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Showing 61 to 80 of 1847 Records
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2018 (6) TMI 1789 - CALCUTTA HIGH COURT
Nature of expenditure - payment of the net present value by an assessee engaged in mining for use of forest land for mining purpose - revenue or capital expenditure - AO reasoned that since it was a one-time payment for the assessee to continue its business operations or undertake mining operations in the relevant area for the first time, it had to be regarded as a capital expenditure and could not be deducted from the income as a revenue expenditure - HELD THAT:- Both the Commissioner (Appeals) and the Appellate Tribunal have referred to a judgment of Bikaner Gypsums Ltd. [1990 (10) TMI 2 - SUPREME COURT] as observed that since the assessee was entitled to carry on mining operations and such payment had been made for the removal of the difficulty in the assessee carrying on its business in accordance with its licence, the expenditure had to be regarded as a revenue expenditure and could not be treated as a capital expense.
This is not a case where the assessee, upon payment of the NPV, obtained a fresh right to undertake any business. That right of the assessee was covered by the licence previously granted in its favour by the State of Odisha. The NPV payment is a kind of a compensation for using forest land for non-forest purpose pursuant to an order of the Supreme Court. The payment of the NPV in this case, like in the case of Bikaner Gypsums Ltd. , has to be regarded as a revenue expenditure in accordance with the ratio in the Bikaner Gypsums Ltd. case, since it was a one-time payment made to remove an obstacle from the path of the assessee carrying on its business operations.
For the reasons aforesaid, the concurrent findings of the Commissioner (Appeals) and the Appellate Tribunal based on a long-standing judgment of the Supreme Court does not call for any interference. - Decided against revenue.
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2018 (6) TMI 1788 - TELANGANA HIGH COURT
Dishonor of Cheque - insufficiency of funds - absence of any allegations in the complaint with details as to how the petitioner is authorized in day-to-day affairs of the company - vicarious liability u/s 141 of NI Act - HELD THAT:- Though the petitioner is one of the Directors of the company, merely because he has transferred a sum of ₹ 1,00,000/- from his account to the account of the complainant, it is difficult to hold that the petitioner is actively participating in day-to-day affairs of the business of company. Mere payment by the petitioner being one of the Directors is not sufficient to fasten liability under Section 141 of the Act - While dealing with the vicarious liability of the Directors of the company, the Apex Court in SUNIL BHARTI MITTAL VERSUS CENTRAL BUREAU OF INVESTIGATION [2015 (9) TMI 1339 - SUPREME COURT] is of the view that the principle which is laid down is to the effect that the criminal intent of the "alter ego" of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation.
The averments made in paragraph No.5 of the complaint are not sufficient to fasten the liability against the petitioner and in the absence of such details, the complaint against the petitioner, who is arrayed as A2, for the offence under Section 138 of the Act and under Section 420 IPC is not maintainable and consequently, the proceedings against the petitioner are liable to be quashed - Petition allowed.
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2018 (6) TMI 1787 - ITAT SURAT
Deduction u/s.80P(2)(d) - nexus between the interest/dividend income earned from the co-op. societies and the interest expenditure incurred by the assessee on borrowed funds - HELD THAT:- We find that there is not direct specific or definite expenditure factually incurred to earn income of dividend and or intent from investments with other co-operative societies eligible for deduction u/s.80P(2)(d) of the Act, hence, the action of the AO in assuming expenditure alleged to have incurred or deemed to have incurred for earning dividend, without bring any evidence or record to prove the nexus between expenditure disallowed and dividend/interest income earned from investment with other co-operative societies in wholly arbitrary imaginary, hence, not sustainable in law
It is seen that the assessee has been statutorily investing its surplus fund from the year 1992 with other co-operative societies including co-operative banks. On such investment, the assessee is receiving interest and dividend which has been claimed as deduction u/s.80P(2)(d) of the Act. It is evident that there is no direct nexus between such expenses and interest and dividend. The prorate allocation of interest expenditure resulting its part disallowance of deduction has been done without examined the issue in details. Therefore, in absence of any expenses directly or indirectly co-related to such income, the part disallowance of deduction is not satisfied. In view of this matter, we do not find any fault in the order of CIT(A), hence, same is upheld.
