The Supreme Court admitted the appeal and ordered the filing of a counter affidavit within two weeks. (Case citation: 2014 (1) TMI 1869 - SUPREME COURT)
Penalty u/s 271(1)(c) - Change of head of income - why income from rent be not treated as income from house property - HELD THAT:- Assessee was claiming income under one head and the revenue authorities assessed the assessee under a different head. In so far as furnishing of primary material, there was neither any dispute, nor an adverse allegation.
The only dispute is that the revenue authorities treated the income not from rent but from house property, this by itself cannot form the basis for the levy of penalty, as held by the above mentioned decisions and other catena of decisions on the issue of cancellation of penalty, when the revenue authorities change the head of income. Thus penalty is not exigible. We, therefore, set aside the order of the CIT(A) and direct the AO to cancel the penalty. - Decided in favour of assessee.
Nature of land sold - whether this agricultural piece of land sold by the assessee falls within the purview of Section 2(14)(iii)(b) of the Act or not? - capital asset - HELD THAT:- Admittedly, the assessee was not allowed opportunity to cross examine. This is against principles of natural justice. This statement cannot be relied on. CIT(A) has mentioned that he has not relied on the statement of Shri Dinesh Pareek dated 02-02-2011.
However, his version has really impressed his decision making faculty in one way or the other. It is noticed that alleged physical verifications which are not based on any scientific manner and not done by an expert in the field give divergent opinion. Therefore, these verifications cannot be relied upon. The best evidence in the form of reports of the Sarpanch, the Halka Patwari and even the Municipal Corporation, Jaipur (in the first instance) are emphatic and are reliable. Therefore, we are left with no option but to accept them as correct when these are pitted against the variant statements which in our considered opinion do not seem to be devoid of fearlessness or fairlessness.
Overwhelming pieces of evidence which are available on record and filed by the assessee to support her claim, cannot be doubted by the Inspector’s report. Accordingly, we hold that the piece of land sold was only agricultural land which does not give rise to any capital gain.
Disallowance of expenditure - HELD THAT:- As noticed from the record that most of the payments against the impugned expenses were through cheques. The nature of work and its payment stands established from the record and assessment order itself. AO has not pinpointed any defect in these expenses and also in the books of account of the assessee. Therefore, the lumpsum addition made simply on suspicion is not called for. We cannot approve such adhoc disallowance which are not tenable in the eyes of law. Accordingly, the impugned deletion stands approved which resulted into dismissal of the sole ground raised in Revenue’s appeal.
Input tax credit - fake documents - case of Revenue is that the alleged payments shown by the assessee are not relatable to the alleged bills disclosed by him - principles of natural justice - HELD THAT:- The matter is remanded back to the Assessing Officer. He shall give an opportunity to the writ petitioner to adduce appropriate evidence to show that the payments appearing to have been made by the assessee were in relation to the purchases made from Bhagwati Traders - appeal allowed by way of remand.
Commercial coaching or training centre – u/s 65(27) – Notification No.33/2011-ST - Whether Flying Training Institutes providing training for obtaining Commercial Pilot License (CPL) and Aircraft Engineering Institutes for obtaining Basic Aircraft Maintenance Engineering License (BAMEL) come in the category of coaching centers as laid down in Section 65(27) of the Finance Act, 1994 and therefore assessable to service tax or not?
HELD THAT:- No substantial question of law is emerging from the impugned order.
The Appellant was not a party to the proceeding. It is manifest that the learned single Judge has made certain disparaging remarks against the Appellant and, in fact, he has been also visited with certain adverse consequences. Submission of Mr. P.P. Rao, learned senior Counsel, is that the observations and the directions are wholly unsustainable when the Appellant was not impleaded as a party to the proceeding and further they are totally unwarranted for the adjudication of the controversy that travelled to the Court.
TDS u/s 195 - commission paid by the assessee to non-residents - Addition u/s 40(a)(i) - HELD THAT:- We have heard the arguments of both the parties and perused the record as well as gone through the orders of the authorities below. We find the similar issue came up before the Tribunal in assessee's own case for AY 2006-07 [2011 (8) TMI 1319 - ITAT HYDERABAD] commission payments and consequently the expenditure on export commission payable to non resident for services rendered outside India becomes allowable expenditure and the same is outside rigors of section 40(a)(ia).
