- 2019 (2) TMI 1934 - ITAT PUNE
Depreciation on “license to collect toll" considering it as an intangible asset in terms of section 32(1)(ii) - AO disallowed assessee‟s claim holding that no intangible asset has been acquired by the assessee - HELD THAT:- The issue raised in present appeal was considered by the Co-ordinate Bench of the Tribunal in the case of M/s. Ashoka Infrastructure Limited Vs. ACIT[2013 (8) TMI 588 - ITAT PUNE].wherein held that “right to collect toll‟ is an intangible asset and the assessee is entitled to claim depreciation on same. We find that consistent view has been taken by the Tribunal in various other cases where depreciation has been claimed on “right to collect toll‟, considering it to be an intangible asset. Tribunal in the case of ACIT Vs. M/s. Progressive Construction Limited [2017 (3) TMI 1167 -....... + More
- 2019 (2) TMI 1933 - ITAT MUMBAI
Miscellaneous application by Revenue recalling order passed by the Tribunal - HELD THAT:- Perusing the material on record and the order passed by Tribunal we observe that ground No.4 & 5 were not adjudicated by the tribunal while passing the order and to that extent order of the Tribunal needs to be recalled. Accordingly, the order of the Tribunal is recalled to the extent of ground No.4 & 5 to be heard and decided afresh.
- 2019 (2) TMI 1932 - ITAT PUNE
Addition u/s 40A(2)(b) - HELD THAT:- We find it is a case of addition both on account of ad-hocism and on account of lack of comparable cases. Neither the Assessing Officer nor the CIT(A) gathered any comparable cases from the open market with similar line of business activity before holding the payments are excessive or unreasonable. In our considered opinion, such ad-hocism is unacceptable and unsustainable. Therefore, in our opinion, grounds raised by the assessee should be allowed in full for want of Assessing Officer failures to discharge the onus. It is a settled legal proposition in matters of principles of provisions to section 40A(2)(b) Assessing Officer is under obligation to prove that the claims made by the assessee are unacceptable. This is a case where the assessee demonstrated the primary onus by furnishing the basic facts........ + More
- 2019 (2) TMI 1926 - ITAT COCHIN
Demand u/s 201(1) and u/s 201(1A) - defects in Form No.15G and 15H - Powers of the Commissioner (Appeals) - CIT-A remitting back the issue to the AO with the direction to give a final opportunity to the assessee to produce form 15G /15H collected before the due date from the deductees and give credit to the same - HELD THAT:- . As per section 251(1)(c) of the Act, the CIT(A) may pass such order as he thinks fit. In other words, he can confirm, reduce, enhance, annul or remit the issue back to the file of A.O. for fresh consideration. Since the impugned order under which the assessee is in appeal is not an assessment order or penalty order, the provisions empowers the CIT(A) to pass an order as he thinks fit. Therefore, the CIT(A) did not travel beyond the scope of section 251(1)(c) of the I.T. Act. Hence, we do not find any infirmity in t....... + More
- 2019 (2) TMI 1924 - ITAT MUMBAI
Addition on account of accommodation entry - information received from the Director General of Income Tax (Investigation), Mumbai intimating that the assessee company is one of the beneficiaries in the accommodation entry operation carried out by Shri Praveen Jain in Mumbai - HELD THAT:- Assessee is engaged in the construction of multi storage building. In the usual course of business, the assessee was receiving the advances for flats. The advance from M/s. Josh Trading Co. Pvt. Ltd. was also received in the usual course. The assessee has given the address, PAN number and confirmation of the parties. The advance was received through banking channel - when the deal did not materialize, the advance was returned also by banking channel. All these facts are not disputed by the Revenue. A.O. has not made any enquiry himself to rebut the submis....... + More
- 2019 (2) TMI 1923 - ITAT CHANDIGARH
Addition u/s 68 - Appellant Company had not discharged its onus with respect to justification of credit received as share application/ share premium money - HELD THAT:- In this case, the share application money along with premium was received through banking channel . The details of the bank account of the investor have been duly supplied. Even the source of funds of the Investor is also explained. The income tax returns of the investor are also furnished. The investor companies have been duly registered under the Indian Companies Act and there is no evidence on file that their registration has been cancel led or that the investor companies have been declared as nonexistent or shell companies. In response to summons issued by the DDIT (Inv) , Kolkata, investor companies duly filed al l the details and duly confirmed that they had invested....... + More
