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Showing 61 to 80 of 20941 Records
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2017 (12) TMI 1820
CENVAT Credit - input services - Rent-A-Cab Service - Outdoor Catering Service - Hotel Charges - Maintenance & Repair Vehicles service - Insurance Premiums Service for workmen - penalty - HELD THAT:- The issue of admissibility of credit of service tax paid on Outdoor Catering Service, Hotel Service and Insurance Premiums for workmen are covered by the judgement of this Tribunal in the case of Ivy Competech P. Ltd., [2015 (9) TMI 1090 - CESTAT BANGALORE] and Mangalore Refinery Petrochemicals Ltd., [2016 (1) TMI 481 - KARNATAKA HIGH COURT], respectively.
Rent-a-Cab - Maintenance & Repair of vehicles - HELD THAT:- In view of the specific exclusion relating to Rent-a-Cab and Maintenance & Repair of vehicles Services after 1.04.2011, the credit availed on these services is inadmissible.
Penalty - HELD THAT:- Since there was confusion about eligibility of credit on the Rent-a-Cab Service, after the amendment, therefore, penalty is not warranted taking credit on the services.
Appeal allowed in part.
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2017 (12) TMI 1819
Seeking summon for the purpose of facing the trial - offences punishable Under Sections 120-B, 363, 366, 368, 370(4) and 376 of the Indian Penal Code, 1860 read with Section 3/4 and 16/17 of POCSO Act - HELD THAT:- The Single Judge seemed to have passed the impugned order without application of judicial mind inasmuch as he committed two glaring errors while passing the order. First, he failed to see that the Complainant at whose instance the Sessions Judge had passed the order and had allowed his application Under Section 193 of the Code was a necessary party to the criminal revision along with the State. Therefore, he should have been impleaded as Respondent along with the State in the revision. In other words, the Complainant also had a right of hearing in the Revision because the order impugned in the Revision was passed by the Session Judge on his application. This aspect of the case was, however, not noticed by the Single Judge.
The High Court had no jurisdiction to direct the Sessions Judge to "allow" the application for grant of bail. Indeed, once such direction had been issued by the High Court then what was left for the Sessions Judge to decide except to follow the directions of the High Court and grant bail to Respondent Nos. 2 and 3. In other words, in compliance to the mandatory directions issued by the High Court, the Sessions Judge had no jurisdiction to reject the bail application but to allow it.
When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for the Appellate/Revisionary Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionary jurisdiction. Even while remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either "allow" the case or "reject" it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the discretionary powers of the subordinate Court. Such order is, therefore, not legally sustainable - It is the sole discretion of the Sessions Judge to find out while hearing the bail application as to whether any case on facts is made out for grant of bail by the Accused or not.
The High Court could have made an observation to the effect that the Respondent Nos. 2 and 3 (Accused persons) are at liberty to approach the Sessions Judge for grant of bail and, if any application is filed, it would be decided by the Sessions Judge on its merits and in accordance with law expeditiously but not beyond it - Appeal allowed.
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2017 (12) TMI 1818
Seeking release on Bail - investigation was not completed within the stipulated period of ninety days thus rendering his continued incarceration in judicial custody illegal - section 167(2) of Cr.P.C - HELD THAT:- The role of the Petitioner appears to be limited to the extent of operating illegal gateways using SIM cards allegedly procured through fraudulent mean from the various telecom service providers and giving access to people to make and receive international calls routed partly over VoIP and partly though the cellular networks and thereby cause loss to the public exchequer.
When the bail applications of the Petitioner and similarly placed co-accused persons were being heard, it was submitted on behalf of the State that investigation was going on to ascertain if the role of the Petitioner and similarly placed co-accused persons were limited to operating illegal gateways to facilitate communication in a manner not approved by the Department of Telecommunications or were the Petitioner and the similarly placed co-accused persons involved in the larger conspiracy of assisting terror related activities in the State of J&K and other parts of the country. This would show that, as regards the Petitioner herein, investigation was still continuing to unearth the extent of his role and to see if he had a role to play in the larger conspiracy. In that case, the substratum of the offence suspected to have been committed by the Petitioner is still under investigation and therefore the investigation into the involvement of the Petitioner cannot be said to have been completed.