In the instant case, CIT(A) observed that the AO had not been able to establish that there was specific intention of the payee to receive the payment within the territory of India, therefore, the CIT(A) rightly did not agree with the view taken by the AO with regard to the addition made on this issue and the CIT(A) was justified in directing the assessing officer to delete the said addition. CIT(A) on this issue was not to be interfered with and, accordingly, the same was to be upheld. - Decided in favour of the assessee
Also in AY 2008-09, when the revenue came in appeal to Tribunal on similar grounds in assessee's own case, the coordinate bench dismissed the appeal of the revenue following its decision in the case of M/S. DIVI’S LABORATORIES LTD., HYDERABAD. [2011 (3) TMI 1628 - ITAT HYDERABAD]
Unexplained investment in capital account - No supporting evidence for the opening cash balance - advances and cash balance shown to have been available with the assessee - CIT-A deleted the addition - HELD THAT:- Even though assessee was regularly assessed and was showing income from sheet metal crafts on estimate basis in earlier years, there was no balance sheet or any reference to the various assets and liabilities in any of the enclosed documents filed with the returns earlier. In the absence of such evidence, A.O. was in a way justified in disbelieving the cash balance which is almost ten times the income. Even for the advances also, there were no details and no explanation about nature and source. A.O. could have been justified in considering only these two amounts for addition in the year.
Advances were not shown in the year ending 31-03-2005 whereas, cash balance was increased in that year. When A.O. was completing the assessments in a block, he is supposed to consider the cash flow over a period of time vis-à-vis the investments and assets found in the course of search. There is nothing on record to examine, whether assessee has made any investments or has any unexplained investments or assets or even unexplained sources for making any investments. A.O. seems to have not examined any of the issues and since, other years assessments orders are also not before us, we are also unable to examine to give any findings on this issue.
In the interest of justice, we set aside the Order of the CIT(A) and restore the issue to the file of the A.O. to consider afresh the cash flow statement shown by the assessee vis-à-vis any other documents available in the course of search or any other details of bank accounts etc., which assessee can rely on in order to examine the cash flow statement. Appeal of the Revenue is allowed for statistical purposes.
Rectification u/s 254 - Foreign party/AE to be a tested party for determination of ALP - contention of the A.R that the TPO has not considered the contention of the assessee that foreign party can be a tested party - jurisdiction of the Tribunal and scope of Section 254(2) - HELD THAT:- When the ALP determined by the assessee was rejected by the TPO on the ground that it is not as per the provisions of Section 92, this itself shows that the computation of the ALP by considering the foreign party as tested party was found not as per the provisions of Section 92. Therefore, we do not find any merit in the said contention of the assessee.
The commercial/financial effect of an international transaction in the context of the assessee/taxpayer has to be compared with the finance/commercial outcome if the same transaction would have been carried out by the assessee with unrelated third party. In the matter of Transfer Pricing and determination of ALP which is factual in nature the principle of consistency or res judicata is not applicable until and unless the facts and circumstances governing the situation and legal position are identical in each case.
Once the issue has been decided on merits by considering the relevant facts and material then the same cannot be reviewed in the garb of rectification of mistake u/s 254(2). The Tribunal cannot re-evaluate or re-appreciate the evidence and facts in the proceedings u/s 254(2). Only a mistake which is wide apparent, manifest and patent on the face of the order can be rectified u/s 254(2) and not something which can be involved serious circumstances of disputes of question of facts or law can be established by long drawn process of reasoning on the point. Relief sought in the Miscellaneous Application would certainly amount to review of earlier order which is beyond the jurisdiction of the Tribunal and scope of Section 254(2) - Decided against assessee
Taxation of capital gain on part of agricultural land sold by the assessee - Nature of land sold - whether land in question was capital asset u/s 2(14)? - assessee contended that FMV of the land as on 1.4.1981 should have been taken by computing the gain - HELD THAT:- We find that value of land differs drastically due to its surroundings, distance from road, disputes, possession etc. There is no dispute on the issue that the in the instances quoted by the AO, the buyers were already in the possession of land in question which is major factor which affects the rates of the transaction and attached obligations.
