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Showing 221 to 240 of 16576 Records

2021 (12) TMI 1309

Seeking time for reply to the order - HELD THAT:- At request, time is granted. One week time is granted to file reply in the matter and copies of the reply shall be served on the Counsel on record for the Respondent. List this matter for further consideration on 16.12.2021 as a specially ordered matter.

In the mean time, both sides shall have precipitate himself and shall maintain status quo until the hearing of Petition.
2021 (12) TMI 1308

Condonation of delay in filing the revocation application - compliance with all the requirements of paying the taxes, interest, penalty and late fee, as may be due - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, penalty and late fee as may be due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.

A down-loaded copy of this order will be produced by the Petitioner before the proper officer, and subject to the Petitioner complying with the above conditions, the proper office will open the portal to enable the Petitioner to file the GST return - If any appeal has been filed in the meanwhile, obviously such appeal has been rendered infructuous as a result of this order and the Appellate Authority will accordingly be informed by the Petitioner.

Petition disposed off.
2021 (12) TMI 1307

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - the main matter is referred to third Bench by the order of Hon'ble President and further orders require from Hon'ble President only - HELD THAT:- Pending hearing of main CP and since claim of all stakeholders are required to be considered when this Adjudicating Authority cease with main petition, we direct to maintain status quo relating to all assets of the Corporate Debtor as on today.

Application disposed off.
2021 (12) TMI 1306

Seeking grant of Bail - creation of fake firm for tax evasion - offence u/s 132 (1)(a), (f),(h),(j),(1) of Central Goods and Services Tax Act, 2017 - HELD THAT:- It is admitted position that the M/s Miraj Products Private Limited had evaded the tax. GST department had seized the one truck which was being unloaded at their premises. Department had collected data till today, tax evasion of ₹ 869 Crore. As per version of learned counsel for the petitioner, they had deposited ₹ 60 Crore as a protest. If they had not evaded the tax, then there would have been no occasion to deposit of ₹ 60 Crore as a protest.

Apex Court in various pronouncement held that the economic offender should not be dealt as general offender because economic offenders run parallel economy and they are serious threat to the national economy. So, after considering the submission put-forth by learned counsel for the parties and in the facts and circumstances of the present case and also looking to the seriousness of the offence(s) alleged against the petitioner without expressing any opinion on the merits of the case, it is not a fit case to enlarge the petitioner on bail under Section 439 Cr.P.C.

Bail application dismissed.
2021 (12) TMI 1305

Seeking grant of bail - generation of fake bills for passing ITC - similarly situated co-accused Praveen Jangir has been enlarged on bail by co-ordinate Bench of this court - HELD THAT:- In the facts and circumstances of the present case and looking to the seriousness of the offence(s) alleged against the petitioner without expressing any opinion on the merits of the case, it is not considered a fit case to enlarge the petitioner on bail under Section 439 Cr.P.C.

This bail application stands dismissed.
2021 (12) TMI 1304

Hearing of the matter - HELD THAT:- Matter is adjourned to 15.12.2021. In the meantime, the petitioner, without prejudice to his rights, shall deposit sum of ₹ 20,00,000/-(Rupees Twenty Lakhs) with the concerned authority.

Necessary instructions be obtained by learned Assistant Government Pleader on the next adjourned date.
2021 (12) TMI 1303

TDS u/s 194A - Addition u/s 40(a)(ia) - assessee did not discharge the required onus and failed to file Form 26A which justify the confirmation of impugned disallowance - HELD THAT:- As decided in case of M/s Royal India Gems & Jewels Pvt. Ltd.[2018 (9) TMI 2072 - ITAT CHENNAI] by virtue of the judgment of Hon’ble Delhi High Court in the case of Ansal Land Mark Township P. Ltd (supra), first proviso to Section 201(1) as well as proviso to Section 40(a)(i) of the Act had to be construed retrospectively. Considering the facts and circumstances of the case, we are of the opinion that issue requires a fresh look by the ld. Assessing Officer. Ld. Assessing Officer can use the powers vested on him for getting the required information from M/s. Reliance Capital Ltd, so as to ascertain whether they had included the interest paid by the assessee, as a part of their income and filed return after paying due taxes.