Claim of deduction u/s. 80P(2)(d) of the Act on the interest income earned from Co-operative banks - HELD THAT:- It is undisputed fact that the assessee is a Credit Co-operative Society and received advances and loans from its members, on which interest was being received and paid. We find that the Surat Bench of the Tribunal (camp at Surat), on the similar issue, in assessee’s own case[2017 (4) TMI 1545 - ITAT SURAT]for the A.Y. 2009-10 held the issue in favour of the assessee by dismissing the appeal filed by the Revenue. We find that there is no direct nexus between expenditure related to part disallowance, hence, findings of CIT(A) are upheld. It is further apparent that the assessee is entitled to deduction u/s.80P(2)(d) in respect of the interest income earned from Co-operative Societies are eligible for deduction. Therefore, we do not find any infirmity in the order of ld.CIT(A) - Decided against revenue.
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2018 (6) TMI 1786 - COMPETITION COMMISSION OF INDIA
Contravention of provisions of Section 4 of Competition Act, 2002 - Informant has proposed the relevant market to be the market for 'organization of private professional league cricket in India' - HELD THAT:- Undoubtedly, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. This is so in the present case. Thus, in view of the facts of the present case, the Commission is convinced that BCCI prima facie enjoys a dominant position in the relevant market for organization of professional domestic cricket leagues/events in India.
As per the information, after the initial denial in April, 2009 by BCCI, the Informant approached ICC seeking revision of its decision regarding ICL. However, ICC gave evasive reply. It neither granted the approval sought for nor did it place any sanctions on BCCI in relation to its anti-competitive conduct. Thus, the Commission observes that though the exclusionary actions of BCCI started prior to May 2009, i.e. prior to the enforcement of Section 4 of the Act, such conduct seem to have continued thereafter - the Commission notes that the evidence on record shows that BCCI blacklisted the Informant from participating in the bids for allocation of broadcast rights for IPL. The Minutes of ICC Board Meeting held in January, 2013, which have been relied upon by the Informant, has a categorical noting that the President of BCCI viz. Shri N. Srinivasan had specifically raised a concern regarding award of broadcast rights to companies within Essel Group which had remained in litigation with BCCI, ICC and ECB.
The Commission is of the view that apart from restraining the organisation of a competitive league (i.e. ICL) by the Informant, the BCCI appears to have excluded the Informant in the downstream market by disallowing it to bid for the media rights for IPL. Such denial prima facie appears to be in contravention of the provisions of Section 4(2)(c) of the Act. As stated earlier, the sports federations engaged in organization of tournaments/ leagues are put to advantage if they also possess the authority to grant approval for organization of similar events by others and set conditions for such organization. BCCI seems to have taken advantage of such a situation.
The Commission finds that a prima facie case of abuse of dominant position within the meaning of Section 4(2)(c) has been made out against the Opposite Party. This case needs to be sent for investigation to the Director General (the 'DG') under the provisions of Section 26(1) of the Act. The DG is directed to carry out a detailed investigation into the matter and submit a report to the Commission, within 60 days - Application disposed off.
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2018 (6) TMI 1785 - ITAT HYDERABAD
Taxability of Capital gain - Profit on sale of vessels of the division tonnage - taxability as per provisions of section 50(1) & 50(2) or not? - Special provision for computation of capital gains in case of depreciable assets - HELD THAT:- As in one of the situation, the value of such transfer is more than the value of block of assets, the excess is chargeable to tax under the head ‘capital gains’. In the given case, the excess i.e. profit is reduced from the block of assets and Block continue to have assets value and both situations highlighted in section 50(1) & 50(2) are not attracted. Therefore, as per Income Tax Act, this transaction has not generated any capital gains.