There are issues regarding proximity from road and scattered land. We also find that AO has given a finding that multistoried projects have been developed near the assessee's land and the buyer of the assessee's land is also developing some project on this land. No such development of the comparable land has been brought on record by the AO. CIT(A) also agreed that the instance quoted by the AO is not comparable. However, he has taken a arbitrary value without any basis. In these facts and circumstances, where no comparable case is available, the best way to estimate the cost would be to compute the Fair Market Value on the basis of reverse calculation considering the cost inflation index as held in Jahanganj Cold Storage (2010 (4) TMI 765 - ITAT, AGRA) in which one of us was also a party. Accordingly, the estimation made by the assessee in this respect had to be accepted. We thus allow this ground of appeal of the assessee and reject the ground of the departmental appeal.
Rejecting the agricultural income - As already found by us, the assessee has shown evidences of land being cultivated. The agriculture income has been accepted in the previous year and also in the subsequent years. In these facts and circumstances, size of land, government records of crop and the amount of agricultural income shown, we find no reason to reject the assessee's claim. We accordingly allow this ground of the assessee's appeal also.
Provision of section 50C applicability as the land was sold by the assessee through agreement and the sale deed was not registered - AO had observed that land has been developed and is in the possession of the buyers and sale consideration has been received in toto by the assessee - Assessee has claimed that the property has not yet been registered and hence, provisions of section 50C are not applicable - HELD THAT:- In the first appeal, CIT(A) made a reliance on the decision of Hon'ble Jodhpur Tribunal in the case of Navneet Kumar Thakkar v. ITO [2007 (3) TMI 317 - ITAT JODHPUR] where it was held that to attract section 50C, the property under transfer from the assessee to another person should have been assessed for stamp valuation purpose at a higher value than that received or accruing to the assessee. Unless the property transferred have been registered by sale deed and for the purpose the value had been assessed and stamp duty have been paid by the parties, section 50C could not come into operation. Further reliance on Smt. Vijay Laxmi Dhaddha v. ITO [ 2008 (9) TMI 944 - ITAT JAIPUR] and Hon'ble Lucknow Tribunal in the case of Carlton Hotel (P.) Ltd. v. Asstt. CIT [2008 (11) TMI 295 - ITAT LUCKNOW-A] held that if the property sold is not registered then section 50C would not have any application. Accordingly, Ld. CIT(A) held that in the present case, the sale deeds had not been registered and the buyers had not paid any stamp duty therefore section 50C would not have any application and directed the ld. AO to adopt the sale consideration at ₹ 1,04,00,000/- instead of ₹ 1,40,00,000/-.
The present case is for A Y 2008-09, i.e. prior to amendment made in the provisions of section 50C to take into consideration the transfers which have not been registered for stamp duty purpose. In view of the various decisions quoted by the ld. CIT(A), we are in agreement with his order and confirm the same. This ground of the departmental appeal is also rejected.
Restoration of appeal - appeal was dismissed for want of prosecution - grievance of the appellant before the Tribunal was that the appeal reached hearing after a lapse of eight years. Unit premises, from February 16, 2002, were closed. In these circumstances, they prayed that the appeal be restored to file - Held that:- The restoration application has also been dismissed and we find that from both orders, no substantial question of law arises within the meaning of section 35G of the Central Excise Act, 1944. When the appellant engaged an advocate and even the advocate did not bother to follow up the matter for eight long years and when it reached hearing, none was present, we do not see how the Tribunal can be faulted for dismissing the appeal for non-prosecution - appeal cannot be restored - appeal dismissed.
Jurisdiction of Civil Court - proceedings before the BIFR - violation of the injunction of the civil court - participation of a Member of the BIFR, in the proceedings - Held that:- The Privy Council way back in 1940 in the case of Secretary of State v. Mask and Co. [1940 (3) TMI 7 - BOMBAY HIGH COURT], was examining the question of jurisdiction of the civil court to entertain the related suit in view of the provisions of the Sea Customs Act, 1878. It was held that exclusion of jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It was further held that even if jurisdiction is so excluded, the civil courts would have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or where the statutory tribunal has not acted upon in conformity with the fundamental principles of judicial procedure.
