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Showing 41 to 60 of 1465 Records
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2016 (3) TMI 1436 - ITAT MUMBAI
Deduction u/s 54F - Claim available for only one residential house purchased or constructed - deduction denied as assessee has utilized the net consideration for investment in two residential properties - assessee has not yet completed the entire residential house - HELD THAT:- Assessee will be entitled for benefit u/s 54F of the Act with respect to investment in only one residential house property at Parsik Hills, Belapur as the said residential house property is completed at later point of time vis-à-vis acquisition of the residential flat at NRI Complex, Nerul in November 2007 and the provisions of Section 54F(2) of the Act will get invoked and be applicable with respect to residential flat at NRI Complex, Nerul being acquired in November 2007 i.e. prior to completion of investment in residential house property at Parsik Hills, Belapur, and the investment in construction of residential house property at Parsik Hills, Belapur shall be entitled for benefit u/s 54F as the assessee has sold two plots of land and the AO has rightly allowed the exemption u/s 54F with respect of investment made by the assessee in the construction of the residential house property at Parsik Hills, Belapur.
Benefit u/s 54F of the Act of the investment in construction of residential house property at Parsik Hills, Belapur on the ground that the property was not in livable condition to occupy owing to non-production of evidence with regard to basic amenities like place for cooking/kitchen/toilet, bathroom, approach road within the plot etc. and non production of evidences regarding any electricity or telephone or tap water connection having been granted to the structure - The intention of the Legislature was to encourage investments in the acquisition of a residential house and completion of construction or occupation is not the requirement of law. The words used in the section are 'purchased' or 'constructed'. For such purpose, the capital gain realized should have been invested in a residential house. The condition precedent for claiming benefit under the said provision is the capital gain realized from sale of capital asset should have been parted by the assessee and invested either in purchasing a residential house or in constructing a residential house.Thus, benefit u/s 54F of the Act cannot be denied to the assessee during the year ending March, 2008 merely because the assessee has not yet completed the entire residential house at Parsik Hills, Belapur while the assessee can complete the house with a stipulated period of three years from the date of transfer of original asset, the deduction cannot be denied merely on the ground that construction is not completed . Our decision is fortified by the decision of Hyderabad- Tribunal in the case of Narsimha Raju Rudra Raju [2013 (11) TMI 415 - ITAT HYDERABAD]
Thus, in our considered view, the assessee shall be entitled for benefit u/s 54F of the Act with respect to investment made by the assessee in construction of residential house property at Parsil Hills, Belapur as allowed by the AO and we set aside the orders of the CIT(A) in this regard and restore the orders of the AO.
Assessing the agricultural income earned by the assessee as income under the head “income from other sources”- HELD THAT:- No details regarding procurement of seeds or labour or water for carrying out the agricultural operations has been produced by the assessee even in the second round of litigation. No details were produced with respect to the crop cultivated or produced from the agricultural land even by the caretaker - In the absence of any cogent material/evidence brought on record by the assessee with respect to the actual carrying on the agricultural activity in the said land stated to be agriculture land, the said income cannot be assessed to tax as ‘agricultural income’ and the same shall be charged to tax as ‘income from other sources’, hence this ground of appeal raised by the assessee is dismissed and the findings of the authorities below are confirmed. We order accordingly.
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2016 (3) TMI 1435 - SUPREME COURT
Liability of Stamp Duty payable by the developer and the allottees - bipartite agreement between the State and the developer - Sections 33/47(A) of the Indian Stamp Act, 1899 - HELD THAT:- Bereft of the required materials before the High Court, the Court was not justified in adjudicating the issue at the first instance when there is a statutory scheme provided for adjudication of such issues by the competent authorities concerned.
In that view of the matter, without expressing any further opinion, the judgment is set aside. The parties are relegated to the competent authority under the Indian Stamp Act in the State of Uttar Pradesh for the adjudication of the dispute - appeal disposed off.
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2016 (3) TMI 1434 - ITAT PUNE
Deduction u/s. 80P(2)(c)(ii) - Disallowing deduction in respect of incomes earned by the assessee from Locker Rent, Ambulance Rent, Commission on Collection of MSEB bills and Health Club - HELD THAT:- We observe that on similar grounds the assessee has filed appeals before the Tribunal against the order of Commissioner of Income Tax (Appeals) for assessment years 2010-11 and 2011-12 [2016 (4) TMI 473 - ITAT PUNE] decided in favour of the assessee.