We find that the assessee could escape the rigors of Sec.40(a)(ia) in terms of second proviso to Section 40(a)(ia) read with first proviso to sub-section (1) of Section 201 by demonstrating that the payee had duly offered the payment in their Income tax returns and paid due taxes thereon. In such a case, no disallowance u/s 40(a)(ia) is called for. As per the submissions of Ld. AR, the assessee could demonstrate the fulfillment of these conditions and is ready to file the requisite certificate / declaration from the payee. Therefore, we deem it fit to restore the matter back to the file of AO on similar lines as above to provide an opportunity to the assessee to demonstrate fulfillment of these conditions by adducing requisite documentary evidences - Appeal stand allowed for statistical purposes.
2021 (12) TMI 1302

Refund claim of excise duty - rejection on the ground of time limitation as the same was filed after stipulated time period of one year from the relevant date - goods were eligible for exemption Notification No. 108/95-CE dated 28.08.1995 - HELD THAT:- The stand of the appellant is that the duty which was paid not actually payable in terms of N/N. 108/95-CE therefore, the amount paid is not duty but deposit accordingly, the time limit as provided under Section 11B would not apply.

There is no dispute that at the time of clearance of the goods, the appellant have paid the excise duty subsequently, they realize that duty was not payable in terms of N/N. 108/05-CE however, the nature of duty so paid would not change, it is the duty only which was paid by the appellant and when it is so then the limitation provided under Section 11B would clearly apply. As the fact reveals that the refund claim was filed beyond one year from the relevant date, the same is time bar.

This Tribunal being creature under the statute is governed by the same statute wherein statutory time limit has been provided under Section 11(B), therefore, the statutory time limit provided by the act cannot be ignored. Their Lordships in the various High Courts have inherent power to relax the time limit but this Tribunal has no power to do the same - the refund being clearly time bar, was rightly rejected by the lower authorities.

Appeal is dismissed.
2021 (12) TMI 1301

Detention of goods alongwith vehicle - goods and the conveyance were accompanied by E-way Bills and Invoices, however doubting the genuineness of the cosigner and consignee both, the detention order was passed - HELD THAT:- On a query raised by the Court learned AGP, Maithili Mehta is not sure as to whether the adjudication has been finally made by the concerned officer or is it a Mobile Squad Officer, who has on the spot decided the issue.

Issue Notice, keeping the right of the respondent open of agitating the issue of alternative remedy, making it returnable on 09.12.2021.
2021 (12) TMI 1300

Jurisdiction - proper officer - case of petitioner is that it is the sine qua non that the officer who issues the show cause notice under Section 74(1) of CGST Act, has to be perforce a ‘proper officer’ - HELD THAT:- In terms of Board’s Circular No.31/05/2018-GST dated 09.02.2018, more particularly in paragraph No.4 thereof, it is clarified that all officers up to the rank of Additional / Joint Commissioner of Central Tax are assigned as the ‘proper officer’ for issuance of show cause notices and orders under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Sections 73 and 74 of the CGST Act, corresponding to Section 3 read with Section 20 of the IGST Act. As per the table appended thereto, Additional or Joint Commissioner of Central Tax have been assigned functions as the ‘proper officer’, and the monetary limit of the said officers for issuance of show cause notice and orders under Sections 73 and 74 of the CGST Act and Section 20 of the IGST Act, in the case of central tax and integrated tax not paid, or short paid, or erroneously refunded, or input tax credit of central tax and integrated tax wrongly availed of or utilized, is above ₹ 2,00,00,000.00 (Rupees two crores).

Admittedly the monitory limit in the present case is above ₹ 2,00,00,000/- (Rupees two crores). In such circumstances, and having regard to the above, it cannot be said with any degree of certainty that respondent No.4 is not the ‘proper officer’ competent to issue the impugned show cause notice.

The issue before the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] was completely different and distinct from what is being canvassed by learned counsel for the petitioner to support his contention that respondent No.4 is not the ‘proper officer’ under Section 74(1) of the CGST Act.

