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Showing 101 to 120 of 2855 Records
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2015 (10) TMI 2766
Grant of approval u/s 80G(5)(vi) - assessee is a society registered under the Society Registration Act and was granted the registration under section 12AA - HELD THAT:- We find that the finding given by the learned Commissioner of Income Tax (Exemption) that neither the assessee had spent 85% of gross receipts, nor has it made a declaration in Form No.10 is factually incorrect. In these circumstances, the order of the learned Commissioner of Income Tax (Exemption) rejecting the application under section 80G of the Act is not as per law.
There is one more sound reason for quashing the said order of the Commissioner of Income Tax (Exemption) rejecting the application for approval under section 80G of the Act. The provisions of section 11(2) are not relevant for granting approval under section 80G of the Act. This aspect of granting approval under section 80G of the Act has been very aptly discussed in the order of the Chandigarh Bench of the I.T.A.T. in the case of Shri Krishna Kirpa Gaushala Samiti Vs. CIT(E) [2015 (9) TMI 1563 - ITAT CHANDIGARH] where on the issue of anonymous donation as appearing in Section 115BBC of the Act, the approval sought by the assessee under section 80G of the Act was rejected.
In the present case also, the only reason given by the Commissioner of Income Tax(Exemption) is the provision of section 11(2) of the Act, which is not at all relevant for the said purpose, which otherwise is also factually incorrect. In view of the above, we direct the learned Commissioner of Income Tax (Exemption) to grant the assessee approval under section 80G of the Act.
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2015 (10) TMI 2765
Cancellation of anticipatory bail - allegations of corruption and misappropriation of public funds released for rural development - offences punishable Under Sections 409, 420, 467, 468, 477A read with Section 34 of Indian Penal Code (Indian Penal Code) and Under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 - requirement of the custodial interrogation of the Appellants - HELD THAT:- After considering the gravity of the offence, circumstances of the case, particularly, the allegations of corruption and misappropriation of public funds released for rural development, and further considering the conduct of the Appellants and the fact that the investigation is held up as the custodial interrogation of the Appellants could not be done due to the anticipatory bail, we are of the opinion that the High Court has rightly cancelled the anticipatory bail granted to the Appellants by the Additional Sessions Judge, Jalgaon.
We decline to interfere with the order of cancellation of anticipatory bail, passed by the High Court - appeal dismissed.
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2015 (10) TMI 2764
Accrual of income - sales tax subsidy - AO treating the same as revenue receipt taxed it under the head ‘income from other sources’ - HELD THAT:- The assesses have received sales tax subsidy from Punjab Government under the scheme named, ‘Industrial Policy & Incentive Code, 1996’. We have gone through the said policy and found that the scheme though not verbatim as that of West Bengal or Gujarat schemes, but the sum and substance of all these schemes are the same, therefore, relying on our finding given in the case of Bhushan Limited [2015 (6) TMI 1195 - ITAT CHANDIGARH] we hold that the sales tax subsidy received by the assessee is capital in nature.
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2015 (10) TMI 2763
Addition on account of alleged artificial capital gain - Addition on account of alleged payment of commission - HELD THAT:- DR fairly accepted that though the assessee had submitted requisite documentary evidences in support of its claim and AO could not bring on record contrary evidences to contradict the evidences filed by the assessee, but there statements of few persons against the assessee.
When bench put across factual queries to the parties, both the parties i.e., Ld. Counsel as well as Ld. DR fairly agreed that there were some gaps and contradictions. It has been stated by the AO in the assessment order, that there is no Demat account - counsel has contended that shares were converted in the Demat account on the sale of shares. Ld. AO has field to verify the demat account. Further the company namely Fast Track Entertainment Ltd., is existing on the records of ROC as well as on the records of income tax department.
AO failed to make inquiries of the said company with these agencies, and further, AO should make inquiries with the authorized persons of the brokers only. Therefore we find it appropriate to send this matter back to the file of the AO with the direction to make proper inquiries and to examine all the documentary evidences as have been submitted by the assessee in support of its claim and for this purpose the AO shall afford opportunity of hearing to the assessee.
