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Showing 261 to 280 of 844 Records
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2020 (7) TMI 585
Classification of goods - Aloe Vera juice, Aloe Vera powder, amla juice and amla powder - whether classifiable under chapter 6 as originally classified by the appellant or under Chapter Heading 13021919 as confirmed in the impugned order or under Chapter Heading 20098990 as now claimed by the appellant? - demand of differential duty alongwith interest - extended period of limitation - imposition of penalties.
Classification of Aloe Vera juice, Aloe Vera powder, amla juice and amla powder - classified under Chapter 13 or under Chapter 20? - HELD THAT:- Chapter 13 deals with lac, gums, resins and other vegetable saps and extracts. Chapter note 1 specifically shows that Chapter Heading 1302 applies, interalia, to liquorice extract and extract of pyrethrum, extract of hops and extract of aloes. This note also excludes certain types of products to which this heading does not apply. The exclusions in this chapter note do not cover aloevera juice, aloevera powder, amla juice and amla powder. The exclusion also does not cover specifically any product which can also be covered under Chapter 20 - On the other hand, Chapter Notes to Chapter 20 also do not exclude any products which may fall under Chapter 13. Chapter Heading 2009 clearly covers fruit juices and vegetable juices, unfermented and not containing added spirit whether or not containing added sugar or sweetening matter.
It is equally logical to classify the aloe vera juice and amla juice under Chapter Heading 2009 as claimed by the appellant. However, we find no ground to call the powders manufactured by the appellant as juices as powder is a solid and the juice is a liquid. There is nothing in the description of Chapter Heading 2009 to suggest that it also includes powders. Therefore, the aloe vera powder and amla powder manufactured by the appellant cannot be classified under Chapter Heading 2009 - as far as the aloe vera juice and amla juice are concerned, both chapter heading 1302 and Chapter Heading 2009 equally merit consideration and therefore Chapter Heading 2009 being the last in the numerical order prevails in terms of General Rules of Interpretation Rule 3(c). Therefore, aloe vera juice and amla juice are classifiable under Central Excise Tariff Heading 2009 as claimed by the appellant.
Aloe vera powder and amla powder - HELD THAT:- They are not juices, they are not classifiable under Tariff Heading 2009. Being extracts of vegetables, they are classifiable under 1302.
Extended period of limitation - HELD THAT:- In terms of Section 11A of the Central Excise Act, extended period of limitation can be invoked only in cases of fraud, collision, wilful misstatement, suppression of facts or violation of Act or Rules with an intention to evade payment of duty. Claiming wrong classification cannot be the ground for invoking extended period of limitation, therefore, the entire demand beyond normal period of limitation needs to be set aside.
Demand of Interest - HELD THAT:- Once the duty is payable to some extent, interest on that amount has to be paid as per law and this is not a matter of discretion.
Penalties - HELD THAT:- No penalty can be imposed under Section 11AC as there is no element of fraud, collusion wilful misstatement or suppression of facts or violation of the provisions of the Act or Rules with an intent to evade payment of duty. No penalty is imposable upon the appellant under Rule 25 also as the assessee has not violated any Rules and it is only a matter of difference of opinion regarding classification by the assessee and by the department. Therefore all penalties are also set aside.
All appeals are remanded to the original authority for the limited purpose of calculation of demand - appeal allowed by way of remand.
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2020 (7) TMI 584
Amendment in returns of second quarter - recovery of alleged tax - civil appeals pending before Supreme Court - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, it directs respondent no. 1 to allow the amendment sought by the petitioner in its return of 2nd Quarter for the Financial Year 2015-16 vide application dated 16th June, 2019. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, are decided and this direction shall abide by the decision that the Supreme Court renders.
Petition disposed off.
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2020 (7) TMI 583
Principles of Natural Justice - petitioner did not avail opportunity of personal hearing - HELD THAT:- Whether or not the petitioner availed the opportunity of personal hearing, it is the duty of the 1st respondent, as appellate authority, to deal with the contentions raised in the grounds of appeal filed by petitioner and the 1st respondent could not have rejected the appeal only on the ground that personal hearing opportunity was not availed by the petitioner.