The writ petition is dismissed.
2021 (12) TMI 1299

Applicability of GST - transactions of sale of vouchers - the vouchers traded by the Appellant are goods or actionable claims - Whether the vouchers themselves, or the act of supplying them is taxable, and at what stage, for each of the three categories of transactions undertaken by the Appellant? - rate of tax at which this would be taxable i.e what category would this be taxed under - HELD THAT:- The vouchers in question are undoubtedly payment instruments recognised by RBI. The question is however, whether these vouchers can be considered as 'money'. The finding of the lower Authority is that these vouchers are not used by the Appellant to settle an obligation and hence cannot be considered as 'money' ; that it takes on the colour of money only when it is redeemed by the beneficiary at the time of purchase of goods and/or services - The voucher in the hands of the Appellant, does not settle an obligation but rather creates an obligation. The settlement of the obligation occurs at the time when the ultimate beneficiary uses the voucher to purchase goods and/or services. The definition of money also makes it clear that it is only when the payment instrument is used as consideration to settle an obligation, does it qualify as 'money'. This occurs only when the voucher is redeemed. Until then it is just an instrument recognised by the RBI but is not ‘money'. Therefore, the voucher in the hands of the Appellant cannot be termed as 'money'.

In the instant case, the definition of goods in the CGST Act is much more explicit and states clearly what goods mean, what is excluded from the meaning of goods and what is included in the meaning. Further, the nature of the transaction in the case before us is different from the nature of the transaction by Sodexo in as much as the Appellant is clearly not the issuer of the vouchers nor is he authorized by RBI to issue vouchers. The Appellant is buying vouchers from entities authorized to issue them and is selling the same to his clients. In other words, the Appellant is purely trading in vouchers - the vouchers being traded by the Appellant are in the nature of goods.

The supply of vouchers by the Appellant is a supply of goods in terms of Section 7 of the CGST Act - on the aspect of value of the vouchers for the purpose of GST, the rate of tax and the time of supply of the vouchers by the Appellant. Since the Appellant is not the issuer of the voucher, the provisions of time of supply under Section 12(4) will not apply and the time of supply will be governed by the provisions of Section 12(5) of the CGST Act.
2021 (12) TMI 1298

Classification of services - principal supply or not - services of coaching to students which also includes along with coaching, supply of goods/printed material/test papers, uniform, bags and other goods to students - what shall be the value of service provided by Applicant (REL) to students and by channel / network partner to Applicant (REL)? - eligibility of Input Tax Credit - HELD THAT:- In the instant case, supply of a package consisting of coaching service as well as goods/printed material/test papers, uniform, bags and other goods to students when supplied for a single price is constitute a mixed supply as each of these items can be supplied separately and is not dependent on any other.

Whether such supply of coaching services shall be considered as composite supply under section 2(30) of CGST Act, 2017? If yes what shall be the principal supply as per section 2(90) of CGST Act, 2017? - HELD THAT:- In the instant case, the applicant along with coaching services provides goods in the form of uniforms, bags, umbrellas, study material etc. These goods and services can be supplied separately and are not dependent on any other. Thus, the Supply in question shall qualify as 'mixed supply'. Further, it is clear that there are supplies of goods as well as services of various classification (i.e. HSN/SAC) having various tax rates which constitutes the predominant element of a mixed supply. Thus, in the present case, the supply is a mixed supply of goods as well as services and highest rate of tax is 18%.

Applicant provides coaching services under a new business model through Channel / Network Partners as per sample agreements attached, containing obligations of Applicant (REL) and such channel / Network partners. According to agreement, the channel / network partner provides the services to the students on behalf of Applicant. In such a situation, who shall be considered as supplier of coaching (REL) service and recipient of such service under the agreement? - HELD THAT:- Where coaching services are provided by the applicant to the students, students shall be regarded as 'recipient' as consideration is payable by the students to the applicant. Similarly, Network partner shall be regarded as provider of service to the applicant (recipient). The place of supply in both the cases (i.e. services provided to the students and service provided to the applicant by the network partner).

What shall be the value of service provided by Applicant (REL) to students and by channel / network partner to Applicant (REL)? - HELD THAT:- The applicant has been incurring the cost of goods i.e. printed material test papers, uniform, umbrellas, bags and other goods etc.) and service (coaching service etc.) supplied to the students, therefore, in light of Sections 15 of the Act, the values of goods and value of service shall be the value of supply as charged in lump sum amount by the applicant from the students.