AO shall exercise its powers, as has been conferred upon him under the law, to make inquiries from the persons/agencies concerned. The assessee shall extend all requisite cooperation as may be directed by the AO by filing complete address and any particulars of the persons concerned. AO shall grant opportunity of cross examination to the assessee, in case he would be relying upon statement of any of the persons against the assessee. We, therefore, send this matter back to the file of the AO with our directions as stated above. Appeal of the assessee is allowed for statistical purposes.
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2015 (10) TMI 2762
Smuggling - concealment of gold within the Pallet boxes of the TVs imported - seizure and confiscation - HELD THAT:- Statement recorded with respect to concealed pallet boxes.
To give quietus to the issue, the petitioner is hereby directed to furnish 100% Bank Guarantee for the value of the goods assessed within a week from the date of receipt of a copy of this order. On such furnishing of Bank Guarantee, the respondents shall release 7 pallet boxes except boxes 8 and 9 (B1 and B2). The other adjudication proceedings in accordance with the Customs Act may go on and the same shall be completed within a period of eight weeks.
Petition disposed off.
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2015 (10) TMI 2761
Partition of property - stand of the defendants-appellants was that the plaintiff could not claim any share in self acquired property of the members of the joint family and that the claim of the plaintiff had to be dealt with only under Section 6 of the Hindu Succession Act, 1956 as it stood prior to the amendment by Act 39 of 2005 - Whether Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) will have retrospective effect?
HELD THAT:- The proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way.
The rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.
The matter is remanded to the High Court for a fresh decision in accordance with law.
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2015 (10) TMI 2760
Imposition of higher rate of tax - failure to file Form WW - TNVAT Act - HELD THAT:- Section 63-A of the Tamil Nadu Value Added Tax Act, 2006 empowers the authority to levy penalty for the belated submission of Form-WW. Accordingly, the petitioner has also paid the penalty amount. Now, the petitioner is inclined to file Form-WW for the purpose of completing the assessment in question relating to the turn over available in Form WW.
The learned counsel appearing for the petitioner submitted that Form WW is very much available and the petitioner is ready to place before the authority within a time frame to be fixed by this court. The said submission is recorded.
Since the petitioner has already paid penalty amount as contemplated under the provision of the Tamil Nadu Value Added Tax Act, 2006, this court is inclined to set aside impugned order and remit back the matter for fresh consideration with certain conditions - petition allowed by way of remand.
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2015 (10) TMI 2759
MAT - Adjustment of book profit u/s.115JB - estimated gratuity provision made on the basis of actuarial valuation, which is an unascertained liability - CIT-A deleted addition - Whether the provision for gratuity is ascertained liability or not for the purpose of computing the book profit u/s.115JB? - HELD THAT:- This issue was duly examined by the Coordinate Bench in the earlier years in the case of the assessee [2013 (1) TMI 135 - ITAT AHMEDABAD] wherein issue decided in favour of assessee. Therefore, taking a consistent view, we hereby dismiss this ground of Revenue’s appeal.
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2015 (10) TMI 2758
Addition towards unpaid sundry creditors treated as bogus - HELD THAT:- Revenue has failed to controvert the findings of the learned CIT(A) in respect of 16 creditors which have been accepted by learned CIT(A) as genuine, therefore we find no merit in the appeal of the revenue.
In respect of five creditors which were held to be non-genuine, we hold that certain more facts need to be brought on record to decide the issue, therefore, after hearing both the sides, we restore this issue to the file of the AO to decide de novo. The assessee shall provide correct addresses of these five creditors and the AO will verify whether these concerns are showing outstanding in their books of accounts against the assessee. Whether the creditors are genuine or not. After considering all these, AO shall decide the issue as per law. Revenue’s appeal is dismissed and the assessee’s appeal is allowed for statistical purposes.
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2015 (10) TMI 2757
Disallowance u/s 14A r.w.r. 8D - Computing disallowance applying the proportionate method - HELD THAT:- Out of the total expenses claimed of ₹ 31,13,082/-, the amount disallowed in relation to dividend is of ₹ 25,36,669/-. Now, this is evidently absurd on the face of it and the assessee is correct in contending that since there is huge other income, the quantum of disallowance is entirely unreasonable. Rather, a reasonable disallowance can be made, if the accounts of the assessee are considered, without taking recourse to Rule 8D of the Rules.
