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Showing 201 to 220 of 23051 Records
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2019 (12) TMI 1489
Approval of Resolution Plan - registration of charges - requirement to register the Charge within given period of 30 days from the date of creation of Charge - Sections 77 and 78 of the Companies Act, 2013 - HELD THAT:- The CoC had made it clear that in absence of Charge being registered, the Appellant could not be treated as Secured Financial Creditor. Although the transaction is stated to be of 2012, it is clear that the Charge was not got registered either by the Corporate Debtor or the Appellant till now on 03.10.2019 which is after the Resolution Plan was approved on 04.07.2019. Section 77 of the Companies Act, 2013 required the Charge to be registered and the Appellant had an option to resort to even Section 78 of Companies Act, 2013, if there were any grievances. Not having done so, when CIRP started trying to rely on the equitable mortgage without a charge created, we do not find there was any error in the CoC meetings which in its wisdom did not recognize creation of security.
The transaction did not even reflect in the Books of Account of the Corporate Debtor. Appellant should be happy that it has been at least treated as Financial Creditor. Appellant took no actions since 2012 and till late stage of CIRP. Charge registered after Resolution Plan is approved cannot be considered.
There are no reason to interfere in the Appeal directly filed without subject having been taken up with the Adjudicating Authority at any earlier time nor when the Resolution Plan was being discussed - appeal dismissed.
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2019 (12) TMI 1488
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Arbitral Award - Non-performing asset - existence of debt and dispute or not - time limitation - HELD THAT:- From the record it is found that initially pursuant to an agreement dated 26th September, 2006 one Arbitral Award was passed by the Hon’ble Sole Arbitrator on 27th January, 2014. Subsequently, another award was passed by the Hon’ble Sole Arbitrator on 31st March, 2017. Therein apart from the amount of ₹ 7,00,88,809.56/- the Arbitral Tribunal awarded interest @ 18% from the date of award till date of payment by the Respondent or realization thereof. Therefore, if the Appellant intends to rely on the award, it is held that there is no default and thereon application under Section 7 is not maintainable.
The Appellant wants execution of award - If it is treated as application under Section 7 for execution of award, in said case it is to be held that the application was filed with malicious intent not for purpose of resolution of insolvency or liquidation. However, no finding is given in case of the Bank and it is held that the application under Section 7 was barred by limitation.
While condoning the delay of 13 days in preferring the appeal, the appeal is dismissed on merits.
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2019 (12) TMI 1487
Bogus LTCG - assessee has manipulated the sale of shares within a short span of time in collusion with the brokers in order to earn tax free exempt LTCG - HELD THAT:- As noticed that the assessee has not been given a fair opportunity to prove the genuineness but the assessment has been made primarily, based on the evidences collected by the Revenue in the course of the investigation conducted by them on the brokers / share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee.
In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax authorities proper materials which would enable them to come to a conclusion. See RAMAKRISHNA DEO. [1958 (10) TMI 9 - SUPREME COURT].Thus, the AO must keep in mind that the onus of proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence.
Thus we deem it fit to remit the issue of exemption in this appeal back to the file of the Assessing Officer for re-adjudication on the lines indicated above. Therefore, the Assessing Officer shall require the assessee; to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual, genuine etc. The assessee shall comply with the Assessing Officer’s requirements as per law. AO is also free to conduct appropriate enquiry as deemed fit. AO shall also bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc. as had been held by the Co-ordinate Bench of this Tribunal in the case of Kanhaiyalal & Sons [2019 (2) TMI 1640 - ITAT CHENNAI] - Appeal filed by the assessee is treated as partly allowed for statistical purposes.