Whether the Applicant (REL) shall be eligible to avail Input Tax Credit (ITC) for the supplies? - HELD THAT:- Yes, as per Section 16 of the CGST Act, 2017, the applicant shall be eligible to take ITC of the GST paid on goods or services used or intended to be used in the course or furtherance of business subject to the conditions as prescribed and the provisions of the Section 17 of the CGST Act, 2017.
2021 (12) TMI 1297

Seeking grant of bail - fake issuance of GST invoices without actual supply and receipt of goods - Section 132 of the CGST Act, 2017 - HELD THAT:- It is to be noted that both additional places of business of two recipients of M/s. SRK Ventures i.e., M/s. Wonderkids Metrics Pvt. Ltd., and M/s. Suumaya Retail Ltd., are same therefore, it appears that M/s. Suumaya Retail Ltd and M/s. Wonderkids Metrics Pvt Ltd., are mutually interlinked and it further appears that all the three entities 1) M/s. Rangoli Tradecomm Ltd. (now known as M/s. Suumaya Corporation Ltd.), M/s Suumaya Retail Ltd., and M/s. Wonderkids Metrics Pvt. Ltd., are mutually interlinked and the same has been admitted by the applicant Sushil Dilipkumar Mehta in his voluntary statement and therefore, applicant no.1 with the help of other applicants has created M/s. SRK Ventures and its suppliers as well as the recipients companies are created for name sake for bogus supply without actual movement of goods and all the companies are being operated by the same person and therefore, this is nothing but contravention of section 132(1)(b) of CGST Act, 2017, which is mandatory to show the turnover and same has been initiated by the applicant in the category of (taxable service) in CGST on return for the month of April, 2021. The goods are not entitled for exempted services.

This is nothing but huge loss to the Government. This is nothing but while collar crime which needs to be investigated in detail. The investigation is at crucial stage. More than 5000 invoices are included which are used as bogus invoices and needs to be recovered at the instance of applicants. Applicant nos.2 and 3 have supported the applicant no.1 in this conspiracy of evasion of taxes.

Considering the seriousness and gravity of the economic offence in which ₹ 48 crores evasion of taxes at the instance of applicants, investigation is at crucial stage, chance to tamper prosecution evidence and flee over justice, it is held that all the applicants does not deserve sympathy for enlargement on bail - Bail application dismissed.
2021 (12) TMI 1296

Reopening of assessment u/s 147 - non passing of speaking order - petitioner has not been filed a reply to Section 143(2) notice - HELD THAT:- Assessment orders have to be passed within the time. Therefore, no fault can be found with the respondent as otherwise entire exercise taken would have lapsed due to limitation.

The fact remains that the petitioner has also sent a representation/objection on 28.12.2018, the date on which the Impugned Orders have been passed without a speaking order proceeding these orders.

As the Impugned Assessment Orders are quashed and the cases are remitted back to the respondent to pass a speaking order in terms of the decision in GKN Driveshafts (India) Limited Vs. Income Tax Officer and Ors [2002 (11) TMI 7 - SUPREME COURT] and to thereafter pass appropriate Assessment Order. Since the dispute pertains to the Assessment Years 2010-2011 and 2011-2012, the respondent may pass a speaking order preferably within a period of thirty (30) days from the date of receipt of a copy of this order based on the representation/objection filed by the petitioner on 28.12.2018 in accordance with law and on merits. The respondent shall pass Assessment order within a period of thirty (30) days thereafter.
2021 (12) TMI 1295

Disallowance of delayed deposit of employees contribution to provident fund and Employees state Insurance scheme - HELD THAT:- We find for the month of December, 2016 of employees’ contribution towards provident fund which was required to be deposited according to the respective Provident Fund Act on or before 15th January, 2017 was deposited on 16th January, 2017. The Ministry of Labour and Employment has issued a letter dated 12/01/2017 wherein as a special case due to the problems on the portal on allotment of UAN, the due date for payment of contribution for the month of December, 2016 was extended upto 20th January, 2017. Assessee has already deposited the same on 16th January 2017, therefore, there is no delay in payment of employees’ contribution of provident fund for the month of December, 2016. Therefore, the disallowance is incorrectly confirmed by the learned CIT(A).