As assessee has contended that the total expenses claimed (as above) being ₹ 31,13,082/-, the total income ( as above) being of ₹ 80,189,889/- and out of this income, dividend being of ₹ 904,668/-, the disallowance of expenses needs to be worked out by applying the proportionate method, as per which, the disallowance works out to ₹ 35120/- it is found to be acceptable. The total income, the dividend and the total expenses claimed being as above, as discussed, the disallowable expenses would work out to ₹ 35,120/-, applying the proportionate method. Therefore, the disallowance is restricted to ₹ 35,120/-. Accordingly, Ground No.1 is partly accepted.
Disallowance u/s 94(7) - According to CIT(A) as per section 94(7) only the short term capital loss ought to have been added - HELD THAT:- Since no worthwhile challenge had been laid to the above finding of the ld. CIT(A) by the assessee before us, finding no error therein, the action of the ld. CIT(A) in restricting the addition
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2015 (10) TMI 2756
Validity of Rule 3 (11) of the Central Rules - a state, where lotteries are conducted by another state - entitlement of charge an amount of ₹ 2000/- (Rupees two thousand) per draw from the organising state - HELD THAT:- Rule 3(11) of the Lotteries (Regulation) Rules, 2010 is undisputedly a subordinate legislation. These rules have been framed by the Central Government in exercise of the powers conferred by Sub-Section 1 of Section 11 of the of the Lotteries (Regulation) Act, 1998. Contrary to what have been submitted by the Learned Additional Solicitor General, it is not a law framed in terms of Entry 96 of List 1 of the Seventh Schedule to the Constitution of India. Lotteries (Regulation) Act, 1998 admittedly was enacted under entry 40 of List-1 of the Seventh Schedule. Entry 40 of List-1 is one of the entries which empowers the Parliament to legislate and is regulatory in nature. Entries 82-92 in List-1 are taxing provisions by which Parliament may legislate on the subject - Naturally, the Lotteries (Regulation) Act, 1998 having been enacted under the regulatory provision of Entry 40 of List 1, it would not be permissible to levy tax or fees or in other charges or other forms of imposts thereunder. It, therefore, would follow by natural corollary that rules framed under the Lottery (Regulations) Act, 1998 cannot make a provision levying any tax or fees or imposts.
In the present case, there are no specific provision in the central Act by which power to impose tax or fees has been provided. Rule 3(11) clearly appears to be in excess of the provisions in the parent Act, and therefore, would be rendered ultra vires the provisions of the Central Act.
Rule 3(11) of the Lotteries (Regulation) Rules, 2010 is ultra vires the provision of the Lotteries (Regulation) Act, 1998 and is accordingly struck down - Notification No.380/FIN/ DSSL/431 dated 6.8.2010 issued by the Respondent No. 2 stands hereby quashed as being ultra vires the provisions of the Lotteries (Regulation) Act, 1998.
Petition allowed - decided in favor of appellant.
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2015 (10) TMI 2755
Claim of deduction u/s 80IB(10) in respect of two projects undertaken by the assessee i.e. Kumar Kruti and Kumar Shantiniketan - prorata claim of deduction in respect of project Kumar Shantiniketan - Two of the flat bearing Nos.3 and 4 in building ‘D’ had covered area exceeding 1500 sq.ft. and on that basis, the deduction claimed under section 80IB(10) was denied to the assessee - HELD THAT:- Tribunal had in the earlier years relating to assessment years 2008-09 and 2009-10, allowed the claim of assessee with directions to the AO to allow prorata deduction u/s 80IB(10) and denied the said deduction in respect of two flats i.e. flat Nos.3 and 4 in building ‘D’, which had covered area of more than prescribed limit. The relevant findings of the Tribunal which are being referred to, but not being reproduced for the sake of brevity. In the entirety of the above said facts and circumstances, where the issue is identical to the issue before the Tribunal in the earlier years, following the same parity of reasoning, we direct the AO to re-work prorata deduction under section 80IB(10).
