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Showing 41 to 60 of 2044 Records
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2019 (1) TMI 2006
Maintainability of petition - bonafide petition or not - petition filed under Article 32 of the Constitution - petitioner has not claimed any relief in person qua respondent No.12 – Company - claiming enforcement of any personal contractual rights inter se the employee and his employer.
HELD THAT:- The writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.
If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with the respondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rights qua respondent No.12 – Company or anyone claiming through them as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.
This order, therefore, will not influence any authority or the Court or ongoing inquiry or proceedings while dealing with any issue. The same has to be dealt with uninfluenced by this order.
Petition dismissed.
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2019 (1) TMI 2005
Disallowance of interest expenses - unsecured loans are raised for the purpose of making investments in the capital work in progress - HELD THAT:- Unsecured loans are raised for the purpose of making investments in the capital work in progress. This presumption clearly contradicts with CIT(A)’s own finding, as reproduced above, to the effect that “the appellant’s funds are mixed and from the common funds investments are made in CWIP as well as inventory and debtors etc”. If the funds are mixed funds, as is the finding of the CIT(A), there cannot be any basis for the conclusion, as has been eventually adopted by him, that entire unsecured loans are used for the purpose of investment in CWIP (i.e. capital work in progress).
It is also not in dispute, and the financial statements filed by the assessee clearly re-establish that, that the investments in CWIP are far in excess of the interest free funds available to the assessee.
In such circumstances, in the light of judgment in the case of CIT Vs Raghuvir Synthetics Ltd [2013 (7) TMI 806 - GUJARAT HIGH COURT] and Reliance Utilities & Power Ltd (2009 (1) TMI 4 - BOMBAY HIGH COURT), the presumption has to be that the investments are made out of interest free funds. That is the approach consistently taken by various coordinate benches of this Tribunal. Clearly therefore, whichever way one looks at it, there is no legally sustainable foundation for the presumption that borrowed funds were used in the capital work in progress.
CIT(A) himself admits that the funds are mixed and that the only basis is the nature of loan i.e. secured loan vs unsecured loan. In view of these discussions, as also bearing in mind entirety of the case, we uphold the plea of the assessee and delete the impugned disallowance on the admitted presumption that the secured loans were used in the capital work in progress. The assessee succeeds on this point.
Disallowance being repairs and maintenance expenses of Plant and Machinery,repairs and maintenance expenses to factory building AND vehicle expenses, telephone expenses and office expenses - HELD THAT:- We are of the considered view that the impugned disallowance, which are purely adhoc in nature, are simply based on surmises and conjectures and cannot, therefore, meet any judicial approval. The stand of the assessee that all the details were duly produced before the Assessing Officer, and that there is no requisition which remains to be complied with, has simply been brushed aside. In any case, in the case of a corporate assessee, there is no question of personal expenses. We have also noted that similar disallowances have been deleted in the earlier years as well. In view of these discussions, as also bearing in mind entirety of the case, we uphold these grievances of the assessee and delete the impugned disallowances.
Disallowance out of labour charges - CIT-A reducing the same to 10% instead of 20% disallowed by the Assessing Officer instead of deleting the same in toto - HELD THAT:- The reasons for upholding the disallowance are rather vague and proceed on sweeping generalizations. The allowances are purely adhoc in nature and no specific legally sustainable defects have been pointed out and the stand of the assessee that all the details were duly produced before the Assessing Officer, and that there is no requisition which remains to be complied with, has simply been brushed aside. We have also noted that similar disallowances have been deleted in the earlier years as well. In view of these discussions, as also bearing in mind entirety of the case, we uphold the grievance of the assessee and delete the impugned disallowance in entirety.
