenue has gone on the basis of monthly inventory valuation without even co-relating the same with the Annual Financial Statements i.e. Balance Sheet and Profit and Loss Account of the Appellant. As per the appellant the entries made in the respect of the slow moving items in inventory are reversed subsequently in the next month will neutralize each other, without having any impact on the total inventory at the closure of financial year. Even the auditors who value the stock at the closure of financial years will point out if any discrepancies exist in the actual physical stock of inventory and inventory records. Without making any reference to such financial statements can anybody conclude in respect of write off of the inputs or finished goods. Not a single case of such reference over the period from 2008 to 2017 has been put forth.
Revenue has relied upon the Board Circular of 2009 to support their case. On perusal of the said circular, it is found that the circular is in respect of inputs contained in work in process. Hence there is no applicability of the said circular to fact of present case.
Extended period of limitation - HELD THAT:- During the period from April 2008 to June 2017 (period of demand), the appellant claim that they had already reversed Cenvat Credit of Rs. 7,05,86,921/- on obsolete inventory. Revenue do not dispute that in case where the appellants have written off the inputs in the books of accounts they have reversed the CENVAT Credit in respect of those inputs which were written off - since the demand made not upheld on merits, the issue in respect of quantification and invocation of the extended period not taken up.
Interest - penalties - HELD THAT:- Since the demand do not survive the demand for interest too fails and no penal consequences will follow.
The impugned order set aside - appeal allowed.
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2022 (11) TMI 1459 - ITAT SURAT
Revision u/s 263 - estimation of value of asset - case of the assessee for the year under consideration was reopened on the basis of information received by assessing officer from sub-registrar concerned that the assessee has sold her land during the relevant financial year - as per AO assessee has shown the cost of acquisition on higher side to reduce the capital gain and made a reference to DVO under section 55A for estimation of value of the land as on 01.04.1981 - HELD THAT:- We find that the AO while passing the assessment order which was rectified on receipt of DVO’s report is a reasonable, plausible and legally sustainable, which cannot be branded as erroneous. Since, AO has accepted the explanation of assessee, which was coupled with evidence; the assessing officer may not have thought to pass detailed order on the issue examined by her. In our view, once the contention of the assessee on a particular issue is accepted by assessing officer, the order is not appealable order and no appeal would be filed, against such accepted position as an assessee will not feel aggrieved with it, it is not necessary to give reasons of acceptance of such pleas.
So far as the observation of ld PCIT that the assessing officer did nothing to sort out the enquiry to verify the assertion of the assessee and there was failure on the part of AO to bring on record the even correct facts or non-conduct of enquiry verification of facts, is concerned, we find that the assessing officer made requisite investigation before allowing relief to the assessee. The investigation conducted and the view adopted by the assessing officer in the present case, if not accepted by the Ld. PCIT, in nothing but change of opinion. It is settled position in law that no revision of assessment order is permissible on mere change of opinion.
Therefore, we are of the view that on the basis of material before the assessing officer, she took reasonable, plausible and legally sustainable view, which cannot be branded as erroneous. There is no doubt that while accepting the claim in the assessment, there may be some loss of revenue, tax can be levied only with the authority of law, and every loss of revenue as a consequence of an order of the AO, cannot be treated as prejudicial to the interests of the revenue unless the view adopted by assessing permissible in law. Once the assessing officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the assessing officer is unsustainable in law. Grounds of appeal raised by the assessee are allowed.
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2022 (11) TMI 1458 - SUPREME COURT
Classification of imported goods - old and used self-propelled platform supply vessel Sagar Fortune - Classifiable under tariff item 8901 9000 of the First Schedule to Customs Tariff Act, 1975 or not - it was held by Tribunal that In the present dispute, we are concerned with recourse to rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for adoption of the value estimated by the Chartered Engineer appointed by customs authorities and the last of the specifics in rule 10 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 for evaluation of the enhancement upheld in the impugned order.
HELD THAT:- The civil appeals are dismissed.
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2022 (11) TMI 1457 - PUNJAB AND HARYANA HIGH COURT
Grant of regular bail - conscious possession of 500 kilograms of poppy husk without any licence - right to speedy trial - petitioner has undergone custody of approximately 3 years - HELD THAT:- The petitioner has already suffered prolonged incarceration of about 3 years. There is no other case under the provisions of NDPS Act registered against the petitioner. There are 18 cited witnesses and, thus trial is expected to take a long time and is not going to conclude in near future.
In the case of SHARIFUL ISLAM @ SARIF VERSUS THE STATE OF WEST BENGAL [2022 (8) TMI 1493 - SC ORDER], Apex Court found that an under-trial having suffered incarceration over 1 year and 6 months is entitled for grant of regular bail.
Right to speedy trial is one of the objectives of NDPS Act and is rather one of the checks and balances provided under the Act. Section 36 NDPS Act recognizes the need for speedy trial. The provision contained in Section 36 providing for constitution of Special Courts is a means to achieve the end objective of speedy trial. Section 36 well recognizes the need for speedy trial. It is only with an objective to synthesize the right to speedy trial and rigors of Section 37 that the Supreme Court in the afore-referred cases granted concession of regular bail to the under-trials solely on the basis of long incarceration that they have suffered owing to delay in trial.
The petitioner is ordered to be released on bail on his furnishing bail/surety bonds to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned and subject to fulfilment of conditions imposed - petition allowed.
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2022 (11) TMI 1456 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of regular bail - bail sought on the ground of long custody - possession of 115 injections of ‘Buprenorphine Leegesic’ (2 mls. each) and 115 injections of ‘Avil’ (10 mls. each) - petitioner has been behind bars for a substantial period of more than 3 years and the trial is proceeding at snail’s pace - HELD THAT:- Keeping in view the totality of the facts and circumstances of the case, particularly long custody of the petitioner and that the petitioner enjoys a clean record and also that conclusion of trial is likely to consume time inasmuch as only 2 PWs out of the cited 10 PWs have been examined so far, the petition merits acceptance and is hereby accepted.
The petition, as such, is allowed and the petitioner is ordered to be released on regular bail on his furnishing bail bonds/surety bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned - Petition allowed.
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