The appeal filed by the petitioner before the 1st respondent is restored to the file of the 1st respondent.
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2020 (7) TMI 582
Principles of Natural Justice - contention urged by the learned counsel for the petitioner is that Exhibit P8 order is bad, since it was issued after the period prescribed under Section 25(1) of the KVAT Act - HELD THAT:- As per Section 25(1) of the KVAT Act, the assessing authority can, within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment the turnover which has escaped assessment to tax or has been underassessed - In the instant case, the petitioner has not disputed the fact that the assessee was issued with Exhibit P4 notice dated 21.11.2011, which was well within the period prescribed under Section 25(1). The assessing officer having thus proceeded to determine the tax which had escaped assessment, the challenge against Exhibit P8 assessment order on the premise that it was passed after the five year period stipulated in Section 25(1) cannot be countenanced.
There is no reason for this Court to interfere with Exhibit P8 order, particularly since the petitioner has approached this Court without exhausting the statutory remedies - petition dismissed.
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2020 (7) TMI 581
Grant of Bail - Transfer of Government funds into fake accounts - Money Laundering - siphoning of funds - allegation against the petitioner is of opening 22 bank accounts in his name using forged identification documents - HELD THAT:- The Court notes that the case involves defrauding the public exchequer and the petitioner has admitted his role by the statement under Section 50 of the Act. This Court would refrain from offering any comment as to what would be the likely sentence awarded to the petitioner, if convicted, as at best, today, it would be merely speculative. Since the alleged offence is not a crime simpliciter, the period of custody already undergone by the petitioner and comparatively low value of amount involved, at the current stage, would not aid the petitioner's quest for bail.
The Court is not inclined to enlarge the petitioner on bail - taking note of the fact that the petitioner is in custody since 03.03.2017, for the ends of justice, let the Court below expedite the trial and conclude it at the earliest, preferably within 12 months - Application dismissed.
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2020 (7) TMI 580
Grant of Bail - unsecured loans granted by RFL to various entities - Non-performing Assets - ever-greening of loans - conspiracy with the Promoters and for their benefit - It is alleged that despite the report of RBI, the petitioner had not taken any remedial measures, but on the contrary actively sought to misrepresent the financial position of RFL by concealing various NPAs - HELD THAT:- The reading of the chargesheet indicates that the prosecution had identified nineteen questionable loan transactions where the borrowers had defaulted in repayment of the dues advanced to them. The chargesheet indicates that in all of those nineteen instances, the loan had been approved by the Risk Management Committee and in certain cases was also approved by the RPT (Related Party Transaction) sub-committee. The date on which the approvals were been granted are indicated in the chargesheet. All of these questionable transactions pertain to the period after the year, 2016 - However, it cannot be disputed that most of the questionable loan transactions had been entered into after 2016. Undisputedly, the petitioner was employed with the Religare Group of Companies in various capacities since 2008. However, it is not disputed that the petitioner was not holding any executive position in RFL after 13.11. 2011. The chargesheet indicates that he had ceased to be a whole time director with effect from 13.11.2011. The petitioner acted as the Group CFO from 06.04.2010 till his resignation on 14.11.2017; thus, it prima facie appears that the petitioner may have supervised certain executive functions relating to RFL but he was not control of its day to day management.
The petitioner is a qualified Chartered Accountant and there is no allegation that he had any other stake in REL or RFL except as an employee or an official of the said companies. It prima facie does appear that the petitioner was employed by virtue of his professional qualifications. There is also little material to establish that the remuneration paid to the petitioner was not commensurate with his position in REL. The above is also a vital aspect to be borne in mind while examining whether the petitioner should be granted bail - This Court is not persuaded to accept that the petitioner has any propensity to tamper with the relevant evidence. As noticed above, the petitioner had left the employment of the REL almost three years ago. He had also resigned as a director of RFL.
The petitioner shall be released on bail on his furnishing a personal bond in the sum of ₹25,000/- to the satisfaction of the Trial Court/Duty Magistrate with one surety of the like amount. This is also subject to further conditions imposed - petition allowed.