Deduction u/s. 80HHC - reduction of 90% of interest income and misc. income from the profit of eligible business income and by rejecting the claim of deduction in respect of export incentives - HELD THAT:- As fairly agree that this issue is required to be restored to the file of the Assessing Officer for fresh adjudication with the benefit of direct decisions from Hon’ble Supreme Court in the case of ACG Associated Capsules Ltd [2012 (2) TMI 101 - SUPREME COURT] and Topman Exports [2012 (2) TMI 100 - SUPREME COURT] That is precisely what was done by the Tribunal in the earlier assessment years. We accept the plea and remit the matter to the file of the AO for fresh adjudication as such.
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2019 (1) TMI 2004
Disallowance of claim u/s 80IB(10) - rectification petition u/s 154 filed before the CIT(A) has been addressed by passing an order allowing the claim - HELD THAT:- On perusal of the assessee's letter and having no objection from the side of Ld. DR, we allow the request of the assessee to withdraw the appeal. Accordingly, the grounds raised by the assessee are dismissed as "withdrawn".
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2019 (1) TMI 2003
Condoning the delay in filing of appeal - late filing of appeal before Ld. CIT(A) - late filing fee demand mandated by section 234E through an intimation processed u/s 200A - HELD THAT:- We are of the considered view that the reasons given for delay by the assessee are not persuasive enough to permit its condonation. The assessee had no "sufficient cause" in terms of section 249(3) of the Act, for not presenting the appeal within the prescribed period before Ld. CIT(A). Hence the same were rightly dismissed. Therefore, we see no reasons to interfere into or deviate from the findings recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, these grounds raised by the assessee stands dismissed.
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2019 (1) TMI 2002
Sanctioned Modified Draft Revival Scheme for the Respondent Company - matter remained pending on abolition of BIFR by Sick Industrial Companies (Special Provisions) Repeal Act, 2003 - HELD THAT:- The Notification dated 24th May, 2017 issued by the Central Government was referred before this Appellate Tribunal in M/s. Spartek Ceramics India Ltd. Vs. Union of India & Ors [2018 (6) TMI 350 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein this Appellate Tribunal held that the case before the Adjudicating Authority was not maintainable and the Notification dated 24th May, 2017 was illegal as it travels beyond the scope of the removal of difficulties provisions under the Insolvency & Bankruptcy Code.
The decision of this Appellate Tribunal in M/s. Spartek Ceramics India Ltd. was challenged before the Hon’ble Supreme Court in Civil Appeal Nos.7291-7292 of 2018 [2018 (10) TMI 1660 - SUPREME COURT]. The Hon’ble Supreme Court upheld the decision of this Appellate Tribunal and held that the Notification dated 24th May, 2017 was illegal as it travels beyond the scope of the removal of difficulties provisions under the Insolvency & Bankruptcy Code.
The impugned order is set aside - application not maintainable.
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2019 (1) TMI 2001
Benefit/perquisite u/s. 2(24)(iv) - additions as on account of notional interest - As argued assessee has neither received any interest income nor any interest income has accrued to it. It is only a real income that can be brought to tax. In the absence of any real income, there could be no taxability. The addition made by the A.O. are of hypothetical income and not of any real income - HELD THAT:- The matter requires reconsideration at the level of the A.O. The Ld. CIT(A) in this case following his Order for the A.Y. 2010-2011 allowed the appeal of assessee. The Ld. D.R. however filed copy of the Order of the Tribunal [2018 (3) TMI 1575 - ITAT DELHI] Dated 26.03.2018 in the case of same assessee in which for A.Y. 2009-2010 [2018 (3) TMI 1575 - ITAT DELHI], the Tribunal has considered the similar issue in Departmental Appeal on Ground No.3 - “On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition made by the A.O. on account of benefit of perquisite under section 2(24)(iv) of the I.T. Act, 1961
Following the reasons for decision of the Coordinate Bench of the Tribunal, we set aside the Orders of the authorities below and restore the matter in issue to the file of A.O. for reconsideration as is directed by the Tribunal vide Order dated 26.03.2018 [2018 (3) TMI 1575 - ITAT DELHI] Appeal of the Department is Allowed for statistical purposes.