With respect to the employees contribution to ESIC undisputed facts shows that though such contribution is deposited after the due date prescribed under the respective law, but before filing of the return of income. We find that identical issue is GHATGE PATIL TRANSPORTS LTD. [2014 (10) TMI 402 - BOMBAY HIGH COURT] which is the jurisdictional High Court wherein it has been held that both employees and employer’s contribution are covered under the amendment to section 43B of the Act relying on the decision of the Hon’ble Supreme Court in CIT vs Alom Extrusions Ltd [2009 (11) TMI 27 - SUPREME COURT] and therefore, if such payments are made on or before the due date of filing of the return of income, same are not disallowable. We find that instead of following the decision of jurisdictional High Court, the learned CIT(A) has followed the decision of non jurisdictional High Court, that is, Gujarat High Court.GUJARAT STATE ROAD TRANSPORT CORPORATION [2014 (1) TMI 502 - GUJARAT HIGH COURT] - As the jurisdictional High Court decision squarely covers the issue in favour of the assessee, we direct the learned assessing officer to delete the disallowance on account of delayed payment of employees’ contribution to ESIC. - Decided in favour of assessee.
2021 (12) TMI 1294

Unexplained expenditure u/s 69C - difference of balances of creditors - HELD THAT:- Provisions of section 69 C of the Act provide if assessee for which no explanation incurs any expenditure or unsatisfactory explanation is provided. In the impugned appeal, there is no evidence that the difference in the credit balance in the books of assessee with the debit balance in the books of creditor is an expenditure incurred by assessee during financial year. It is not the case of the revenue that creditor has received sum but it are not recorded in books of assessee as payment. Therefore, according to us provision of section 69C cannot be attracted in this case, unless revenue brings on record any proof of incurring such expenditure. Hence, we reverse the orders of lower authorities and direct ld AO to delete the addition made u/s 69C of the Act. Accordingly, Ground no 1 of the appeal of the assessee is allowed

Disallowance of interest paid by the assessee on the pretext that assessee has given loans and advances to its employees without charging any interest and, therefore, interest to that extent is not allowable under section 36(1)(iii) - HELD THAT:- The natures of advances are festival loans, medical advances, educational advances and personal loans. Looking into the nature of the operation of the company where the employee benefit expenses are incurred and the annual turnover is shown, amount of advances to the staff is in the nature of business advances. The assessee has also stated that advances are given in accordance with the company policy. Therefore, we find that advances given by the assessee are for the purposes of the business. It can also not said that there is an absence of business expediency in giving loans to staff. There is no contrary evidences recorded by the lower authority that advances given to the staff are bogus or for any non-business purposes and is not in accordance with the nature of business policy of the assessee as well as the custom of the trade. In view of this, the amount disallowed by AO and confirmed by the learned CIT(A) is unsustainable. Accordingly, we reverse the orders of the lower authorities and direct the assessing officer to delete the above disallowance.
2021 (12) TMI 1293

Rectification of mistake u/s 154 - disallowance u/s 43B - HELD THAT:- Auditors have specifically answered as “NO” to the question as to whether any Sales Tax/GST, Customs Duty, Excise Duty or any indirect tax has been passed through profit & loss account. In response to intimation u/s 143(1), the assessee submitted that GST payable was not routed through the profit & loss account and therefore, disallowance u/s 43B was not warranted but these contentions were not accepted. The assessee also filed application u/s 154 mentioning the facts of the case.

The application u/s 154 was also rejected and aggrieved by the intimation u/s 154, the assessee filed this appeal. I find that the documents placed on record prove that the GST outstanding declared in the balance sheet was not routed through the profit & loss account and therefore, the addition sustained by learned CIT(A) u/s 43B is not warranted. In the case of CIT vs. S. B. Foundry [1990 (4) TMI 43 - ALLAHABAD HIGH COURT] has dismissed the appeal of the Revenue wherein under similar circumstances the additions were made by the Assessing Officer and Appellant Assistant Commissioner had deleted the same which were confirmed by the Tribunal.