Appeal filed under the provision of Order XLIII, rule 1(r) of the Code of Civil Procedure, 1908, i.e., against the order of injunction - Held that:- This provision is relatable to section 104 of the C.P.C. Admittedly, the appellant is not a party to the suit. In the appeal filed, the appellant has basically assailed the injunction order on the ground of lack of jurisdiction, though other grounds are also taken - It is a settled proposition of law that the right of appeal is a creature of the statute and would be governed by the conditions of the statute. Being a vested right, it enables a party to the suit to prefer an appeal subject to fulfillment of the required conditions. However, there may be cases where a person, who may not be a party to the suit, but may feel the necessity to prefer an appeal, against an order passed in the suit. Such a person can also file an appeal provided he seeks leave of the court and the court grants the leave for the purpose.
In the present case, it is seen that the appellant has not sought leave of the Appellate Court and, consequently, no leave to file appeal has been granted. Since the appellant is not yet a party to the civil suit, question of him raising the objection as to jurisdiction before the civil court also does not arise at this stage - this court is of the considered opinion that the appeal filed by the appellant is not maintainable in the present form. As the appeal is being held to be not maintainable, deliberation on the merit of the injunction order dated May 13, 2013, is considered not necessary.
Quashing of the proceedings before the BIFR dated May 16, 2013 and the order of the BIER dated July 1, 2013, passed in BIFR Case No. 149 of 1994 - Held that:- The BIFR not being a judicial forum superior to the Civil Court at Guwahati could not have ignored the order of the civil court by terming the same to be one by corum-non-judice. Until and unless the injunction order of the civil court is vacated or recalled by an appropriate judicial forum, the same must be respected and given effect to. Moreover, the Allahabad High Court did not give any direction to the BIER to examine net worth of the company. While dismissing the writ, it was observed by the Allahabad High Court that the issue can be raised before the BIFR. This cannot be construed to mean a positive direction to the BIER to proceed and decide the issue. There is thus no inconsistency or conflict between the order of the Allahabad High Court and the order of the civil court as observed by the BIFR.
Petitioner recused himself from hearing the case - Held that:- It goes without saying that justice must not only be done, but must be seen to have been done. Likewise, to dispel any apprehension of bias which a party may harbor against the presiding officer hearing the case, the test applied should be from the stand point of the litigant. It is his apprehension which must be addressed and dispelled even though the presiding officer may not at all be biased in the case - Coming to the present case, having once recused himself from hearing the case, it is neither desirable nor expected that the hon’ble Member should again start hearing the case, moreso when proceedings have assumed almost adversarial character.
Determining the income on the final books of account - rejection of books of accounts - confirming the net accretion method adopted by the AO for determination of the total income - HELD THAT:- In the assessee’s group of cases, in Shri Hitesh S. Mehta [2013 (12) TMI 244 - ITAT MUMBAI] for the assessment year 1991-92, while deciding a similar issue, has directed the Ld.CIT(A) to compute the income as per books of account. In view of the reason that similar facts and issue are involved in this ground raised by the assessee, following the said order we direct the Ld.CIT(A) to compute the income as per books of account for the same reasons given by the Tribunal in the aforesaid case. Ground No. 3 is allowed for statistical purpose.
Determination of unaccounted investments - information collected from various companies allegedly showing the share holding of the assessee - HELD THAT:- It is noted that similar issue has been decided by the Tribunal in the case of Shri Hitesh S. Mehta (supra) and the Tribunal has deleted a similar addition which have been made on the basis of information collected from various companies behind the back of the assessee. In the absence of any contradictory material brought on record by the Revenue, following the said order, we decide this ground in favour of the assessee
Disallowance of deduction on account of interest expenditure claimed by the assessee - HELD THAT:- ntical issue has been considered by the Tribunal in the case of Hitesh S. Mehta (2013 (11) TMI 1650 - ITAT MUMBAI) and the Tribunal restored this issue back to the file of the AO by following the directions of the Tribunal in Hitesh S. Mehta’s own case for the assessment years 2005-06 and 2006-07 in [2013 (12) TMI 244 - ITAT MUMBAI]
Appeal is admitted for consideration of following substantial questions of law:-
“1. Whether the Appellate Tribunal is right in law and on facts in quashing the re-assessment proceedings holding that the re-opening was because of change of opinion and no new information was brought on record?