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2020 (7) TMI 579
Attachment of Bank Account of petitioner - realisation of tax dues - case of petitioner is that due to present COVID-19 lockdown situation they are not able to Seattle the dues - HELD THAT:- It is stated that after making attachment, the first respondent has deducted a sum of ₹ 12,45,662/- from the bank account of the petitioner maintained in the second respondent Bank. Now, the petitioner wants to make the balance payment within 6 months.
This Writ Petition is disposed of, with the following directions:
(a) The petitioner shall pay the balance due amount within 6 months from today to the first respondent.
(b) If the petitioner fails to make full payment within the above stipulated period, it is open to the first respondent to resort to the remedy available under law to recover the said amount.
(c) In view of the undertaking given by the petitioner as stated supra, the first respondent is directed to de-freeze the bank account maintained by the petitioner in the second respondent bank forthwith.
(d) Insofar as the interest claim if any, it is open to the first respondent to issue fresh proceedings to the petitioner and if any such proceedings is issued, it is open to the petitioner to agitate against the same in the manner known to law.
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2020 (7) TMI 578
Demand of deposit of inadmissible input tax credit and file DRC-03 challan without initiating any adjudication process - On bhalf of revenue it is submitted that, the intent behind issuing the impugned letter dated 11th June, 2020 was to give an opportunity to the petitioner to come forward and either explain the transaction or deposit the tax with minimum interest and penalty under Section 74(5) of the CGST Act without going through the adjudication procedure. He clarifies that if after the investigation the respondent is not satisfied with the petitioner’s response, it shall follow the adjudication process for recovery.
HELD THAT:- The aforesaid statement made by learned counsel for respondent nos. 2 and 3 is accepted by this Court and said respondents are held bound by the same. It is clarified, as a matter of abundant caution, that as the demand is disputed by the petitioner, no coercive steps shall be taken for recovery of the said demand without following the adjudication process.
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2020 (7) TMI 577
Permission to withdraw petition - Cancellation of registration - order No.1 of 2020 Central Board of Indirect Taxes and Customs in S.O. 2064 (E). dated 25.06.2020 - HELD THAT:- The writ petition is dismissed as withdrawn.
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2020 (7) TMI 576
Cancellation of registration - CGST Act - non-filing of tax returns - HELD THAT:- The petitioner has filed a response dated 20.12.2018, which is referred to in the first paragraph of the impugned order itself. In conclusion, however, the respondent proceeds as though there was no response from the petitioner - thus, the contents of the response have not been taken into consideration at all.
The respondent is at liberty to initiate proceedings afresh, if at all, in accordance with law - petition allowed.
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2020 (7) TMI 575
Permisstion to withdraw petition - Grant of Bail - evasion of tax - offences under Section 132(1)(a) (b) ( c) (d) read with 132 (1) (i) (ii) of CGST Act - HELD THAT:- Petition dismissed as withdrawn.
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2020 (7) TMI 574
Refund of income tax inadvertently paid on interest received under Section 28 of the Land Acquisition Act, 1894 for various assessment years - applications filed by the petitioners u/s 119(2)(b) - HELD THAT:- Different High Courts subsequent to the judgment of CIT Vs. Ghanshyam Dass HUF [2009 (7) TMI 12 - SUPREME COURT] have held that tax is payable on the interest received under Section 28 of the Land Acquisition Act, under the head “income from other sources”.
Most of the applications filed by the petitioners are barred by limitation under the same circular dated 9th June, 2015, relied upon by the learned counsel for the petitioners.
Keeping in view the limited prayer sought in the writ petitions, the same are disposed of with a direction to the respondent to decide the applications filed by the petitioners within eight weeks in accordance with law. All the rights and contentions of the parties, including the plea of maintainability, are left open.
