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Showing 41 to 60 of 1498 Records
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2015 (1) TMI 1466 - KARNATAKA HIGH COURT
Exemption u/s 11 - cancelling the registration of the assessee as a Charitable Board u/s 12A already granted - Under what circumstances the registration granted earlier could be cancelled? - Tribunal recorded a finding that the registration granted u/s 12A cannot be revoked on account of commercial activities by the Board in pursuing the advancement of objects of general public utility and registration can be cancelled only on arriving at a finding that the activities of the Board are not genuine and not carried in accordance with the objects of the Board - HELD THAT:- The registration granted is cancelled in view of the amendment of first proviso to Section 2(15) of the Act. That is not a ground specified in the statute for cancellation of the registration. In fact, Sub-section (8) of Section 13 of the Act which is introduced by Financial Act, 2012 which came into effect from 1.4.2009 categorically provides that, nothing contained in Section 11 or 12 shall operate so as to exclude any income from the total income of the previous year or any receipt there of.
If the provisions of the first proviso to clause (15) of Section 2 becomes applicable in the case of such person in the said previous year, the statute has protected the interest of the revenue. Notwithstanding the fact that the assessee is conferred registration under the provisions of Section 12A of the Act, unless the assessee falls within the provisions of Section 2(15) of the Act, excluding the first proviso, the assessee would not be entitled to the benefit of exemption from the tax. If the case of the assessee falls in the first proviso to Section 2(15) of the Act, the benefit of registration which flow from Section 12A of the Act is not available. Anyhow, that is a matter to be considered by the Assessing Authority. But on that ground, the registration cannot be cancelled, which is precisely the Tribunal has held by allowing the appeal in the present impugned order. - Decided against revenue.
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2015 (1) TMI 1465 - BOMBAY HIGH COURT
CENVAT Credit - output services or not - transport services availed by the Respondent and provided by a goods transport agent - utilization of Cenvat Credit for payment of Service Tax on services provided by goods transport agent - Explanation to Rule 2(p) of the Cenvat Credit Rules, 2004 - HELD THAT:- It is not disputed by the learned Counsel appearing for the appellant that the Explanation was omitted in 2006; whereas the dispute under consideration is in respect of the year 2005 and, as such, the Explanation to Rule 2(p) of the said Rules would be applicable to the facts of the present case. On plain reading of the said Explanation, as it is not disputed that the respondents are paying service tax, the services rendered by the respondents on that count are deemed to be "output service" as the other conditions therein are satisfied.
On perusal of the order passed by the Commissioner (Appeals), Central Excise & Customs, Goa, dated 16th March, 2007, it is seen that the Commissioner has taken a view that as per Explanation to Rule 2(p) of the Cenvat Credit Rules if a person liable for payment of service tax does not provide any taxable service, the service for which he is liable to pay service tax shall be deemed to be the output service. The Commissioner has further found that on harmonious reading of various rules of Cenvat Credit Rules and Service Tax Rules, it is clear that Cenvat Credit can be utilized for payment of Service Tax liability in respect of goods transport agent.
Appeal dismissed.
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2015 (1) TMI 1464 - ITAT CHANDIGARH
Levy of penalty u/s 271(1)(c) - Undisclosed sale of plots - facilitator under public development scheme - slums area in city of Chandigarh development by Chandigarh Administration floated a scheme - as argued assessee worked as a nodal agency to Chandigarh Administration - Chandigarh Administration to raise funds for the said scheme decided to develop Rajiv Gandhi Chandigarh Technology Park (RGCTP) on Public Private Partnership basis and to generate funds through auction of plots in this park and facilitate the development assessee purchased certain lands from Chandigarh Administration and after necessary formalities, some of the plots were auctioned though public auction
HELD THAT:- Parties has ultimately reached to an amicable settlement with regard to the taxability of the proceeds received on auction of the plots. The Hon'ble Supreme Court has clearly observed that no penalty proceedings would be initiated. In our opinion in view of the amicable settlement reached and the assurance given before the Hon'ble Supreme Court as well as High Court, no penalty could be levied. We feel that this is not a fit case of levy of penalty and accordingly we set aside the order of Ld. CIT(A) and delete the penalty. - Decided in favour of assessee.