On the date on which the police report was filed, it was conceded to by the police itself that investigation against those under custody was still pending. This factor when seen in conjunction with the fact that the police report was filed at the fag end of the ninety-day period after which the Petitioner would have been eligible for default bail makes it apparent that the charge sheet against the Petitioner has been filed only with the intent of frustrating the right of the Petitioner to apply for default bail u/s. 167(2) Cr.P.C.
The petition succeeds and the Petitioner shall be released on bail u/s.167(2) Cr.P.C upon such conditions set by the Ld. Trial Court - Petition allowed.
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2017 (12) TMI 1817
Disallowance of claim u/s 35(1)(ii) on payment of brand equity subscription, building repair and commission expenses - CIT(A) directing the AO to allow expenditure by holding that the only requirement for claiming expenses is that it should be incurred on research related activities and should be revenue in nature - HELD THAT:- CIT(A) while dealing with the above ground has considered the facts and submissions and has categorically mentioned that during the course of appellate proceedings, the assessee has furnished necessary documents, which were furnished before the AO and after appreciating the documents had concluded that the expenses incurred by the assessee were on the improvement of the designs of the existing machinery. - No new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A) - no reasons for us to interfere into or deviate from the findings recorded by the LCIT (A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. - Decided against revenue.
Disallowance for repairs to leased building by disregarding provisions of section 30/37 - Assessee submitted that the assessee has incurred expenses towards repairs on leased premises - revenue authorities disallowed the same by holding that only ‘current repairs’ are allowable as deduction u/s 30 - HELD THAT:- As per the facts of the present case, the assessee entered into lease agreement of Tata Motors wherein the plot of land along with building was leased out to the assessee for a period of 60 months. Those expenses incurred by the assessee pertain to the current year i.e. during the substances of agreement. The assessee has already placed on record the details of expenses incurred on repairs. In this respect, we wish to place reliance on the following judicial precedents in the case of CIT Vrs. HEDE Consultancy Ltd. [2002 (6) TMI 19 - BOMBAY HIGH COURT] wherein it was held that expenditure incurred by the assessee on repairs and renovation of premises taken on lease was revenue expenditure and allowable u/s 30 - we set aside the order of Ld. CIT(A) and hold that the expenditure for the current repair incurred by the assessee are allowable u/s 30 - Decided in favour of assessee.
Disallowance of commission expenses paid - As per the provisions of section 37(1) it is mandate of law that deduction under these provisions can be claimed if the same is laid out or expended wholly and exclusively for the purpose of business. As per the facts of the present case, the assessee has paid the commission based on the order being received through such commission agent. It was also submitted that the commission was paid in accordance with the agreement entered into with the parties, which is binding on the company. The Ld. AR also drawn our attention to the paper book which contains agreement, sample invoice, bank statements, etc.
Whereas on the contrary, no evidence has been brought on the record by the AO to rebut the same. It is also important to mention that the books of account of the assessee and the sales income of the assessee have not questioned /rejected by the AO.
We have gone through the judgment cited Nikunj Exim Enterprises Ltd. [2013 (1) TMI 88 - BOMBAY HIGH COURT] held that mere non-receipt of reply to the notice issued u/s 133(6) of the Act should not be a basis for making disallowance. - Decided in favour of assessee.
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2017 (12) TMI 1816
Revision u/s 263 by CIT - transaction of sale of Iron Ore through E-auction - AO had failed to enquire into the claims of deduction on account of 15% of E-auction sale proceeds and the compensation paid for illegal mining and dumping on the illegal site - HELD THAT:- The appellant had not made any direct sales. The stock is under the control of the Central Empowered Committee. It is only the Central Empowered Committee alone which is empowered to conduct the Eauction in terms of the Hon’ble Supreme Court order. The material factor to be taken into consideration is that the Hon’ble Supreme Court had passed the order after the end of the previous year relevant to assessment year under consideration. In the given facts of the case, it cannot be said that the sale proceeds had accrued to the appellant though it was following mercantile system of accounting as there was no accrual of right to receive payment, having regard to the ratio laid down by the Hon‘ble Apex Court laid down in the cases of CIT vs. Shoorji Vallabhdas & Co [1962 (3) TMI 6 - SUPREME COURT]
Thus, it is clear that the sale proceeds had accrued to the appellant only by virtue of the order of the Director of Department of Mines and Geology vide proceedings No.DMG/MONCOM/E-Auction/2012- 13 dated 03.01.2013. The taxability or otherwise of it can be considered only during the period ending on 31.03.2013, whereas the assessment year before us is pertaining to the previous year ending on 31.03.2012.