As decided in INDIA CARBON LIMITED VERSUS INSPECTING ASSISTANT COMMISSIONER OF INCOME-TAX AND ANOTHER [1992 (9) TMI 83 - GAUHATI HIGH COURT] in the instant case, the question was whether section 43B would apply and not the question whether or not the sales tax collected formed part of the business or trading receipts. What would be the effect of showing such sum as payable by way of tax on the liabilities side in the balance sheet without actually paying the same was a different question. The petition, was, therefore, allowed and the addition was quashed. - Decided in favour of assessee.
2021 (12) TMI 1292

Deduction u/s 80IA - Deduction in respect of Land Fill project No.I by holding it as not a new undertaken - HELD THAT:- We are of the view that once, the assessee has fulfilled all the conditions as laid down in section 80IA(4) of the Act and was allowed deduction in the earlier assessment years in respect of land fill project No.I in AY 2002-03 that is in the initial year, therefore, deduction under section 80-IA in respect of the infrastructure facility should have been allowed to the assessee.

So far as the objection of the Ld. Sr DR for the revenue is concerned that the assessee has made agreement with GIDC only after the claim of the assessee was disallowed by A.O and at the time of establishment of Land fill Project –II, no new establishment came in to existence. The nature of work being done by both the project is identical, therefore, the claim of the assessee based on the backdate agreement cannot be considered. We find that the submissions of the Ld. DR for the revenue is based on the finding of Ld. CIT(A). The assessee has entered into a separate agreement dated 16th October 2012 with GIDC with effect from 12th March 2007 and commenced its Land Fill Project-II in FY 2006-2007 and claimed deduction under section 80-IA of the Act from AY 2008-09 since the said unit is a separate infrastructure facility. Thus, Land fill II is a distinct and separate undertaking from Landfill I. In the result, the assessee succeeds on this ground of appeal.

Land fill project No. I and land fill project-II are not separate undertaking for deduction under section 80IA(4) - As brought to our notice that the assessee has also entered into a separate agreement dated 16th October 2012 with GIDC with effect from 12thMarch 2007. The assessee had commenced its Land Fill Project-II in FY 2006-2007 and claimed deduction under section 80-IA of the Act from AY 2008-09 since the said unit is a separate infrastructure facility. These facts are not controverted by ld SR DR for the revenue. Moreover, the Land Fill Project-II is set up on the separate land allotted by GIDC in Bharuch District, which was allotted to the assessee and separate agreement was entered with GIDC on 16th October 2012 with effect from 12.03.2007. We find that in appeal for AY 2007-08, the Ld. CIT(A) held that both the unit of the assessee i.e. Land fill Project No. I & Land Fill Project-II are different and independent unit by way of process, method, machine and infrastructure.

Incinerator is not a separate undertaking eligible for deduction under section 80IA(4) - AO while passing the assessment order allowed deduction under section 80IA in respect of Land Fill I, Land Fill II and Incinerator project by treating the said undertakings as a composite undertaking. The ld CIT(A) held that Incinerator is a new infrastructure facility and hence eligible for deduction under section 80- IA(4) of the Act for 10 years from AY 2007-08. This finding of ld CIT(A) is not challenged by revenue before Tribunal, thus, it has attained finality. So far as finding of the ld CIT(A) with regard to Incinerator-II is concerned it was not a subject matter of appeal before ld. CIT(A) for the year under consideration, therefore, we are in agreement with the submissions of the learned Senior Counsel for the assessee that such finding given by the CIT(A) is totally incorrect and uncalled for while deciding the appeal for AY 2008-09.

Disallowance of post closer expense - disallowance of provisions of pit covering expenses - HELD THAT:- Considering the consistent decision of the Tribunal on similar set of fact on similar component of income, and following the principle of consistency, we direct the AO to follow the order of Tribunal in AY 2007-08 [2017 (2) TMI 1493 - ITAT AHMEDABAD] and allow / delete the disallowance of provisions of post closer expenses.
2021 (12) TMI 1291

Addition u/s 68 - unexplained cash credit being the amount received from issuance of shares - HELD THAT:- AO examined this issue at length and noticed that the assessee had shown investment in shares in the name of M/s. Nakshatra Electricals and Engineers Pvt. Ltd. at ₹ 25 lakhs. On perusal of the return of income of M/s. Nakshatra Electricals and Engineers Pvt. Ltd., it was noticed that the said company had shown investment of ₹ 25 lakhs as on 31.03.2011 and 31.03.2012. But, in fact, the payment received only on 03.05.2011.