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2015 (1) TMI 1463 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - eligible reason to believe - No independent application of mind by AO - whether tangible material available with the AO to reopen the assessment? - HELD THAT:- Assessing Officer would admit that he has referred to the details mentioned in the annexure to the return filed by the assessee for the assessment year 2009-10. Thus, there was no independent material to come to the conclusion that there has been no full and true disclosure made by the assessee - the impugned proceedings are liable to be set aside for the sole reason that there was no tangible material available with the AO except that which was disclosed in the return of income filed by the petitioner for the relevant assessment year. This has been held to be not a sound foundation for exercising power under Section 147 read with Section 148 of the Act. This would be sufficient to set aside the impugned proceedings.
Whether the petitioner had made full and true disclosure with regard to the year of commencement of business? - Assessment proceedings are not a one way proceedings, even in the case of the assessee, the Assessing Officer while completing the regular assessment, called for details and documents which were furnished by the assessee - no hesitation to hold that the materials disclosed by the assessee were available with the Assessing Officer and it is from such material, the present impugned reopening proceedings have been initiated. Thus, the respondent had initiated proceedings purely based on existing information which was provided by the assessee in the course of original assessment and based on the return of income filed by the assessee for the relevant year. The petitioner before the Assessing Officer placed the profit and loss account and the balance sheet and the relevant annexures and notes to the financial statements. The notes are important material because it would disclose the details pertaining to various entries in the profit and loss account and balance sheet and explain the stand taken by the assessee. So far as the fixed assets is concerned in the balance sheet, the petitioner has indicated that the capital work is in progress.
In the absence of any new material in the hands of the Assessing Officer or discovery of some materials or a new insight after the completion of the original assessment, the question of reopening does not arise. The conclusion arrived by the Assessing Officer in the impugned order that merely the petitioner has produced books of account before the Assessing Officer and that there is no presumption that all the books were seen by the Assessing Officer is factually incorrect, as during the course of assessment proceedings, documents and evidences were called for from the assessee which were produced and after perusal of the same, the assessment was completed - impugned reopening proceedings is a clear case of change of opinion as there has been full and true disclosure by the assessee at the time of scrutiny assessment/original assessment. - Decided in favour of assessee.
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2015 (1) TMI 1462 - GUJARAT HIGH COURT
Principles of natural justice - It is contended that as per the sale deed in question the land in question is Block No.258 and not Block No.135 and the entry came to be made without giving any opportunity of being to the petitioner - HELD THAT:- The proceedings are remanded for its reconsideration to respondent No.3 Mamlatdar, who shall give an opportunity of being heard to the petitioner as well as the private respondent Nos.4 to 6 and after considering the submissions, if any, respondent No.3 Mamlatdar shall pass appropriate orders.
Petition allowed by way of remand.
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2015 (1) TMI 1461 - ITAT AHMEDABAD
Depreciation related to Multi Metal Project - Disallowance of claim as project not actually used in year - Assessee's claim is that even though machines in the Multi Metal Project were not actually used during the year, still claim of depreciation is allowable since the machineries were put in a condition ready to use - CIT-A deleted disallowance - HELD THAT:- CIT(A) has followed its decision for A.Y. 1997-98 to 2000-01 and Tribunal in [2013 (9) TMI 520 - ITAT, AHMEDABAD] has decided the similar issue in favour of assessee - so following the same reasoning, we are not inclined to interfere in the finding of CIT(A) who has deleted the disallowance on account of depreciation related to Multi Metal Project.
Disallowance on account of prior period charges - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] A.O. has not given this finding that the expense did not crystelise during the present year. Therefore, in our considered opinion, this fact has to be brought out on record as to whether the expenses in question have crystalised during this year and if the assessee is able to do so, no disallowance should be made. The A.O. should pass necessary order as per law.
Disallowance of alternative claim of assessee to tax only interest portion of lease rental by disallowance of depreciation on assets leased to Gujarat State Road Transport Corporation ("GSRTC') - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] we are not inclined to interfere in the finding of CIT(A), who has directed the Assessing Officer to tax the interest portion out of lease rentals offered as income by assessee. Same is uphold.
Disallowance u/s 14A - HELD THAT:- No disallowance of interest expenses is required because revenue is expected to establish a nexus between interest bearing funds borrowed and these invested by the assessee. In such situation, disallowance u/s. 14A of Act is not justified. Assessing Officer is directed accordingly. Accordingly appeal of revenue on this issue is dismissed.
Disallowance being expenditure of lignite project at Mata no Madh holding it to be preoperative expenses - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] issue decided in favour of assessee.