Deduction u/s 80IB(10) in respect of project Kumar Kruti - deduction was denied to the assessee on account of two accounts i.e. where the project Kumar Kruti was part of larger project named Kumar City, and where the assessee had not completed the project by 31.03.2008, prorata deduction was allowed to the assessee - HELD THAT:- Tribunal after considering the issue, held that the project Kumar Kruti was an independent project since the building plan of the said project was sanctioned independently on 16.07.2006 and in view thereof, there was no justification in holding that the project Kumar Kruti was part of Kumar City. The relevant findings of the Tribunal are reproduced which are being referred to, but not being reproduced for the sake of brevity. Tribunal further held that the assessee was entitled to prorata deduction under section 80IB(10) in respect of eligible units, which were within covered area limit of 1500 sq.ft. However, few flats, which exceeded the prescribed covered area were denied the deduction under section 80IB(10) - We uphold the order of CIT(A) in directing the Assessing Officer to work out the prorata deduction in respect of units sold in Kumar Kruti project. In the entirety of the above said facts and circumstances, we uphold the order of CIT(A) and dismiss the grounds of appeal raised by the Revenue.
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2015 (10) TMI 2754
Demand of duty - distribution of cenvat credit by the ISD - the appellant's submission is that the demand notice has been issued to Roha factory and is without jurisdiction. According to the learned counsel, the show cause notice should have been issued to ISD located at Thane and not to them - HELD THAT:- Credit is finally availed and utilised by the manufacturing unit. What learned counsel is trying to say is that show cause notice should be issued to head as hand has acted as per the direction of head. In our view, as rightly pointed out by learned AR, cause of action stands with availment and utilization of credit at the manufacturing unit. Of course, ISD and manufacturing unit are integrally connected, and both of them unitedly has to resolve the issue with the department. We, therefore, reject the plea regarding jurisdiction.
CENVAT Credit - input service distribution - common input services used in trading as well as manufacturing activity - assessment of distribution of credit made at the ISD - HELD THAT:- It would be seen from the definition that input service distributor is neither a service provider nor a manufacturer, but it is only an office of service provider or manufacturer. Since input service distributor neither manufactures the goods nor provides the service, there is no question of input service distributor liable to pay any excise duty or service tax. (The company will, of course, either be manufacturing the goods or providing the service from either the same location or some other location). There is therefore no question of assessment or self assessment by ISD.
Rule 7 of the Cenvat Credit Rules states that input service distributor is expected to distribute the credit and ensure that the credit distributed does not exceed the amount of service tax paid as per the documents. The other condition is that the credit of service tax attributable to service used in a unit exclusively engaged in the manufacture of exempted goods or providing exempted service shall not be distributed. It will be seen from the above Rule that these are only two guidance for the ISD for distribution of the credit. There is no rule in Service Tax Law which provides assessment or self-assessment by ISD.
Next submission of the learned counsel is that credit cannot be denied unless the assessment of distribution of credit made at ISD is set aside - HELD THAT:- All that input service distributor is to certify in clause (b) that they have distributed cenvat credit correctly. Based upon the heading given in the return which is a common heading for service provider as well as input service distributor, it cannot be claimed that input service distributor is making self-assessment and that self-assessment is required to be challenged. No rule provides for assessment/self-assessment by ISD.
Time Limitation - HELD THAT:- It is an admitted position that the appellant was registered as input service distributor and the fact that the appellant was also undertaking trading activity was suppressed from department and this has been admitted by the Director of the company. Thus, there is a suppression of fact and in our view the extended period of limitation is correctly invoked.
Appeal dismissed - decided against appellant.
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2015 (10) TMI 2753
Initiation of the reassessment proceedings u/s 147 - addition u/s 68 - non application of mind by AO - HELD THAT:- At the time of recording of the reasons the Assessing Officer apparently was not having any idea about the nature of the transactions entered into by the assessee. In the reasons recorded there is no mention about the nature of the transactions. As per provision of section 147 an assessment can be reopened if the Assessing Officer has reasons to believe that any income chargeable to tax has escaped assessment.
The reasons to believe has to be that of the AO and further there have to be application of mind by the Assessing Officer though the reasons to believe does not mean that the Assessing Officer should have finally ascertained the fact that income has escaped assessment but at the same time, it also means that the Assessing Officer is required to examine the facts on the basis of the information and Satisfy himself that the taxable income has escaped assessment. In the Present case on going through the reasons it is quite evident that AO was also not aware of the nature of the accommodation entries. In the reasons recorded he has simply mentioned the name of the party and the amount and nowhere has stated the nature of such entry. This also shows that the Assessing Officer has made no effort to look into the return of the assessee which was available with him.
