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Showing 41 to 60 of 1847 Records
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2018 (6) TMI 1809 - ITAT PUNE
Exemption u/s 11 - Admission of additional grounds as well as additional evidence - addition on account of interest income treated the same as revenue receipts - Assessee submitted that the assessee company is non-profit organization established with substantial government grant of establishing Auto cluster to promote competitive capabilities of Auto sector related small, medium & large enterprises in Marathwada region of Maharashtra State and the company is now enjoying the benefit of registration u/s.12AA(1)(b)(i) of the Act and therefore, assessee raised additional grounds stating that the computation of income of the assessee should be done u/s. 11 and 12
HELD THAT:- We find that registration u/s. 12AA (1)(b)(i) of the Act was granted to the assessee company in the month of February, 2017 whereas, order of CIT(A) was passed on 29.07.2016. Considering the effect of the said registration order as well as considering the facts that the provision to proviso of sub section (2) of section 12A of the Act , we find the same constitutes an important paper relating to assessment year i.e. A.Y. 2012-13 which is under consideration.
Considering the connectivity of issue to the additional evidences, we are of the opinion that admission of additional grounds as well as additional evidence is justified considering the set principles of natural justice. We, accordingly, admit the said additional grounds as well as additional evidences.
We find relevant to remit the issue back to the file of Assessing Officer for fresh adjudication after granting reasonable opportunity of being heard to the assessee. The Assessing Officer shall pass a speaking order after considering additional evidence. Assessing Officer shall consider all the judgments cited by the assessee before us on the issue of nature of the interest receipts .Grounds raised by assessee are allowed for statistical purposes.
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2018 (6) TMI 1808 - ITAT PUNE
Deemed approval of the entity under section 10(23C)(vi) - Tribunal upheld the order of AO in treating the assessee as AOP instead of an institution solely existing for imparting education - HELD THAT:- As there is merit in the miscellaneous application filed by assessee for assessment year 2007-08 wherein the assessee had filed application before the Commissioner for granting approval under section 10(23C) (vi) of the Act on 31.03.2006. In view of the dictate of the Hon'ble Supreme Court in CIT Vs. Society for The Promotion of Education [2016 (2) TMI 672 - SC ORDER] which is in respect of application made under section 12AA of the Act which is parameteria to provisions of section 10(23C)(vi) of the Act, we hold that since the Commissioner has not disposed off application dated 31.03.2006 within period of six months, the registration is deemed to be granted to the assessee w.e.f. 30.09.2006 i.e. after expiry of six months from the date of making application. Hence, applicant is entitled to grant deduction under section 10(23C)(vi) of the Act w.e.f 30.09.2006 which falls within assessment year 2007-08.
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2018 (6) TMI 1807 - CALCUTTA HIGH COURT
Slump sale - sale of entire undertaking of a tea estate - as per AO sale of a tea estate by the assessee the land and the agricultural part of the business was given a particular value and all other assets of the tea estate were given another combined value and the AO perceived the sale to be a slump sale where the entire undertaking was perceived to have been sold without any itemization - HELD THAT:- In course of the assessee’s appeal before the Commissioner (Appeals), the Commissioner (Appeals) not only discovered that some of the liabilities pertaining to the tea estate had not been transferred to the transferee, but also that the sale consideration was reduced from the written down value of the block of depreciable assets and disclosed as deemed short-term capital gain under Section 50.
Commissioner (Appeals) also found that in the valuation report and the books of accounts, specific values were consciously assigned to specific classes of assets by the parties to the transfer and the quantum of profit was also separately worked out on the transfer of agricultural land and plantation. The assessee disclosed the profits separately because plantation land was not a depreciable asset.
The valuer found the value of the land and plantation to be about Rs.12.20 crore. The cost of such land and plantation in the assessee’s books was about Rs.6.97 crore. A profit of about Rs.5.23 crore was disclosed on the transfer which was separately provided for in the balance-sheet as agricultural development reserve. On the Commissioner’s detailed inquiry as to the manner in which the sale was conducted, Commissioner (Appeals) was satisfied that it was not a slump sale.