No material has been placed on record by the Revenue to controvert the findings of Coordinate Bench. In such circumstances, we do not find any reason to take any contrary view.
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2016 (3) TMI 1433 - ITAT MUMBAI
Revision u/s 263 - Deduction u/s 80IB(10) in respect of a project developed by it as per the approval given by the Slum Redevelopment Authority(SRA) for the project - As per CIT Assessee should be taken as a new project and not Slum Redevelopment scheme - HELD THAT:- It is an admitted fact that the assessee has not undertaken Slum Redevelopment Scheme, i.e., development of any existing slum. It has constructed flats as per the scheme framed by the SRA in accordance with their design in a open land. Hence we are of the view that the Ld CIT(A) was justified in holding that, for all practical purposes, it should be taken as a new project and not Slum Redevelopment scheme.
In the instant case, it is not shown that the assessee has not claimed relaxation of the conditions specified in clause (a) or (b) of section 80IB(10) of the Act by virtue of first proviso. Hence from this angle also, there is no requirement that the project of the assessee should be notified by CBDT.
Whether the assessee was a developer or builder? - We agree with the view taken by ld CIT(A) that the agreement entered between the assessee and SRA should be considered as a whole in order to ascertain the status. CIT(A), on examination of the agreement in whole, has taken the view that the assessee cannot be considered as a mere contractor simply for the reason that the land was conveyed to the SRA, since the assessee has taken up the entire responsibility to construct the tenements along with infrastructural facilities. The building so constructed was later handed over to the SRA. In consideration of the same, the assessee has got TDR. Hence, we are in agreement with the said observations of the Ld CIT(A) - the assessee could have been taken as a contractor, only if the SRA has taken up the responsibility to construct the building and the assessee was awarded the contract to construct the building. This is not the case here. The assessee has taken up entire responsibility of the project to develop and complete the project. Hence, the Ld CIT(A) was right in holding that the assessee was a developer in this project.
With regard to the observation of the AO that the assessee “appears” to have not completed the project before 31.3.2008, we notice that the very use of the word “appears” by the AO shows that he was also not sure about his allegation. In any case, the Ld CIT(A) has taken note of the possession certificate given by the SRA, as per which all the buildings were handed over to it before 31.3.2008, meaning thereby, the assessee has completed the construction before that date.
In view of the above, we do not find any infirmity in the order of Ld CIT(A) passed for AY 2007-08 and accordingly uphold the same.
AY 2006-07 challenging the revision order passed by Ld CIT u/s 263 - The order passed by Ld CIT(A) for assessment year 2007-08 would show that the issues considered by Ld CIT are debatable in nature, i.e., the view taken by the assessing officer for allowing deduction u/s 80IB(10) of the Act was a possible view. Accordingly as per the decision rendered in the case of Malabar Industrial Company [2000 (2) TMI 10 - SUPREME COURT] the impugned revision order is liable to be set aside, since the one of possible views taken by the AO would not render the assessment order prejudicial to the interest of the revenue. It is well settled proposition of law that the twin conditions specified in sec. 263 of the Act, viz., (a) assessment order is erroneous and (b) it is prejudicial to the interest of revenue, should be shown as existing before passing revision order u/s 263 of the Act. Further, on merits also, we have noticed that the various reasons cited by the AO/Ld CIT does not merit acceptance. Hence, the impugned revision order is liable to set aside.
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2016 (3) TMI 1432 - PUNJAB AND HARYANA HIGH COURT
Recalling of the 04 named witnesses declined - Common ground seeking recalling was that Sh. R.S. Hooda, Advocate , who was the leading defence counsel was critically ill during the trial and due to inadvertence, certain important questions, suggestions with respect to the individual roles and allegations against the respective petitioners, the injuries sustained by the witnesses, as well as the alleged weapons of offence used, had not been put to the said witnesses - HELD THAT:- In the opinion of this Court a case for recalling is made out to ensure fair opportunity to defend and uphold the concept of fair trial. The conceded fact that 148 accused persons are facing trial together, wherein the prosecution has examined 102 witnesses regarding different roles/weapons/injuries attributed to various accused qua various victims on the day of occurrence stretched over a period of time within a huge area of factory premises, does raise a sustainable inference that there was a confusion during the conduct of the trial leading to certain inadvertent omissions and putting proper suggestions on material aspects, which are crucial for the defence in a trial inter alia for an offence under Section 302 IPC, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer.