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2019 (12) TMI 1486
Levy of service tax - Management or Business Consultant Service - Business Auxiliary Service - project was in relation to provision of Smart Card to the beneficiaries of National Rural Employment Guarantee Scheme, (NREGS in short) of Patna District - Board’s Circular No. 96/7/2007-S.T., dated 23.08.2007 - HELD THAT:- From various clauses and terms and conditions of the agreement dated 10.09.2008, it transpires that the Government of Bihar, through its agency BSEDC, allotted the entire work of generation of digital job cards (E-shakti cards) for the workers of MNREGS to the appellant on turn-key basis. For the aforesaid purpose, the appellant had to set-up the entire infrastructure by supplying all kinds of plant & machinery/equipments/software/hardware. As per the Agreement, the appellant had to collect, process and store data of the beneficiaries of MNREGS like photographs, biometric fingers prints, along with names, address etc. in the database server installed for the purpose. They had to integrate electronic payment mechanism of various banks and to make proper arrangements for payments of wages to the beneficiaries.
Board’s Circular No. 96/7/2007-S.T., dated 23.08.2007 issued by CBEC has clarified that the activities assigned to and performed by the sovereign/public authorities under the provisions of any law are undertaken as mandatory and statutory functions and cannot be treated as services provided for a consideration.
The Appellant was acting as an implementing agency and implementing the government welfare scheme sponsored by the Government of Bihar, accordingly the entire demand against the Appellant is contrary to the Board’s Circular No.125/7/2010-ST dated 0.07.2010 which clarifies that levy and collection of service tax on State Government agencies/departments implementing the CSS under a central grant is not legally tenable and therefore, in such cases service tax should not be demanded. Since the Appellant has executed the project to facilitate the Government in discharging of its sovereign duty, the Appellant cannot be made liable for service tax.
The appellant’s case is squarely covered by the Judgment of COMMISSIONER OF CUS. & C. EX., HYDERABAD-II VERSUS CMC LIMITED [2007 (7) TMI 17 - CESTAT, BANGALORE], M/S INSTRUMENTATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & S. TAX, LUCKNOW [2016 (7) TMI 502 - CESTAT ALLAHABAD] and SUKHMANI SOCIETY FOR CITIZEN SERVICES VERSUS C.C.E & S.T., CHANDIGARH [2016 (9) TMI 588 - CESTAT CHANDIGARH]. The activity of the appellant is a sovereign activity and therefore out of the ambit of the Service Tax and no service tax can be demanded on such services.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1485
Condonation of delay - Managing Director and Chairman of the assessee filed an affidavit for each of the appeal pleading that the impugned orders were received electronically. The accounts department did not communicated the impact of those orders for appropriate action within the prescribed limitation period which resulted in the delay in filing these appeals, he was not conversant as well as not comfortable with the e-proceedings at the said point of time - HELD THAT:- As pleaded that though the impugned orders were passed from 2009 to 2019, till the recovery notice served, electronically on 25.02.2019, the Revenue had not sent any other communication in respect of any of the demand raised in the impugned orders and reason canvassed by the assessee towards the delay in filing these appeals have sufficient and reasonable cause and hence, it was prayed to condone the delay in filing each of these appeals, we find that the reason canvassed by the assessee towards the delay in filing the impugned appeals appears reasonable and sufficient and hence, we condone the delay in filing each of these appeals and remit these appeals back to the ld.CIT(A) for deciding each of them on merits after affording effective opportunity to the assessee.
It is clear from the above that the CPC was processing the orders from January, 2011 onwards. However, the CBDT issued the above notification on 15.01. 2013 only which indicates that there were gaps between the manual system and the electronic system which required proper administration and hence, the CBDT addressed such problems through the impugned notification. Though, the Revenue claimed to have served the impugned orders electronically, the assessee pleads that they were not brought to its notice and the Revenue has not sent any further communication till the date of recovery notice served on 25.02.2019 electronically. Therefore, the assessee was unaware of such orders. Even, if the above notification is applied, the orders passed by the CPC, prior to this date, that is those orders passed from Jan 2011 to Dec2013 should have been served on the assessee by any of the mode mentioned in sub-section (1) to Section 282 of the Act, which, apparently, has not been done by the Revenue, as it has not placed any such material before us. Further, when there is a change from one system, say the manual system to the other system, say the electronic system , apart from relying the rules and regulations, the Revenue as an administrator of the Act must also guide the assessees, in enabling them to comply with the systemic changes in a reasonable manner. Atleast in those cases, like this case, where the demand made on the assessee is pending for long time and the assessee has not responded, the Revenue should also have used other mode of communication
Thus we condone the delay in filing each of these appeals and remit these appeals back to the ld.CIT(A) for deciding each of them on merits after affording effective opportunity to the assessee.