Commissioner (Appeals) referred to several judgments; but at the end of the day, it was a pure consideration on facts and it is such factual finding which has been endorsed by the Appellate Tribunal in the judgment and order impugned dated November 6, 2015. Even though the Assessing Officer found that a certain value had been attributed to the land and plantation and another value attributed to the plant, machinery, buildings and non-agricultural assets, the Commissioner (Appeals) found the break-up backed by valuation reports and the like
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2018 (6) TMI 1806 - ITAT CHANDIGARH
Disallowance u/s 14A - interest expenditure incurred on specific heads is to be excluded for the purposes of Rule 8D - HELD THAT:- We find that the assessee has earned dividend of Rs. 29,018/-. In any case based on the settled position of law, the disallowance cannot exceed the dividend earned. The assessee has fairly submitted before the A.O. that at best 0.5% of the average investment may be considered in relation to indirect expenditure. Keeping in view the facts specific to the instant case and action of the Assessing Officer we direct the Assessing Officer to restrict the disallowance to Rs. 29,000/-.
Disallowance under section 40A(2)(b) - assessee had paid interest on unsecured loans to persons covered u/s 40A(2)(b). The rate of interest paid was @ 12% p.a. - maximum rate of interest on unsecured loans should not be more than 11% and so he restricted the claim of interest to 11% - HELD THAT:- The disallowance of 1% on account of interest paid the outside parties which the assessee categorically explains to be not related as per the Section 40A(2)(b) is against the provisions of the Act. Even so keeping in view the market condition since the monies have to be raised at a faster pace, payment of 1% excess interest cannot be said to be unreasonable and hence the addition made is hereby deleted. - Decided against revenue.
Disallowance of interest on account of diversion of funds to the sister concern - AO questioned the assessee regarding disallowance of interest on diversion of funds to sister concern and the assessee had submitted that it has the same stand on the issue as in the A.Y. 2010-11 - HELD THAT:- On perusal of the fact on record we find that there is no evidence on record except a presumption that interest bearing funds were used for giving loan to the sister concerns. The similar issue has been adjudicated in the case of the assessee for the A.Y’s 2006-07, 2008-09, 2009-10 and 2010-11 on similar facts. We therefore uphold the order of the Ld. CIT(A) and deleting the disallowance.
Disallowance on adhoc lump sum basis - HELD THAT:- As we find that the Assessing Officer has not brought any material on record primarily to disallow the expenditure. Keeping in view the assessee’s argument that the rise in expenditure is due to rise in diesel prices and the fact that advertisement expenses have come down with relation to the overall sales, we find no reason to confirm the disallowance made by the Assessing Officer in the absence of any cogent material brought on record by the Assessing Officer.
Addition on account of subsidy - HELD THAT:- Assessing Officer made addition as documents has not been submitted regarding the receipt of the subsidy.CIT(A) has also deleted the addition on assumption that the earlier Assessing Officers must have satisfied themselves about the correctness of the claim.
We hereby direct the assessee to produce the documents pertaining to receipt of subsidy and also calculation of depreciation. The Assessing Officer is hereby directed to go through the documents submitted, satisfy himself and allow as per the rules in force and in accordance with the provisions of the Income Tax Act,1961.
Disallowance u/s 37(1)/36(1)(iii) - assessee had debited interest of more than Rs. 2.35 crores to the profit & loss account - HELD THAT:- We have gone through the facts on record, placing reliance in the case of Bright Enterprises Pvt. Ltd. [2015 (11) TMI 342 - PUNJAB & HARYANA HIGH COURT] has observed that if the interest free funds are available a presumption would arise that investment would be out of interest free funds. The commercial expediency is not in doubt as the advance was given for purchase of Shop for the business of the company in the Mandi Area to be set up by the Board.