Expenditure on power project at Akri Mota and further rejecting the claim of interest and financial charges forming part of total expenditure being not allowable u/s. 36(1)(iii) - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] borrowed funds were not used for setting up of a new unit of an existing running business but it was setting up of a new unit for production of an altogether new product i.e. power whereas the existing business of the assessee was production of lignite. Since this aspect is not fulfilled in the present case, even interest expenditure is not allowable in the present case u/s. 36(1)(iii) because in the present case, the product to be manufactured by the new unit is an altogether new product.
Facts being similar, so following the same reasoning, we are not inclined to interfere in the order of CIT(A) who has held that in view of admitted factual position that Akri Mota Power project is not extension of its existing business. This is the first power project being put by assessee. It is undisputed that assessee did not have any business of power generate in earlier. In the light of above, factual legal discussion has been done in above assessee's appeal, we are not inclined to interfere in the finding of CIT(A) who has confirmed the disallowance - Decided against assessee.
Disallowance being salary to staff at residence of Chairman - HELD THAT:- As decided in own case [2013 (9) TMI 520 - ITAT, AHMEDABAD] disallowance is not justified. If the expenditure is incurred in violation of the guidelines of Government of Gujarat and against Article 192 of the assessee corporation then the remedy lies somewhere else and action can be taken as per law against the person responsible for such violation but this cannot be the basis for making disallowance of expenses without proving that it is not for the purpose of assessee's business. This is not the claim of the revenue that this expenditure is not for the purpose of business and therefore, this disallowance is deleted. This ground of the assessee is allowed.
Addition of miscellaneous income of Assessee's claim was miscellaneous income should be set off against expenditure - HELD THAT:- In the present case, we find that when the A.O. made this addition, there is no discussion as to whether these two incomes were directly connected or incidental to construction of plant by the assessee or not. In the order of Ld. CIT(A) also, there is no finding on this aspect of the matter. Before us also, although reliance was placed by the Ld. A.R. on these two judgements of Hon'ble Apex Court BONGAIGAON REFINERY [2001 (7) TMI 4 - SUPREME COURT] and BOKARO STEEL LIMITED [1998 (12) TMI 4 - SUPREME COURT] but this fact is not available on record as to whether the income in question were directly connected and incidental to construction of plant by the assessee or not. Under these facts, and in the interest of justice, we feel that this issue should go back to the file of the A.O. for a fresh decision.
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2015 (1) TMI 1460 - KARNATAKA HIGH COURT
Deduction u/s 80IA - claim to be computed undertaking wise, i.e., in the manner in which the assessee has claimed deduction - Whether the Tribunal was justified in holding that in granting deduction under Section 80IA of the Act, it is only the income of the loss making units should be taken into consideration and not all the units of the assessee, some of which were making profits? - HELD THAT:- This Court had an occasion to consider the said substantial question of law in case of Komarla Feeds and Foods Pvt. Ltd. Vs. Commissioner of Income-tax [2015 (1) TMI 1458 - KARNATAKA HIGH COURT] where this Court has answered the said substantial question of law in favour of the assessee and against the revenue.
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2015 (1) TMI 1459 - BOMBAY HIGH COURT
Appointment of the court receiver in respect of the suit premises - Whether there was any prima facie substance in the allegations of fraud made by the petitioners in both the writ petitions before the learned trial judge played upon the court by respondent no. 1 in collusion with the alleged constituted attorney of Mr. Peter Drego or not? - whether the learned trial court could have taken cognizance of such allegations of fraud committed upon the court and could have set aside the consent decree obtained by respondent no. 1 from the trial court based on such fabricated and fraudulent documents in the applications filed by the petitioners?
HELD THAT:- A perusal of the record indicates that in the said suit, the respondent no. 1 had also filed a Notice of Motion bearing no. 1948 of 2012 inter alia praying for an order and injunction against the said M/s. Drego Enterprises from in any manner interfering with or disturbing with the alleged physical possession of the respondent no. 1 in respect of the suit premises and/or dispossessing the respondent no. 1 and/or his family members otherwise than by due process of law. Roznama dated 16th August, 2012 indicates that the trial court granted ad-interim injunction as prayed in terms of prayer (a) of the draft notice of motion. The alleged constituted attorney of the defendants agreed that the defendant would not dispossess the plaintiff - A perusal of the Roznama dated 14th September, 2012 indicates that respondent no. 1 was present through her advocate. One Mr. A.D. Thakur advocate appears to have been tendered his vakalatnama on behalf of the defendant and the same was taken on record.
