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Showing 201 to 220 of 1478 Records
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2016 (3) TMI 1286
Vires of Section 10(3) of the Karnataka Value Added Tax Act, 2003 - interpretation of statute - petitioners claim that they purchase various taxable goods to be used as inputs and consumables in the manufacture of finished products. In respect of such purchases, the petitioners pay taxes applicable to its selling dealers, and as the said tax paid qualifies as "input tax" under Section 10(2) of the KVAT Act, the petitioners had deducted the same while calculating the net tax liability as per Section 10(3) of the KVAT Act - Held that: - Section 10(3) as it stood originally provided for the assessee to claim credit for the input tax paid, subject to making a claim for the same within the tax period. If the assessee failed to make such a claim within the period, he would. The right to claim input tax credits subject to the right to file corrected returns under Section 35(4) of the Act. Therefore the provisions of Section 10(3) of the Act is a Substantive provision vesting in the assessee a right to get input tax credit subject to the claim be made within the time frame and creating a liability on the assessee to forfeit the right to input tax credit if fails to make the claim on time and the rights on the revenue to demand payment of the input tax claim that is disallowed.
Section 10(3) of the KVAT Act, prior to its amendment vide the Karnataka Value Added Tax (Amendment) Act, 2015, shall be read down to enable the petitioners to calculate the net tax liability by deducting the input tax paid on its purchases from its out put tax liability, irrespective of the month in which the selling dealer raises invoices - petition allowed.
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2016 (3) TMI 1285
Disallowance of claim of deduction u/s 10A in respect of interest income - Held that:- It is noticed that identical dispute involving allowance of assessee’s claim of deduction under section 10A in respect of interest income was subject matter of appeal before the Tribunal in assessment year 2007–08 and 2008–09 [2016 (2) TMI 1156 - ITAT MUMBAI] wherein allowed assessee’s claim of deduction under section 10A - Decided in favour of assessee
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2016 (3) TMI 1284
Disallowance u/s 14A r.w.r. 8D - Held that:- Disallowance u/s.14A could be made if the assessee claimed some expenditure against the exempt income. The reason behind the section 14A and Rule 8D is to deny double benefit to the assessee i.e. claiming exemption on one hand and claiming expenditure on the other. But it was never intended by the legislature that disallowance should be made in a routine manner without considering the basic fact i.e. amount of expenditure incurred by the assessee.
The assessee had advanced certain arguments that are listed at para 4.2 at pg No.3 of the order of the FAA. We find that the FAA has not dealt with the submissions made by the assessee. We are of the opinion that the matter needs further verification and investigation - thus rendering back the issue to the file of AO for fresh adjudication - Decided partly in favour of assessee for statistical purposes.
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2016 (3) TMI 1283
Bail Application - Section 3 read with Section 17(1)(2) of Prevention of Money Laundering Act, 2002 - time limitation to grant Bail - Held that: - the words used in the non obstante clause are of restrictive nature and clearly indicative of its scope of operation.
The power to grant bail under Section 439 is not restricted by the limitations engrafted under Section 45 of the Act. In this perspective, if one examines the materials collected in the course of investigation as reflected in the subsequent complaint, I find that there are sufficient materials on record, which show that the petitioner as a Senior Field Officer had played a role in monitoring the activities of the agents of the company in dealing with the proceeds of crime which had accrued in the credit of the company pursuant to the commission of the scheduled offence for which prosecution has been launched against the said company.
From the uncontroverted accusations it appears that the petitioner as a senior field officer knowingly monitored the activities of the agents of the accused company to secret the proceeds of crime and assiduously wanted to create an opinion that such assets constituted 'untainted money' in the hands of the accused company or its agents - It is not possible for a reasonable man of ordinary prudence to come to a conclusion at this stage that the petitioner is not guilty of the aforesaid offence. In the absence of such a conclusion, the limitations of Section 45 applies with full force restricting my discretion to grant bail under Section 439 of the Code of Criminal Procedure.
It is true that the petitioner is in custody for 268 days, but in view of the materials on record prima facie connecting him with the commission of offence punishable under Section 3 of the P.M.L. Act read with Section 70(1) of the said Act and bearing in mind the restrictions engrafting in Section 45 thereof, I am unable to accede to the prayer for bail of the petitioner at this stage - Bail application rejected.
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2016 (3) TMI 1282
Reopening of assessment - disallowing the amount of rent u/s 40 (a)(ia) for non deduction of tds - audit objection relied upon for reopening of assessment - Held that:- All material facts with regard to rent received and rent paid of board for advertisement business were disclosed by assessee in the return of income as well as at assessment stage.