Income has to be determined strictly as per the provisions of I.T. Act and not as per Companies Act/Book profit. Only in specific situation book profit is considered for only determining the taxable income u/s 115JB. In no other situation, the book profit is considered to bring an income which is not as per the provisions of I.T. Act. Just because a separate income is disclosed by the assessee, it does not mean that it should be brought to tax over looking the actual provisions of income tax. Therefore, the profit on sale of vessels of the division tonnage is not taxable as the provisions of section 50(1) & 50(2) are not attracted. Therefore, the addition made by the AO is deleted.
Deduction u/s 80IA - deduction denied with regard to Karaikal Port, for which the CIT(A) in AY 2010-11 rejected the claim of assessee due to non submission of certificate - HELD THAT:- Since the assessee has submitted a certificate from the port authority certifying that they have entered into an agreement with the assessee for O&M of the port in AY 2009-10 itself, we set aside the order of CIT(A) and direct the AO to allow deduction u/s 80IA to Karaikal port also.
Disallowance u/ 14A r.w.r. 8D - HELD THAT:- It is clear that we have to include those investments which has generated income and exclude those investments, which have not generated income. AO had taken the total investment instead of those investments, which have generated income. Accordingly, we direct the AO to calculate the disallowance of interest with prescribed formula.
The main reason is that as per section 14A, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income, which is exempt from tax. The relevance is the expenditure in relation to income. The quantification has to be undertaken in relation to the exempt income. The investment which has not generated exempt income should be excluded from the calculation of ratio to determine the disallowance.
Similarly, for the administrative expenses, 0.5% of average investments from which the exempt income is received should be considered instead of average of the total investments - considering the above discussion, we direct AO to recalculate the disallowance as per rule 8D(iii) as per the above guidance. Accordingly, ground raised by assessee is allowed for statistical purposes.
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2018 (6) TMI 1784 - KARNATAKA HIGH COURT
Seeking grant of Bail - position or power to bring pressure on the Investigating Officer or the witnesses or not - presumption of guilt - filing of the charge sheet would amount to change of circumstances or not - HELD THAT:- There is nothing in the entire charge sheet to indicate that the petitioner was in a position or power to bring pressure on the Investigating Officer or the witnesses. The records reveal that the petitioner was a Graduate and was assisting his father in running his Industry. No-doubt, there is enough material to show that the father of the petitioner is a local M.L.A. But merely on that ground, it cannot be assumed that the petitioner was in a influential position and that he was making use of the power and position of his father to misdirect the investigation or to screen himself from the legal punishment. There is no presumption that the son of a M.L.A. is in a position to wield power and influence on all and sundry. Just as, a son cannot be made liable for the sins of his father, the status and position of a father cannot act as a disability against a son to seek bail. Therefore, it was not proper on the part of the learned Sessions Judge to deny bail to the petitioner on the purported ground that the petitioner was in a position to use power and influence, in case, he was released on bail.
The records indicate that the charge under section 307 Indian Penal Code came to be inserted at a later stage after recording the statement of the injured witness. There is inordinate delay in recording the statement of CW-2. Though the medical records indicate that CW-2 was in a fit condition to give his statement on 26.02.2018, his statement came to be recorded only on 03.03.2018. The statement made by CW-2 imputing allegation that the petitioner forced him to fall to his feet and on account of his refusal to heed to the demand of the petitioner, he was slapped and assaulted by the accused does not find place in the complaint lodged by CW-1 at the earliest point of time. All these circumstances indicate that a deliberate attempt has been made to improve the case of the prosecution from stage to stage to bolster up the charges, solely with a view to deny bail to the petitioner.
None of the parties had any intention or motive to harm or injure CW-2. Neither the petitioner nor any of the accused were armed with deadly weapons. There are no allegations against the petitioner that he used any weapon to cause injuries on CW-2. Accused No. 7 is already enlarged on bail by orders of this Court in the Petition. Therefore, having regard to all these facts and circumstances, the petitioner requires to be admitted to bail subject to conditions.