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2019 (12) TMI 1484
Taxation of notional rental income on unsold stock-in-trade - Business income OR Income from house property - assessee is a builder and developer and during the course of assessment proceedings it was found that the assessee was having unsold flats/shops - AO computed notional rental on such stock-in-trade under the head `Income from house property"- HELD THAT:- Similar issue came up for consideration before the Pune Benches of the Tribunal in M/s. Cosmopolis Construction vs. ITO.[2018 (9) TMI 1621 - ITAT PUNE] has held that no rental income can be computed when flats are held as stock in trade. In reaching this conclusion, the Tribunal relied on certain other judgments and the orders. In the absence of any distinguishing fact having been brought to my notice by the ld. DR and respectfully following the precedent, overturn the impugned order on this score and direct to delete the addition.
As the Finance Act, 2017, w.e.f. 1.4.2018 has inserted sub-section (5) of section 23 providing that : `Where the property consisting of any building or land appurtenant thereto is held as stock-in-trade and the property or any part of the property is not let during the whole or any part of the previous year, the annual value of such property or part of the property, for the period up to two years from the end of the financial year in which the certificate of completion of construction of the property is obtained from the competent authority, shall be taken to be nil.‟ This amendment has the effect of providing that from the A.Y. 2018-19, stock in trade of buildings etc. shall be liable to be considered for computation of annual value under the head `Income from house property‟ after two years from the end of the financial year in which the certificate of completion of construction of the property is obtained. As the assessment year under consideration is 2015-16, the amended section 23 will not apply - Decided in favour of assessee.
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2019 (12) TMI 1483
TP Adjustment - international transaction of AMP and adjustment on account of the same - HELD THAT:- In the instant case, there is not an iota of material on the file apart from relying upon the fact that by incurring huge AMP expenses to the tune of 6.93%, taxpayer has enhanced brand value and created intangibles in favour of its AE, no cogent material is there to treat the incurring of AMP expenses as international transactions. TPO has also not returned the finding that how the benefit of AMP expenditure incurred by the taxpayer have benefited AE, no calculation has come on record, so in these circumstances when we discarded the BLT the entire case of ld. TPO/DRP fell flat.
There is not an iota of material with ld. TPO to prove the existence of an international transactions involving AMP expenses by the taxpayer. TPO rather proceeded on the premise that the AMP expenditure incurred by the taxpayer were far excess of AMP expenses incurred by the comparables.PO has also applied the BLT which has been discarded by the Hon’ble High Court in a number of judgments. Even otherwise, in the absence of any agreement, arrangement or understanding between the taxpayer and its AE, expressed or implied, that AMP spent of the taxpayer would also be beneficial to the AE or it would enhance the brand value of the AE in any manner, no international transaction can be inferred.
Thus we are of the considered opinion that the ALP of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/AO is not sustainable in the eyes of law. At the same time, we cannot ignore the submission of the learned DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. In view of the above, we set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. However, if the above decisions of Hon'ble Jurisdictional High Court which is under consideration before the Hon'ble Apex Court is modified or reversed by the Hon'ble Apex Court, then the Assessing Officer would pass the order afresh considering the decision of Hon'ble Apex Court. In those circumstances, he will also allow opportunity of being heard to the assessee.
Adjustment of depreciation on account of capital assets getting converted into stock-in-trade - HELD THAT:- As relying on own case [2015 (3) TMI 932 - ITAT DELHI] we are of the considered view that conversion of used asset into stock-in-trade and sold subsequently and surplus on the sale is brought to tax then there is no loss to the Revenue. Consequently, the addition made by the AO/DRP is ordered to be deleted.