As appellant had offered an income which is not assessable for that year. Even after the deductions, there was income offered to tax which is not otherwise assessable for the assessment year under consideration. It is the duty of the AO to assess the correct income in the right assessment year. However, this failure of the AO had not resulted in any prejudice to the revenue. Therefore, the assessment order passed by the AO, though erroneous, but cannot be termed as prejudicial to the interests of revenue - pre-conditions for invoking the provisions of section 263 of the Act, the twin conditions that order is erroneous and also prejudial to interests of revenue are required to be satisfied simultaneously - Decided in favour of assessee.
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2017 (12) TMI 1815
Mark to market losses on account of diminution in the value of outstanding equity derivatives - diminution in the value of stock-in-trade - HELD THAT:- Neither the AO nor CIT(A) has discussed the facts but we find from the details that the assessee has valued outstanding equity derivative transactions at lower of cost or market value in the balance sheet as on 31-03-2010. Admittedly, the assessee has debited mark to market losses on account of diminution in the value of outstanding equity derivatives.
This issue has been settled by Hon’ble Supreme Court in the case of Woodward Governor India P. Ltd: [2009 (4) TMI 4 - SUPREME COURT] wherein, it is clearly held that losses suffered by the assessee on account of fluctuation in the rate of foreign exchange has on the date of balance sheet is item of expense under section 37(1) - For valuing closing stock at the end of the year, the value prevailing on the last date is relevant because profit and loss is embedded in the closing stock. While anticipated loss is taken into account and the anticipated profit in the shape of appreciation of value of the closing stock is to be brought into accounts. In view of the principle laid down by the Hon’ble Supreme Court, we are of the view that the assessee is entitled to this loss and he has rightly claim so. Accordingly, we reverse the orders of the lower authorities and allow this claim of the assessee.
TDS u/s 192/194H - disallowance of commission payment for non-deduction of TDS invoking the provisions of section 40(a)(ia) - HELD THAT:- Respectfully following the assessee’s own case for AY 2005-06 [2016 (6) TMI 1431 - ITAT MUMBAI] it is that to held the commission paid to the directors in the nature of salary and hence, no disallowance can be made by invoking the provisions of section 40a(ia) of the Act because there is no provision for disallowance of salary under the provisions of section 40a(ia) of the Act.. Accordingly, we dismiss the appeals of Revenue.
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2017 (12) TMI 1814
Seeking grant of bail - smuggling - currency - currency seized from possession of the accused is not exceeding ₹ 1 crore the offence is bailable one, or not - offence under Section 135(1)(a,b,c) of Customs Act, 1962 - HELD THAT:- Having considered the submissions made by rival sides and the material made available for my perusal by way of case diary as well as the documents relied upon by the accused-petitioner but without expressing any final opinion on the merit and de-merit of the case, this is not found to be a fit case, wherein, indulgence of granting bail may be granted by this Court, hence, the application filed on behalf of accused-petitioner Arpit Jain u/s. 439 Cr.P.C. is rejected.
Application dismissed.
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2017 (12) TMI 1813
Reopening of assessment u/s 147 - addition u/s 68 - HELD THAT:- Identical issue had come up before the Tribunal in assessee’s own case in the immediately preceding assessment year and the Tribunal held the reassessment proceedings as not valid in the present case, the reopening was done only on the basis of information received from Investigation Wing. Therefore, in view of the ratio laid down by the Hon’ble Jurisdictional High Court [2015 (10) TMI 754 - DELHI HIGH COURT] the reopening was not valid and the subsequent assessment framed was void ab initio. Accordingly, the same is set-aside. - Decided in favour of assessee.