- 2019 (2) TMI 1921 - ITAT DELHI
Reopening of assessment u/s 147 - Report received from Investigation Wing regarding share capital being received from the two companies - HELD THAT:- Assessee has received share capital from Geefcee Finance Ltd. and from Mahanivesh (India) Ltd. It has filed confirmation, bank Financial Stock statement, ITR and Audited Financial Stock statement of both these companies. The assessment thereafter was completed under section 143(3) of the Act by the AO vide order dated 27.12.2007 meaning thereby the AO has accepted the contention of the assessee. Thereafter the assessment was reopened by issue of notice under section 148 of the Act. After reopening of assessment the AO has not made any further inquiry. In fact, in the assessment order after making a reference to the report received from investigation wing, the AO has not stated anything parti....... + More
- 2019 (2) TMI 1918 - ITAT PUNE
Deduction u/s 35(1)(iv) - weighted deduction under section 35(2AB) - Disallowance of claim as no approval of expenditure has been received from the DSIR in form No.3CL - claim was not made by the assessee either in the original return of income or in the revised return of income - HELD THAT:- The Hon’ble High Court of Delhi in Maruti Suzuki India Ltd. Vs. Union of India [2017 (8) TMI 248 - DELHI HIGH COURT] had laid down that what was relevant was not the date of recognition or cutoff date mentioned in the certificate of DSIR or even the date of approval, but the existence of recognition. It was further held that if R&D centre is not recognized, it is not entitled to deduction; but if it is recognized, it is entitled to the benefit. Tribunal in Cummins India Ltd. [2018 (5) TMI 1314 - ITAT PUNE] while deciding the issue of allowa....... + More
- 2019 (2) TMI 1916 - ITAT PUNE
Addition invoking provisions of section 43CA - difference between stamp duty valuation and actual consideration - application of the case laws with regard to Section 50C - HELD THAT:- We refer to the decision of the Co-ordinate Bench of the Tribunal, Pune in the case of Rahul Construction [2012 (1) TMI 229 - ITAT PUNE] there is a wide variation between the two values and that they are based on some estimate. Difference between the sale consideration shown by the assessee and the fair market value determined by the DVO which is less than 10%. In view of the fact that valuation is always a matter of estimation where some difference is bound to occur. The Assessing Officer was not justified in substituting the value determined by the DVO for the sale consideration disclosed by the assessee. Therefore, Assessing Officer was directed to take &....... + More
- 2019 (2) TMI 1915 - ITAT, BANGALORE
Computation of deduction under section 10A - exclusion of expenditure from both the export turnover and total turnover for the purposes of computation of deduction u/s 10A - HELD THAT:- This issue before us stands covered by the decision of the Hon’ble Karnataka High Court in the case of CIT Vs. Tata Elxsi Ltd.[2011 (8) TMI 782 - KARNATAKA HIGH COURT] which proposition has been upheld by the Hon’ble Apex Court in the case of CIT Vs. HCL Technologies Ltd., [2018 (5) TMI 357 - SUPREME COURT]. The only grievance of Revenue in the grounds raised was that the decision of the Hon’ble Karnataka High Court in the case of Tata Elxsi Ltd., (supra) had not attained finality and an SLP by the Department is pending before the Hon’ble Apex Court. Now, in view of the decision of the Hon’ble Apex Court in HCL Technologies Lt....... + More
- 2019 (2) TMI 1912 - ITAT DELHI
Disallowance of interest expenditure u/s 36(1)(iii) - assessee company has used the borrowed funds for non-business purpose - CIT-A deleted addition - HELD THAT:- Since the facts of the instant case are identical to the facts of the case decided by the Tribunal in assessee’s own case for assessment years 2007-08 and 2010-11 [2019 (1) TMI 992 - ITAT DELHI], therefore, in absence of any contrary material brought to our notice against the order of the Tribunal and considering the fact that the own capital and free reserves are substantially higher than the investments, we find no infirmity in the order of the CIT(A) deleting the disallowance made by the Assessing Officer u/s 36(1)(iii). We, therefore, uphold the order of the CIT(A) and the grounds raised by the Revenue are dismissed.