Disallowance of interest - HELD THAT:- CIT(A) held that the assessee has submitted that this amount was not claimed as an expenditure and it is shown as advance only. An expenditure cannot be disallowed if it has not been debited to the profit & loss account. Therefore, the Assessing Officer is directed to verify as to whether the assessee has claimed this amount and if the assessee has not claimed this amount, then not to make the disallowance.
The revenue shouldn’t have come to higher forums on such clear finding by the Ld.CIT(A) which is purely a matter of factual verification. Hence we decline to interfere in the order of the Ld.CIT(A).
Addition on account of suppression of sales to sister concern - HELD THAT:- As the assessee has cited many cogent reasons like huge volume of sales to these concerns etc. to justify the sales to the sister concerns at lower rates. It may be clarified that while the addition for inflated purchases in respect of purchases made from sister concerns could be made u/s 40A(2)(a), but there is no corresponding provision in respect of sales made to sister concerns. The department cannot compel a person to make profit out of every transaction since the department does not have any authority to, ask a person to maximize its profits. If the assessee chooses to give discount to someone, he is free to do it. The only criteria/condition is that the transaction (sale) should not result in loss.
This principle was enumerated by the Hon'ble Supreme Court in the case of M/s Calcutta Discount Company Ltd. [1973 (4) TMI 6 - SUPREME COURT] in which Their Lordships have held that when a trader transfers his goods to another trader at a price which is less than the market price, so long as the transaction is bona fide, the revenue authorities cannot consider the market price ignoring the real price fetched to compute profits from the transaction. It was also held by the Apex Court in this case that an assessee was at liberty to arrange his affairs so as to minimize his tax burden. In the instant case, the persons to whom sales are made at lower rates are tax payers in the highest marginal tax bracket and so it can not even be viewed as a scheme for tax reduction. In view of this discussion, it is held that the Assessing Officer was not justified in making addition on account of sales made to associated concerns at lower rate and the same is deleted. - Decided in favour of assessee.
Disallowance of commission - CIT(A) confirmed the addition holding that the assessee has merely submitted that the confirmation can be asked for from the respective parties - HELD THAT:- We find that the commission payments have been regularly debited by the assessee to the P&L Account from 2008-09 onwards. We therefore consider it fit in the interest of justice to restore the matter back to the file of the Assessing Officer with directions to the assessee to produce relevant documents and evidences before the Assessing Officer so as to make him eligible for allowance of this expenditure. Assessee ground allowed for statistical purposes.
Disallowance of Travelling expenses - assessee had submitted that this expenditure was incurred for visit to USA towards stay and ticket to explore possibility of export of DOC and import of Soyabean oil and to explore the possibility of efficiencies of process and process improvements - HELD THAT:- We have heard the argument of both the parties and perused the material available on record, and consider it fit in the interest of justice to restore the matter back to the file of the Assessing Officer with directions to the assessee to produce relevant documents and evidences before the Assessing Officer so as to make him eligible for allowance of this expenditure.
Disallowance of Staff Welfare Expenses - HELD THAT:- We find that the expenditure is involved as a part of the Staff Welfare wherein the wards of the employees are benefited by studying in the school which was constructed in the remote area with the collaboration of the State Education Department. Hence, this can be treated as Staff Welfare Expenses and hence the addition made by the Assessing Officer is hereby directed to be deleted. Ground of assessee allowed.
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2018 (6) TMI 1805 - ITAT DELHI
TP Adjustment relating to management services and professional consultancy services - HELD THAT:- As decided in own case [2016 (8) TMI 950 - ITAT DELHI] assessee divided its operation in the manufacturing and distribution segment. In the manufacturing segment, the net profit margin (OP/Sales) was disclosed at 9.26%, assessee has selected 5 comparable companies and using three years financial data margin of comparables had been computed at 8.40%. In the distribution segment, the assessee has selected TNMM as most appropriate method and the tested party margin had been computed at 15.21% as compared to average margin of 6 comparables using 3 years financial data at 3.96% and the international transactions were claimed at arm’s length. We, therefore, keeping in view the aforesaid discussion are of the view that the impugned addition made by the AO on account of the adjustment made in the receipt of professional consultancy services and management support services rendered by the employees of the AE, was not justified. In that view of the matter we delete the impugned addition - Decided in favour of assessee.