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2017 (12) TMI 1812
Seeking direction for completion of entire procedure as required under Rule 9 of the Chartered Accountants (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 within a maximum period of 14 weeks - HELD THAT:- Apparently, the petitioner had filed a writ petition in respect of another complaint which had been pending enquiry for a considerable period time - Admittedly, there were considerable delays in processing the petitioner’s complaint in that case. However, no such grievance can be made by the petitioner in the facts of the present case, where the Director (Discipline) has already completed the process of examining the petitioner’s complaint.
This Court is of the view that the present petition is unmerited and wholly unjustified. This court is also of the view that such frivolous petitions ought to be discouraged - Petition dismissed with cost quantified at ₹10,000/-.
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2017 (12) TMI 1811
Deduction under the Service Tax claim written off - Whether assessee had relinquished the impugned claim which therefore, cannot be termed as normal business loss or a bad debt? - CIT-A deleted the addition as noted that the service tax paid on various export related services such as GTA Transport Services, technical testing and analysis service, port services etc. paid during the Financial Year 2006-07 to 2010-11 were reflected in the Balance Sheet under the head Service Tax Refundable Account - HELD THAT:- AO has not allowed the claim of the assessee on the reasoning that the appeal was not filed by the assessee against the order passed by the Service Tax Officer. We do not accept the argument of the Assessing Officer, due to the reason that orders passed by the Service Tax Officer are quasi-judicial orders as equivalent to an order of a Court and it is the duty of the assessee to follow the same. Filing of appeal is only a prerogative which is optional and which may or may not be exercised.
We also note that if the government does not refund the service tax, which is refundable to the assessee, then it would be a business loss to the assessee. That is, the assessee has entitlement on such amount and if the government does not refund him then it would be a loss in the hands of the assessee and in that situation the assessee write it off in the books and claims as bad debts.
In the assessment year under consideration, the assessee came to know that the government would not refund him, therefore he written off and claimed as bad debts in the books of accounts. We note that the Assessing Officer has not allowed the claim of the assessee on the reasoning that the appeal was not filed by the assessee against the order passed by the Service Tax Officer. We are of the view that the argument of the Assessing Officer is not tenable and cannot be accepted due to the reason that order passed by the Service Tax Officer are quasi judicial orders as equivalent to an order of a Court and it is the duty for the assessee to follow the same. Filing of appeal is only a prerogative which is optional and which may or may not be exercised. Since the Service Tax officer denied the payment by his order therefore assessee has written it off as bad debts. Therefore, we are of the view that assessee may write it off by debiting the said amount in profit and loss account as bad debts. Hence, we do not find any infirmity in the order passed by the ld. CIT(A) - Decided against revenue.
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2017 (12) TMI 1810
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Service of demand notice - HELD THAT:- When compromise was agreed to for a lesser amount (rupees fourteen lacs) and part payment thereof have already been made, it is not clear as to how the applicant can claim default of the entire original amount. The applicant has not come with clean hands and has not disclosed complete and correct facts of the case. The discloser in the requisite Form 5 is not full and true. Instead of claiming remaining unpaid settlement amount, if any, the applicant has claimed in Part-IV of Forrn-5 entire original due amount of ₹ 18,60,921, without mentioning the settlement and appropriation of payments already received
The demand notice under Section 8 of the Code was issued in the present case on 14.10.2017. The Respondent, however, has enclosed four receipts stamped and signed by the applicant firm, dated 02.01.2017, 30.01.2017, 07.02.2017 and 07.03.2017 respectively which clearly shows that the settlement and payments mentioned therein were made much prior to the issuance of demand notice under Section 8 of the Code - there is force in the contention of the Respondent No. 1 that the amount claimed in the application is not free from clear dispute.
When the claimed debt is not admitted by respondent the onus lies on the applicant to prove its claim. The applicant has not disputed the aforesaid receipts, relied upon by the respondent no. 1 company including the seal and signature of the applicant affixed therein - Admittedly there has been no admission of the claimed operational debt by the respondent. Confusion on the actual amount of default cannot be ruled out and there is clear dispute on the claimed amount of debt. Hence, the amount of claim raised by the applicant clearly falls within the ambit of disputed claim.