2. Whether the Appellate Tribunal is right in law and on facts in holding that the AO had not fulfilled pre-requirement for invoking the provision of explanation fee to section 43(1) of the IT Act and thereby in allowing the full claim of depreciation at ₹ 62.5 crore on intangible assets worth ₹ 500 crore?”
Addition u/s 68 - grievance of the assessee is that it was not given an opportunity to cross examine the witness of the department and/or M/s. Avinashi Selling Agency (P) Ltd on whose testimony the department issued notice u/s 148 - Held that:- In the assessment order neither we find any mention about the said explanation and the said evidence given by the assessee, nor it has been discussed by the AO; neither did he furnish any incriminating evidence provided by the Investigation Wing of the department to the assessee; nor did he confront the assessee with any such material nor an opportunity was given to the assessee to cross-examine the witnesses who have deposed against the assessee despite having made the specific request for it both before the Assessing Officer & CIT(A).
In Krishanchand Chellaram (1980 (9) TMI 3 - SUPREME COURT) wherein laid down that the income tax authorities are bound to accede to the request of cross-examination and should provide the incriminating evidence to the assessee to controvert the same. AO has not acceded to the plea of assessee in this behalf, therefore we set aside the order and direct the Assessing Officer to re-adjudicate the matter after providing the incriminating material used against the assessee for re-opening the assessment for the relevant year under consideration and any other evidences against it and if it is the testimony of any person of M/s. Avinash Selling Agency Pvt Ltd against it, then an opportunity to cross-examine those witnesses also must be provided to it.
We set aside the order passed by AO and remand back the matter to the file of Assessing Officer to re-adjudicate the same as stated above - Appeal of the assessee is allowed for statistical purpose.
Disallowance of depreciation on split air-conditioners - sufficient evidence for proving the installation - addition deleted by CIT- A - admission of additional evidence - Held that:- Assessment order nowhere states that assessee had failed to produce the evidence in the nature of invoice for the Split AC. AO has himself noted that the air-conditioner was purchased on 31.03.2003 based on evidence produced by the assessee. For installation of Split AC, not much time is required and assessee could not have been called upon to produce an installation certificate, as in the case of a major machinery. CIT(Appeals) was justified in considering the invoice to be sufficient evidence for proving the installation and allowing the claim. No new or fresh evidence in this regard was brought by the assessee before CIT(Appeals).
Addition of sundry debtors balance - Held that:- No doubt the explanation given by the assessee before the CIT(Appeals) was different from what was given by it before the Assessing Officer. However, there was no fresh evidence filed by the assessee. Assessee had only relied on the audited final accounts statement and schedules thereto, all of which were part of the return of income filed by it. It had shown therefrom that the difference between the debtors’ account and the sales value credited in the Profit & Loss Account was only due to the freight element and recovery of the freight amount from the debtors were netted against the freight cost. Only the net freight was charged to the Profit & Loss Account. In our opinion, explanation given by the assessee based on records already filed before the Assessing Officer cannot be considered as fresh evidence - hearing of the case before the ld. CIT(Appeals) took place over a period of seven different days. If the Assessing Officer chose himself not to be present at the time of such hearing, in our opinion, he cannot be heard to say that explanations given by the assessee were not put before him.
Liability to pay the compensation - vehicle was insured by the owner with this Insurance Company - Held that:- The dealer is expected to take Trade Certificate and purchase policy in respect of the period when the vehicle remains in his custody before giving delivery to purchaser. The aforesaid provisions lead to the inference that Insurance Company cannot deny the liability on the ground that Insurance Policy was purchased on the basis of Trade Certificate but the vehicle was bearing Temporary Registration Number on the date of accident; provided that the vehicle was still in the possession of dealer at the relevant time, it was not yet delivered to the purchaser and the period of both Trade Certificate and the Insurance Policy had not expired. In such a case, it is not open to Insurance Company to deny the liability on the ground that the vehicle was given temporary registration number and the policy covered Trade Certificate.
