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Showing 201 to 220 of 14509 Records
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2020 (12) TMI 1213
Seeking the appellant and her daughter’s eviction from a residential house in North Bengaluru - case of appellant is that appellant is residing in her matrimonial home as the lawfully wedded spouse of the Fourth respondent and she cannot be evicted from her shared household, in view of the protection offered by Section 17 of the Protection of Women from Domestic Violence Act 2005 - Sections 3 and 4 of the Senior Citizens Act 2007 - HELD THAT:- In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and Reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal offence out of a woman’s subjection to cruelty by her husband or relative, the civil law did not address its phenomenon in its entirety. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would “provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.
A significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.
On construing the provisions of subSection (2) of section 23 of the Senior Citizen Act 2007, it is evident that it applies to a situation where a senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred. On the other hand, the appellant’s simple plea is that the suit premises constitute her ‘shared household’ within the meaning of Section 2(s) of the PWDV Act 2005 - The fact that specific proceedings under the PWDV Act 2005 had not been instituted when the application under the Senior Citizens Act, 2007 was filed, should not lead to a situation where the enforcement of an order of eviction deprives her from pursuing her claim of entitlement under the law. The inability of a woman to access judicial remedies may, as this case exemplifies, be a consequence of destitution, ignorance or lack of resources. Even otherwise, we are clearly of the view that recourse to the summary procedure contemplated by the Senior Citizen Act 2007 was not available for the purpose of facilitating strategies that are designed to defeat the claim of the appellant in respect of a shared household. A shared household would have to be interpreted to include the residence where the appellant had been jointly residing with her husband. Merely because the ownership of the property has been subsequently transferred to her in-laws (Second and Third Respondents) or that her estranged spouse (Fourth respondent) is now residing separately, is no ground to deprive the appellant of the protection that was envisaged under the PWDV Act 2005.
The claim of the appellant that the premises constitute a shared household within the meaning of the PWDV Act 2005 would have to be determined by the appropriate forum. The claim cannot simply be obviated by evicting the appellant in exercise of the summary powers entrusted by the Senior Citizens Act 2007. The Second and Third Respondents are at liberty to make a subsequent application under Section 10 of the Senior Citizens Act 2007 for alteration of the maintenance allowance, before the appropriate forum - Appeal allowed subject to directions issued.
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2020 (12) TMI 1212
Condonation of delay - Misc. Application filed by the assessee is late by 650 days - assessee wants to settle the issue under Vivad se Vishwas Scheme - HELD THAT:- The reasons for delay in filing present MA cannot be simply brushed aside, as the same are based on the facts narrated by the assessee and supported by an affidavit which deserve reasonable and lenient consideration in view of Rule 24 of the Income Tax (Appellate Tribunal) Rule 1963.
CBDT also explained vide Circular dated 4.12.2020 (supra) that MA pending as on 31st January, 2020 would also be covered under the Vivad se Vishwas scheme. In view of this, and coupled with the fact that the assessee has filed letter dated 4.12.2020 stating therein that the assessee wants to settle the issue under Vivad se Vishwas Scheme and the willingness of the assessee-company to avail the benefit of the scheme, which claim are supported by form No.1 and 2 (copies of which placed on record), we condone the delay in filing the MA., and allow the assessee for exercising option to avail benefit under VSV scheme. Considering the above facts and circumstances, the MA of the assessee is allowed and Registry is directed to list the appeal for hearing on 4th February, 2021.
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2020 (12) TMI 1211
Condonation of delay in filling rectification application - application under Vivad se Vishwas Scheme - HELD THAT:- The reasons for delay in filing present two MAs cannot be simply brushed aside, as the same are based on the facts narrated by the assessee and supported by an affidavit which deserve reasonable and lenient consideration in view of Rule 24 of the Income Tax (Appellate Tribunal) Rule 1963. In view of this, and coupled with the fact that the assessee has filed letter dated 3.11.2020 stating therein that the assessee wants to settle the issue under Vivad se Vishwas Scheme and wants to file declaration for settlement of the issue under appeal by the assessee, we condone the delay in filing the MAs., and allow the assessee for exercising option to avail benefit under VSV scheme. Considering the above facts and circumstances, the MA of the assessee are allowed and Registry is directed to list these cases for hearing on 20.1.2021.