- 2019 (2) TMI 1910 - ITAT MUMBAI
Addition u/s 68 - unexplained share application money where the identity, genuineness and creditworthiness of the lenders were not proved - HELD THAT:- Assessee has raised money by way of share capital and share application money from 12 parties during the financial year 2006-07 from Shri Pravin Kumar Jain group companies. A search conducted on the said group revealed that the said group was engaged in providing hawala accommodation entries without any business. This was also confirmed by the directors during the recording of their statements during search. So the AO treated the entire money raised as bogus share capital and share application money just on the basis of statements of the directors of these companies. Asessee’s name was nowhere mentioned by the said entities during search to be beneficiaries of such entries. During th....... + More
- 2019 (2) TMI 1909 - ITAT MUMBAI
Addition u/s 40(a)(ia) - clearing and forwarding expenses in connection with imports - no TDS was deducted on reimbursement of the expenses - AO took the view that assessee could not pick and choose the nature of expenses on which TDS was required to be deducted - HELD THAT:- Before us the ld AR for the assessee has made two fold submissions that (i) the expenses was paid on account of reimbursement, therefore, no TDS was require to be made and (ii) that the receipt has included the said payment in its return and has paid the tax on such income. Therefore, Considering the second contention of the assessee in view of the decision of Tribunal in Ranjana Roy versus ITO . [2015 (12) TMI 1846 - ITAT KOLKATA], in ITO Vs Opera Global Pvt Ltd. [2012 (6) TMI 704 - ITAT, NEW DELHI] and in Bridgegopal Madhusudhan Bhattad [2015 (6) TMI 1045 - ITAT NA....... + More
- 2019 (2) TMI 1901 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Suo moto disallowance by assessee - HELD THAT:- As the assessee itself had offered a disallowance under Sec.14A, therefore, the CIT(A) had in all fairness restricted the disallowance upto the said amount. We thus not finding any infirmity in the order of the CIT(A) who as observed by us hereinabove had restricted the addition to the extend as offered by the assessee in its return of income, uphold the same to the said extent. Adjustment made by the A.O to the ‘book profit’ under Sec. 115JB on account of expenses relatable to exempt income under Sec.14A. - HELD THAT:- As relying on VIREET INVESTMENT (P.) LTD. [2017 (6) TMI 1124 - ITAT DELHI] the adjustment made under Sec. 14A is not to be considered for computing the ‘book profit’ under Sec. 115JB - We thus uphold the order of the CI....... + More
- 2019 (2) TMI 1900 - ITAT PUNE
Addition u/s. 41(1) - cessation of liability - AO observed from the schedule of sundry creditors that there were creditors whose outstanding balances as on 31/03/2012 & 31/03/2013 had remained the same - HELD THAT:- CIT(Appeals) observed that the assessee has not filed single submission to controvert the findings of the AO. In the statement of facts, the assessee has filed only the order of Assessing Officer without any new supporting documents to represent her case. This fact shows that the matter needs to be remanded to the file of Ld. CIT(Appeals) for adjudication on merits. Accordingly, in the interest of justice, we set aside the order of Ld. CIT(Appeals) and restore this issue i.e. with regard to the addition made u/s.41(1) of the Act back to the file of the Ld. CIT(Appeals) to adjudicate on merits after providing reasonable opp....... + More
- 2019 (2) TMI 1899 - ITAT SURAT