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2019 (1) TMI 2000
Violation of principles of natural justice - non-service of notice at proper address - over-invoicing of consignments of garments to claim fraudulent and ineligible drawbacks - HELD THAT:- In the interest of justice, the petitioners should urge all grounds available to them, including the issue of lack of opportunity and all grounds relating to that, in the appeal to the Commissioner. In case the appeals are filed within three weeks from today, the same shall be heard on merits and shall not be dismissed on the ground of limitation.
Furthermore, the Court is of the opinion that in the peculiar circumstances of the case, the requirement of pre-deposit of 7.5% of the sum demanded should be entirely waived and not insisted upon. In other words, the appeals to the Commissioner shall be heard on the merits; the requirement of depositing the amounts shall stand waived.
Petition disposed off.
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2019 (1) TMI 1999
TP Adjustment - international transaction of revenue nature between the assessee and the AE in the relevant financial year - submissions made by the assessee and evidences filed to justify its claim that there is no international transaction of revenue nature and also objecting to the transfer pricing adjustment made by the Transfer Pricing Officer were not considered by the DRP - HELD THAT:- In our considered opinion, if for justifying its claim that no transfer pricing adjustment was required to be made in the given facts and circumstances of the case, the assessee makes certain submissions and furnishes evidences to support such claim, the Departmental authorities are duty bound to not only consider the submissions of the assessee but examine the evidences submitted.
Non–consideration of the submissions and evidences furnished by the assessee amounts to violation of rules of natural justice. We are inclined to restore all the issues raised in the present appeal to the DRP for de novo adjudication after due opportunity of being heard to the assessee. Grounds raised are allowed for statistical purposes.
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2019 (1) TMI 1998
Unexplained jewellery - Addition of the value of gold jewellery of 250 gms as unexplained - Whether Tribunal was right in not accepting the claim of the assessee regarding purchase of gold jewellery merely because of the absence of purchase bill and denial by the jeweller, when the assessee had proved and the Appellate Tribunal had accepted the source of moneys for purchase of the gold jewellery? - HELD THAT:- The assessee carried the matter by way of appeal before the Commissioner of Income Tax (Appeals) II, Madurai. CIT (A) had called for remand report and considered the factual matrix and held that the assessee has established the source of funds for the purchase of gold jewellery to the tune of Rs.2 lakhs. Further, the CIT(A) discredited the statement of one N.S.R. Mohan, gold merchant, who admittedly had transactions with the family members of the assessee and it is his own statement that he had sold gold jewellery without bills.
CIT (A) had analysed the entire factual matrix and found that the assessee had received Rs.2 lakhs from her sons. Further, the CIT(A) after considering the conduct of the said N.S.R. Mohan held that his statement cannot be relied. When the Department filed the appeal before the Tribunal, the Tribunal examined the matter and granted partial relief to the assessee to the extent of 50 gms as there were purchase bills produced by the assessee in respect of 250 gms.
Tribunal solely relied upon the statement of N.S.R. Mohan stating that he had no transaction with the assessee and in the absence of purchase bill treated the same as unexplained jewellery. In our considered view, the approach of the Tribunal is incorrect because the statement of N.S.R. Mohan was that he did not sell any gold jewellerry to the assessee and it was the said N.S.R. Mohan has accepted the fact that the had more than seven transactions with the family members of the assessee. Furthermore, the CIT(A) found that N.S.R. Mohan sold gold jewellery without bills and that is why he had stated that there were no transaction between himself and the assessee.