The accused-petitioners are charged with heinous offences including under Section 302 IPC and it was stressed that the purpose of recalling is not to set up a new case or make them turn hostile but only to have a proper defence as it is to be judicially noticed that for lack of proper suggestions by the defence to the prosecution witnesses, the learned trial Courts at times tend to reject the raised defence on behalf of the accused. Some of such omissions and suggestions by way of illustration have been spelt out in the body of the petitions and some are stated to be withheld for avoiding any prejudice to the defence, nevertheless the stated purpose is not to render the prosecution witnesses hostile to the case of prosecution. Hence such inadvertent omissions and lack of suggestions have to be accepted to be bonafide and constituting a valid reason requiring the approach of the Court to be magnanimous in permitting such mistakes to be rectified, moreso when the prosecution, concededly, were permitted twice to lead additional evidence by invoking the provisions under Section 311 Cr.PC on no objection of the defence, after the closure of the prosecution evidence.
The accused-petitioners are in custody and having nothing to gain from delaying the trial. The reasons assumed for declining the recalling in the impugned order dated 16.11.2015 (P-1) are clearly misconceived and thus vitiated. It is apparent from the provisions of Section 311 Cr.PC as interpreted by the Courts that the exercise of the power to recall is not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case.
The respective applications dated 30.11.2015 (P-4 in both the petitions) under Section 311 Cr.PC seeking recall of the named witnesses are allowed - Petition allowed.
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2016 (3) TMI 1431 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Vishal Information Technologies cannot be considered as a comparable with the assessee-company. Hence, we direct the AO/TPO to exclude this company from the list of comparables for the purpose of bench marking the international transactions with its AE.
Saffron Global Ltd - The fact that there was a proposal for merger of this company with Triton Corporation and the accumulated losses are more than 50% of net worth, the internal controls require to be improved and increase in turnover is not a relevant factor for excluding this company as a comparable. These factors have no impact either on the comparability or profitability of the current year and therefore, we uphold the findings of the ld.CIT(A) and this ground of appeal filed by the assessee-company is dismissed.
Companies not comparable as they have related party transaction - The provisions of Section 92 provides that income arising from international transaction is to be computed having regard to ALP. Section 92F(ii) defines “arm’s length price” to mean a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises, in uncontrolled conditions. To compute ALP the results of the international transaction are bench marked against comparable uncontrolled transaction. The mandate of s. 92F(ii) is that ALP shall be computed considering price applied or proposed to be applied in transactions between non- AE’s.
When selection of external comparables, one needs to ensure that such external comparables are uncontrolled. The companies having controlled transactions therefore needs to be eliminated. Then the issue that crops up is what should be the related party transaction ratio for excluding as comparable. This issue had come up before the Tribunal in numerous cases. The Delhi Coordinate Bench in the case of M/s Sony India Pvt. Ltd [2008 (9) TMI 420 - ITAT DELHI-H ], held that the companies having relating party transactions of not exceeding 15% can be taken as a comparable.
The law is fairly well settled to the extent that the companies having in related party transactions more than 15% cannot be considered as comparable. Accordingly, we are of the opinion that the ld.CIT(A) was not justified in holding that only the companies having no RPT should alone be considered. Therefore, we hold that Allsec Technologies, Transworks Information and Ace Software can be considered as comparable. However, Wipro BPO cannot be considered as a comparable on account of fact that it is substantial intangibles and enjoying huge goodwill - we hold that Wipro BPO cannot be considered as a comparable.
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2016 (3) TMI 1430 - ITAT BANGALORE
Accrual of income - interest on non- performing assets - year of assessment - whether interest on NPAs has also accrued to the assessee as on 31-03-2012 and is taxable? - CIT-A deleted the addition - HELD THAT:- As it is clear that this issue is covered by the judgment of the Hon’ble High Court in the case of CIT Vs Canfin Homes Ltd. [2011 (8) TMI 178 - KARNATAKA HIGH COURT] and by following the said judgment of the Hon’ble jurisdictional High Court this Tribunal has decided the issue in favour of the assessee for the assessment year 2010-11 [2015 (10) TMI 598 - ITAT BANGALORE] Following the earlier order of this Tribunal in assesee’s own case we do not find any error or illegality in the impugned order of the CIT(A) qua this issue.