AO examined the issue at assessment stage thus, the Assessing Officer reopened the assessment merely on change of opinion on the basis of all the facts and material already available on record.
No failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment year under appeal. AO merely on audit objection, reopened the assessment. The assessment is reopened for mistake/omission of the Assessing Officer alleged to have been committed at the original assessment stage which was the sole basis for re-opening of the assessment. The material on record clearly support the submission of assessee that rent paid was below ₹ 1,20,000/- therefore, provisions of Section 194I of the Income Tax Act may not attract in the case of the assessee. - Decided in favour of assessee.
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2016 (3) TMI 1281
Reopening of assessment - non stating any failure on the part of the assessee to disclose complete and full facts/concealment of facts - existence of P.E. - Held that: - We find that the reasons to believe for re-opening the assessment proceedings for the Assessment Year 2006- 2007 [2015 (4) TMI 845 - ALLAHABAD HIGH COURT] is the same as given in the present impugned notice for the Assessment Year 2008-2009 wherein held no fault can be found as the assessee had failed to disclosed fully and truly the complete facts in respect of L.G. Electronics, Korea having a P.E. In India to which payments have been made. There is a nexus between the reasons recorded and the belief that income had escaped assessment because of fully and truly information having not been furnished by the assessee.
Since a finality has already been made by this Court in the case of the petitioner, we do not find any reason to entertain the writ petition and dismiss the same - Decided against assessee.
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2016 (3) TMI 1280
Non-availability of the member in Adjudicating Authority - Held that:- It deserves to be noted that the said contention was raised at the time of admission and issuance of notice wherein this Court has in the order, referred to Regulation 16 of the Adjudicating Authority (Procedure) Regulations, 2013 and more particularly as regards inspection.
In view of the aforesaid statement made in the Affidavit in reply filed by the concerned respondent, 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 and consider the prayers which are prayed for in para 13 (B). The authority shall also give copy of the reply that is filed by the complainant. It is however clarified that this Court has not expressed any opinion on the other issues which are pending before the adjudicating authority and the authority shall decide the same in accordance with law. As far as order dated 17.12.2015 is concerned, the time taken before this Court shall not be taken into reckoning 180 days, as pointed out by Ms.Patel, learned Central Government counsel, that the provisional attachment order is dated 30.06.2014. The petition stands disposed of accordingly. Notice discharged
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2016 (3) TMI 1279
Initiation of proceedings under sec. 153C - Undisclosed capital gain on sale of shares - Held that:- In the present case, there was no seized material (which includes document ) belonging to the assessee and when the assessment under sec. 143(3) accepting the sale consideration per share was already framed, invocation of provisions under sec. 153C of the Act in the present case was not valid. We hold so with this further finding that the assessment framed in furtherance to the such invalid initiation of proceedings under sec. 153C is also invalid and is quashed as void ab initio. The objection No.1 of the cross objection is thus decided and allowed in favour of the assessee. The remaining objection of the cross objection preferred by the assessee and the grounds of the appeal of the Revenue questioning the validity of deletion of addition of ₹ 4,50,00,000 made in the hands of the assessee on account of undisclosed capital gain on sale of shares of Bahal Sons Properties Pvt. Ltd., thus do not survive in view of the above findings on objection No.1 of the cross objection. These are accordingly disposed off.
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2016 (3) TMI 1278
Allowing deduction u/s 80P(2)(a)(i) and 80P(2)(c)(ii) - Held that:- Commissioner of Income Tax (Appeals) has allowed the claim of deduction under sec. 80P(2) after following the decision of the Hon’ble Bombay High Court at Panaji in the case of M/s. The Quepem Urban Cooperative Credit Society Ltd. Vs. ACIT [2015 (6) TMI 573 - BOMBAY HIGH COURT]. No contrary decision could be cited by the Departmental Representative. We, therefore, do not find any good and justifiable reason to interfere with the order of the Commissioner of Income Tax (Appeals) - Decided against revenue.
Addition made under sec. 40(a)(ia) - Held that:- Commissioner of Income Tax (Appeals) correctly deleted the disallowance made under sec. 40(a)(ia) of the Act by observing that the assessee-society is not held to be a bank, therefore, TDS provisions are not applicable to the assessee-society. Hence, he deleted the addition made under sec. 40(a)(ia) of the Act.- Decided against revenue
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2016 (3) TMI 1277
Disallowance of deduction claimed u/s 80IB - conditions specifically provided in the Statute are not complied with - Held that:- Though there are a number of judgments in favour of the assessee in the said circumstances, we would like to refer to the judgment of Gujarat High Court in the case of CIT Vs. Tarnetar Corporation, reported in (2012 (10) TMI 803 - GUJARAT HIGH COURT) wherein observed that not every condition of the statute can be seen as mandatory. If substantial compliance thereof is established on record, in a given case, the court may take the view that minor deviation thereof would not vitiate the very purpose for which deduction was being made available.