Thus, if the Tribunal was of the view that the statement of N.S.R. Mohan should not be discredited, then it should have remanded the matter to the authority but could not have taken a contrary view based on the statement which was appreciated by the CIT(A) and factual finding was recorded. That apart, the Tribunal should have held that the interpretation given by the CIT(A) is either perverse or unsustainable. In the absence of any such finding, we are of the considered view that the Tribunal was not justified in interfering with the order passed by the CIT(A). That apart, the Tribunal also found that the assessee had sufficient funds and had proved the source of funds. Merely because gold merchant stated that he has no transactions with the assessee could not have been a reason to disbelieve the claim of the assessee. This is more so because admittedly N.S.R.Mohan had more than seven transactions with the family members of the assesssee and whenever he sold gold jewellery, it was without bills. Thus, for the above reasons, we find that the Tribunal erred in interfering with the order passed by the CIT (A). Appeal filed by the assessee is allowed.
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2019 (1) TMI 1997
Exemption u/s 11 - CIT-A justification in holding that the dividend income which is exempt u/s 10 of the Act need not be considered for the purpose of 85% application of income - HELD THAT:- Inclusion of dividend income (exempt) for the purpose of reckoning the 85% application of income is already settled in favour of the assessee in the case of DIT(E) vs Jasubhai Foundation [2015 (4) TMI 305 - BOMBAY HIGH COURT] held that when the income from property held for charitable or religious purpose is not a matter covered or dealt with by section 10 that the Tribunal's view cannot be termed as perverse or vitiated by any error or law apparent on the face of the record. The clear language of these provisions enables us to uphold the order of the Tribunal.Ground No. 1 raised by the revenue is dismissed.
Allowability of depreciation on assets as an application of income - whether the CITA was justified in allowing the claim of depreciation on assets also as an application of income, eventhough the entire cost of fixed assets had already been claimed as application of income for the purpose of reckoning the limits of 85% application of income - HELD THAT:- As we find that the issue is now settled by the recent decision of CIT vs Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT] held when the ITO stated that full expenditure had been allowed in the year of acquisition of the assets, what he really meant was that the amount spent on acquiring those assets had been treated as 'application of income' of the Trust in the year in which the income was spent in acquiring those assets. This did not mean that in computing income from those assets in subsequent years, depreciation in respect of those assets cannot be taken into account. - Decided against revenue.
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2019 (1) TMI 1996
Validity of assessment - assessment completed without considering any of the submissions of the assessee but by taking into consideration the evidences, which have been collected behind the back of the assessee and used in the assessment without giving assessee an opportunity of cross examination or rebuttal of the same - HELD THAT:- A perusal of the assessment order clearly shows that the Assessing Officer has collected various evidences and the same have not been put for the assessee for its rebuttal. Further, perusal of the assessment order clearly shows that the Assessing Officer has also not done any examination in respect of the advertisement revenues claimed to have been received by the assessee.
AO has completed the assessment purely on the basis of presumptions that the transactions are bogus. Thus, there is insufficiency of the facts coming out of the assessment order as also there is a clear violation of principle of natural justice in so far as evidences collected against the assessee have not been given to the assessee for his rebuttal.
In the interest of natural justice to both the sides, the assessment Order is set aside and the issues are restored to the file of ld. AO for re-adjudication denovo. AO shall provide the assessee all evidences collected by him and which he proposes to use in the course of assessment against the assessee. AO shall also be at liberty to call for any documents, which he feels is necessary for the completion of the assessment.
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2019 (1) TMI 1995
Contempt petition - termination order - name of respondents-workmen has been included in the seniority list or not - retrenchment of appointed workmen - HELD THAT:- The re-engagement of retrenched workmen is governed by Section 6Q of the Act which contemplates that where the workmen are retrenched, and the employer proposes to employ other persons, he shall, in such manner as may be prescribed give an opportunity to the retrenched workmen to offer themselves for re-employment, and the retrenched workmen who offer themselves for re-employment shall have preference over other persons.
The circular dated 07.04.2015 is in terms of the mandate of Section 6Q of the Act so as to maintain a list of retrenched workmen to be engaged as and when the necessity arises - The Order of this Court dated 07.09.2015 is to take workmen on daily wage basis as per office order dated 07.04.2015. The argument that they accepted the order under the impression that the workmen are being reinstated cannot be accepted as the order dated 07.09.2015 has been passed on the basis of the circular dated 07.04.2015 which contemplates that the workmen shall be reinstated as per the seniority list as and when requirement in future arises. The Order of the Court cannot be interpreted on the basis of the impressions which may be drawn by the petitioners, in view of the specific order passed by this Court on 07.09.2015.