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2018 (6) TMI 1804 - MADRAS HIGH COURT
Ownership and possession of property - cheating and forgery - offences under Sections 120(B), 420, 465, 467, 468, 471, 384 and 506(I) IPC - HELD THAT:- This F.I.R has been primarily registered for the offences of cheating and forgery. The offences of cheating will be made out only if it is shown that the accused herein had dishonestly induced the defacto complainant to deliver any property to any person. In this case, the defacto complainant has no where averred that he was cheated and dishonestly induced to do any act. In fact, his case is that he was threatened by the first accused. When his case is that he was threatened, he cannot in the same breath contend that he was cheated. The two allegations simply do not go together.
This Court is of the view that the offences of cheating and forgery are clearly not made out against the petitioners herein - this Court cannot believe that Durai Pandian or his brother would have fell intimidated by the so called threats held out by the first accused. In any event, the long delay in lodging this F.I.R in a case of this nature by itself renders the allegations inherently improbable.
These Criminal Original Petitions are allowed.
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2018 (6) TMI 1803 - MADRAS HIGH COURT
Parallel proceedings - lodging of two subsequent FIRs in connection with the same and connected offences - seizure of new currency and Gold - whether allegations mentioned in the FIRs are one and the same or not - HELD THAT:- Admittedly, in the case on hand, the accused involved are one and the same. The first FIR No.RC MA1 2016 A0040 dated 19.12.2016 was lodged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988 and subsequent two FIRs in RC MA1 2016 A0051 and RC MA1 2016 A0052 dated 30.12.2016 was lodged in Chennai for the offence under Sections 409, 420, and 120-B IPC r/w 13(2) r/w 13(1)(d) of PC Act,1988. In FIR No.RC MA1 2016 A0040 the suspected offence has been shown as criminal conspiracy, cheating and criminal breach of trust. The date of suspected offence is 08.12.2016 and entry taken on 19.12.2016. The place of occurrence is alleged to be Chennai and Vellore - A reading of the above said three FIRs shows that the search and seizure was conducted by Income Tax Department in the premises of A-1 Sekar Reddy, at Chennai on 8/9/12.2016 and on consecutive days the amount was recovered. Further, it is also clear that the cases have been registered on purported information received from Income Tax Department regarding search and seizure of currency in new denomination concerning the same accused. Further, the averments in two subsequent FIRs makes it clear that the allegations in them is connected to the offence alleged in the first FIR in RC MA1 2016 A0040.
A careful perusal of the stand taken by CBI would have no manner of doubt that the reliance has solely been placed on the searches/seizures carried out by the Income Tax Department on 8/9.12.2016. Therefore, to contend that the allegations mentioned in FIR are different and constitute distinct and separate transaction, is absolutely untenable. Pertinently, no independent or separate materials have been gathered by the respondent apart from the proceedings carried out by the Income Tax Department. Further the averments made by the respondent that the petitioners have hatched a conspiracy with unknown public servants also cannot be countenanced in the absence of any public servant or Bank being identified so far.
Thus, it is clear that in the present case on hand, the source of information is one and the same. The accused are also same persons. It is also apparent that the offence alleged in the first FIR and offences covered in the subsequent FIRs are connected and arising out of the same transaction and as such registering of subsequent FIRs is not proper. Thus, the claim of the petitioners that lodging of two subsequent FIRs in connection with the same and connected offences as mentioned in first FIR in Crime No.RC MA1 2016 A0040 is not permissible as Section 154 of Cr.P.C. do not permit the registration of subsequent FIRs for the same offence or connected offence. In the light of the above said discussion, the plea of the petitioner is to be entertained.