The assessee had not only completed the construction two years before the final date and had applied for BU permission. Such BU permission was not rejected on the ground that construction was not completed, but the some other technical ground. In that view of the matter, granting benefit of deduction cannot be held to be illegal.
The facts of the present case are on a strong footing, in the sense that the approval has not been refused to it and in fact, has been granted to it on a later date, that too without raising any objection - Decided against revenue
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2016 (3) TMI 1276
Levy of penalty u/s 271(1)(c) - Held that:- On perusal of the said notice issued u/s 274 r.w.s 271 of the Act, we find, the applicable limb of clause-(c) of section 271(1) of the Act ie “furnishing of inaccurate particulars of income” or “concealment of income” is kept blank by the AO while issuing the notice. In such circumstances, the ratio laid down in the judgment of the Hon’ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (2013 (7) TMI 620 - KARNATAKA HIGH COURT) is squarely applicable to the facts of the present case. Accordingly, in our opinion this not a fit case to levy penalty u/s 271(1)(c) of the Act and therefore, the grounds raised by the assessee are allowed.
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2016 (3) TMI 1275
Validity of assessment u/s 153A - addition u/s 68 - no incriminating document was found and seized during the course of search - Revenue, sought to distinguish the judgement in Commissioner of Income Tax (Central)-III v. Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) on the ground that it did not consider a situation where the original return was merely processed under Section 143(1) - Held that:- The Court notes that the decision in Commissioner of Income Tax (Central)-III v. Kabul Chawla (supra) does deals with the said situation as is evident from para 3 of the said judgment read with the conclusion in para 37 (v). The Court is, therefore, not persuaded to frame any question of law in this appeal.
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2016 (3) TMI 1274
Validity of the reassessment - Held that:- In the present case, it is very much evident from the assessment order itself that the assessing officer was having nothing except the list provided by the CIT Central-II, New Delhi. He was not having the copies of the statement, assessment orders and other details which could enable him to apply his mind and form a belief that income has escaped assessment. In fact these information was not there with the assessing officer till 27.12.2013. Thus in our view this is a clear case of total non-application of mind by the assessing officer.
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2016 (3) TMI 1273
Rejection of claim u/s 80G(5)(vi) - empower Deputy Director(Systems) to hear any matter under section 12AA and 80G(5)(vi) - Held that:- It is for the Ld. CIT(Exemptions) to hear and conduct the proceeding himself, after giving opportunity of being heard to the assessee shall pass an order in accordance with law. The order sheet clearly shows that only at the end of entire order sheet the Ld. CIT(Exemptions) put his initial. The impugned order are therefore violative of the provisions of law and does not given power to the CIT (Exemptions) to delegate his power to the Deputy Director (Systems) to hold enquiry and proceedings under the above provisions. The assessee therefore rightly contended that the order is passed arbitrary without giving any proper / personal opportunity of being heard in the matter. In this view of the matter, we are of the view that impugned orders of the Ld. CIT(Exemptions) cannot be sustained in law and the matter requires re-consideration at the level of CIT(Exemptions) Chandigarh.
We accordingly set aside the both the impugned orders and restore the matter in issue to the file of CIT(Exemptions) Chandigarh with direction to re-decide both the matters afresh. Appeal of the assessee are allowed for statistical purpose.
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2016 (3) TMI 1272
Foreign exchange gain/loss - whether to be considered as an item of operating revenue/cost - Held that:- ITAT has in the impugned order noted the fact that the foreign exchange gain earned by the Assessee is in relation to the trading items emanating from the international transactions. Since the foreign exchange loss directly resulted from trading items, it could not be considered as a nonoperating loss. Further, it is noted by the Dispute Resolution Panel that the service agreement between the Associated Enterprise (AE) and the Assessee stated that for the specified products and services provided by the Assessee, it "shall raise invoices on Ameriprise USA on the basis of a cost plus pricing methodology." The ITAT was therefore right in holding that the AO was not justified in considering the foreign exchange loss as a non-operating cost.