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2020 (12) TMI 1210
Condonation of delay in filing application - Section 37(1)(b) of the Arbitration & Conciliation Act, 1996 - HELD THAT:- Section 37(1)(b) while providing for the appealable orders, refers to Section 34 in entirety and not to Section 34(2); though BGS SGS Soma JV supra has held that the order which is appealable thereunder is an order testing the arbitral award on the grounds set out in Section 34 but in our humble opinion if the intention of the legislature was to confine the appeals only to grounds under Section 34(2), nothing prevented them from, instead of referring to Section 34 generally in Section 37(1)(c), referring only to Section 34(2). We are of the view that sub-section (3) of Section 34, by use of the words 'but not thereafter', as interpreted in Union of India Vs. Popular Construction Co. [2001 (10) TMI 1044 - SUPREME COURT], restricts the power otherwise vested in Court to condone the delay beyond thirty days, the same also creates a ground of time bar for refusing to set aside the award and is part of the self-contained code for setting aside of the award; thus, refusal to set aside an award on the ground of the said time bar, would be a refusal within the meaning of Section 37 and appealable under Section 37. There is also merit in the contention of Mr. Rajshekhar Rao, Advocate for the appellant that refusal to condone the delay also entails affirmation of the underlying order.
By reading Section 37 as not permitting an appeal against refusal to condone the delay in applying for setting aside of the award, the persons aggrieved by the award are left with no remedy but to approach the Supreme Court by way of a petition under Article 136 of the Constitution of India. The refusal to set aside the award may not necessarily be by the Commercial Division of the High Court but may also be by the Commercial Courts of the country. No other remedy would be available to the persons aggrieved by the award, against the decision of any Commercial Court in the country refusing to condone the delay in applying for setting aside of the award, leaving such persons either with the option of accepting/remaining bound by the award even if having excellent grounds for setting aside of the same or of approaching the Supreme Court under Article 136 of the Constitution of India, thereby putting an avoidable burden on the Supreme Court which, as per the scheme of the Constitution of India, was envisaged to hear limited number of matters entailing constitutional issues and not to hear matters of condonation of delay.
Though undoubtedly the scheme of expediency and limited judicial intervention is ingrained in the Arbitration Act but at the same time it cannot be forgotten that the Act nevertheless provides remedies against the arbitral award and it is felt that to vest the order, of any Commercial Court in the country refusing to condone the delay in applying for setting aside of the award, and which delay can be for varying reasons as diverse as the social, geographical and economic conditions prevalent in this country, and not even providing any opportunity to the High Courts to have a look therein, would be a very harsh outcome.
Certificate under Article 133 read with Article 134A of the Constitution of India to the appellant is granted - appeal dismissed as not maintainable.
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2020 (12) TMI 1209
Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- The Registry shall also list all connected/cross special leave petitions filed by the Security and Exchange Board of India and other respondents.
In the meanwhile, without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval. Steps in this regard be taken within a period of one week from today.
For the time being, there will be stay of redemption payment to the unit holders.
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2020 (12) TMI 1208
Winding up proceedings of Mutual fund scheme - objections to the e-voting results - HELD THAT:- Permission to file special leave petitions is granted
Issue notice.Counter affidavit/reply be filed by the non-applicants/respondents within seven days.
Rejoinder affidavit, if any, be filed within seven days thereafter.
Service upon the unrepresented respondents is permitted through all modes including e-mails.
An apprehension is expressed on behalf of the SEBI that the last order recording that without prejudice to the rights and contentions of all parties, the trustees are permitted to call meeting of unit holders to seek their consent/approval could be misread and treated as a precedent. This it is stated would create difficulties.
We clarify that order [2020 (12) TMI 1209 - SUPREME COURT] has been passed in the peculiar facts and circumstances ofthe case and to expedite the hearing and decision in the present special leave petitions. The same should not be treated as a precedent in any other matter.