In the case of Surjit Singh [2009 (8) TMI 1270 - SUPREME COURT], the question examined was in respect of applicability of the doctrine of “equal pay for equal work”. The respondents therein were appointed as daily wagers without following any recruitment process. The question of reinstatement in pursuance of Award of Labour Court was not the issue raised or decided. In an Industrial Dispute, the nature of engagement, whether on muster rolls, daily wages or ad-hoc basis is not the relevant consideration for an Award of reinstatement. The only question required to be examined is as to whether the workman has worked for 240 days in a preceding calendar year and as to whether the workman has been paid retrenchment compensation. The question of regularization or equal pay for equal work was not the dispute raised or examined by the Labour Court.
The contempt jurisdiction cannot be invoked on the basis of impressions, when the order of the Court does not contain any direction for reinstatement or for grant of regular pay scale. The contempt would be made out when there is wilful disobedience to the orders of this Court. Since the Order of this Court is not of reinstatement, the petitioners under the garb of the contempt petition cannot seek reinstatement, when nothing was granted by this Court.
There are no merit in the present contempt petitions, accordingly, they are dismissed.
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2019 (1) TMI 1994
Denial of deduction u/s.80P[2][a][i] - interest income earned from fixed deposits kept by it with nationalized banks - assessee is co-operative society engaged in the business of providing credit facilities to its members - HELD THAT:- As decided in favour of the assessee by the decision of the Co-ordinate Bench of the Tribunal for the assessment year 2012-13 in the case of ITO Vs. Sureshdada Jain Nagri Sahakari Patsanstha [2018 (11) TMI 1589 - ITAT PUNE]. Assessee appeal allowed.
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2019 (1) TMI 1993
Assessment u/s 153A - abatement of assessment proceedings pending as on the date of search - HELD THAT:- As in the present case, the return of income was filed by the assessee on 30.07.2005 and the search took place on 30.09.2005. As per the second proviso to section 153A of IT Act, assessment or reassessment proceedings if any relating to any Assessment Year falling within the period of six Assessment Years pending on the date of initiation of the search shall abate. Hence if the income for Assessment Year 2005- 06 for which assessment pending on the date of search on 30.09.2005 cannot be assessed u/s. 153A then such income will remain unassessed because as per second proviso to section 153A, pending assessment proceedings on the date of search shall abate. This cannot be an interpretation of the provisions of section 153A and hence, we find no merit in these grounds raised by the assessee and therefore, the same are rejected.
Disallowance of business loss - As seen that the disallowance made by the AO is not on adhoc basis. AO has noted that the assessee has claimed expenses of Rs. 34,379/- as against miscellaneous income of Rs. 5,160/-. The AO has also noted that out of Rs. 34,379/-, the assessee has filed copy of bank account for having paid works contract tax of Rs. 20,000/-. In our considered opinion, this payment of Rs. 20,000/- is covered u/s. 43B of IT Act and therefore, the AO disallowed the remaining amount of expenses of Rs. 14,379/- being Rs. 34,379/- less Rs. 20,000/-. This disallowance made by the AO is on this basis that the assessee has not carried on any business activity in his individual capacity as proprietor of M/s. Rakha Builders and Developers. Hence, on this issue, we find no infirmity in the orders of authorities below. Accordingly Ground no. 4 is also rejected.