Depreciation on printers, routers, UPS SMF battery etc. - @ 60%O OR 15% depreciation by AO/DRP by treating the same as plant and machinery. - HELD THAT:- Hon’ble Delhi High Court in case of CIT vs. BSES Yamuna Power Ltd.[2010 (8) TMI 58 - DELHI HIGH COURT] affirmed the findings returned by the Tribunal that computer accessories and peripherals, such as, printers, scanners and server etc. are integral part of the computer system, hence entitled for depreciation @ 60% instead of 15% allowed by the DRP/AO. Consequently, following the decision rendered by the Hon’ble Delhi High Court in case of CIT vs. BSES Yamuna Power Ltd. (supra), we are of the considered view that the taxpayer is entitled for depreciation @ 60% on computer accessories and peripherals.
Disallowance on account of bad debts and advances written off - addition challenged on the ground that the entire evidence was there before the ld. DRP by way of additional evidence which was also given to AO during remand proceedings - HELD THAT:- The issue is required to be remanded back to the ld. DRP to decide afresh after perusing the additional evidence brought on record by the taxpayer after providing opportunity of being heard to the taxpayer,
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2019 (12) TMI 1482
Benami transaction - Proceedings u/s 24 of the Prohibition of Benami Property Transactions Act, 1988 - retrospective applicability of the Benami Amendment Act, 2016 - provisional attachment of the benami properties - scope of amendment to act - HELD THAT:- Heard.
Admit. With the consent of the learned counsel for the parties, list these matters at the top of hearing list on 28.01.2020
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2019 (12) TMI 1481
Deduction u/s 80P in respect of interest from members - HELD THAT:- CIT (A) is not justified in holding that the assessee is not eligible for deduction u/s 80P in respect of interest earned from associate members because as per Karnataka Co Operative Societies Act, associate members are also members and restriction on no. of associate members up to 15% of total members is by way of a subsequent amendment which is not applicable in the present year. Hence, on this issue, the order of CIT (A) is set aside and hold that for allowing deduction u/s 80P in respect of interest from members, regular members and associate members are to be considered at par in the present year which is before amendment in Karnataka Co Operative Societies Act, In respect of interest from regular members, learned CIT (A) has directed the AO to allow deduction u/s 80P. I modify this direction and direct the AO to allow deduction u/s 80P as per law in respect of interest income from regular members as well as associate members.
Deduction u/s 80P in respect of Bank Interest - We find that the claim of the assessee for deduction u/s 80P in respect of bank interest income was disallowed by AO and CIT (A) by following the judgment of Hon’ble Apex Court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO [2010 (2) TMI 3 - SUPREME COURT]
There is one judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] in which this judgment of Hon’ble apex court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra) was considered but still, the issue was decided in favour of the assessee because in that case, money used to earn bank interest was out of own funds and not of out of liability. To examine the applicability of these two judgments, the facts are to be examined as to whether in the present case, the money advanced to earn interest income from various banks is out of liability or own funds of the assessee because if such advances are out of liability, then this judgment of Hon’ble apex court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra) will be applicable and the assessee will not be entitled to deduction u/s 80P with regard to interest from banks but if such advances are not out of liability but are out of own funds of the assessee than the judgment of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO [2015 (2) TMI 995 - KARNATAKA HIGH COURT] will be applicable.
Hence, set aside the order of CIT (A) on this issue and restore this aspect of the matter back to his file for fresh decision with the direction that he should examine the facts of the present case in the light of these two judgments of Hon’ble apex court rendered in the case of Totgars Co – Operative Sale Society Limited vs. ITO (Supra) and of Hon’ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) to find out which judgment is applicable in the facts of the present case. Appeal of the assessee is allowed for statistical purposes.
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2019 (12) TMI 1480
Violation of principles of Natural Justice - HELD THAT:- It prima facie appears that the impugned order has been passed in breach of the principles of natural justice. Under the circumstances, issue Notice, returnable on 22nd January 2020. By way of adinterim relief, the operation of the impugned order in original dated 11th November 2019 (Annexure 'A' to the petition) is hereby stayed.