The criminal petition is allowed.
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2018 (6) TMI 1783 - KARNATAKA HIGH COURT
TP Adjustment - substantial question of law or fact - Maintainability of appeal in High court - whether tribunal was right in holding that RPT filters should be 15% and not 25%, taken by the TPO? - HELD THAT:- This Court in a recent judgment in M/s. Softbrands India Pvt. Ltd [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellants, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable. No substantial question of law arises in the present case also
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2018 (6) TMI 1782 - BOMBAY HIGH COURT
Correct test of human probabilities - whether Tribunal justified in not allowing the orders of the coordinate Benches, on identical fact situation that the coordinate Benches did not apply the correct test of human probabilities? - HELD THAT:- Registry is directed to communicate copy of this order to the Tribunal. This would enable the Tribunal to keep papers and proceedings relating to the present appeal available, to be produced when sought for by the Court.
Mr. Suresh Kumar, learned Counsel waives service for the Respondent.
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2018 (6) TMI 1781 - ITAT MUMBAI
Income from House Property u/s 22 - calculating notional ALV of the vacant units - adding the ALV of the unsold units which constitutes stock in trade - HELD THAT:- As in case of Chennai Property [2015 (5) TMI 46 - SUPREME COURT] held that when the company is primarily engaged in business of construction and development, which is the main object of the assessee, the income derived by assessee would be “Income from Business”.
On the same analogy in the case in hand, the assessee is engaged in the business of construction and development, which is the main business of the assessee, the units which could not be sold at the end of the year and were shown as ‘stock-in-trade’, estimating rental income on notional ALV was not justified - when, there is no evidence on record that these units were either given on rent or that the assessee has intention to let out those units. The Units which are not sold are stock-in-trade and the income arising of its sale is liable to be taxed as Business Income, therefore, we do not find any justification in calculating notional ALV of the vacant units. Therefore, we direct the Assessing Officer to delete the addition made on estimate basis - Decided in favour of assessee.
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2018 (6) TMI 1780 - ITAT AHMEDABAD
Addition u/s 40A(2)(b) - interest ranging from 12% to 15% - restriction of payment of interest to 12% instead of interest at the rate of 15% paid by the assessee to the persons covered under section 40A(2)(b) - HELD THAT:- Rate of interest charged and received by the assessee is justifiable and in commensurate with prevailing market rate - assessee contended that the bank interest was in the range of 15% and in respect thereof, the assessee was required to produce security against such loans, whereas the loans availed by the assessee were unsecured loans. By taking of loans from related persons, it could avoid a lot of formalities.
We are of the view that the payment of interest at a little higher rate to the persons even if covered under section 40A(2)(b) cannot be termed as exorbitant when the prevalent market rate of interest is being looked into, and there is no question of undue benefit being given to the related persons. We find no justifiable reasons to restrict the interest rate at 12% by the Revenue authorities. Accordingly, disallowance made by the Revenue is deleted, and the ground of appeal of the assessee is allowed.
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2018 (6) TMI 1779 - ITAT DELHI
Deduction u/s 80IA - interest earned on fixed deposits for the performances of bank guarantee for carrying on the business for providing performance guarantee - AO held that the interest income earned on FDRs and misc. income cannot be considered as profit derived from the business of developing, operating or maintaining infrastructural facilities and thereby not eligible for deduction u/s 80IA - HELD THAT:- Hon'ble Supreme Court in case of Conventional Fastners [2018 (5) TMI 1866 - SC ORDER] made it clear that interest earned on fixed deposit maintained with bank for obtaining bank guarantee is not derived from business, hence not entitle to deduction. The decision of the Apex Court is applicable in the present case which also considered the decision relied by the Ld. AR i.e. Pandian Chemicals [1997 (4) TMI 38 - MADRAS HIGH COURT]. The decision relied upon by the Ld. AR are factually different and are not applicable in the present case while the decision of the Apex Court passed in Conventional Fastners is more apt in the present case. Therefore, the order of the CIT(A) is set aside and appeal of the Revenue is allowed.