A perusal of the record clearly indicates that the material produced before the trial court was more than sufficient to establish the fraud committed by respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi upon the court in obtaining consent decree. There was a gross abuse of process of law and of court by the respondent and the said Mr. Shamsuddin Kasamali Qureshi. A perusal of the entire order makes it abundantly clear that the trial judge has taken a very casual approach in the matter while considering serious allegations of fraud committed upon the court though more than sufficient material has been produced by the petitioners to indicate the systematic fraud played upon the court by the respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi - when the application was made by the petitioners for setting aside the consent terms on the ground that there was no power of attorney on the record or proceedings, the trial court did not bother to look into the seriousness of such allegations and to look into as to how the vakalatnama of Mr. Shamsuddin Kasamali Qureshi came to be taken on record without original power of attorney and how could such consent terms on behalf of the registered partnership firm be taken on record of the court and the seal of the court was affixed on such fraudulently obtained consent decree.
Whether any of the petitioners filing miscellaneous application for setting aside and/or stay of consent decree had locus to file such application for the relief's as claimed under section 151 of the Code of Civil Procedure or under any other provisions of law? - HELD THAT:- It is held that it would not be equitable to confer a benefit on a party who is a beneficiary of such order and decree obtained by fraud. A person whose case is based on falsehood has no right to approach to the court and can be summarily throughout at any stage of litigation. Even in the said judgment of this court, the petitioner who had applied for setting aside the order passed by this court was not a party to the said proceedings in which the order granting letters of administration was passed by this court and had brought to the notice of the court that the fraud was committed upon the court - Once the allegation of fraud, fabrication or concealment is brought to the notice of the court, which is alleged to have been committed by the opposite party to the proceedings on court, it becomes the duty of the court to look into such allegation whether any such order has been obtained by the party from the court by practicing a fraud, fabrication or concealment. The court can take action even suo moto if comes to the conclusion that an order is obtained fraudulently or by making false suggestion or by concealment of such fact by a party and can set aside such order.
The petitioners have made out a case for appointment of the court receiver in respect of the suit premises in view of the clear case of fraud practiced upon the court by the respondent no. 1 in obtaining the consent decree and in committing gross abuse of process of law and of court - Petition allowed.
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2015 (1) TMI 1458 - KARNATAKA HIGH COURT
Revision u/s 263 - deduction u/s 80-IB is different on the gross amount after adjusting the loss - HELD THAT:- Though, the word used in business at Section 80-IB, the careful reading makes it clear that, business has to be understood with reference to the business referred in Sections 3 and 2 of the 11(a) and 11(b) where the reference is to industrial undertaking only. In substance it makes no difference. The judgment of the Apex Court in the case of Synco Industries Ltd. V. Assessing Officer (Income-Tax) And Another [2008 (3) TMI 13 - SUPREME COURT] squarely applies to the facts of this case, on which, the reliance is placed by the Tribunal and held section 80A(2) and section 80B(5) are declaratory in nature.
They apply to all the Sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and, therefore the non-obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and, therefore while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression 'gross total income' as defined in Section 80B(5).
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2015 (1) TMI 1457 - ITAT MUMBAI
On-money receipt - estimating the net profit - Hon’ble Settlement Commission has accepted the contention of the assessee that only net profit should be estimated on the amounts received outside the books of account. Accordingly, the Hon’ble Settlement Commission has estimated the net profit at 12% of thereon - HELD THAT:- The assessments of AY 2005-06 and also the year before us, viz., AY 2006-07 have been taken up for scrutiny only on the basis of survey operations and hence the facts prevailing in both the cases are identical in nature. Hence, we do not find it necessary to take a different view from that one taken by the Hon’ble Settlement Commission. Accordingly, we are of the view that the Ld CIT(A) was justified in estimating the profit at 12% (it is stated that the rate of profit was wrongly mentioned as 17% in the order of Ld CIT(A)).
D.R submitted that there is a reference of 35% in the Settlement Commission’s order. However, on a perusal of the said order, we notice that the assessee has given a working of the profit of the project by considering the value of scrap sales and adhoc disclosure in order to substantiate the offer of 12%. Hence, in our view, the said reference of 35% is not relevant here.