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2019 (12) TMI 1479
Examination of the documents in the lis to the expert for his opinion - Section 45 of the Evidence Act - what are the orders that can be construed as intermediate or quasi final orders and whether the order passed under Section 45 of the Evidence Act is an interlocutory order or intermediate order and whether revision against the said order is maintainable or not?
HELD THAT:- Undoubtedly, the impugned orders under Section 45 of the Evidence Act were passed by the trial Courts during the pendency of the trial of the main cases. Irrespective of the fact whether the said petition filed under Section 45 of the Evidence Act is allowed or dismissed, the proceedings of the main criminal case still subsists and continues. So, it does not decide anything finally relating to the main case - the revision petitioners sought to contend that since the order passed under Section 45 of the Evidence Act pertains to the right of the accused in relation to the trial of the case to prove his deference in the case, it is to be construed as an intermediate order or a quasi final order.
From the survey of law made as to what orders can be construed as intermediate orders or quasi final orders on the principle that it is an order which is of matter of moment or that it touches the substantial rights and liabilities of the parties in relation to the trial, the legal position is now clear from the precedential guidance given in the three-Judge Bench judgment of the Apex Court in Girish Kumar Suneja [2017 (7) TMI 1088 - SUPREME COURT] that those orders which have the effect of terminating the proceedings of the main case once for all though passed at interlocutory stage are alone to be construed as an intermediate or quasi final order. That is the only feasible test to decide whether a particular order is an interlocutory order or an intermediate or quasi final order for the purpose of maintaining revision under Section 397(1) Cr.P.C. Therefore, in the considered opinion of this Court, the said concept of intermediate order cannot be stretched to that extent so as to take within its fold all other interlocutory orders which are passed during the trial of the case relating to summoning of witnesses and sending the document to experts for examination etc. on the ground that it touches the rights and liabilities of the party in relation to trial of the case.
Since the order passed under Section 45 of the Evidence Act do not decide anything finally and results into culminating the main proceeding of the case, in any way, it cannot be construed as an order which is of matter of moment or as an intermediate or quasi final order so as to maintain revision against the said order. It is held that on par with the law laid down in Sethuraman [2000 (5) TMI 1086 - SUPREME COURT] that an order summoning a witness or calling for a document is an interlocutory order against which revision is barred, the order passed under Section 45 of the Evidence Act is also a pure and simple interlocutory order against which revision is barred under Section 397(2) Cr.P.C.
Criminal Revision Cases are dismissed as not maintainable under law.
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2019 (12) TMI 1478
Validity of Foreign Trade Policy by way of writ of Declaration that is pending before the Division Bench - HELD THAT:- There have been several interim orders passed by Division Benches of this Court that have been seized of the matter at various stages. Final orders have been passed on 25.04.2019 in a batch of writ petitions in WA.No.1215 of 2019 directing proceedings for adjudication to be conducted on merits and in accordance with law.
Petition allowed by fixing a period of three (3) months from date of receipt of a copy of this order for the respondents to conduct adjudication with the full co-operation of the petitioner and conclude the same in accordance with law
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2019 (12) TMI 1477
Issuance of pre-assessment notices dated 05.04.2007 to the petitioner - period prior to the repeal of the TNGST Act, 1959 - TNVAT Act, 2006? - HELD THAT:- For the respective assessment years, it appears that the petitioner had not filed sales tax returns and had not paid tax. Therefore, the 2nd respondent issued summons to the petitioner to produce relevant documents. Since there were no compliance by the petitioner, a proposal notice was issued to arrive at an assessment based on the best judgment method. The petitioner was asked to file its reply on or before 10.11.2006. However, the petitioner again failed to comply - Under Sub-Clause (a) of 88(3) of TN VAT Act, 2006, there is saving of proceedings already initiated under the repealed TNGST Act, 1954. Under Sub- clause (b) of the said provision, tax due under the repealed enactment shall be levied, assessed and collected under the Provisions of the Act, as if T.N.VAT Act, 2006 was in force during the period in dispute.