Deemed dividend addition u/s 2(22) - HELD THAT:- CIT(A) has given a categorical finding that assessee has failed to prove that the payment is not in the nature of advance. Before us also, it could not be established by assessee that the amount given by the company to the assessee was given under business exigencies. Therefore, we find no merit in this claim. We also find that CIT (A) has also given this finding that this is undisputed fact that the company which advanced the money to the present assessee is not engaged in the business of lending of money and therefore, the payment made by the company by way of advance to assessee should be assessed as deemed dividend u/s. 2(22)(e) and this categorical finding of CIT(A) could not be controverted by ld. AR of assessee. This is also a clear finding of CIT(A) that the assessee is a shareholder of that company holding not less than 10% of the voting power of that company in question i.e. M/s. Anriya Project Management Services Pvt. Ltd. Therefore, in respect of advance given by company to the present assessee, the provisions of section 2(22) (e) of IT Act are applicable - We find no infirmity in the order of CIT(A) on this issue. Ground no. 5 and 6 are also rejected.
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2019 (1) TMI 1992
Reversal of award of compensation awarded, together with interest - guilty of medical negligence in the treatment of the spouse of the Appellant which eventually led to her death - real bone of contention in the present case is not the decision which was taken by the doctors to place the patient on a regime of intravenous fluids which, for the purposes of the present appeals, the Court ought to proceed as being on the basis of an established protocol.
HELD THAT:- The patient had a prior medical history which included catheter ablation and paroxysmal supra ventricular tachycardia suggestive of cardiac complications and thus fell in the group of patients that require in-hospital management (Group B) under WHO guidelines. The patient was evidently suffering from abdominal discomfort and hospital authorities were required to closely monitor her condition. In failing to do so in a timely manner, the Respondents were unable to meet the standard of reasonable care expected of medical services - The issue is not whether the patient had already entered a situation involving haemorrhagic fever or a dengue shock syndrome when she was admitted on the morning of 15 November 2009. The real charge of medical negligence stems from the failure of the hospital to regularly monitor the blood parameters of the patient during the course of the day. Had this been done, there can be no manner of doubt that the hospital would have been alive to a situation that there was a decline progressively in the patient's condition which eventually led to cardiac arrest.
In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment - To say that the patient or her family would have resisted a blood test, as is urged by the Respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted.
That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent - While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the Appellant are "highly educated and working" and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs.
In computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms - the interests of justice would be met, if the amount of compensation is enhanced.
The Appellant shall be entitled to receive an amount of Rs. 15 lakhs by way of compensation from the first Respondent - The compensation, as awarded, shall carry interest at the rate of 9 per cent per annum from the date of the institution of the complaint before the SCDRC until payment or realisation. Payment should be effected within two months.
Appeal allowed.
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2019 (1) TMI 1991
Penalty u/s 271D - failure to comply with Section 269SS - reasonable cause u/s 273B for entering into such transactions through journal entries - failure to comply with Section 269SS was on account of reasonable cause on the part of the respondents - as per HC view taken by the Tribunal in the impugned order holding that no penalty can be imposed upon the respondents as there was a reasonable cause in terms of Section 271B of the Act for having received loans / deposits through journal entries is at the very least is a possible view in the facts of the case - HELD THAT:- We do not find any good ground to interfere with the impugned order passed by the High Court. The special leave petition is, accordingly, dismissed.
Pending application(s), if any, stands disposed of.
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2019 (1) TMI 1990
TDS u/s 195 - Disallowance of expenses u/s 40(a)(ia) - assessee claimed expenses on account of book charges under the head ‘administrative and other expenses’ - HELD THAT:- As section 195(1) uses expression "sum chargeable under the provisions of the Act", and section 195 uses the word 'payer' and not the word "assessee", ‘ Payer’ becomes assessee-in-default, only when he fails to fulfil statutory obligation under section 195(1). If payment does not contain any element of income, payer cannot be made liable. He cannot be declared to be an assessee-in-default.
When a payer remits amount to a non-resident out of India, he claims deduction or allowances under the Act for as an "expenditure".