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2020 (7) TMI 573
Validity of Reopening of assessment - validity of reasons to believe - change of opinion - disallowance of improvement cost of land claimed by the assessee and the assessee had shown the sale of the land under the head of “short term capital gain - as per AO correct market value of the property that should have been adopted by the assessee @ 50% of value fixed by the District Revenue Officer u/s 50C as two persons including the assessee had done the business and each of them shared the profit on equal ratio - HELD THAT:- The assessee is expected to file his return of income along with his books and documents. It is for the Assessing Officer to consider the same in accordance with law and complete the assessment. The assessee is not there to advice the Assessing Officer as to how he should go about in assessing the income of the assessee, as it is the statutory duty of the Assessing Officer. Admittedly, the Sale Deed dated 02.05.2008, is only the document, which is the subject matter of the assessment. This document was very much available with the Assessing Officer when he completed the assessment under Section 143(3), dated 05.12.2011. At that juncture, all that the Assessing Officer was concerned about is the claim made by the assessee as expenses for the improvement of the land by levelling, sand filling, road laying etc.
The stand taken by the assessee was disbelieved, as no material evidence was produced by the assessee to substantiate such expenses. Based on the very same document, the assessment was reopened by serving notice on 26.03.2014, stating that the assessee should have adopted the value of the land as computed by the District Revenue Officer under the Indian Stamp Act for the purposes of computation of the stamp duty payable on such instrument.
As rightly pointed out by the learned counsel for the assessee the words “or assessable” stood inserted by Finance (No.2) Act, 2009 w.e.f., 01.10.2009 and this provision has been held to be prospective and this issue was considered in the case of R.Sugantha Ravindran [2013 (3) TMI 271 - MADRAS HIGH COURT]. Therefore, the revenue cannot refer to Section 50C of the Act to non-suit the assessee.
As decided in CALCUTTA DISCOUNT COMPANY LIMITED [1960 (11) TMI 8 - SUPREME COURT] duty of the assessee is to make full and true disclosure of all primary facts and once it is done, it is for the Assessing Authority to decide what inference of fact or law could be drawn there from. The law does not require the assessee to state the conclusion that could reasonably be drawn from the primary facts and if there were, in fact, some reasonable grounds for thinking that there had been any non-disclosure as regards any primary facts, which could have a material bearing on the question of “under assessment”, that would be sufficient to give jurisdiction to the ITO to issue notices under Section 34 (1922 Act) and whether these grounds are adequate or not for arriving at a conclusion that there was a non-disclosure of material facts could not be opened for the Court's investigation. Tribunal was right in allowing the assessee's appeal.
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2020 (7) TMI 572
Deduction u/s 32AB - HELD THAT:- Correctness of the finding rendered by the CIT(A) was tested by the tribunal and the tribunal confirmed the finding by observing that the CIT(A) has restored the issue to the file of the Assessing Officer with a direction to verify the evidences to be furnished by the assessee, to show that the purchase of machinery was made during the period under consideration, so as to be eligible for the deduction of the claim under Section 32AB of the Act and pass consequential orders.
Interest on deposits in IDBI - whether should be treated as business income purely because the deposits were made to comply with statutory provisions under the Income Tax Act? - HELD THAT:- Tribunal noted that the CIT(A) has held that the interest received by the assessee from the deposits made in IDBI should be treated as business income only. These findings of fact coupled with law was affirmed by the tribunal in the impugned order and we agree with the elaborate reasoning given by the CIT(A). Thus, we find that no substantial question of law arises for consideration in this appeal. - Decided against revenue.
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2020 (7) TMI 571
Reopening of assessment u/s 147 - mandation of formation of belief by the Income Tax Officer - reference to views and objections of the audit party - HELD THAT:- Gujarat High Court in Adani Exports [1998 (12) TMI 51 - GUJARAT HIGH COURT] wherein it has been held that though the audit objection may serve as information, the basis of which the Income Tax Officer can act, the ultimate action must depend directly and solely on the formation of belief by the Income Tax Officer on his own, where such information passed on to him by the audit that income has escaped assessment.