Before the procedure contemplated under Rules 11 and 12 of the TNGST Rules, 1959 could be completed, the TNGST Act, 1959 came to be repealed and substituted with T.N. VAT Act, 2006. There is not only saving of the proceedings initiated but also a right to proceed further in respect of tax demands due under TNGST Act, 1959 as if the said Act had been in force all along prior to 1.1.2007 under Section 88(3) of T.N. VAT Act - Under the new enactment, there is no procedure for getting concurrence of the Jurisdictional Deputy Commissioner. Therefore, the impugned notices are to be deemed to have been issued under Section 88(3)(b) of the T.N. VAT Act, 2006 and continued.
Petition dismissed.
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2019 (12) TMI 1476
Addition on account of Labour Charges, Repair and maintenance expenses, printing and stationery, office exp. vehicle fuel and maintenance exp. and vehicle repairing exp - AO has recorded a finding that on examination of bills and vouchers of expenses, it was noticed that the assessee did not maintain proper and complete vouchers of these expenses and some of the payments were made in cash - as noticed by the Assessing officer that some of the vouchers of these expenses are self made and without supporting bills and not verifiable fully, therefore, he has made a lumpsum disallowance - HELD THAT:- In the absence of any specific findings that the claim of the expenditure are either bogus or not been incurred wholly and exclusively for the purposes of business, there is no basis for making any adhoc disallowance of expenses and the same cannot be sustained in the eyes of law. We find that similar issue has been examined by the Coordinate Bench in case of M/s Kumar & Brothers vs. ITO.[2019 (9) TMI 1514 - ITAT JAIPUR]
If certain claim of expenditure is not found to be incurred wholly and exclusively for the business purpose of the assessee then the same is liable to be disallowed. However, if the expenditure incurred by the assessee is found for the business purpose of the assessee then due to certain irregularity in maintaining the supporting evidence an ad hoc disallowance is not called for. Without specifying the instance of the expenditure, which is either excessive or found not incurred for the business of the assessee, the action of the A.O. in making ad hoc disallowance and confirmed by the ld. CIT(A) is not justified. Hence, ad hoc disallowance is deleted - adhoc disallowance of expenses so made by the Assessing Officer is hereby directed to be deleted - Appeal filed by the assessee is allowed.
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2019 (12) TMI 1475
Delay of 144 days in filing the cross objection by the assessee - assessee has submitted that the Director of the assessee company, who was handling the tax matters was not fully aware of its right to file the cross objection and remained under the impression that the assessee has already succeeded in the first appeal and hence no further action was required - HELD THAT:- When the assessee was already proceeded against ex parte and the matter was fixed for ex parte arguments, the assessee could only participate in the proceedings for which the matter was fixed. Hence except the arguments on the appeal of the revenue, the assessee cannot be allowed to file any pleadings or cross objection without setting aside the order dated 4th November, 2019 whereby the assessee was proceeded ex parte. Despite sufficient time availed by the assessee and adjournment taken by the ld. A/R of the assessee, the assessee did not take any step for setting aside the ex parte order dated 4th November, 2019. Further, the assessee has decided to file the cross objection only after the assessee was proceeded ex parte. Therefore, in these facts and circumstances we are not convinced with the explanation for cause of delay in filing the cross objection as the assessee was otherwise not allowed to go behind the stage of proceedings fixed for the day. Hence in the facts and circumstances of the case, the cross objection filed by the assessee is dismissed being not maintainable as well as barred by limitation.