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2018 (6) TMI 1778 - GUJARAT HIGH COURT
Disallowance of notional loss on account of foreign exchange fluctuation loss - claim on account of Mark to Market basis - HELD THAT:- As in the case of very assessee in SUZLON ENERGY LIMITED [2018 (2) TMI 1789 - GUJARAT HIGH COURT] the Division Bench of this Court has held in favour of the assessee and against the Revenue. Following the decision of the Division Bench of this Court in the case of very assessee in present appeal qua proposed question no. 2(A) is hereby dismissed.
Fresh claim of the assessee in respect of Revenue expenditures for issue of debenture of LIC of India when such claim was never made by Assessee in its return of income in contradiction to in the case of Goetze (India) Ltd [2006 (3) TMI 75 - SUPREME COURT] - Tribunal has erred in law and on facts in remanding the issue of relief under Section 90 to the file of AO - HELD THAT:- Tribunal has remitted the matter back to the AO to consider the said claim. The only grievance on behalf of the Revenue is that without filing revised return, the same ought not to have been permitted. However, the said issue is concluded against the Revenue in view of the decision of this Court in the case of Commissioner of Income Tax vs. Woodward Government India P. Ltd [2009 (4) TMI 4 - SUPREME COURT]. Under the circumstances, present appeal qua proposed question nos. 2(C) and 2 (E) is hereby dismissed.
Present Tax Appeal is admitted for consideration of following substantial question of law:
B. Whether the Appellate Tribunal has erred in law and on facts in deleting upward adjustment made on account interest charged on the loans granted to the Associated Enterprises, at discounted rate to the prevailing Market rate ?
D. Whether the Appellate Tribunal has erred in law and on facts in holding that disallowance under Section 14 A cannot be added to book profit while working out tax liability under the provisions of MAT as the said section has no applicability beyond chapter IV, while computing the book profit under Section 115JB of the Act ?
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2018 (6) TMI 1777 - ITAT BANGALORE
Rectification u/s 154 - whether the amount brought forward as unabsorbed depreciation as claimed by the assessee is correct or not? - HELD THAT:- This was the claim of the assessee that the profits of the assessment year 1999-2000 were set off against the carried forward losses of the previous year which were more than 15 crores rupees and even after absorbing the entire profits of the year 1999- 2000, against the carried forward losses, losses still remained unabsorbed and the unabsorbed depreciation was not even touched. The claim in the present case is also similar.
This was the claim of the revenue before Hon’ble Delhi High Court that that in Assessment Year 1999-2000, profit as per P&L account of ₹ 58.98 lakhs was adjusted against unabsorbed depreciation and brought forward business loss and therefore, the AO took that figure for adjustment against book profit u/s. 115JB in the order passed by him u/s. 154 of IT Act as in the present case. But it was held by Hon’ble Delhi High Court in Eli Lilly and Co. India P. Ltd. [2011 (3) TMI 267 - DELHI HIGH COURT] that under these facts, it cannot be said that there was an apparent mistake which could be rectified by invoking the provisions of section 154 of IT Act. Hence, by respectfully following this judgement of Hon’ble Delhi High Court, we decide the issue in favour of the assessee.
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2018 (6) TMI 1776 - ITAT DELHI
Disallowance u/s 36(1)(iii) - HELD THAT:- As recorded by the Ld. CIT (A) that the investment in the partnership firm was made exclusively for the purpose of the business. It has also been noted by the Ld. CIT (A) that the advances recoverable and forward-cover receivable included in the advances are business advances and have been given to suppliers with whom regular business transactions are under taken. Similarly with respect to the advance given to DLF Ltd., CIT (A) has noted that the same has also been given for the purpose of business. The Ld. CIT (A) has also noted that apart from these advances, there were other advances also but on which interest has duly been charged by the assessee.