Application dismissed.
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2017 (12) TMI 1809
Validity of lease agreement entered - change in status of plots, for which lease was granted - validity of the order by which first petitioner is liable to pay 10% of the market value of the immovable property for the purpose of registering itself as a lessee of such immovable property with the first respondent - HELD THAT:- The legal entity to which the first respondent had granted the lease, in respect of the subject plots, does not exist in the manner and form as on the date of execution of the deed of lease, on the date of presentation of the writ petition. Such legal entity does not exist till date. The legal entity of the lessee has undergone a change. The first petitioner traces its rights to the immovable property demised under the deed of lease through the original lessee. The property covered under the deed of lease has travelled from the original lessee to different entities and ultimately to the first petitioner. Each of the entities, subsequent to the original lessee, are separate and distinct legal entities than that of the original lessee.
The deed of lease describes the original lessee as a legal entity which would deem to include its successors and assigns unless repugnant to the context. Clause (vii) of the lease deed prohibits assignment without prior written consent of the first respondent. The description of the original lessee to include its assigns in the lease deed would necessarily exclude any assignee of the original lessee, when the original lessee has acted in breach of Clause (vii).
A scheme of amalgamation or arrangement documents the compromise arrived at between the parties to the scheme inter vivos. A scheme may be between two or more companies. It may also be between a company and its shareholders or creditors. A proceeding for sanction of a scheme relating to a company under the Companies Act, 1956 is a proceeding in rem. A sanctioned scheme binds the company, its shareholders, creditors and all concerned in the affairs of the company - The transfer and vesting of the rights of the lessee in respect of the deed of lease in favour of the first petitioner is not binding upon the first respondent as the lessor. The first respondent by the impugned writing has demanded 10% of the market value to recognize the first petitioner as its lessee. Such a demand is in the contractual field. It is open to the first respondent to demand a consideration for the purpose of recognizing an entity as its lessee, in the given facts of the present case.
The impugned reasoned Order dated July 31, 2014, therefore, cannot be said to suffer from any infirmity warranting an interference under Article 226 of the Constitution of India - Petition dismissed.
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2017 (12) TMI 1808
Refund of the TDS amount with admissible interest - HELD THAT:- As relying on case of S. Thiagarajan's case [2009 (8) TMI 531 - KARNATAKA HIGH COURT] Though the learned Standing Counsel for the Revenue contends that the said decision is not applicable to the facts of the present case, we are not able to take a contra view. In the said case, the Karnataka High Court has categorically held that it is an obligation cast on the Revenue to effect the refund, without calling upon the assessees to apply for refund the claim. The learned Standing Counsel is not in a position to state as to whether the order of the order of the Karnataka High Court has been reversed by the Division Bench or the Hon'ble Supreme Court and, moreover, he is not contra view. Moreover, the contention of the learned Standing Counsel that the Chief Commissioner has no power to condone the delay sustained in view of the decision of the Hon'ble Supreme Court in the earlier round of litigation.
Thus, following the above decision, these writ petitions are allowed, the impugned orders are set aside and the respondents are directed to refund the amount to the petitioner/assessee with interest payable as per the provisions of the Income-tax Act within a period of eight weeks from the date of receipt of a copy of this order.
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2017 (12) TMI 1807
Offence under PMLA - allegation of forgery - it was held by High Court that filing of complaint and taking cognizance thereof is unsustainable - HELD THAT:- There are no reason to interfere with the impugned order in the exercise of our jurisdiction under Article 136.
The Special Leave Petition stands dismissed.