Addition of interest on investments in government securities - assessee did not offer the interest accrued, but not due on government securities to tax - AO has made an addition by holding that the interest accrued but not due on government securities is income accrued to the assessee during the year under consideration and accordingly, brought the same to tax - HELD THAT:- It is clear that this issue is decided in favour of the assessee by this Tribunal by following the decision of the Hon’ble Kerala High Court in case of CIT Vs Federal Bank [2008 (1) TMI 195 - KERALA HIGH COURT] as well as the judgment of jurisdictional High Court in the cased of Karnataka Bank Ltd. [2014 (11) TMI 221 - KARNATAKA HIGH COURT] Following the earlier order of the Co-ordinate Bench of this Tribunal in assessee’s own case, we do not find any error or illegality in the impugned order of the CIT(A) on this issue. Hence, ground no.3.2 of the revenue is dismissed.
TDS u/s 194A - payment of interest on deposits - disallowance u/s 40(a)(ia) - Assessee paid interest on deposits from members and payment to each of the depositors exceeded a sum of ₹ 10,000 - CIT-A deleted the addition - HELD THAT:- CIT(A) has correctly deleted the disallowance made by the AO by following the decision of Bagalkot District Central Co-op. Bank Ltd [2015 (1) TMI 1005 - ITAT BANGALORE] wherein it was held that the Co-operative bank is covered by the exemption specified u/s 194A(3)(v) of the IT Act. Therefore, the co-operative bank is not required to deduct tax at source u/s 194A of the IT Act, 1961.
Disallowance of expenditure on the ground of non-business expenditure - CIT(A) allowed the claim of the assessee and deleted the disallowance - HELD THAT:- As relying on assessee's own case [2015 (10) TMI 598 - ITAT BANGALORE] taking into account the totality of the facts and materials, we are of the considered view that the assessee is entitled to claim this deduction and hence, we allow the grounds of the assessee relating to this issue.
Addition u/s 36(1)(viia) - disallowance of the claim of provision towards NPA - AO was of the view that Explanation to sec.36(1)(vii) of the IT Act, provides that any bad debt or part thereof written off cannot include any provision for bad and doubtful debts. The provision for NPA under the RBI direction is doubtful assets and accordingly, the AO disallowed the claim of the assessee - CIT-A deleted the addition - HELD THAT:- As it is manifest from the finding of the CIT(A) that the claim of the assessee was examined by the CIT(A) as per the provision of Sec.36(1)(viia) and accordingly, the AO was directed to allow the claim under the said provision after verification of the provisions made by the assessee and compliance of conditions provided u/s 36(1)(viia) of the IT Act, 1961. Accordingly, we do not find any reason to interfere with the impugned order of the CIT(A) on this issue and the AO is directed to consider and examine this claim u/s 36(1)(viia) - Decided against revenue.
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2016 (3) TMI 1429 - CHHATTISGARH HIGH COURT
Seeking expunction of certain offending/objectionable remarks in the judgment - inherent power and jurisdiction of this Court to expunge the adverse remarks made by a subordinate Court and considerations involved in expunging those remarks - HELD THAT:- A careful perusal of the extracts of the judgment would show that learned Additional Sessions Judge in its judgment not only criticized the conduct of the petitioner for not making just and fair investigation by making sweeping remarks against him, but also recommended further action against him and upon enquiry and relying upon the said observation/finding, the Sub-Divisional Officer (Police) has issued show-cause notice to the petitioner for initiating departmental/disciplinary action which has given cause of action to the petitioner to file the instant writ petition claiming expunction of above-stated adverse remarks and seeking quashment of impugned notice proposing to take action against the petitioner.
In the matter of MANISH DIXIT AND ORS. VERSUS STATE OF RAJASTHAN [2000 (10) TMI 970 - SUPREME COURT], it has been held by the Supreme Court that castigating remarks against any person should not be made and the Court is required to give opportunity of being heard in the matter in respect of the proposed remarks or strictures and the same is basic requirement, otherwise offending remarks would be in violation of the principles of natural justice.
The petitioner as a investigating officer has investigated the offence in question and charge-sheeted the accused persons and they were tried for the charge-sheeted offences and eventually they were convicted by the judgment rendered by learned Sessions Judge. Certain discrepancies have been pointed out by learned Sessions Judge in the investigation while delivering the judgment and reached to the conclusion that the petitioner tried to save the accused persons and further held that the counter case to S.T. No. 21/2014 was also investigated by the petitioner, whereas, it ought to have been investigated by other police officer and on that basis learned Additional Sessions Judge made offending and adverse remarks against the petitioner and also recorded that the inquiry be conducted against the petitioner and thereafter further action be taken against him.