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2015 (1) TMI 1456 - SUPREME COURT
Murder - compliance with the statutory requirement of police report Under Sections 173(2) and 173(5) of Code of Criminal Procedure - HELD THAT:- In view the statutory provisions Under Section 173(2) and (5) read with Section 2(r) of Code of Criminal Procedure and with reference to the judgments on which both the learned senior Counsel placed reliance upon. It is an undisputed fact that the charge sheet was filed on 3.7.2013 that is 90th day. Section 2(r) of Code of Criminal Procedure defines the expression "police report" as a report forwarded by a police officer to a magistrate Under Section 173(2) of Code of Criminal Procedure. The particulars to be furnished in the police report which are extracted as above are complied with in the instant case. Therefore, filing of the police report as required Under Section 173(2) is within 90 days in the instant case.
The High Court is right in rejecting the prayer of default bail Under Section 167(2) of Code of Criminal Procedure. Upon the filing of the police report, cognizance was taken by the learned ACJM on 3.7.2013 which is evident from the order passed by him which is extracted above. It is pertinent to point out that the said order remains unchallenged by the Appellant. Therefore, it is not open for him to turn around and contend that cognizance was not taken by the learned ACJM on 3.7.2013.
Thus, filing of police report containing the particulars as mentioned Under Section 173(2) amounted to completion of filing of the report before the learned ACJM, cognizance is taken and registered the same. The contention of the Appellant that the police report filed in this case is not as per the legal requirement Under Section 173(2) & (5) of Code of Criminal Procedure which entitled him for default bail is rightly rejected by the High Court and does not call for any interference by this Court.
Appeal dismissed.
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2015 (1) TMI 1455 - ITAT COCHIN
Levy of penalty u/s. 271C - assessee failed to remit the tax - HELD THAT:- The same issue was considered in the case of US Technologies International (P) Ltd. vs. CIT [2009 (6) TMI 1016 - KERALA HIGH COURT] wherein it was held that if there is failure to remit or deduct the tax in whole or any part thereof, will attract provisions of penalty under section 271C - Being so, the assessee cannot re-argue the same issue before us. The facts in this case being identical to that one considered in the case of US Technologies International (P) Ltd., [2009 (6) TMI 1016 - KERALA HIGH COURT] we are inclined to hold that the assessee is liable for penalty not only in terms of provisions of Chapter XVIIB but also for non payment of tax deducted at source in time.
AR made a plea before us that because of financial problem, the assessee failed to remit or deduct tax to the Government. However, there is no iota of evidence to suggest that the assessee is suffering from financial difficulty. Hence, the assessee’s argument thus cannot be constituted as explanation to say that the assessee is suffering from financial difficulty unless the assessee substantiates it with evidence. Even if there is financial difficulty, it is the duty of the assessee to substantiate the financial hardship by placing necessary evidence. In the present case, there is no material to suggest the financial difficulty of the assessee.
The other grievance of the assessee is that when the assessee has remitted the deducted amount with interest before the detection by the Department, hence penalty cannot be levied. This contention of the assessee cannot be considered as reasonable cause and there is delay of remittance of deposited amount to the Government and payment of interest is compensatory in nature and in this case, there was a continuous delay of 4 years and the belated depositing of deducted amount every year and the assessee is a willful defaulter. Being so, we are inclined to confirm the order of the CIT(A) on this issue.
AR made a plea before us that in one assessment year, 2010-11, penalty levied was more than the tax which the assessee failed to deduct . Being so, the Assessing Officer shall recompute the penalty amount and it shall not exceed the amount of tax which the assessee failed to deduct and pay the same to Central Government. With this observation, we are inclined to confirm the order of the penalty. Appeal of assessee dismissed.
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2015 (1) TMI 1454 - MADRAS HIGH COURT
Exemption u/s 11 - registration filed under Section 12 AA denied - Revenue questions the trust not having commenced its activity for the grant of registration - HELD THAT:- When the genuineness of the objects of the Trust were not questioned by the CIT and when the Trust was yet to commence its operation and when a subject matter of scrutiny by the CIT as contemplated under section 12 AA(3) of the Income Tax Act, the Revenue would not be justified in refusing the registration at the threshold. The said ratio was laid down in a judgment reported in CIT Vs. Arulmighu Sri Kamatchi Amman Trust [2012 (2) TMI 159 - MADRAS HIGH COURT] - Decided against revenue.