From sheet appended to the reasons and quoted on page 4 of the assessment order whereby against Item no. 7; whether the assessment is proposed to be made for the first time, the Assessing Officer has stated 'Yes', and in Column no. 7(a), whether any voluntary return had already been filed and in Column no. 8 (b), date of filing the said return 'NA' has been stated. Thus this is clear case of non-application of mind by the Assessing Officer.
The reopening of the assessment is without application of mind and examination of the facts and accordingly the reopening is held to be invalid and accordingly the same is quashed.
Bogus purchases - addition to 20% of the purchases as profit earned by the assessee on these purchases by CIT-A - HELD THAT:- The purchases and sales were within the walled city of Delhi where the transportation is by manual driven cans and the charges for the same are debited under the head cartage. Further when sales are accepted as genuine, then definitely the transactions have occurred and movements of goods have taken place. It is also not the case of the CIT(A) that transactions has not happened. Thus transportation on such facts cannot be a basis to draw adverse inference against the assessee. CIT(A) has upheld the allegation of the Assessing officer of the bogus purchases by making an observation that the appellant's dealing with these parties is not free from any doubt. It is a settled law that doubt cannot be a basis for sustaining the allegation. On the contrary the assessee had lead sufficient evidences in support of its purchases which the Assessing Officer in my view has not been able to rebut. Accordingly in the facts and circumstances of the case it cannot be said that the purchases made by the assessee are bogus.
As regards the addition of sustained by the CIT(A)since purchases are not bogus, the addition on this account cannot be sustained. Even otherwise the addition of 20% on the facts and circumstances is apparently too high. Once the purchases are held to be bogus then the trading result declared by the assessee cannot be accepted and right course in such case is to reject books of accounts and profit has to be estimated by applying a comparative profit rate in the same trade. Though there can be a little guess work in estimating profit rate but such profit rate cannot be punitive. - Decided in favour of assessee.
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2015 (10) TMI 2752
Levy of penalty u/s 271(1)(c) - deduction u/s 80IC claimed @100% was reduced to 25% of the total profit declared being the 6th year of manufacturing activities of the Industrial undertaking - bonafide claim - HELD THAT:- Assessee claimed deduction under section 80IC in assessment year under appeal in a bonafide manner and mere fact that claim of assessee has been disallowed, would not prove it to be a fit case of levy of penalty for filing inaccurate particulars of income. The issue of claim of deduction was debatable and bonafide. However, there was conflict for determination of provision of law. Merely making a claim of 100% deduction against 25% as per opinion of the Assessing Officer under section 80IC of the Act would not be at par with concealment of income or furnishing inaccurate particulars of income.
It is not a fit case of levy of penalty under section 271(1)(c) of the Act because it is well settled that levy of penalty is not automatic in each and every case as it depends upon facts and circumstances of the case.
Since the assessee’s claim of deduction under section 80IC have been allowed in earlier years @ 100% and admittedly assessee undertook substantial expansion in assessment year under appeal, therefore, assessee made bonafide claim of deduction under section 80IC of the Act and there were no judicial pronouncements against the assessee on the date of making such a claim. Therefore, it could not be construed that assessee furnished inaccurate particulars of income so as to levy the penalty under section 271(1)(c) - set aside the orders of authorities below and cancel the penalty.- Decided in favour of assessee.
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2015 (10) TMI 2751
Addition on account of suspense account - HELD THAT:- CIT(A) should have obtained the details from custodian as the custodian appointed by the Special Court, is not obliged to assessee by providing necessary details in spite of various requests made on behalf of the assessee. Copies of requests are placed on record. In view of the above facts and circumstances of the case, we set aside this issue to the file of the CIT(A) to decide the issue afresh after obtaining necessary details from the custodian and after affording opportunity of hearing to the assessee.
Disallowance on account of interest expenses - HELD THAT:- As decided in M/S. GROWMORE RESEARCH & ASSETS MGT. LTD., VERSUS THE ACIT, CENT CIRCLE-31, MUMBAI [2015 (3) TMI 1342 - ITAT MUMBAI] restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee.