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2017 (12) TMI 1806
Conversion of dealership of a petrol pump initially allotted in favour of the Respondent No. 1 under the discretionary quota of the Departmental Minister concerned - allotment of the retail outlet dealership to the Respondent on compassionate ground by the Departmental Minister for Petroleum from his Special Discretionary Quota - pleaded stand of the Corporation that despite the cancellation of the dealership of the Respondent, her land was still available, flies in the face of the determination to the contrary as recorded in the judgment and order dated 29.08.1997 and only reflects the pre-determined mind of its functionaries for reasons unknown, though inferable - HELD THAT:- It is no longer res integra that a public authority, be a person or an administrative body is entrusted with the role to perform for the benefit of the public and not for private profit and when a prima facie case of misuse of power is made out, it is open to a court to draw the inference that unauthorized purposes have been pursued, if the competent authority fails to adduce any ground supporting the validity of its conduct - In re, the duties, responsibilities and obligations of a public authority in a system based on Rule of law, unfettered discretion or power is an anathema as every public authority is a trustee of public faith and is under a duty to hold public property in trust for the benefit of the laity and not for any individual in particular.
Jurisprudentially thus, as could be gleaned from the above legal enunciations, a public authority in its dealings has to be fair, objective, non-arbitrary, transparent and non-discriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be unregulated or unbridled. Any decision or action contrary to these functional precepts would be at the pain of invalidation thereof. The State and its instrumentalities, be it a public authority, either as an individual or a collective has to essentially abide by this inalienable and non-negotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations.
In the present case, the dealership of the Respondent had been cancelled being vitiated by favoritism due to exercise of fanciful discretion of the Departmental Minister, which was neither approved nor condoned. Nevertheless, the Corporation visibly did not act in terms of the judgment and order of the High Court of Delhi in initiating the fresh process for auction. This led to the challenge to the faulty advertisement dated 05.10.1998 and the corrigendum dated 13.10.1998, the operation whereof to start with was stayed and thereafter the Respondent was permitted to continue with the dealership and eventually she was directed to be awarded a fresh dealership by converting the existing dealership under its policy dated 12.02.2004. The dealership of the Respondent having been cancelled w.e.f. 01.12.1997, though the operation of the auction notice and the corrigendum thereto had been stayed and she had been allowed to run the outlet, we fail to comprehend as to how all these could be construed to signify that her dealership did subsist from the date of the impugned judgment and order. There was thus no scope for conversion of the existing dealership to a new dealership as ordered.
The dealership of the Respondent at her present location stands cancelled w.e.f. 01.12.1997. The Corporation would now take immediate steps to this effect as permissible in law without fail. The Corporation would also initiate a fresh process for award of new distributorship/dealership in the area and at a location to be determined by it, if it considers it necessary in public interest strictly in conformity with law and the constitutionally recognized norms of transparency, objectivity and fairness.
The Corporation after completing this exercise would submit a report before this Court for further orders, if necessary - Appeal allowed.
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2017 (12) TMI 1805
Ex-parte order of CIT-A - Assessment u/s 153A - HELD THAT:- The notice for hearing was given less than even 10 days before the scheduled date of hearing. As for the CIT(A)’s observations about statement of facts, we have noticed that the assessee was not specifically put to notice in this regard and thus, the assessee did not have any effective opportunity for making up this deficiency. When it was put to the Departmental Representative whether he has any objection to the matter being remitted to the file of the CIT(A) for adjudication on merits, he did not have much to say, but left the matter to the bench. Shri Aseem Thakkar, the assessee has assured us that, on the matter being remitted to the file of the learned CIT(A) for adjudication de novo, he will ensure strict compliance with the notice of hearing and that the remanded proceedings are expeditiously completed.
These discussions and bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the learned CIT(A) for adjudication de novo, after reasonable opportunity of hearing to the assessee, by way of speaking order and in accordance with the law. The assessee is also directed to ensure proper compliance with the notice of hearing by the learned CIT(A), failing which the CIT(A) will be at liberty to dispose of the matter on the basis of the material on record. - Appeals are allowed for statistical purposes
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2017 (12) TMI 1804
Belated remittance of PF and ESI contribution under respective laws but within due date for filing of return of income is eligible for deduction - HELD THAT:- This issue is squarely covered in favour of the assessee-company by the decision of CIT vs. Sabari Enterprises [2007 (7) TMI 169 - KARNATAKA HIGH COURT] - CIT(A) following the decision of the jurisdictional High Court in the above case allowed the appeal. Therefore, we do not find any reason to interfere with the order of the CIT(A). Hence, the appeal filed by the revenue is dismissed.