Underlying legal principles is that the independence of the Assessing Officer cannot be interfered or questioned. No person can advice the AO to proceed with the assessment in a particular fashion. It is for the Assessing Officer to assess the books of accounts of the assessee and to frame the assessment. On the other hand, if the AO relies upon the borrowed material, it would be amounting to abdicating his duty as an AO. Thus, we find that the decision taken by the CIT(A) as affirmed by the tribunal, does not call for any interference. - Decided against revenue.
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2020 (7) TMI 570
Amendment made to Section 40(a)(ia) by Finance Act, 2010 - retrospective effect - HELD THAT:- Substantial questions of law framed for consideration in this appeal were answered against the Revenue in the decision of the Hon’ble Supreme Court in the case of CIT Vs. Calcutta Export Company [2018 (5) TMI 356 - SUPREME COURT] as amended provision of Sec 40(a)(ia) of the IT Act should be interpreted liberally and equitable and applies retrospectively from the date when Section 40(a)(ia) was inserted i.e., with effect from the Assessment Year 2005-2006 so that an assessee should not suffer unintended and deleterious consequences beyond what the object and purpose of the provision mandates.
As the developments with regard to the Section recorded above shows that the amendment was curative in nature, it should be given retrospective operation as if the amended provision existed even at the time of its insertion. Since the assessee has filed its returns on 01.08.2005 i.e., in accordance with the due date under the provisions of Section 139 IT Act, hence, is allowed to claim the benefit of the amendment made by Finance Act, 2010 to the provisions of Section 40(a)(ia) of the IT Act. - Decided against revenue.
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2020 (7) TMI 569
Capital gain on property - Transfer u/s 2(47) - acquisition of new property rights - exchange of properties between the assessee and his brother - relinquishment of respective rights in the properties to suit their convenience - whether the arrangement between the respondent – assessee and his brother by way of gift settlement deed would amount to transfer within the meaning of Section 2(47)? - there were 85 properties owned by the assessee and his brother, that the assessee relinquished 50% of the share in 30 properties and that he became the absolute owner in respect of other 55 properties - whether tribunal is correct in law in holding that there is no legal difference between settlement and gift overlooking the basic nature of the settlement? - Whether the Tribunal is correct in law in giving relief to the assessee by placing reliance on the definition of 'gift' under Section 122 of the Transfer of Property Act? -
HELD THAT:- Tribunal concluded that the artificial definition made by Lower Authorities with reference to gift and settlement was not appropriate. The Tribunal was of the opinion that for the purpose of Section 49(1)(ii) of the Act, there was no difference between gift and settlement and that in the instant case, the settlement made with the assessee's brother could not attract capital gains on this count. There are no reasons as to how the Tribunal came to such a conclusion. We are unable to find any such reasoning in paragraph 15 of the impugned order. Therefore, the said finding is not supported by reasons and hence, not sustainable.
Tribunal referred to the decision of the Coordinate Bench in the case of Mr.Abdul Hameed Khan Mohammed [2016 (1) TMI 903 - ITAT CHENNAI] for the assessment year 2011-12.
The Tribunal did not assign any reason as to how the said decision of the Coordinate Bench would apply to the assessee's case. Paragraph 14 of the impugned order is also devoid of reasons.
Accordingly, the above tax case appeal is allowed, the impugned order is set aside and the matter is remitted back to the CIT(A) for a fresh consideration in accordance with law. Considering the fact that the year, in which, the search and seizure operations were conducted in the place of business of the assessee namely 2011, we direct the CIT(A) to give priority to this case.
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2020 (7) TMI 568
Reopening of assessment u/s 147 - Validity of reason to believe - HELD THAT:- The mandate of law, even where a concluded assessment is sought to be reopened by the A.O within a period of 4 years from the end of the relevant assessment year, it is must that the A.O has fresh material or information with him, that had led to the formation of belief on his part that the income of the assessee chargeable to tax has escaped assessment. Our aforesaid view is fortified by the judgments in the case of NYK Lime (India) Ltd. [2012 (2) TMI 283 - BOMBAY HIGH COURT] and Purity Tech Textile Pvt. Ltd. Vs. ACIT & Anr. [2010 (2) TMI 26 - BOMBAY HIGH COURT ].