SEBI shall appoint an observer regarding the e-voting of unit holders which is scheduled between 26th December to 29th December, 2020. The result of the e-voting would not be announced and would be produced before us in a sealed cover along with the report of the observer appointed by the SEBI. SEBI would also file a copy of the final Forensic Audit Report before this Court in a sealed cover.
It is made clear that the trustees are undertaking the exercise of e-voting and SEBI in terms of our directions is appointing an observer.
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2020 (12) TMI 1207
Scope of Advance Ruling application - Classification of goods - Flavored Milk - to be classified under HSN 0402 99 90 or under 2202 99 30 or under any other Chapter? - HELD THAT:- It is an undisputed fact that the applicant supplies the impugned product under the brand name “Nandini”, to the owner of the said brand M/s. KMF, against whom an offence case is pending before DGGI, Bangalore.
The applicant themselves admitted that M/s KMF hold 90% shares and hence have management / administrative control over the applicant. M/s KMF are the owners of ‘Nandini’ brand, against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk. Thus it is very clear that the applicant, being the job worker to M/s KMF, becomes part of M/s KMF, as they also supply the same product of ‘flavoured milk’ and hence is bound to oblige the conclusion of the proceedings in this regard. Hence the pendency of the proceedings automatically applies to the applicant also. Therefore the instant application is liable for rejection, under first proviso to Section 98(2) of the CGST Act 2017.
The application is rejected as “inadmissible”, in terms of first proviso to Section 98(2) of the CGST Act 2017.
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2020 (12) TMI 1206
Scope of Advance Ruling application - Classification of goods - Flavored Milk - to be classified under HSN 0402 99 90 or under 2202 99 30 or under any other Chapter? - HELD THAT:- It is an undisputed fact that the applicant supplies the impugned product under the brand name “Nandini”, to the owner of the said brand M/s. KMF, against whom an offence case is pending before DGGI, Bangalore.
The applicant themselves admitted that M/s KMF hold 90% shares and hence have management / administrative control over the applicant. M/s KMF are the owners of ‘Nandini’ brand, against whom an offence case is pending before DGGI, Bengaluru on classification of flavoured milk. Thus it is very clear that the applicant, being the job worker to M/s KMF, becomes part of M/s KMF, as they also supply the same product of ‘flavoured milk’ and hence is bound to oblige the conclusion of the proceedings in this regard. Hence the pendency of the proceedings automatically applies to the applicant also. Therefore the instant application is liable for rejection, under first proviso to Section 98(2) of the CGST Act 2017.
The application is rejected as “inadmissible”, in terms of first proviso to Section 98(2) of the CGST Act 2017.
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2020 (12) TMI 1205
Profiteering - purchase of flat - allegation that the Respondent had not passed on the benefit of additional Input tax Credit (ITC) to the Applicants as well as other home buyers who had purchased Flats - violation of the provisions of Section 171 (1) of the Act - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of additional Input tax Credit (ITC) to the above Applicants as well as other homebuyers who have purchased them in his Project “Green Court” for the period from 01.07.2017 to 31.08.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 - It is also revealed from the perusal of the CGST Act and the Rules framed under it that the Central Government vide Notification No. 01/2020-Central Tax dated 01.01.2020 has implemented the provisions of the Finance (No. 2) Act, 2019 from 01.01.2020 vide which sub-section 171 (3A) was added in Section 171 of the CGST Act, 2017 and penalty was proposed to be imposed in the case of violation of Section 171 (1) of the CGST Act, 2017.
Since, no penalty provisions were in existence between the period w.e.f. 01.07.2017 to 31.12.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 04.02.2020 issued to the Respondent for imposition of penalty under Section 171 (3A) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1204
Purchase of flat - Vaseline VTM 400 ml - allegation that the Respondent had not passed on the benefit of reduction in the rate of tax to the Applicant by way of commensurate reduction in the price of the product - violation of the provisions of Section 171 (1) of CGST Act - Penalty - HELD THAT:- It has been revealed that the Respondent had not passed on the benefit of reduction in the rate of tax to the Applicant No. 1 and other customers by way of commensurate reduction in the price of the product “Vaseline VTM 400 ml” for the period from 15.11.2017 to 31.01.2018and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017 - It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the above Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the above Act as he had apparently issued incorrect or false invoice while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) is not covered under it as it does not provide penalty for not passing on the benefits of reduction in the rate of tax and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the above Act.