Disallowance u/s 14A in absence of exempt income - HELD THAT:- The issue is squarely covered by the ITAT decision in the case of the assessee for the assessment years 2010-11 and 2011-12. In the light of the co-ordinate bench decision, the cross objections filed by the assessee are allowed.
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2017 (12) TMI 1803
Levy of late fee u/s 234E - intimation issued under section 200A(1) - scope of amendment to section 200A(1) - HELD THAT:- As decided in M/S. ASIAN PIPES & PROFILES PVT. LTD. VERSUS ASSESSING OFFICER, TDS WARD KALYAN AND M/S. DISHA DISTRIBUTORS [2017 (3) TMI 1482 - ITAT MUMBAI] following the referred decision in the case of Gajanan Constructions and others [2016 (11) TMI 1247 - ITAT PUNE] we hold that the amendment to section 200A(1) is prospective in nature and therefore the AO, while processing the TDS statements/returns in the present appeal for the period prior to 01.06.2015, was not empowered to charge fees under section 234E.
The intimations issued by the AO under section 200A of the Act in this appeal are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. AO is not empowered to charge fees under section 234E of the Act by way of intimation issued under section 200A in respect of defaults before 01.06.2015 and consequently allow the ground of appeal raised by the assessee.
The amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/returns in the present appeal for the period prior to 01.06.2015 was not empowered to charge fees under section 234E - the intimation issued by the AO u/s 200A of the Act in this appeal is unsustainable and the demand raised by way of charging of the fees u/s 234E of the Act not being valid is deleted - we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimation issued under section 200A of the Act in respect of defaults before 01.06.2015 and consequently allow the grounds of appeal raised by the assessee.
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2017 (12) TMI 1802
Reopening of proceedings under Section 32 K(3) of the CE Act - It was held by High Court that Whatever may be the grounds, which are pleas of the Respondents, may have been justified, the Respondents did make an attempt by filing an application before the CCESC by invoking Section 32 (K)(3) of the CE Act. That attempt was not successful. - HELD THAT:- The special leave petition is dismissed.
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2017 (12) TMI 1801
Reopening of assessment u/s 147 - assessee had failed to disclose material facts pertaining to the EDC charges - HELD THAT:- Undisputedly EDC charges had been disclosed in the Balance Sheet of the assessee for the impugned year and which formed part of the documents filed with the return of income. Also it is not disputed that during assessment proceedings the assessee had disclosed EDC charges received during the year in the detail of “other liabilities” filed in response to questionnaire issued by the Assessing Officer. A perusal of the reasons recorded for reopening reveal that the information provided by the assessee itself, as pointed out above, formed the basis of reopening.
In the first para of the reason, AO records “during perusal of records in this case, it was seen that EDC charges were received by the assessee.” - Thereafter the reasons only state the nature of the EDC charges, which is general and publicly known information, and further on inference and conclusion has been drawn therefrom that it is in the nature of revenue receipt of the assessee and hence chargeable to tax. AO thereafter states that since the assessee failed to include it in its income, the same has escaped assessment. And lastly the Assessing Officer mentions that “after independent verification of records with respect to the above mentioned facts”, I have reason to believe that income has escaped assessment.
It was on the basis of already available information and not any new information pertaining to EDC charges that came in the possession of the Assessing Officer thereafter that led to the formation of belief that the EDC charges were in the nature of revenue receipt of the assessee and had thus escaped assessment. Therefore when the reopening was resorted to on the basis of material already on the file, the same having been provided by the assessee only during assessment proceedings, and nothing else, we fail to understand how the assessee could be charged with failure to disclose material facts relating to the said receipt.
No merit in the contention of the Ld.DR that mere production of account books and balance sheet and profit and loss account will not tantamount to disclosure.
No justification for the authorities below to justify the reopening of the assessment. The reopening is thus clearly bad in law and liable to be quashed. We accordingly set aside the orders of the authorities below and quash the reopening of the assessment u/s 147/148 of the Act - Decided in favour of assessee.
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