CIT (A) has also placed reliance on the judgment of the Hon’ble Apex Court in the case of S.A. Builders Ltd. [2006 (12) TMI 82 - SUPREME COURT] wherein as held that an expenditure may not have been incurred under any legal objection but yet it is allowable as a business expenditure if it was incurred on the grounds of commercial expediency. We note that the Hon’ble Apex Court has also observed that the expression “commercial expediency” is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business.
CIT (A) has also referred to the judgment of Hon’ble Delhi High Court in the case of CIT vs. Dalmia Cement (Pvt.) Ltd. [2001 (9) TMI 48 - DELHI HIGH COURT] wherein it had been held that once it was established that there was a nexus between the expenditure and the purpose of business, the revenue cannot justifiably claim to put itself in the armchair of the businessman and take up the role to decide as to how much is reasonable expenditure having regard to the circumstances of the case.
CIT (A) has given a categorical finding that in the instant case the loans and advances have been given on account of commercial expediency. DR could not point out any factual inaccuracy in the findings of the CIT (A) nor could she point out how the impugned order was not legally sustainable. Accordingly, we find no reason to interfere with the findings of the CIT (A) on this issue and we dismiss the grounds raised by the department.
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2018 (6) TMI 1775 - MADRAS HIGH COURT
Condonation of delay of 106 days in filing the appeal - delay on account of inconvenience caused to the consultant and also the fact that the wife of the consultant had met with an accident - sufficient explanation for delay or not - HELD THAT:- The delay of 106 days cannot be construed to be an inordinate delay especially when the first respondent does not allege that the petitioner had purposely not filed the appeal in time and had filed the appeal with delay only to drag on the proceedings. The inconvenience caused to the consultant and the submission that the consultant's wife met with an accident have not been shown to be a wrong statement. Ordinarily, a person does not stand to benefit by lodging an appeal belatedly.
Thus, in the absence of mala fides on the part of the assessee in belatedly filing the appeal, this Court is of the view that liberal approach is to be adopted - the delay of 106 days in filing the appeal is condoned and the first respondent CESTAT is directed to proceed further in accordance with law - petition allowed.
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2018 (6) TMI 1774 - ITAT DELHI
Exemption u/s 11 - Charitable activity u/s 2(15) - assessee is rendering services and charging fees for it and generating surplus - HELD THAT:- The assessee claims to be engaged in the maintaining of national/international youth centres at suitable centres in India for the benefit of foreign students and youth delegates as well as individuals visiting India - As decided in own case [2016 (12) TMI 1860 - DELHI HIGH COURT] mere circumstance of collection of such amounts did not result in the assessee's losing their essential character of being established for charitable purposes - Decided in favour of assessee.
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2018 (6) TMI 1773 - GUJARAT HIGH COURT
Seeking grant of leave to the Applicant to auction and sell the immovable property - exclusive charge over the properties or not - pari passu charge - Section 446 r/w. Section 537 of the Companies Act, 1956 - HELD THAT:- The control of the Company Judge and the Official Liquidator, if authorized, can be only to ensure that the purpose of Section 529A is effectively achieved i.e. only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge.
Learned advocate for the applicant has fairly stated before the Court that the Official Liquidator could be associated with the applicant in sale of the properties and that the applicant has no objection or reluctance in depositing the sale proceeds on completion of the sale of the mortgaged properties with the official liquidator reserving its right to claim that except the pari passu charge of the works for recovery of their dues from the sale proceeds, the applicant shall have the exclusive right to the sale proceeds.
The applicant being Financial Corporation and entitled to exercise the power under Section 29 of the Act could be granted permission to auction and sale the properties mentioned in schedule at Annexure A, however, with certain directions to safeguard the interest of the workers of the company, if any - applicant is permitted to auction and sell the properties mentioned in the schedule at Annexure A in exercise of the power under Section 29 of the Act - Application disposed off.