Penalty - HELD THAT:- Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.01.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 13.09.2018 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1203
Profiteering - Respondent had not passed on the benefit of rate reduction to the Applicant as well as other customers as per the provisions of Section 171 (1) of the CGST Act, 2017 - penalty - HELD THAT:- It has been revealed that the Respondent has not passed on the benefit of rate reduction to the above Applicant as well as other customers who had purchased various items from him during the period from 15.11.2017 to 31.01.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017.
It is also revealed from the perusal of the CGST Act and the Rules framed under it that no penalty had been prescribed for violation of the provisions of Section 171 (1) of the Act, therefore, the Respondent was issued show cause notice to state why penalty should not be imposed on him for violation of the above provisions as per Section 122 (1) (i) of the Act as he had apparently issued incorrect or false invoices while charging excess consideration and GST from the buyers. However, from the perusal of Section 122 (1) (i) it is clear that the violation of the provisions of Section 171 (1) was not covered under it as it does not provide penalty for not passing on the benefit of rate reduction and hence the above penalty cannot be imposed for violation of the anti-profiteering provisions made under Section 171 of the Act.
Since, no penalty provisions were in existence between the period w.e.f. 15.11.2017 to 31.01.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 01.10.2018 issued to the Respondent for imposition of penalty under Section 122 (1) (i) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.
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2020 (12) TMI 1202
Profiteering - supply of Services by way of admission to exhibition of cinematograph films where price of admission ticket is one hundred rupees or less - allegation that the reduction in the rate if GST not passed on - contravention of section 171 of CGST Act - penalty - Whether there was any reduction in the GST rate and whether the benefit of reduction in the rate of tax was passed on or not to the recipients as provided under Section 171 of the CGST Act, 2017? - HELD THAT:- It has been revealed that the Central and the State Governments had reduced the rates of GST on “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees” from 28% to 18% and “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less” from 18% to 12% w.e.f. 01.01.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018, the benefit of which was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the above Act.
The Respondent has resorted to profiteering by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on “Services by way of admission to exhibition of cinematograph films where price of admission ticket is one hundred rupees or less” from 18% to 12% w.e.f. 01.01.2019 to 30.06.2019. On this account, the Respondent has realized an additional amount to the tune of ₹ 2,23,850/- from the recipients which included both the profiteered amount and GST on the said profiteered amount. Thus the profiteering is determined as ₹ 2,23,850/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017. The Respondent is therefore directed to reduce the prices of his tickets as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients.
The Respondent is also directed to deposit the profiteered amount of ₹ 2,23,850/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of ₹ 1,11,925/- in the Central Consumer Welfare Fund (CWF) and ₹ 1,11,925/- in the Telangana State CWF as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest. The above amount shall be deposited within a period of 3 months from the date of receipt of this Order failing which the same shall be recovered by the Commissioner CGST and SGST as per the provisions of the SGST Act, 2017.
This Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of SGST Telangana to monitor this Order under the supervision of the DGAP by ensuring that the amount profiteered by the Respondent as Ordered by the Authority is deposited in the respective CWFs. A report in compliance of this Order shall be submitted to this Authority by the DGAP within a period of 3 months from the date of receipt of this Order - As per the provisions of Rule 133 (1) of the CGST Rules, 2017 this Order was required to be passed within a period of 6 months from the date of receipt of the Report furnished by the DGAP under Rule 129 (6) of the above Rules. Since the present Report has been received by this Authority on 30.10.2019, this Order was to be passed by 29.04.2020. However, due to the prevalent pandemic of COVID-19 in the country, this Order could not be passed before the above date due to force majeure. Accordingly, this Order is being passed today on 17.11.2020 in terms of the Notification No. 65/2020- Central Tax dated 01.09.2020 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Indirect Taxes and Customs under Section 168 A of the CGST Act, 2017.