From order passed by AO it is an admitted position that payment made by assessee represents its share of expenses incurred by the group companies on cost-to-cost basis. Ld. AO made addition only on the ground that assessee made certain payments to a non-resident without deducting TDS. Nowhere there is any material that has been brought on record by Ld.AO to establish that payments made to non-resident involved an element of income which is chargeable to tax in India.
We do not find any infirmity in the order of CIT (A) and the same is upheld. Accordingly grounds raised by revenue stand dismissed.
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2019 (1) TMI 1989
Gain on land sold - nature of land sold - assessee had entered into JDA - agricultural Land or capital asset u/s 2(14) - HELD THAT:- As to the relevance of the intention of the purchaser, in deciding on the nature of the land sold, CIT (Appeals) who went adverse to the assessee Smt. Syed Abdul Kader Aysthath Fasleen Amina, had himself stated of his order that out of 13 conditions set out in this judgment, assessee had satisfied atleast four. Just because assessee received an amount higher than the guideline value would not show that the land was non agricultural. Agricultural land cannot become non agricultural only for a reason that were development of a commercial nature in the nearby areas.
In the circumstances, we are inclined to follow the decision of ld. Commissioner of Income Tax (Appeals) in the case of Shri. S.A. Mafaz Mohammed and uphold the view that the land sold by the assessee, in so far assessment year 2010-2011 is concerned was agricultural and not a capital asset coming within the meaning of Section 2(14) - The gains on sale thereof was not exigible to tax.
Addition of agricultural income - HELD THAT:- Assessee could not bring in evidence to prove the earning of the agricultural income despite being required by the ld. Assessing Officer. Having not done so, ld. Commissioner of Income Tax (Appeals) in our opinion, erred in deleting the addition made for the claim of agricultural income We set aside the order of the ld. Commissioner of Income Tax (Appeals) on this aspect and re-instate the addition.
Addition of term loan interest - - HELD THAT:- Commissioner of Income Tax (Appeals) clearly observed that loan were used for construction of Usman Road property and this was clearly indicated in the sanction letter. Also CIT-A accepted the claim of the assessee with a finding that it was utilized for repayment of an advance received from M/s. SSPDL, which was earlier used for repaying a loan taken from M/s. BOBL for construction of the building. Nothing has been brought on record by the ld. Departmental Representative to show that the findings of the ld. Commissioner of Income Tax (Appeals) were incorrect or not based on records.
Addition of Corporation Tax - HELD THAT:- It is not disputed of 1/3rd of the property was gifted by her to the assessee on 30.03.1994 through a registered release deed. Hence, the corporation tax paid in the name of previous owner Smt. Sithi Sayeedha in our opinion was rightly considered by the ld. Commissioner of Income Tax (Appeals) as allowable.
Compensation received on acquisition of 666 sq. mtrs land at survey No.14/3A2B, being treated as exigible to capital gains - HELD THAT:- Though the intention at the time of purchase of the land initially was crucial, subsequent events, if they show strong indication of a change of such intention, such events need to be considered. Once assessees sold 1.85 acres out of 9.32 acres, they became fully aware that the land sold was being commercially exploited. When they sold the first parcel of land, the initial intention at the time of purchase was very relevant.
We cannot say assessees had the same intention in holding the balance land as they had initially. No doubt, they can bring in evidence to show the agricultural use in subsequent years, if they are convinced on the continuing agricultural nature of the land. However on question like nature of land sold, there can be no rule of resjudicate. Lower authorities had simply followed their decision for assessment year 2010-11 and held the land acquired by Government as non-agricultural, for assessment year 2012-2013 also.
The question regarding nature of the land, which was subject to acquisition during the previous year relevant to assessment year 2012-2013 requires re-visit by AO. We therefore set aside the orders of the lower authorities below and remit this issue back to the file of AO for consideration afresh as per law. Accordingly appeal of the assessee Smt. Syed Abdul Kader Aysthath Fasleen Amina for assessment year 2012-2013 is allowed for Statistical purpose.