In the present case, the transfer of vehicle was not completed and MPT had not become the owner.
Complaint under the provisions of PMLA - bail application - misuse of bail - Held that:- The petitioner was arrested in the said FIR and had faced custodial interrogation. He was, thereafter, granted the concession of regular bail and now regularly appearing before the trial Court. He has not misused the concession of bail in any manner.
The complainant-respondent vehemently opposes the prayer made on behalf of the petitioner. Adjourned to 31.3.2014.
In the meantime, the petitioner shall appear before the Special Judge, (Designated under the Prevention of Money Laundering Act, 2002)-cum-Sessions Judge, Jalandhar on or before 3.2.2014. In the event of his doing so, he be admitted to ad interim bail by the said Court to its satisfaction.
Addition of unrealized sales - assessee has accounted for 90% of the sales on Mercantile basis and remaining 10% on cash basis, which was in contravention of Sec. 145 - Held that:- Whether the assessee has made any deviation from the usual practice followed by it in the earlier years with an intention to evade tax and found that there was no such change during the year under appeal and whatever retention money has not been shown in this year and realized in the subsequent year has been shown as sale proceeds in that year and offered for tax. He therefore was of the view that there was no need to disturb the method of accounting followed by assessee-company and also found no discrepancy in terms and conditions of purchase orders. CIT(A) has also analyzed the case laws relied by the AO and also that of assessee and found that reliance placed by AO on certain case laws was misplaced as they do not apply to the facts of assessee’s case. On the other hand, he followed Hon’ble Supreme Court decision in assessee’s sister concern, namely Apollo Industrial Products P. Ltd for assessment year 1989-90 in which identical issue was decided in favour of assessee and against the revenue
Disallowance u/s. 14A on account of interest and for administrative expenses - Held that:- There was no increase in borrowing rather there was reduction in total debts. The law is now settled that no disallowance u/s. 14A can be made of interest expenses until there is finding of AO that borrowed funds were utilized by assessee to earn exempt income. Therefore we find no infirmity in the order passed by CIT(A) in deleting the addition made by AO out of interest payment u/s. 14A. As regards disallowance of ₹ 1,00,000/- out of administrative expenses made by AO u/s. 14A CIT(A) has restricted this disallowance to ₹ 50,000/- which also does not require any interference on our part as it appears to be reasonable in the facts of this case. This ground of revenue’s appeal is also dismissed.
Higher rate of depreciation of 80% on part cost incurred in order to bring windmill into existence and working condition - llowability of MEDA charges, civil work, application charges, professional fees, and bank charges as revenue in nature allowable u/s.37 - Held that:- We find that the assessee in A.Y. 2007-08, the assessee has claimed the depreciation @ 80% on foundation on windmill is concerned, the same was found in the line of judgment in the case of Cooper Foundary Pvt. Ltd.[2011 (6) TMI 837 - BOMBAY HIGH COURT] therefore, it was held allowable with regard to MEDA charges, civil work, application charges, professional fees, and bank charges to the extent of such expenditure referred to the item of windmill eligible to 80% of depreciation and the same should be allowed in order to allocate ocean of such expenditure of 80% on eligible assets and others. The Assessing Officer was directed to consider the submissions of the assessee and thereafter allocate the cost and re-compute the depreciation accordingly.
So far as other additional ground relating to allowability of MEDA charges, civil work, application charges, professional fees, and bank charges as revenue in nature allowable u/s.37 of I.T. Act, is concerned, the same was held to be disallowed to be admitted following the ratio of Hon’ble Supreme Court in the case of NTPC[1996 (12) TMI 7 - SUPREME COURT]. On this aspect also, the matter was remitted to the file of the Assessing Officer who has directed to consider the said additional ground raised by the assessee on its merits after providing the reasonable opportunity of hearing to the assessee. Thus, this alternative ground was allowed for statistical purposes. - Appeal filed by the assessee is allowed for statistical purposes
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