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2020 (12) TMI 1201
Revision u/s 263 - Characterization of income - As per CIT AO has not satisfied itself that the assessee was engaged in the business of purchase and sale of plots and has not brought any material on record to show that investment in the property was made for the purposes of trading - income assessed as income from business in respect of sale of properties as income from capital gains to disallow interest on loan of purchase of property as deduction from sale consideration, to direct the Assessing Officer to adopt guidance value of sub registrar in respect of one property as deemed sale value and to bring to tax the difference and to allow deduction under Section 80C - HELD THAT:- Commissioner of Income Tax as well as the tribunal has failed to appreciate that the Assessing Officer had put 36 questions to the assessee to ascertain the nature of business of the assessee and from perusal of questions Nos.16 and 18, it is evident that the aforesaid questions specifically pertain to issue of classification of income.
It is pertinent to note that several notices were issued to the assessee and detailed hearings were conducted and the Assessing Officer in its order has mentioned the details of all the properties with dates of purchase and sale and from perusal of the same, it is evident that the properties were brought and sold within a maximum period of 20 months, from which it is evident that the assessee was engaged in real estate business. Assessing Officer has conducted sufficient enquiry as required under Explanation 2(a) to Section 263 and there was material available on record to arrive at a conclusion, which was recorded by the Assessing Officer. It is trite law that merely because a different view can be taken, the powers under Section 263 of the Act cannot be invoked - Decided in favour of assessee.
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2020 (12) TMI 1200
Exemption u/s 10(23C)(iv) denied - activities of the assessee Trust as hit by the proviso to section 2(15) - according to AO assessee’s activities of providing food and beverages, accommodation against which charges are made from the members and non-members constitute commercial activities and therefore according to the AO the activities of the assessee Trust are not governed by the proviso to section 10(23C)(iv) - HELD THAT:- We have gone through the record in the light of the submissions made on either side. Record reveals that the main reasons of denying exemption u/s 10(23C)(iv) of the Income Tax Act by the learned Assessing Officer is that the activities of the assessee Trust are hit by the proviso to section 2(15) and according to the learned Assessing Officer, assessee’s activities of providing food and beverages, accommodation against which charges are made from the members and non-members constitute commercial activities and therefore according to the Assessing Officer, the activities of the assessee Trust are not governed by the proviso to section 10(23C)(iv) of the Act. Ld. Assessing Officer has also noted that although the assessee claims that it is working on “no profit and no loss basis”, yet the income and expenditure account of the assessee Trust reveals that it earning surplus year after year.
Reasons for denying the exemption by the learned Assessing Officer in 2013-14 and 2014-15 or identical to the reasons recorded for earlier years, namely, Assessment Year 2009-10 by the learned DIT in his order u/s 263 of the Income Tax Act and thereafter, on the identical grounds and by making similar observations the exemption has been denied. It is also not in dispute that the order u/s 263 for the Assessment Year 2009-10 was quashed by a coordinate Bench of this Tribunal [2015 (5) TMI 515 - ITAT DELHI] wherein it was held that the activities of the Trust of providing accommodation and food and beverages etc. does not constitute commercial activities and activities of the Trust are not hit by any proviso to section 2(15) of the Act.
There is no denial of the fact contended by the Ld. AR that though Revenue carried the matter in appeal to the Hon’ble Delhi High Court, such an appeal was dismissed by Hon’ble High Court. Further there is no denial of the contention of the assessee that the order of the Tribunal for the Assessment Year 2009- 10 was followed another Bench of this Tribunal in Assessment Year 2011-12 [2017 (10) TMI 1410 - ITAT DELHI] against which the Revenue challenged before dismissed by Hon’ble Supreme Court in SLP due to low tax effect.