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2015 (1) TMI 1453 - SUPREME COURT
Income accrued or deemed to accrued in India - Taxability in India - Payment on account of technical services to a non-resident - Whether the sum paid or credited to the account of the foreign resident by the assessee on account of service rendered in relation to forex derivative transactions is chargeable to tax in India under Section 9(1)(vii)? - whether the assessee was liable to deduct tax? - HC held that rendering services could not have been concluded outside India - HELD THAT:- No legal and valid ground for interference. The special leave petition is dismissed.
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2015 (1) TMI 1452 - SC ORDER
Accrual of interest on NPAs - Mercantile system of accounting followed - income from non-performing assets should be assessed on cash basis or mercantile basis despite the assessee maintain mercantile system of accounting - contention of the revenue that in respect of non-performing assets even though it does not yield any income as the assesse has adopted a mercantile system of accounting, he as to pay tax on the revenue which has accrued notionally is without any basis - HELD THAT:- SLP dismissed.
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2015 (1) TMI 1451 - ITAT GUWAHATI
Accrual of income - non disclosure of income from the loan advanced to Al-Haj Abdus Salam Barlaskar - HELD THAT:- AO had made addition only because the assessee was following mercantile system of accounting. It is a fact that the assessee had not received any income though it was entitled to get the interest from Al-Haj Abdus Salam Barlaskar. The principle of accountancy cannot takes place the theory of real income and in the case under consideration the assessee had to write off the loan finally during the AY 2008-09. Just because, the interest was due, it cannot be always presumed same had to be taxed. The agreement in question is effective till September, 2008 only i.e., for a period of three years. In these circumstances, if the assessee was not receiving interest, then in our opinion, the addition should not have been made just because it had accrued to the assessee as per the mercantile system of accounting. In the case of Eicher Ltd. [2009 (7) TMI 43 - DELHI HIGH COURT] the same principle has been propounded. - Decided in favour of assessee.
Disallowance of interest expenditure - HELD THAT:- FAA has not given any reason for the disallowance. As his order is non-speaking, therefore, same has to be reversed. Decided in favour of assessee.
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2015 (1) TMI 1450 - ITAT BANGALORE
Rectification of mistake - Validity of search and assumption of jurisdiction u/s 153A against regular assessment u/s 143(3) - HELD THAT:-For the assessment year 2011-12 it was a regular assessment u/s 143(3) and not assessment made u/s 153A of the Act and grounds raised were against the additions made during the assessment. Tribunal, while disposing of the group of appeals for the assessment years 2005-06 to 2011-12, had disposed of the appeal for assessment year 2011-12 also by remanding the matter to the CIT(A) to adjudicate the ground about validity of the assessment proceedings u/s 153A of the Act without considering the fact that the said ground of appeal did not arise in the assessment year 2011-12. Thus there is a mistake apparent from the face of the record requiring rectification
Having regard to the rival contentions and the material on record and also on further perusal of the grounds of appeal raised by the assessee in [2014 (11) TMI 1189 - ITAT BANGALORE] grounds are against the additions made in the assessment completed u/s 143(3) and not against the validity of the proceedings u/s 153A of the Act. Therefore, we are satisfied that there is a mistake apparent from order of the Tribunal which needs rectification. Accordingly, we recall the order of the Tribunal and direct the registry to fix the appeal for hearing in regular course.
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2015 (1) TMI 1449 - SUPREME COURT
Acquisition of Land - Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - allegation that respondent no. 1 has started acquiring the land without complying with the provisions and in utter violation of the Act of 1995 & therefore the acquisition proceedings are bad in law and liable to be quashed - HELD THAT:- The respondent No.2 GMADA has admitted that the possession of the land in question (i.e. about 102 acres) is with the appellants and the appellants have not received the compensation for the said land being acquired by GMADA.
The present case is squarely covered by the law laid down in the matter of PUNE MUNICIPAL CORPORATION & ANR. VERSUS HARAKCHAND MISIRIMAL SOLANKI & ORS. [2014 (1) TMI 1643 - SUPREME COURT] where it was held that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested.
The physical possession of the land belonging to the appellants have neither been taken by the respondents nor compensation paid to them even though the award was passed on 06.08.2007, and more than five years have lapsed prior to date on which the Act of 2013 came into force. Therefore, the conditions mentioned in Section 24(2) of the Act of 2013 are satisfied in this case for allowing the plea of the appellants that the land acquisition proceedings are deemed to have lapsed in terms of Section 24(2) of the Act of 2013 - The said legal principle laid down by this Court in the case of Pune Municipal Corporation with regard to the interpretation of Section 24(2) of the Act of 2013, with all fours are applicable to the fact situation in respect of the land covered in these appeals for granting the relief as prayed by the appellants in the applications.