Rectification u/s 154 - Interest u/s 234A - HELD THAT:- As per the ld. AO intimation u/s.143(1) could not be considered as an assessment and therefore the assessment done pursuant to the notice u/s 148 could be considered as the first regular assessment. According to him, the assessment done u/s 147 had to be construed as a regular assessment for application of Section 234A - In our opinion, the question of interpretation of Explanation (3) to Section 234A(1) is not something beyond debate. What can be rectified u/s.154 of the Act is only a glaring and apparent mistake and not one which requires long debates and interpretation of law. In taking this view, we are fortified in the case of ITO vs Volkhart Bros. [1971 (8) TMI 3 - SUPREME COURT]. We are therefore of the opinion that ld. Commissioner of Income Tax (Appeals) was justified in quashing the order of the ld. Assessing Officer.
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2019 (1) TMI 1988
Eligibility for appointment on compassionate ground - Rejection on the ground that the elder brother of the petitioner is already in Government job - Doctrine of prospective overruling - HELD THAT:- The question that whether the policy in existence on the date of death of a Government employee or the policy which is in existence on the date of consideration of the application for compassionate ground would be applicable, is no more res integra. The Full Bench of this Court by judgment passed in the case of THE STATE OF M.P. AND ORS. VERSUS LAXMAN PRASAD RAIKWAR [2018 (10) TMI 1963 - MADHYA PRADESH HIGH COURT] where it was held that compassionate appointment can not be claimed as a matter of right as it is not a vested right and the policy prevailing at the time of consideration of the application for compassionate appointment would be applicable.
This Court had held that since, the policy which was in vogue on the date of the death of the Govt. employee would be applicable, therefore, the respondents were directed to reconsider the case of the petitioner in the light of the said policy. However, there was no determination of the right of the petitioner. The petitioner was not declared entitled for appointment on compassionate ground. Thus, this Court is of the view that the process for consideration of the application for appointment on compassionate was still in progress and there was no final adjudication of the right of the petitioner, and under this circumstance, the principle of Res Judicata would not apply in the light of non-application of the principle of prospective overruling.
This Court is of the considered opinion that although this Court in the first round of litigation might have directed the respondents to consider the application of the petitioner for appointment on compassionate ground in the light of the policy existing on the date of death of the father of the petitioner, but in the light of the subsequent interpretation of law, as held by the Full Bench of this Court in the case of Manoj Kumar Deharia [2009 (10) TMI 987 - MADHYA PRADESH HIGH COURT], it is held that the policy which was in existence on the date of consideration of the application would be applicable.
This Court is of the considered opinion that the respondents did not commit any mistake by rejecting the claim of the petitioner by considering the policy which was in vogue on the date of consideration of the application, and the petitioner was rightly held ineligible for appointment on compassionate ground, as his elder brother was already in the Government job - Petition dismissed.
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2019 (1) TMI 1987
Profits on sale of land - LTCG - CIT(A) held that the land comprised in the project ‘RMT Phase II’ is a capital asset and the gain out of the sale of the same should be treated as capital gains - HELD THAT:- When we called for the relevant documents, both the parties could not place anything but pleaded on the orders of the lower authorities. However, both of them have agreed that this issue can be remitted back to the AO for a fresh examination. In the facts and circumstances, we deem it fit to remit this issue back to the AO for a fresh examination. The assessee shall place all the materials in its support before the AO and comply to the AO’s requirements as per law. A O is free to conduct appropriate enquiry as deemed fit, but he shall furnish adequate opportunity to the assesssee on the material etc to be used against it and decide the matter in accordance with law for assessment years 2008-09 to 2011-12.
The proposal of the AO for enhancement of income to the CIT(A), towards disallowance of expenditure in the activity of breeding horses for assessment year 2008-09, the Ld. DR pleaded on the lines of grounds of appeal extracted.
CIT(A) followed the order of this tribunal, supra, we do not find any reason to interfere with his order and hence, the corresponding grounds of the Revenue for assessment year 2008- 09 is dismissed.
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