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2020 (12) TMI 1199
Reopening of assessment - addition u/s 68 - Information was received from the investigation wing regarding the assessee was beneficiary of the accommodation entry - HELD THAT:- As perused the order passed by the Revenue Authority especially assessment order and we are of the view that no doubt there is information from the investigation wing. But in this case no enquiry has been conducted by the Assessing Officer and the said information could not be said to be the tangible material. Therefore, on this ground reassessment was not justified. See RMG POLYVINYL (I) LTD. [2017 (7) TMI 371 - DELHI HIGH COURT]
Case of the assessee was reopened on the basis of information received from the Investigation wing but the Assessing Officer has not made any enquiry on this information and reopened the case of the assessee and made the addition in dispute and completed the assessment. Similarly learned First Appellate Authority has also upheld the assessment order. In our view it is contrary to the various decision rendered by the Hon’ble Delhi High Court. Therefore, the reassessment on the basis of said information is not justified and legally valid, we quash the assessment order - Decided in favour of assessee.
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2020 (12) TMI 1198
Addition u/s 68 - Unexplained cash creditors - onus to prove - HELD THAT:- A perusal of the material on record shows that the entire sum credited stands explained with reference the creditor's existing capital and/or current income. No verification of the same was however done by the AO. In fact, as explained by Sh. Bardia during hearing, the production of the creditors by the assessee was sought by the AO in the assessment proceedings as an alternate to the submission of an explanation in writing - Even so, the assessee, despite furnishing documentary evidences, offered to produce the creditors, and for which he referred to the assessee's communications to the AO dated nil and 07/12/2017 - It was for this reason that we have opined that the impugned credits are to be regarded as explained upon confirmation of the claims not clarified with reference to the material on record.
Our decision, it may be appreciated, is in complete agreement with Metachem Industries [1999 (9) TMI 21 - MADHYA PRADESH HIGH COURT] by the jurisdictional High Court, wherein it stands held that once it is established that it is the creditors' money that has found its way in the books of the assessee, no adverse inference u/s. 68 could be drawn in its respect in the case of the assessee. The said establishment, it may be though clarified, is to be, in terms of the settled law, not on the basis the creditors' identity alone, as where the sum credited is shown to originate from his bank account, but also his capacity as well as the genuineness of the credit transaction.
Assessment is bad in law inasmuch as the same is not u/s. 153C as the filing of the return of income for the year on 26/9/2015 was followed by a search u/s. 132(1) at the premises of Sh. Tara Chand Khatri, loose papers and documents from whose residence relating to the assessee were found and seized - We are wholly unable to appreciate the assessee's case in this regard. A seizure of a document pertaining to the assessee would not by itself give rise to the jurisdiction to the AO to proceed u/s. 153C by issuing notice u/s. 153A. The same could only be on the AO being positively satisfied as to the said material having a bearing on the assessee's income for a specified year/s. There is no whisper of any reliance by the AO on the said material while assessing the assessee's income for the relevant year, or even in the appellate proceedings. Now it could be nobody's case that the AO ought to be necessarily so satisfied - a matter of fact, and which therefore is to be demonstrated, and, further, without in any manner stating, much less showing, the basis thereof, even as there is nothing on record, nor any pointed out, to exhibit the said satisfaction. The provision, as its' reading would show, is for the benefit of the Revenue, providing it additional time to frame an assessment in search and search-related cases. No case stands made out, with there even being no reference to any such material relied upon in determining the assessee's income even during hearing. The assessee's challenge is without any basis on facts and in law
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2020 (12) TMI 1197
Capital gain - collaboration agreement entered by assessee for a property - indexation of the cost the capital gain chargeable in the hands of the assessee - whether the transfer took place in Assessment Year 2007-08 as claimed by the Revenue or in Assessment Year 2009-10 as claimed by the assessee? - HELD THAT:- Hon'ble Supreme Court in the case of Balbir Singh Maini [2017 (10) TMI 323 - SUPREME COURT] held that the execution of unregistered Joint Development Agreement with an irrevocable Power of Attorney in favour of the Developer does not result in the "transfer" for capital gains liability.