Petition allowed.
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2018 (6) TMI 1802 - MADRAS HIGH COURT
Validity of Revision of assessment - service of pre-assessment notices on petitioner - petitioner submits that one opportunity may be granted to the petitioner to go before the Assessing Officer - HELD THAT:- This Court is of the view that one opportunity can be granted to the petitioner, however, subject to a condition.
The writ petitions stand disposed of with a direction to the petitioner to pay 15% of the tax demanded in each of the impugned orders within a period of three weeks from the date of receipt of a copy of this order. If the said condition is complied with, the petitioner is entitled to treat the impugned orders as show cause notices and submit their objections within a period of two weeks therefrom - Application disposed off.
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2018 (6) TMI 1801 - MADRAS HIGH COURT
Validity of assessment order - non-service of revision notices on the petitioner - paver finisher machine purchased by the petitioner - motor vehicle or not and is capable of plying on the road or not - HELD THAT:- This Court is of the view that the assessment should be redone by considering the petitioner's objections.
In the result, this writ petition is disposed of by directing the petitioner to treat the impugned order as a show cause notice and submit their objections within a period of fifteen days from the date of receipt of a copy of this order. On receipt of the objections, the respondent shall consider the same as well as the documents on brochures that the petitioner may produce and if necessary, the respondent can inspect the equipment and then after affording an effective opportunity of personal hearing, redo the assessment in accordance with law. Till the assessment is completed in terms of the above direction, no coercive action shall be initiated against the petitioner.
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2018 (6) TMI 1800 - ITAT MUMBAI
Short Term Capital Loss (on which STT was paid) set off against the Short Term Capital Gain (on which STT is not paid) - AO held that the assessee cannot set off the short term capital gain (Non STT paid) against the short term capital loss of STT related transaction because the STCG earned on account of Non STT paid chargeable to tax @30% whereas assessee opted to set off STT paid STCL liable to tax@10% under section 111A against the STCG earned on account of non STT paid which is chargeable to tax @30% under the Act - HELD THAT:- CIT(A) by following the decision in case of First State Investments (Hongkong) Ltd. [2009 (7) TMI 908 - ITAT MUMBAI], Fidelity Investment Trust Fidelity Overseas Fund [2009 (8) TMI 856 - ITAT MUMBAI] and ADIT v. Legg Mason Asia (Ex Japan) Analyst Fund [2013 (11) TMI 361 - ITAT MUMBAI] held that the assessee is entitled to set off STCL (STT paid) against STCG (non STT paid) transaction as computed during the year. Therefore, the assessing officer is directed to allow set off the STCG earned on (non STT) transaction. We have noted the ld. CIT(A) passed order by following the various orders of Tribunal, hence, we do not find any reasons to interfere with the order. No contrary decision was brought to our notice. Therefore, the ground of appeal raised by revenue is dismissed - Appeal filed by the revenue is dismissed.
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2018 (6) TMI 1799 - ITAT AHMEDABAD
Estimation of Income - Bogus purchases - CIT-A Restrict disallowance @ 12.5% of total purchase - HELD THAT:- So far as the genuineness of the transaction is concerned, we are satisfied upon the method and manner applied by the Ld. CIT(A) in coming to the conclusion on the basis of the content of the remand report, other evidences and specially on the bank statement of the suppliers which was, in fact, obtained by the AO himself and we thus declined to interfere with the same. The appeal preferred by the Revenue on this ground is dismissed.
As relying on GUJARAT AMBUJA EXPORT LTD VERSUS ASSTT COMMISSIONER OF INCOME TAX [2013 (9) TMI 198 - ITAT AHMEDABAD] we think it fit to modify the order passed by the Ld. CIT(A) by disallowing 5% from 12.5% as made. Appeal of assessee is partly allowed.