In the present case, the offending remarks made by learned Additional Sessions Judge in judgment being unmerited and undeserving deserves to be expunged in the ends of justice - adverse remarks made by the learned Second Additional Sessions Judge, Sakti, against the petitioner are hereby expunged - petition allowed.
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2016 (3) TMI 1428 - ITAT DELHI
Maintainability of appeal - low tax effect - HELD THAT:- This is an appeal filed by the Revenue. Admittedly the tax effect in this appeal by the Revenue is less than ₹ 10 lakhs.
In terms of CBDT Circular No.21/2015 dated 10th December,2015, F.No. 279/Misc./142/2007-ITJ(Pt.) read with S.268 A of the Income Tax Act 1961, this appeal by the Revenue should have been withdrawn or should not be pressed by the Revenue. In view of the above this appeal by the Revenue is dismissed in limini.
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2016 (3) TMI 1427 - PUNJAB AND HARYANA HIGH COURT
Seeking suspension of sentence during the pendency of the revision petition - applicability of Section 353 (6) Cr.P.C. would apply as envisaged by Section 387 Cr.P.C. - HELD THAT:- There are no ground for suspending the sentence awarded to the applicant. Even otherwise, the plea that convict can resort to remedy of revision without any necessity to surrender in compliance with the judgment delivered by the appellate court, is unacceptable - Even Section 397 leaves no room for doubt that while exercising revisional jurisdiction, this court may direct that execution of any sentence or order qua the accused be suspended and the accused if in confinement would be released on bail.
This court has no hesitation in holding that petitioner, who does not abide by the order of the lower appellate court and fails to surrender, his prayer in revisional jurisdiction for suspension of execution of the sentence would merit outright rejection - Application dismissed.
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2016 (3) TMI 1426 - KERALA HIGH COURT
Validity of detention order - Smuggling - Gold - dutiable/contraband goods - profit sharing statements found from examination of laptop - HELD THAT:- There was compliance of the requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act, since the compact discs were supplied to the detenu on the date of his arrest and they were played in front of him within a period of fifteen days.
There are no substance in the contention raised by the petitioner that the laptop as such should have been produced by the sponsoring authority before the detaining authority and that the subjective satisfaction arrived at by the detaining authority without perusing the entire contents in the laptop is vitiated. The laptop in question may contain several details unconnected with the case. The sponsoring authority has no duty to produce irrelevant materials before the detaining authority. The detaining authority is not required to refer to or rely upon irrelevant materials. Sometimes certain facts or materials may have to be referred to by the detaining authority - The requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act would be satisfied if copies of the relied upon documents are furnished to the detenu. All the contents in the laptop were not produced by the sponsoring authority before the detaining authority since they were not necessary. The Court cannot sit in judgment over the discretion exercised by the sponsoring authority in respect of the same. It is stated in the grounds of detention that the laptop was seized from the possession of the petitioner.
Section 138C of the Customs Act is in Chapter XVI under the heading 'offences and prosecutions' - In the present case, the document in question, namely Ext. P5, was made available before the detaining authority by the sponsoring authority. The proceeding before the detaining authority is not a proceeding under the Customs Act. The proceeding before the detaining authority is a proceeding under the COFEPOSA Act. Therefore, neither Section 65B of the Evidence Act nor Sections 138C of the Customs Act would be applicable to the proceedings before the detaining authority for the purpose of arriving at the subjective satisfaction and in passing an order of detention.
There are no ground to hold that the order of detention against the petitioner is vitiated or the continued detention of the petitioner is illegal - petition dismissed.
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2016 (3) TMI 1425 - ITAT PUNE
Revision u/s 263 by CIT - assessee firm was beneficiary of hawala transactions - lack of proper enquiry or case of lack of enquiry - case of the assessee was picked up for scrutiny - As per CIT AO had failed to verify the transactions and had accepted the books of account and the financial results at face value - HELD THAT:- AO issued a questionnaire to the assessee to furnish complete details in respect of purchases made by the assessee. In reply, the assessee not only filed date-wise details of purchases, but also filed confirmations from the parties from whom the said purchases were made. The said details include purchases made from Sampark Steels, Prayan Trading Co., Vitarag Trading Co. and Siddhivinayak Steel. The relevant details and information is filed by the assessee in the Paper Book - perusal of assessment order reflects that the AO had made elaborate enquiries in respect of transportation of purchases, where the Assessing Officer had considered all the particulars filed before him and had also noted the various aspects of transactions i.e. the transport of the goods purchased by the assessee and had also enhanced income in the hands of assessee. Merely because elaborate discussion has not been made by the Assessing Officer on this aspect does not make the order passed by the Assessing Officer as being accepting transactions at face value.