DR submits before the Bench that it is not certain whether share capital relates to assessment year 2011-12 or assessment year 2012-13? We find merit in the submissions of ld DR for the Revenue and therefore, we remit this issue back to the file of the assessing officer to examine the fact whether share capital was introduced in assessment year 2011-12 or in assessment year 2012-13, and after ascertain this basic facts the assessing officer should adjudicate the issue afresh in accordance with law. Therefore, statistical purposes, ground no.1 and 2 raised by the assessee are allowed.

Disallowance of interest on account of interest free loan to the sister-concern - assessee has accepted interest bearing funds from bank and have been utilized for giving interest free loans and advances to P G Glass Pvt. Ltd. Moreover, M/s P G Glass Pvt. Ltd. is a related party covered u/s 40A(2)(b) - HELD THAT:- As AR submits before the Bench that assessee-company has interest free own fund, out of that interest free advance have been given to assessee, therefore no disallowance should be made - As DR argues that interest free advance to the sister concern was given out of cash credit account bearing interest burden, therefore addition made by the assessing officer should be upheld. We find merit in the submissions of Revenue, therefore, we remit this issue back to the file of the assessing officer to examine whether interest free advance to the sister concern was given out of cash credit account bearing interest burden. Thus, ground no.3 raised by the assessee is allowed for statistical purposes.

Disallowance of expenditure on repairs - Revenue or capital expenditure - HELD THAT:- On perusal of the details available on record, learned CIT(A) observed that except for 2 items of expenditure being bills of Vijay engineering, Vadodara at ₹ 1,34,102/- and ₹ 1,69,298/-, other items pertained to so called road repairing. Looking to the quantum of expenditure, it emerges that the assessee had constructed the new roads in its business premises. Since, the construction of road has got enduring benefits, the cost incurred has to be capitalized. We note that ld CIT(A) allowed routine repair expenses to the tune of ₹ 1,34,102/- and ₹ 1,69,298/- respectively. Thus, ld CIT(A) has passed a reasoned and speaking order and we do not find any infirmity in the order of ld CIT(A). That being so, we decline to interfere in the order passed by ld CIT(A), therefore, we dismiss ground no. 4 raised by the assessee.
2021 (12) TMI 1290

Assessment u/s 153C - Short Term Capital Gain - transfer within the meaning of section 2[47] - Assessee has relinquished his rights in the property - AO held that the assessee's right to transfer further in the property and earn out of it have been extinguished upon entering into of the agreement dated 21/02/2012 - HELD THAT:- Since extinguishment of right in the immovable property in the impugned property, the AO brought on the difference between purchase and sale price as short terms capital gain in the assessment year under consideration. The contention of the ld.DR is that the assessee having acquired the right in a property under an agreement with the owners and later relinquishment of his right in favour of new purchaser for the year under consideration by the assessee for relinquishing the right for the property would attract provisions of sec.45(1) of the Act, which arises to short term capital gain and as such the ld.CIT(A) order to be confirmed. But in the present case, vide an agreement dated 20/12/2012, the assessee has not received the possession of the property and the delivery of the possession of property will be given to the assessee only on payment of balance consideration of 3.5 crores out of 4.5 croers.

As per the sec.2(47)(i), transfer in relation to capital asset includes sale and exchange are realized on the asset so as to relinquish the asset. The assessee shall be in a possession of impugned property but in the present case, the property which was said to be existed or relinquished was not in the possession of the assessee and both purchase and sale agreement were unregistered agreement and it cannot be said that the assessee was in a physical possession of the property so as to relinquish the same in favour of the assessee. Being so, we are of the opinion that sec.2(47)(i) cannot be complied. Accordingly, we allow the appeal of the assessee.

Chargeability of penalty u/s 271AAB - As decided in the case of Shri Suresh H. Kerudi [2019 (10) TMI 1175 - ITAT BANGALORE] we are of the view that the penalty in the case of assessee cannot be sustained as the assessee was not a person who was subjected to search u/s. 132 of the Act and consequently the provisions of section 271AAB could not be invoked in his case. - Decided in favour of assessee.