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2016 (3) TMI 1271
TPA - selection of comparables - Held that:- Assessee is engaged in providing software development and call centre services only to its Associated Enterprise [AE]. Being the captive service provider, it has remunerated for the services on the basis of cost + 15% mark up, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Computation done by the AO u/s. 10A by excluding expenditure of travel expenses, telecommunication expenses from the definition of export turnover - Held that:- There is no evidence on record that travel expenses pertain to rendering of services. Travel expenses cannot be included in freight. Therefore, we are of the opinion that travel expenses incurred in foreign exchange alone cannot be disallowed from the export turnover. Therefore, we direct the AO to exclude this amount. Coming to the issue of telecommunication expenses, nothing was brought on record that the same was not incurred in connection with export of software or rendering of services. This expenditure can be attributable to the telecommunication expenses which the provisions require exclusion from export turnover. However, since the amount of ₹ 1,38,70,965/- was considered as ‘telecommunication expenses’, which are reduced from export turnover, we direct the AO/TPO to exclude the same from also the total turnover while computing the deduction u/s. 10A of the Act. The jurisdictional High Court in the case of CIT Vs. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] has held that whatever is excluded from export turnover should also be excluded from the total turnover. Consequently, AO is directed to exclude the same from total turnover as well.
Levy of interest u/s. 234B & 234D - Held that:- These are consequential in nature. However, AO is directed to give the working to assessee if any interests are being levied or charged while giving effect to this order.
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2016 (3) TMI 1270
Denial of deduction u/s. 10A - non-production of export invoices - Held that:- AO has wrongly disallowed the claim. Initially, the claim was disallowed on non-production of FIRC’s. In the post DRP proceedings, the disallowance was made on non-production of invoices. We are not convinced with reasons stated by the AO. In fact, his order states that assessee has shown invoice value to the extent of ₹ 17,11,75,098/- as against ₹ 17,33,92,390/- and balance was reconciled. Be that as it may, now assessee undertakes to produce the copies of invoices to the AO. Therefore, without going into the merits of action of AO, we direct the AO to examine the same and allow the claim. The issue of claim of 10A is accordingly set aside to the AO for that limited purpose.
Claim of deduction u/s. 10A. - AO excluded leased line charges and travelling expenses from the export turnover but has not reduced from the total turnover - Held that:- This issue was already decided by the jurisdictional Hon'ble High Court in the case of Tata Elxsi Ltd., Vs. CIT (2011 (8) TMI 782 - KARNATAKA HIGH COURT) wherein it was held that whatever expenses reduced from export turnover should also be reduced from total turnover, while computing the deduction u/s. 10A of the Act. We direct the AO accordingly.
TPA - comparable selection criteria - Held that:- Assessee has rendered software development services thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
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2016 (3) TMI 1269
TPA - comparable selection - application of filters for selection - Held that:- The assessee company was engaged in providing various software development and other ITES services to its associate enterprises. The assessee was a captive service provider to its associate enterprise M/s. Avalara INC, thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
We find merit in the claim of assessee that in case certain filters are picked up by the Assessing Officer and applied, then as per the revised filters picked up by the Assessing Officer in case certain concerns fall within those filters, then the margins of the said concerns need to be applied for benchmarking international transaction of the assessee, by selecting the said concerns in the final set of comparables. Accordingly, we direct the Assessing Officer to consider the results of the said concerns and in case, they fulfill the conditions of filters applied by Assessing Officer while benchmarking the international transaction of the assessee, then the said two concerns may be so selected in the final set of comparables.
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2016 (3) TMI 1268
Deduction under Section 10A - whether Tribunal is right in law concluding that the deduction u/s 10A can be allowed before determining the gross total income and without setting off the business loss of DTA unit with the profit of EHTP unit resulting in carry forward of depreciation loss and without considering the Circular NO.7 of 2013 issued by CBDT wherein necessary clarifications have been issued with this regard and further holding that proceeding initiated under Section 263 is invalid even when same is done in accordance with parameters of the said provision? - Held that:- The issue is already covered by the decision of this court in the case of Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] it cannot be said that any substantial question of law would arise for our consideration as canvassed. However, in the event the Apex Court takes a different view, the revenue may take appropriate action in accordance with law.
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2016 (3) TMI 1267
Denial of rebate claim - Duty paid mistakenly - export of goods - the decision in the case of ARVIND LTD. Versus UNION OF INDIA [2014 (5) TMI 171 - GUJARAT HIGH COURT] contested, where it was held that when the petitioner is not liable to pay duty in light of the absolute exemption granted under Notification No. 29/2004 as amended by Notification No. 59/2008-C.E. read with the provision of Section 5A(1A) of the Act and when it has not got any other benefit in this case, other than the export promotion benefits granted under the appropriate provision of the Customs Act and Rules (which even otherwise he was entitled to without having made such payment of duty), we are of the firm opinion that all the authorities have committed serious error in denying the rebate claims filed by the petitioner under Section 11B of the Act read with Rule 18 of the Rules - Held that: - the decision in the above case upheld - SLP dismissed.
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