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2018 (6) TMI 1798 - ITAT DELHI
TDS u/s 194I - Disallowance u/s 40(a)(ia) - assessee did not deduct any tax at source from such rental payment - HELD THAT:- The essence of this provision is that if the payer has not made deduction of tax at source, but the payee has furnished his return of income u/s 139 by including the amount received from the assessee-payer, then the assessee shall be deemed to have deducted and paid tax on the date of furnishing of return of income by the payee and as such no disallowance u/s 40(a)(ia) will be made. Though this proviso has been inserted by the Finance Act 2012 w.e.f. 1.4.2013 but several courts have held it to be retrospective.
In CIT vs. Ansal Landmark Township Private Limited [2015 (9) TMI 79 - DELHI HIGH COURT] has held that second proviso to section 40(a)(ia) is declaratory and curative in nature and has retrospective effect from 1.4.2005. On a conjoint reading of second proviso to section 40(a)(ia) and first proviso to section 201(1), it becomes graphically clear that if the payee has furnished his return of income under section 139 and has taken into account such sum paid by the payer for computing income in such return of income and has paid income tax thereon, then the payer cannot be treated as assessee in default. A fortiori, no disallowance under section 40(a)(ia) can be made in such circumstances.
Adverting to the facts of the instant case, it is seen that the assessee paid a sum to Bharat Petroleum Corporation Limited. There can be question of suspecting that the BPCL did not include such rental income from the assessee in its return of income. It is, therefore, held that the case of the assessee is covered by second proviso to section 40(a)(ia) and hence the disallowance made cannot be sustained. I, therefore, order to delete the disallowance. This ground is allowed.
Addition of cash handling expenses to certain persons - AO disallowed the same by holding that no evidence of incurring such expenses was furnished - CIT(A) echoed the disallowance - HELD THAT:- After considering the rival submissions and perusing the relevant material on record, it can be seen that the assessee paid cash handling charges to certain persons on monthly basis. Vouchers for such payments have been placed on record. Since such expenses were incurred during the course of business and were necessary for carrying on the business, in my considered opinion, the same should not have been disallowed, therefore, order to delete the addition.
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2018 (6) TMI 1797 - ITAT MUMBAI
Penalty u/s 271(1)(c) - addition u/s 40(a)(ia) - HELD THAT:- Deduction of TDS is a debatable and technical issue; therefore, at least penalty cannot be imposed. Admittedly, the provision of section 40(a)(ia) is a deeming section which creates legal fiction, therefore, the disallowance made simply invoking the provision will not attract penalty for concealment or furnishing of inaccurate particulars of income.
Hon'ble Apex Court in Hindustan Steel Ltd. vs State of Orissa [1969 (8) TMI 31 - SUPREME COURT] supports our view, wherein, it was held that ‘the authority competent to impose the penalty will be justify in refusing the penalty where there is a technical or venial breach of provision or where the breach flows from a bon-fide belief that offender is not liable to act in a manner prescribed by a statute’.
The case of the assessee further find support from the decision in the case of CIT vs AT & T Communications Services Pvt. Ltd. [2012 (2) TMI 8 - DELHI HIGH COURT] wherein it was held that invoking the provisions of section 40(a)(ia) for making the disallowance should not be a ground for levy of penalty. Identical ratio was laid down in New Horizon India Pvt. Ltd. vs DCIT [2010 (5) TMI 653 - ITAT DELHI] and in Ram Krishna S. Shetty [2014 (1) TMI 1072 - ITAT MUMBAI] and the decision from Hon'ble Apex Court in the case of Reliance Petro Products [2010 (3) TMI 80 - SUPREME COURT]. - Decided against revenue.
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2018 (6) TMI 1796 - CESTAT ALLAHABAD
Valuation of taxable service - Commercial Training & Coaching Services - inclusion of value of the course material/book supplied separately by the appellant in the value of services - exemption under N/N. 12/2003-ST dated 20/06/2003 - HELD THAT:- The issue stands decided in their own case in M/S. FITTJEE LIMITED VERSUS CST, NEW DELHI [2017 (1) TMI 1602 - CESTAT, NEW DELHI], which further stands followed in their subsequent appeals, where it was held that there is no question of their availing any Cenvat credit on such books and study materials as there is no tax paid on any of them. We find the impugned order denying the benefit of Notification No.12/03-ST is not legally sustainable.