As the reopening in the case before us had been resorted to by the A.O on the basis of a “change of opinion” as regards the allowability of deduction of the sales promotion expenses, on the same set of facts and material as were there before his predecessor who had framed the regular assessment vide his order passed under Sec. 143(3), dated 27.03.2015, the same in light of the aforesaid settled position of law cannot be sustained, and on the said count itself is liable to be vacated. We thus not being able to persuade ourselves to subscribe to the view taken by the CIT(A) as regards the validity of the jurisdiction assumed by the A.O u/s 147 of the Act, set aside his order.
Allowable expenses u/s 37 - HELD THAT:- Expenditure incurred by the assessee towards sales promotion expenses viz. (i) conference expenses for doctors, travelling expenses for doctors, other expenses related to doctors and expenses incurred on product reminders given to doctors would not be hit by the “Explanation” to Sec. 37 of the Act. Accordingly, on the basis of our aforesaid observations, we are of the considered view, that the A.O even otherwise on merits was not justified in disallowing the sale promotion expenses by bringing the same within the realm of the “Explanation” to Sec. 37(1) of the Act. Ground of appeal No. 2 is allowed.
Suppressed production - wastage exceeding the DPCO norms - computation of wastage - HELD THAT:- Wastage up to the limits prescribed by the DPCO norms was to be accepted, we concur with him. At the same time, we are unable to persuade ourselves to subscribe to his view that the excess wastage of raw material would ipso facto lead to an inference of suppressed/unaccounted production carried out by the assessee. In our considered view, the aforesaid observation of the CIT(A) de hors any material evidencing the factum of suppressed/unaccounted production carried out by the assessee, cannot be accepted. Unexplained wastage of raw material, in our understanding can only lead to a consequential addition/disallowance of the cost of such raw material as had been debited by the assessee in its “books of accounts” for the year under consideration. Accordingly, we modify the order of the CIT(A) and therein direct the A.O to restrict the disallowance in respect of the excess raw material wastage in terms of our aforesaid observations. Ground is partly allowed.
Deduction u/s 80IB - HELD THAT:- Claim of the assessee that pursuant to the enhancement made by the A.O, its entitlement for deduction u/s 80IB would also be modified, we are unable to find favour with the same, and concur with the view taken by the CIT(A) who has rightly rejected the same.
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2020 (7) TMI 567
Disallowance u/s 14A read with Rule-8D - HELD THAT:- As observed that the opening balance of investments was ₹ 85.67 Crores, and, thus, investments subjected to Rule-8D were not brought forward from earlier years. It was also observed by the CIT (A) that the AO could not demonstrate that loans were borrowed for making investments in dividend yielding assets only. We find no reason to interfere with this factual finding of the Ld. CIT (A).
Assessee had submitted a computation before the AO wherein it was submitted that the disallowance, if any, could not exceed ₹ 8,34,934/- being the costs of treasury operations - As seen that neither the Assessing Officer nor the Ld. CIT (A) has commented on this computation of the assessee. Thus, apparently, the satisfaction, as contemplated and laid down in the case of Maxopp Investment Ltd. [2011 (11) TMI 267 - DELHI HIGH COURT] to be recorded by the Assessing Officer is completely absent and, therefore, in absence of the required satisfaction, such disallowance could not have been made - since, the Ld. AR has argued that the disallowance may be restricted we, accordingly, restrict the disallowance and direct the AO to delete the remaining disallowance. Ground No.1 of the assessee’s appeal stands partly allowed.
Addition on account of interest on Income Tax Refund - HELD THAT:- AR has fairly accepted that this amount is taxable in the hands of the assessee. However, while dismissing this ground of the assessee’s appeal, we direct that should the interest amount vary subsequently depending on the outcome of the appeals before the Hon’ble High Court and the Hon’ble Apex Court, the AO should substitute such varied amount as the case may be.