AO had made enquiries in the case and had discussed the aspect of transportation of goods in the assessment order elaborately, but had not discussed the information and details filed by the assessee with regard to purchases, does not make the order passed by the Assessing Officer to be a prima facie case of assumption of incorrect computation of income or under assessment of income. We find support from the ratio laid down by the Hon’ble Bombay High Court in CIT Vs. Gabriel India Ltd.[1993 (4) TMI 55 - BOMBAY HIGH COURT]
The order passed by the AO cannot be said to be erroneous or passed on assumption of incorrect computation of income on the ground that the Assessing Officer had failed to carry out the exercise of verification of transactions with the said four parties involving purchases.assessee himself has filed the confirmations from the said parties, which are available on record. Further, evidence of transportation of the goods also have been filed which have been taken note by the Assessing Officer and elaborately recorded the same in the assessment order. May be, it can be the case of lack of proper enquiry, but it is not the case of lack of enquiry and once enquiry has been made by the Assessing Officer and he has taken one view, the same cannot be set-aside by the Commissioner since he does not agree that the view taken by the Assessing Officer was a possible view. - Decided in favour of assessee.
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2016 (3) TMI 1424 - ITAT COCHIN
Non-appearance before the Tribunal on the date of hearing - HELD THAT:- At the time of hearing of this appeal none appeared on behalf of the assessee though the notice was sent through RPAD. The notice has been sent on the address given on Form No.36. The assessee has not intimated change of address, if any, to the Tribunal. There is not even an adjournment petition received from the assessee. In the circumstances, it appears that the assessee is not interested in pursuing the appeal, and no useful purpose would be served by adjourning the hearing. Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of Multiplan India,[1991 (5) TMI 120 - ITAT DELHI-D] and in view of the decision Estate of Late Tukoji Rao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT], we dismiss the appeal in limine. Appeal of assessee dismissed.
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2016 (3) TMI 1423 - KARNATAKA HIGH COURT
Procurement of coal for the thermal power projects of KPCL in the State of Karnataka - tri-partite agreement - price adjustments - HELD THAT:- The fuel supply agreement contemplated for price adjustments based on the variance in the properties of coal supplied compared to the guaranteed values specified in the contract. In other words, price adjustments were to be undertaken based on the variance in cross calorific value, ash content, size, moisture content etc. - there has not been any stipulation either in the joint venture agreement or the fuel supply agreement that deductions could be made based on other activities. In the joint venture agreement and in the fuel supply agreement there has been no indication that ₹ 90/- (Rupees ninety) only per MT could be attributable towards washing charges nor the contracts provided any deductions from the coal price payable on the basis that the coals have not been washed in the washery.
The fuel supply agreement does not stipulate a particular process for washing of coal. It was neither suggested that coal washing should be necessarily water-washing nor it was provided that dry-washed coal could not be accepted as washed coal - there are no stipulation in the joint venture agreement or the letter of award, which mandates that coal should, necessarily, be washed through the process of water-washing at washeries. Our understanding of the coal defined in those documents is that the coal would mean washed coal that meets certain stipulated parameters irrespective of the process that may be adopted in mining and washing such coal.
It is the settled law that when an action of the State is arbitrary or discriminatory and, thus, is violative of Article 14 of the Constitution of India, a writ petition is certainly maintainable, although ordinarily in the writ jurisdiction the High Court does not enforce the terms of a contract qua contract.
The Supreme Court of India in DWARKADAS MARFATIA & SONS VERSUS BOARD OF TRUSTEES OF THE PORT OF BOMBAY [1989 (4) TMI 315 - SUPREME COURT] held that every action of the authority must be subject to rule of law and must be informed by reason. If the State action, even in contractual matters, fails to satisfy the tests of reasonableness, it would be unconstitutional.
The agreement between the KPCL, EMTA and KEMTA is tripartite and an agreement of multiple contracts in the form of the joint venture agreement, the fuel supply agreement and the mining operation agreement - the coal supplied by the writ petitioner to KPCL met the parameters stipulated in the fuel supply agreement and such coal has been utilised in the thermal power stations of KPCL. It was not felt proper for KPCL to unilaterally effect deduction of ₹ 90/- (Rupees ninety) only, per MT towards washing charge against KEMTA. No adjudication has been undertaken by a competent judicial authority. In the absence of adjudication, it is impermissible for KPCL to unilaterally effect such withhold and deductions.