The agreement in the present case is not registered one, it does not have any impact in the eye of law for the purpose of Section 53A of the transfer of property act and similarly for defining transfer Under the income tax act. Therefore In the present case, the Collaboration Agreement was never registered. Therefore, the presumption of delivery of possession to the Collaborator cannot be assumed on signing the Collaboration Agreement, i.e., in AY 2007-08.
Even otherwise the assessee has offered the above capital gain in assessment year 2009 – 10, which is the property for the assessment of the transfer of capital asset and consequent capital gain in view of the decision of the honourable Supreme Court as stated above.
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2020 (12) TMI 1196
Revision u/s 263 - LTCG - Assessee eligible for deduction u/s 54 - expenses incurred for furniture and Air Conditioners while constructing the residential house property - HELD THAT:- So far exercising of powers u/s 263 of the Act is concerned, we find no infirmity in the order of Ld. PCIT as the Assessing Officer has wrongly allowed the claim without examining that how much deduction can be allowed. Ld. Counsel for the assessee argued that this order could be rectified by the Assessing Officer u/s 154 of the Act. However Ld. Counsel for the assessee did not bring to our notice any such action being taken by the Assessing Officer. Hence on this ground revision of the order is justified.
Adoption of the cost of acquisition of new asset - A residential house may have many other things, other than civil construction and including things like furniture and fixtures, as its integral part and may also be on sale as an integral deal. Further if these things are integral part of house being purchased, the cost of house has to essentially include the cost of these things as well. In such circumstances, what is to be treated as cost of the residential house is the entire cost of house and it cannot be open to the Assessing Officer to treat only the cost of only civil construction as cost of house and segregate the cost of other things as not eligible for deduction u/s 54. In this case it was not a composite deal, we find that the Ld. PCIT has also considered these case laws. However it is not clear whether the assessee had entered into with a contract with the contractor that included the cost of furniture and other fixtures. Ld. PCIT has also not brought any such evidence on record. Under these facts we modify the direction of Ld. PCIT to the extent that the Ld. Assessing Officer would allow the expenses incurred for furniture and Air Conditioners if it is part and parcel of the contract for construction of new house. This ground of the assessee is partly allowed.
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2020 (12) TMI 1195
Rectification of mistake - Reopening of assessment on basis of audit objection raised by Revenue Audit Party - HELD THAT:- DR could not controvert the fact that before Hon'ble High Court of Madhya Pradesh it was stated on behalf of the Revenue that the assessment was not re-opened on the basis of audit objection. Hence, the Revenue has contrary stand. We therefore dismiss the Miscellaneous Application of Revenue.
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2020 (12) TMI 1194
Revision u/s 263 - Exemption u/s 11 eligibility - dividend income received by assessee trust - HELD THAT:- As decided in Sir Dorabji Tata Trust [2020 (12) TMI 1121 - ITAT MUMBAI] observations so made by the learned Commissioner show that he has not even applied his mind to the undisputed facts of the case. If he had cared to look at paragraph 8 of the subject assessment order, he would have noticed that the Assessing Officer has already included the dividend income in the available gross receipts of the assessee trust and examined the application of the said income. That is beside the point that such an action was contrary to the claim of the assessee that once this income is held to be exempt under section 10(34), it cannot be brought to taxation under section 11 of the Act, and the rejection of the said claim is the subject matter of assessee’s appeal before the CIT(A).
Clearly, what was being directed by the learned Commissioner was already done by the Assessing Officer, and, therefore, these directions clearly show that there was a clear and glaring non- application of mind to even undisputed material facts of the case. We, therefore, cannot approve justification of the subject assessment order being held to be ‘erroneous and prejudicial to the interests of the revenue’ for this reason as well. No other reason is pointed out to us.
In view of the detailed reasons set out above, as also bearing in mind the entirety of the case, we hold the impugned revision order as devoid of legally sustainable merits. We, therefore, quash the impugned revision order.
Respectfully following the views so taken, we hold that the impugned revision order is devoid of any legally sustainable merits. Accordingly, we hereby quash the impugned revision order - Decided in favour of assessee.
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