Capital subsidy received during the relevant assessment year from the written down value of the respective block of assets - HELD THAT:- It is settled law that the taxation of subsidy, by whatever name called, is determined by the purpose for which the subsidy is granted and not the form/mode/manner in which the subsidy is received/disbursed. We find no reason to interfere with the findings CIT (A) on the issue that the impugned subsidy was a capital receipt.
CIT (A) was not correct in directing the AO to reduce the amount of subsidy from the actual cost of fixed assets and, thereafter, allow depreciation on such actual costs so arrived that. We set aside the order of the Ld. CIT (A) on this issue and we direct the Assessing Officer to allow deprecation on the actual cost of assets without reducing the amount of subsidy there from. Thus Ground No.3 of the assessee’s appeal stands allowed.
Addition on account of license fee - HELD THAT:- It is seen that this issue is covered in favour of the assessee by the following orders of the Hon’ble High Court and the Tribunal rendered in assessee’s case in the earlier Assessment Years. CIT-DR also could not controvert this fact. In view of the binding judicial precedents in asssessee’s own case as enumerated above, we find no reason to interfere with the findings of the CIT (A) on the issue.
Claim of depreciation in respect of UPS - 60% OR 15% - HELD THAT:- UPS is to be considered as an integral part of the computers and depreciation is to be allowed @ 60%. Accordingly, in view of the settled legal position, we find no reason to interfere with the findings of the Ld. CIT (A) on this issue also. See CIT vs. BSES Rajdhani Power Limited [2018 (2) TMI 299 - ITAT DELHI].
Depreciation in respect of energy saving and pollution control equipment on the ground that it was not put to use - AO disallowed the claim of depreciation by alleging that the assessee has only established the factum of purchase of assets and not the condition of assets being put to use - HELD THAT:- Provisions of Sec.32 do not mandate such requirement. To assume that having purchased and installed the energy saving devices and pollution control equipment but not putting the same to use is, thus, just a baseless surmise and conjecture which stands negated by the certificates from the Chartered Engineers. Therefore, it is our considered opinion that the Ld. CIT (A) was absolutely correct in holding that having installed the devices, the assessee had extensively put the assets to use for the purposes of business and that under the law, the assessee was not required to monitor the outcome of use of such items in its business. The Hon’ble Delhi High Court in the case of CIT vs. Insilco Ltd. reported [2009 (2) TMI 31 - DELHI HIGH COURT] had held that it would be more appropriate to understand the expression ‘use’ as comprehending cases where the machinery is kept ready by the owner for its use in its business.
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2020 (7) TMI 566
Assessment u/s 153A - Addition of unsecured loans as undisclosed in u/s. 68 - HELD THAT:- there is no reference whatsoever to the incriminating material found during the course of search upon the assessee on the basis of which this addition of unsecured loan has been done in the hands of the assessee under section 153A.
It is settled law that in the interest of justice issue can be raised before quasi judicial authorities without any specific ground raised in grounds of appeal. This is particularly so for legal ground. Moreover no tax can be levied except that leviable as per the provisions of law. It is also settled law that there is no estoppel as to law. If an amount is not exigible to tax as per the provisions of law the same cannot be brought to tax on the ground of concession or otherwise.
From the records, it is manifestly clear that the assessment years for assessment year 10- 11 and years preceding to this were not pending at the time of search. Hence assessment for these assessment years did not abate. Hence no addition in these assessment years under section 153A is permissible without incriminating material found during search.
In the present case we have already given a finding that the addition is not based upon any incrimination material found upon search in the case of the assessee. This aspect is only of academic interest as addition has not been made by the assessing officer as deemed dividend. In the case of CIT versus Surat Cotton Spinning & Weaving Mills [1993 (4) TMI 64 - BOMBAY HIGH COURT] once the assessing officer has assessed a particular receipt under a particular head of income the amount is no more available to him for assessment under another head
Moreover the issue that in case of search and seizure assessment under section 153 A no addition can be made without incriminating material found during search is settled by honourable Supreme Court in the case of Sinhgad Technical Education Society [2017 (8) TMI 1298 - SUPREME COURT]. Since we have already held that these additions are not sustainable in assessment u/s 153A. Decided in favour of assessee.
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9911796707