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2018 (6) TMI 1772 - ITAT DELHI
Defective appeal - Dy. Commissioner of Income Tax, Circle 8(1), New Delhi while filing the appeal before the Tribunal has not signed the grounds of appeal, which is contrary to the provisions of section 253(2) - HELD THAT:- We are of the view that the Appeal is defective and is not maintainable in the eyes of law, hence, we dismiss the present appeal filed by the Revenue, being 'Defective'. But in the interest of justice, we are giving the liberty to the Revenue to file the Application for recall of this order, as per Rules, after rectifying the defect. Decided against revenue.
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2018 (6) TMI 1771 - ITAT CHENNAI
TP Adjustment - Comparable selection - exclude M/s. Acropetal Technologies Ltd. - HELD THAT:- The average operating margin of M/s. Acropetal Technologies Ltd., is 57.66 which is significantly high and not consistent with the other comparables. Therefore we find merit in the submission of the Ld.AR that the statement of accounts of M/s. Acropetal Technologies Ltd., during the relevant assessment year cannot be relied upon and even if it is relied upon the profit of the company is abnormally high during the relevant assessment year. Hence, we are of the considered view that for the relevant assessment year M/s. Acropetal Technologies Ltd., cannot be adopted as a comparable company. Therefore we hereby direct the Ld.AO to exclude M/s. Acropetal Technologies Ltd., while determining the ALP of the assessee.
Disallowance of Research & Development Expenditure - nature of expenditure - HELD THAT:- AR submitted before us that the assessee had rendered Research & Development services to its related party against which the assessee has earned revenue income. AR further pleaded that the matter may be remitted back to the file of Ld.AO for fresh examination of the facts. DR strongly objected to the submission of the Ld.AR. After hearing both the parties, considering the strong arguments advanced by the Ld.AR, we are of the considered view that in the interest of justice, the entire issue has to be examined afresh. Therefore this ground raised by the assessee is remitted back to the file of Ld.AO for de-nova consideration.
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2018 (6) TMI 1770 - ITAT BANGALORE
Computation of income for the purposes of allowing deduction u/s.36(1)(viia) - HELD THAT:- As decided in CANARA BANK VERSUS JOINT CIT, LTU, BANGALORE. [2016 (4) TMI 429 - ITAT BANGALORE] the amount of deduction is to be calculated with reference to income computed under the head 'profits and gains of business or profession'. The provisions governing the brought forward and set-off business loss are not part of the provisions governing the computation of profits under the head 'profits and gains of business' - the method of calculation adopted by the AO is in accordance with the provisions of the Act and the reasoning adopted by the CIT(A) is also in consonance with the clear provisions of the Act. Hence, we confirm the addition made by the AO. The grounds of appeal raised by the assessee on this issue are dismissed.
Additions made while computing the book profit which are not covered by the Explanation 1 to section 115JB(2) - HELD THAT:- Admittedly, as per the decision of the CIT (A) the provisions of Section 115JB are not applicable to the assessee bank as the issue was decided in favour of the assessee by a decision of the coordinate bench in the assessee’s own case. As , the decision of the CIT (A) was based on the decision rendered in the assessee’s own case by the Tribunal in earlier years, therefore the assessee had preferred the appeal before us.
If the decision is rendered by the superior court in the earlier appeal for AY 2007-08 [2015 (4) TMI 727 - ITAT BANGALORE], thereby reversing the decision of the Tribunal for AY 2007-08, in that eventuality in the opinion of the bench, this issue will be required to be decided by the CIT (A), as no decision was rendered by the CIT (A) or by the Tribunal. In our view, it is for the assessee to move an appropriate application for seeking a direction from the Tribunal for adjudication of these issues namely, ground nos.8 to 15, in case the decision is reversed by the superior court in earlier appeal and sought appropriate direction for adjudication of these grounds on merit by the CIT(A) . At this stage, we do not find any error in the decision recorded by the CIT (A). Therefore this ground of the assessee is decided in terms of the above said observation, against the assessee.
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