The acquisition proceedings in respect of the appellants' land have lapse - Application allowed.
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2015 (1) TMI 1448 - BOMBAY HIGH COURT
Winding up of Company - Works contract - Company has failed to pay to the Petitioner an amount of ₹ 24,75,170/despite deducting TDS for ₹ 24,752/- - claim rejected on the ground of time limitation - HELD THAT:- According to the petitioner no payment is made towards the said amount of ₹ 24,75,170/by the Company which is due since 31st August 2010. The claim of the Petitioner therefore prima facie appears to be barred by the Law of Limitation. The argument advanced on behalf of the Petitioner that the period of limitation would get extended till the Petitioner gained knowledge of the fact that the Company had on 7th September 2010 deposited TDS on the said amount of ₹ 24,75,170/is prima facie unacceptable - in the case of S.P. BROTHERS VERSUS BIREN RAMESH KADAKIA [2008 (3) TMI 754 - BOMBAY HIGH COURT] the Division Bench of this Court has held that the issuance of TDS Certificates does not amount to an acknowledgement of Defendant within the meaning of Section 25 of the Evidence Act. The TDS certificate is primarily to acknowledge deduction of tax at source.
This being a triable issue, on this ground alone the Petition deserves to be dismissed - the certificates issued by DMRC would not assist the Petitioner since the Petitioner had privity of contract only with the Company and the said certificate again in any event cannot be construed as an admission of liability on the part of the Company.
As regards the fact that in the ledger account maintained by the Petitioner, an amount of ₹ 12, 19,097/is found due and payable by the Company to the petitioner, the Petitioner has correctly submitted that the said amount does not pertain only to the subject subcontract assigned by the Company to the Petitioner but pertains to various contracts between the Petitioner and the Company.
The Company has raised the aforestated bona fide disputes which need to be adjudicated either in a suit or in arbitration proceedings after giving an opportunity to the parties to lead evidence - petition dismissed.
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2015 (1) TMI 1447 - ITAT MUMBAI
Reopening of assessment u/s 147 - disallowance of set-off of brought forward Unabsorbed Depreciation(UD) - HELD THAT:- Assessee had capitalised the difference between the accumulated losses and fresh capital issued by it. Not only this the difference was treated as goodwill and the goodwill was a mortised equally over a period of 60 months in the books of the accounts of the assessee. AO allowed the claim made by it without considering the above facts.
On a specific query by the Bench the AR admitted that the goodwill was a mortised and that the difference of loss and fresh capital was capitalised in the books. Clear case of claiming double deduction. Considering the facts that the difference between the accumulated losses as on 26. 9. 2002 [of ₹ 19. 21 Crores less value of share capital of SSAPL of 11. 50 Crores (representing share capital extinguished of SSAPL)], capitalization of fresh capital, aggregating to ₹ 8. 86 Crores and treatment of goodwill in the books of the assessee, we are of the opinion that the FAA was justified in upholding the reassessment.
Double taxation/double deduction is not permissible under the Act. In the case under consideration the assessee had claimed the amount of ₹ 2. 96 Crores as goodwill and had amortised it in the books of accounts. In addition to it, the assessee wanted it to the part of unabsorbed losses to be carried forward. Clearly, it is not permissible as per the provisions of the Act - assessee should not have reduced the UD in the computation of book profits u/s. 115 JB - Even if the AO while passing order u/s. 143(3) had allowed an impermissible deduction, it would not bar him from initiating proceedings u/s. 147. The purpose behind the section is to compute the income that has escaped assessment. In the case under consideration brought forward UD of SSAPLwas allowed in excess during the original assessment proceedings. So, if the AO initiated re-assessment procee dings to withdraw the excess allowance, no fault can be found with him.
In Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT] AO has power of reopen an assessment provided there is tangible material to come to the conclusion that there was escapement of income from assessment and that reasons must have link with the formation of the belief. We find that in the case before us, there was tangible material before the AO, as the assessee has reduced the UD in computation of book profit against the clear intent of the legislature. Therefore, in our opinion cases relied upon by the assessee are of no help. We find that the matter relied upon by the DR, supports the stand taken by the FAA. Order of the FAA does not suffer from any legal or factual infirmity. So, confirming it, we decide ground no. 1 & 2 against the assessee.
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