Appeal allowed - the matter is decided in favour of the assessee.
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2018 (6) TMI 1795 - ITAT BANGALORE
Denial of exemption u/s 11 - donation made to another trust - whether donations for charitable purposes made from sale proceeds of the capital asset is also application of income towards achievement of the objects of the Trust and render it eligible for exemption under Section 11 ? - HELD THAT:- We find that the issue before us, is squarely covered in favour of the assessee by the decision of a co-ordinate bench of this Tribunal in the case of Al Ameen Educational Society Vs. DIT (Exemptions) [2012 (11) TMI 346 - ITAT BANGALORE] wherein held that if the capital gains / sale proceeds of the capital asset is applied for charitable purposes in keeping with the objects of the assessee trust, not by acquiring a new asset but for other charitable purposes, then there is no reason why it should not be considered as application of income for charitable purpose, thereby enabling the assessee to be eligible for claiming exemption under Section 11 of the Act.
Following the aforesaid decision of Al Ameen Educational Society Vs. DIT (Exemptions) (supra), we uphold the decision of the learned CIT (Appeals), rendered at para 12 of the impugned order, that donations made form sale proceeds of the capital asset for charitable purpose in furtherance of the objects of the assessee trust, renders the assessee eligible for exemption under Section 11 of the Act. Consequently, the grounds raised by Revenue are dismissed.
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2018 (6) TMI 1794 - ITAT JAIPUR
Validity of assessment u/s 147 - search and seizure operation u/s 132 - documents seized in search action under section 132 of the Act on a third party - HELD THAT:- When the AO finally found that the material on the basis of which the proceedings for reassessment were initiated were not sufficient to assess the income and only made a protective assessment then such an exercise of the AO is not permissible to take a chance by resorting to the provisions of section 147/148 of the Act. In view of the above discussion, facts and circumstances of the case and the decision of Hon’ble Bombay High Court in the case of DHLF Venture Capital Fund [2013 (6) TMI 575 - BOMBAY HIGH COURT] we hold that the reopening of the assessment is not valid and consequently we quash the reopening and reassessment made by the AO.
Reopening of assessment u/s 147 OR assessment u/s 153C - Assessment order that after the initial assessment u/s 143(3) r.w.s. 153A the AO got the alleged incriminating material in the shape of diary and transactions recorded therein found and seized in the search and seizure operation in case of Rajendra Jain Group. Accordingly, the AO proceeded to reassess the income of the assessee u/s 147 of the Act. The entire decisions of the AO to reassess the income of the assessee is based on the seized material and statement of Shri Madan Mohan Gupta recorded u/s 132(4) of the Act for which the specific remedy is provided u/s 153C.
Assessment order that after the initial assessment u/s 143(3) r.w.s. 153A the AO got the alleged incriminating material in the shape of diary and transactions recorded therein found and seized in the search and seizure operation in case of Rajendra Jain Group. Accordingly, the AO proceeded to reassess the income of the assessee u/s 147 of the Act. The entire decisions of the AO to reassess the income of the assessee is based on the seized material and statement of Shri Madan Mohan Gupta recorded u/s 132(4) of the Act for which the specific remedy is provided u/s 153C.
Thus we hold that the reopening under section 147/148 of the Act is not valid when the proper course of action was only to initiate the proceedings under section 153C/153A - Decided against revenue.
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2018 (6) TMI 1793 - ITAT BANGALORE
TDS On payment of Leave Travel Concession - Demand u/s 201(1) and 201(1A) - Whether benefit of Leave Travel Concession is available to the Bank’s employee even in cases where the journey undertaken by an employee involves a foreign leg but the employee’s designated place is in India and he actually visits the place as designated? - HELD THAT:- As fairly conceded by assessee that the issue involved in these appeals is squarely covered against the assessee and in favour of the revenue by Tribunal order rendered in the case of some other branches of State Bank of India. DR of revenue supported the order of CIT(A). - Decided against assessee.