The report of CAG cannot be the sole basis for any liability being caused or for that matter the sole basis for the prosecution to be launched. However, mere drawing up of FIR by the CBI against unknown officials of KPCL, EMTA and KEMTA cannot provide legal basis or impetus for unilateral demand by KPCL for recovery of ₹ 52,37,00,000/- only. Such action is arbitrary and unsustainable in law.
The communications dated November 23, 2013 (Annexure-A) and January 29, 2014 (Annexure-B) notifying deduction of a sum of ₹ 90/-(Rupees ninety) only, per MT of coal are quashed - Petition allowed.
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2016 (3) TMI 1422 - KARNATAKA HIGH COURT
Bribery - Validity of continuation of the proceedings against the petitioner - legal evidence to prove the charges levelled against the petitioner or not - submission of petitioner is that the registration of second FIR in respect of very same transaction is in violation of Article 14, 20 and 21 of the Constitution of India - HELD THAT:- It is impermissible and consequently there can be no fresh investigation on receipt of subsequent information in respect of the same cognizable offence or same occurrence or incident giving rise to one or more cognizable offences. If we look at the FIR in Cr. Nos. 42/2010, 43/2010, 46/2010 and 57/2010, the offences alleged are one and the same. It discloses that accused Nos. 1, 2 and 3 hatched conspiracy to acquire 325 acres of land in Bandi kodigehalli village for the establishment of Special Economic Zone by M/s. ITASCA Software Development Pvt. Limited, of which, the petitioner is the Managing Director and in furtherance of the said conspiracy, all the accused acquired the lands through consent award without payment of the compensation to the land owners by forging the signatures and by giving bribe to accused Nos. 1 and 2. That is the only conspiracy set up by the prosecution even in Cr. Nos. 42, 43 and 46/2010. The offences alleged in FIR pertaining to Cr. No. 57/2010 are the same offences and conspiracy or part of the same conspiracy.
Offences covered by FIR in Crime No. 57/2010 is part of the same conspiracy, which culminated into the same series of acts forming the same transactions in which the offences alleged in the previous FIR were committed, wherein, the petitioner was summoned by issuance of notice under Section 160 Cr.P.C. on number of occasions and the documents were seized and necessary information was secured. The transactions in Cr. No. 57/2010 is same or part of the same transaction in Cr. Nos. 42/2010, 43/2010 and 46/2010 i.e., part of the same conspiracy to grab the lands of private persons without payment of compensation by forging consent letters of the land owners. There is no second conspiracy other than the above conspiracy.
Regarding the merits, as admitted, no Government money was involved for acquisition of land. The application of M/s. ITASCA Software Development Pvt. Limited was placed before the State High Level Clearance Committee by Karnataka Udyog Mitra headed by Chief Minister in the meeting of the committee and the application was approved. M/s. ITASCA Software Development Pvt. Limited was permitted to start Special Economic Zone in an area of 325 acres of land in Bandi kodigehalli village. The amount to be paid to the land owners was deposited by United Telecom Limited. - The case of the Lokayukta is that the amount deposited with M/s. Indu Builders and Developers to make ex gratia payment has been misused by accused Nos. 1 and 2, since M/s. Indu Builders and Developers is a benami company of accused Nos. 1 and 2. Accused Nos. 1 and 2 said to have received bribe to approve the application submitted by M/s. ITASCA Software Development Pvt. Limited. Nobody questioned the integrity of the petitioner for all these days. The consent award was passed through KIADB a Government agency. Not a single complaint cropped up with regard to acquisition of land and payment of compensation. For all these reasons, the continuation of proceedings against the petitioner is nothing but abuse of power and abuse of process of Court. As such, proceedings as against the petitioner are liable to be quashed.
Petition allowed.
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2016 (3) TMI 1421 - ITAT HYDERABAD
Rectification of mistake u/s 254 - whether the findings in case of M/s. Madhucon Sino Hydro J.V. [2014 (2) TMI 138 - ITAT HYDERABAD] are ‘directions’ or ‘observations’? - HELD THAT:- This finding of ITAT was considered by Assessing Officer as direction of the ITAT and without following the due procedure as prescribed under the law initiated proceedings u/s. 163 and 147 of the IT Act. The ITAT in the impugned order ha s held that the same are null and void. While deciding, the ITAT elaborately discussed why the same cannot be considered as ‘direction’ in para 9 and even if it is considered as ‘direction’, why the same cannot be considered as legal.