Reopening of assessment u/s 147 - capital gain computation - assessee had not shown any long term capital gain under the provision of section 45(2) r.w.s. 2(47) and section 55(2)(b)(i) - CIT(A) has assigned the rate for land at ₹ 900/- per sq. mt. on the date of transfer of the aforesaid land as to the firm - HELD THAT:- We observed there was no material on record which could have clarified the impugned discrepancy of incorrect reporting of income by the assessee. AO was having reasons of to believe that income chargeable to tax has escaped assessment for the year under consideration. After considering the above facts and circumstances as elaborated supra we justify the findings of the ld. CIT(A) that the assessing officer reopened the assessment with valid reason. Therefore, the appeal of the assessee on this issue is dismissed. Ca....... + More
- 2019 (2) TMI 1897 - ITAT HYDERABAD
Disallowance u/s 14A r.w. Rule 8D(2)(iii) - HELD THAT:- This issue is covered in favour of the assessee in various decisions of the ITAT and one of such decisions is the decision of the Special Bench of Delhi ITAT in the case of Vireet Investments Private Limited [2017 (6) TMI 1124 - ITAT DELHI] wherein it has been held that the disallowance under Rule 8D(2)(iii) can be only of the average of investments which have yielded exempt income. Respectfully following the same, the additional grounds of appeal are allowed. Computation of income u/s 115JB - This issue is also covered in favour of the assessee by the Special Bench, ITAT Delhi decision in the case of Vireet Investments Private Limited (supra) wherein it was held that the computation u/s 115JB should be made without resorting to the computation as contemplated u/s 14A r.w. Rule 8D of the IT Rules, 1962. Accordingly, grounds raised by the assessee are allowed.
- 2019 (2) TMI 1895 - ITAT DELHI
Correct head of income - service charges and furniture hire charges received by the assessee -“income from other sources” or “profit and gains of business and profession” - HELD THAT:- There is no error in the order of the Ld. CIT(A) on the issue in dispute and accordingly we uphold that no business activity was carried out by the assessee during the year under consideration and the income from service charges and hire charges is assessable under the head “income from other sources”. The ground No. 1 of the appeal is accordingly dismissed. Disallowance of the various expenses claimed - in absence of any business activity same cannot be allowed to the assessee except expenses incurred relevant to the income assessed under the head “income from other sources”- HELD THAT:- CIT(A) has examined e....... + More
- 2019 (2) TMI 1893 - ITAT DELHI
Legality of the order being passed by AO on a non-existing entity - Cairn India Ltd is an amalgamated company, which has seized to exist in the eyes of law pursuant to amalgamation with Vedanta Ltd.- HELD THAT:- Assessment on a company, which has been dissolved/amalgamated u/s 391 and 394 of the Companies Act 1956 is invalid and further held that framing assessment on a non-existing entity is a jurisdictional defect which cannot be cured u/s 292B of the Act. See DIMENSION APPARELS PVT. LTD. [2014 (11) TMI 181 - DELHI HIGH COURT] We have no hesitation in holding that the assessment order and the order of the TPO are non est. Since the foundation has been removed, the super structure must fall. See MARKETING SERVIEING PVT. LTD. [2009 (9) TMI 917 - DELHI HIGH COURT] - Decided in favour of assessee.
- 2019 (2) TMI 1890 - ITAT BENGALURU
TP Adjustment - Determination of arm’s length price of international transactions - comparable selection - TPO applying arbitrary filters to arrive at a fresh set of companies as comparable to the Appellant - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list. TP adjustment of charging mark up of recovery transaction with its AE - HELD THAT:- AR filed the details on this aspect which were overlooked by the TPO. Whereas the learned DR supported the orders of the lower authorities and could not controvert the submissions of the learned AR. We, on perusal of the material filed and the arguments of the learned AR and learned DR , are of the opinion that on the principles of natural justice, when the decision is being taken by TPO on mark-up in respect of the assessee-company, the su....... + More