Estimating the income by applying the G.P. rate - Rejection of books of accounts - increase in the G.P. just on the basis of the discrepancies pointed out in the accounts - increase in the GP just on the basis of discrepancies pointed out in the accounts and not for any other reasons up by 0.08% - Declining of profit margin of assessee - HELD THAT:- There is no quarrel on the point that the rejection of books of account under section 145(3) would not ipso facto lead to an addition if the GP declared by the assessee is either better than the past history of the GP declared or in line with the past history. However, in the case in hand, the GP declared by the assessee is neither in line with the past history nor it can be considered as better or reasonable in comparison to the past history of GP declared by the assessee. It is pertinent to note that in the absence of specific exceptional circumstances or adverse economic condition having impact on the trading result of the assessee, a general contention cannot be accepted as a reasonable cause for such decline. However, except the speculative situations which may represent an exceptional year or cycles of ups and downs in various sectors of economy, the ld. CIT (A) has neither considered the relevant specific facts having influenced to the business/trading of the assessee as well as business results of the assessee. Therefore, all these reasons which are general speculation and possibilities cannot be considered as finding of fact.
Once the AO is bound to estimate the income, then the past history of the assessee is regarded as a proper and reasonable basis for estimation of income. Accordingly, in view of the above facts and circumstances as well as the binding precedents, we set aside the impugned order of the ld. CIT (A) qua this issue and restore the order of the AO. Appeal of the revenue is allowed and cross objection of the assessee is dismissed.
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2019 (12) TMI 1474
Cenvat Credit - towers, shelter and accessories used for providing telecom services - whether immovable property or not - towers, shelter to be treated as ‘accessories’ either as capital goods or input goods or not - installation after receipt of such towers and shelters at their premises (i.e. tower sites) - It was held by High Court that credit is to be allowed on the items.
HELD THAT:- Issue notice.
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2019 (12) TMI 1473
Seizure of cash carried out by the Flying Squad - cash seized in an exercise conducted under the guidelines of the Election Commission of India - Seeking release the seized cash which was deposited in the District Treasury at Muzaffarpur but has since been transfered to the Income Tax Department - HELD THAT:- Delay condoned. Special leave petition is dismissed.
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2019 (12) TMI 1472
Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties - Section 17-A of the amended provision of Prevention of Corruption Act, 1988 - HELD THAT:- It is made clear that the investigation with regard to any other Government Officer or police officials, shall not be effected by this order.
It is needless to say that the petitioners shall cooperate with the investigation as has already been mentioned passed by this Court at Allahabad.
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2019 (12) TMI 1471
Non-payment of leave salary - financial crises - Settlement of surrender leave salary for 156 days from 2011 to 2018 - HELD THAT:- An identical issue came up for consideration before the Division Bench of this Court in W.A(MD) No.210 of 2019 and the Hon'ble Division Bench by judgment dated 04.09.2019 [2019 (9) TMI 1512 - MADRAS HIGH COURT] had upheld the view of the learned Single Judge against which the writ petition came to be filed and also rejected the Corporation plea that the employee had not claimed the encashment of the surrender leave within the stipulated time.
Although the petitioner has made a representation dated 25.11.2019, the petitioner is directed to make a fresh representation, enclosing a copy of this order, seeking for settlement of his surrendered leave salary and on receipt of the such representation, the respondents herein shall consider the same and disburse the eligible leave salary through four equated monthly installments in the light of the aforesaid Division Bench Judgment - Petition allowed.
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2019 (12) TMI 1470
Bogus LTCG - assessee invested is a penny stock company - deduction under Section 10(38) denied - HELD THAT:- It is not brought on record how the assessee is involved in promoting the penny stock company and how the assessee involved in inflating the shares of the company. Moreover, the copy of the investigation report said to be received from the Investigation Wing of the Department at Kolkata was not furnished to the assessee. On identical circumstances, this Tribunal in the case of Kanhaiyalal & Sons (HUF) [2019 (2) TMI 1640 - ITAT CHENNAI] has remitted back the matter to the file of the Assessing Officer for reconsideration.
This Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, orders of both the authorities below are set aside and the issue raised by the assessee with regard to deduction under Section 10(38) of the Act is remitted back to the file of the Assessing Officer. The Assessing Officer shall examine the matter as directed by this Tribunal in the case of Kanhaiyalal & Sons (HUF) (supra) and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee. Appeal assessee is allowed for statistical purposes.
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9911796707