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2018 (6) TMI 1792 - ITAT MUMBAI
Levy of penalty u/s 271D - assessee failed to establish the compelling reason or genuine business constraint or reasonable cause for having connection in respect of each and every journal entry with its group concern - genuineness of the transaction made through journal entries - HELD THAT:- As the co-ordinate bench in assessee’s group case in DCIT v. National Standard India Ltd. [2018 (7) TMI 1828 - ITAT MUMBAI] while referring the decision of Hon’ble jurisdictional High Court in CIT v. Ajitnath Hi-Tech Builders Pvt. Ltd.[2018 (2) TMI 603 - BOMBAY HIGH COURT] held that the journal entries passed prior to 12.06.2012, the date on which Bombay High Court in case of CIT v. Trumph International Finance (I) Ltd. was pronounced. Therefore, prior to 12.06.2012 it can be safely concluded, wherein the assessee under the bonafide belief, passed journal entry, could not be subject to penalties under section 271D & 271E.
Considering the decision in case of CIT v Ajitnath Hi-Tech Builders Pvt. Ltd.(supra) and Tribunal’s orders in assessee’s group case in National Standard India [2018 (7) TMI 1828 - ITAT MUMBAI] and M/s Aashthavinayak Estate Company Ltd. [2018 (5) TMI 1745 - ITAT MUMBAI] we do not find any reason to interfere with the finding of ld. Commissioner (Appeals). Appeal filed by Revenue is dismissed.
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2018 (6) TMI 1791 - ITAT MUMBAI
Penalties u/s 271D and 271E - Accepting & repayment in cash loan/ deposit/ transactions made through journal entries in excess of ₹20,000/- - violation of the provisions of section 269SS & 269T - HELD THAT:- In view of the judgement of LODHA BUILDERS PVT LTD AND OTHERS VERSUS ASSTT COMMISSIONER OF INCOME TAX [2014 (8) TMI 872 - ITAT MUMBAI] and Triumph International Finance (I) Ltd [2012 (6) TMI 358 - BOMBAY HIGH COURT] wherein it is held that where loan / deposit has been repaid by day to day accounts of the parties through journal entries, it must be held that the assessee has committed default for the contravention of provisions of section 269SS or 269T as the case may be. But the Hon’ble Bombay High Court has clarified the position with effect from 12.06.2012 date when the judgement was pronounced and prior the date of decision of Hon’ble Bombay High Court in the case of Triumph International Finance (I) Ltd (supra) there was a reasonable cause for the assessee to receive deposit of loan or repayment of the same through journal entries. Accordingly, the assessee’s case is squarely falls under a reasonable cause under section 273B of the Act and therefore, in our view, penalties levied by the addl. CIT under section 271D and 271E of the Act has rightly been deleted by CIT(A). Hence, we confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
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2018 (6) TMI 1790 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to pay Annual listing fee - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- On perusal of the Form - 5 under Adjudicating Authority Rules filed by the Petitioner, this Bench has noticed that the Petitioner itself has mentioned in the petition that the default date as 1.4.2014, when this Bench has put it to the Petitioner Counsel as to whether this debt has been acknowledged or part payment has been made by this Corporate Debtor at any point of time after 1.4.2014, since this Counsel has stated that the Corporate Debtor has neither acknowledged nor made any part payment after 1.4.2014, this Bench is of the view that this Petition is hit by the Limitation Act, 1963 as envisaged under Section 238A of the I&B Code.
For the limitation period of three years reckoning from 1.4.2014 is over by the time this company Petition has been filed by the petitioner, i.e., on 8.12.2018 this Bench hereby holds that this Petition is hit by Section 238A of the Insolvency & Bankruptcy Code - Petition dismissed.
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