Deficiencies in not recording a satisfaction, not taking approval from the prescribed authority and limitation of time in initiating proceedings were clearly discussed. Since the findings in the order are after due consideration and elaborate discussion, the same cannot come within the purview of ‘mistake apparent from record’. If there is any error of judgment, the same has to be challenged in a higher forum. The application clearly suggests that the decision taken require ‘review’ which is not within the purview of the provisions of Section 254(2). As rightly held in the case of Ramesh Electric Trading Co Ltd.[1992 (11) TMI 32 - BOMBAY HIGH COURT], the power of review of its own order is not with ITAT and so the application made is not maintainable.
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2016 (3) TMI 1420 - ITAT MUMBAI
TP Adjustment - deemed interest on delayed sale proceeds - scope of definition of international transaction under Section 92B - interest for delay of 16, 7 and 7 days in respect of these delays (180 days was taken as the benchmark of reasonable period for realization of debts) by computing interest @ 18.816% - impact of amendment in section 92B, by the virtue of Finance Act 2012 - HELD THAT:- As decided in RUSABH DIAMONDS [2016 (4) TMI 400 - ITAT MUMBAI] no ALP adjustments can be made, on the facts of this case, in respect of delay in realization of sale proceeds.
The amendment in Section 92B, at least to the extent it dealt with the question of issuance of corporate guarantees, is effective from 1st April 2012. The assessment year before us being an assessment year prior to that date, the amended provisions of Section 92 B have no application in the matter. - Decided in favour of assessee
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2016 (3) TMI 1418 - ITAT AHMEDABAD
Addition u/s 68, 69 and 69C - assessee failed to offer an explanation regarding the source credited in its Books of account as WIP - during the course of Survey u/s.133A of the I.T.Act on 13.03.2008, the partners of the assessee firm accepted ₹ 3,00,00,000/- as the receipt of the firm from undisclosed sources - As per AO unaccounted income offered by the assessee during the course of survey, no expenses can be claimed in any manner whatsoever, viz. by debiting corresponding expenses account and transferring it to work-in-progress account as done by the assessee - CIT-A deleted the addition - HELD THAT:- Both types of receipts, i.e. receipt through cheques and receipt through cash as “on-money” will arise as income to the assessee as soon as transfer of immovable property is executed and not before, or possession thereof is handed over and for this it is necessary that such immovable property should be in existence. Therefore, the Coordinate Bench in the case of M/s. D.R. Construction [2011 (4) TMI 1343 - ITAT AHMEDABAD] was of the considered view that “on-money” received by the assessee did not have the character of income but was only an advance like the one received through cheque. Both will become part of the sale consideration to the assessee simultaneously on either handling over the possession of the flats or on execution of transfer-deed whichever happens earlier. In the instant case, during the course of survey, the partners of the assessee-firm had stated that the amounts so disclosed was the business receipts. The Revenue has not brought on record any contrary material to controvert such statement. - Decided against revenue.
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2016 (3) TMI 1417 - ITAT DELHI
Reopening of assessment u/s 147 - Addition u/s. 68 - identity and credit worthiness of the subscribers to the share application money and genuineness of transaction, were not established satisfactorily - HELD THAT:- As reasons recorded by the AO/DCIT, Circle 17(1), New Delhi for reopening and the approval thereof by the Ld. Addl. CIT, Range-17, New Delhi, we are of the view that AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law.
AO has mechanically issued notice u/s.148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. As applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of assessee.
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2016 (3) TMI 1416 - GUJARAT HIGH COURT
Provisional attachment of goods - refusal to decide the preliminary objections/contentions regarding lack of jurisdiction - refusal to direct the respondent No.2 to place on record the entire material collected during the course of investigation - refusal to grant cross examination of the officers of the ED, transporters and the competent officers - violation of principles of natural justice - HELD THAT:- The present petition is disposed of and the learned authority, respondent no.3 herein, shall give opportunity of being heard to the petitioners and pass appropriate orders. It goes without saying that the learned authority, respondent no.3 herein, shall follow Adjudicating Authority (Procedure) Regulations, 2013.
Petition disposed off.
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