Addition on account of other expenses - HELD THAT:- As assessee stated that the details have not been properly appreciated by the First Appellate Authority. In our considered opinion and in the interest of justice and fair play, this issue needs reconsideration by the First Appellate Authority. We, therefore, restore this issue to the file of the Ld. CIT(A). The assessee is directed to file necessary details in support of its claim and the Ld. CIT(A) is directed to verify the same.
Addition on account of diminution in trading stock - HELD THAT:- The assessee is in the business of share trading which has been accepted by the AO in his assessment order. For certain statutory reasons, the assessee is not permitted to do trading in the shares in the stock market but at the same time the assessee is showing the shares as stock-in-trade and following the same as per the method of accounting regularly followed by her for the business. Therefore, in our considered opinion, any diminution in the value of the stock as at the end of the year has to be allowed. We, therefore, set aside the findings of the Ld. CIT(A) and direct the AO to delete the addition.
Interest levied u/s. 234A, 234B and 234C - HELD THAT:- Agreed, levy of interest is mandatory and sometimes consequential depending upon the facts of each case. We note that identical issue arose before the Tribunal in the aforesaid cases therefore following the reasoning contained therein, we direct the Assessing Officer to recomputed the interest liability after reducing the amount of tax deductable at source and decide as per the provisions of law. We direct accordingly, thus, this ground is allowed for statistical purposes. See M/S HARSH ESTATES PVT. LTD. VERSUS ACIT CC-31, AAYKAR BHAVAN, MUMBAI [2014 (10) TMI 925 - ITAT MUMBAI]
Addition u/s 69C - addition on account of personal household expenses - HELD THAT:- We find that in the group cases, the addition on account of low withdrawals made by the AO amounting to ₹ 60,60,000/- have been restricted by the Ld. CIT(A) at ₹ 37,80,000/- which also includes the present addition of ₹ 3,00,000/-. Considering the factual matrix of the entire family, in our considered opinion, an addition of ₹ 1,50,000/- should meet the ends of justice. We, modify the findings of the Ld. CIT(A) and direct the AO to make disallowance of ₹ 1,50,000/-. This ground of the assessee is partly allowed.
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2015 (10) TMI 2750
Penalty levied u/s 271(1)(c) - addition u/s 68 - Held that:- It is well settled proposition that addition made during the course of assessment proceedings would not automatically give rise to penalty under section 271(1)(c) of the Act.
It is pertinent to note that the identity of the creditor and genuineness of the transaction have not been found fault with - the Explanations and documents furnished by the assessee to prove the creditworthiness were only found to be inadequate and not found to be false - Explanation 1 to section 271 (1)(c) of the Act would come to the help of the assessee. Hence, on conspectus of the matter, we are of the view that the addition of cash credits confirmed by the ITAT, in the facts and circumstances of the instant case, would not necessitate levy of penalty under section 271(1)(c) of the Act, as the same, in our view, cannot be considered to be concealment of particulars of income. Thus direct the AO to cancel the penalty levied - Decided in favour of assessee.
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2015 (10) TMI 2749
Reopening of assessment - eligible reason to believe - Held that:- There is no reference of any material found during the course of survey relating to the said assessment year. Before the action under section 147 of the Act can be taken for reopening the assessment, the Assessing Officer must have reason to believe that the income chargeable to tax had escaped assessment.
After perusing the reason recorded, we do not find ourselves in agreement with the Assessing Officer or the learned Commissioner of Income-tax (Appeals) that the Assessing Officer had reasons to believe that the income chargeable to tax had escaped assessment in respect of the assessment year 2003-04.
Section 147 of the Act defines the power and jurisdiction of the Assessing Officer for making an assessment while section 148 of the Act provides for initiation of reopening by issue of notice. It is a trite law by now that section 147 of the Act empowers the Assessing Officer to assess or reassess the income chargeable to tax if he has reasons to believe that the income for any assessment year has escaped the assessment. The powers given to the Assessing Officer under this section are very wide but are also attached with certain overriding conditions. The Assessing Officer can assume jurisdiction under the said provision if he has sufficient material before him. It is also settled law that the Assessing Officer cannot form belief on the basis of his whim and fancy and the existence of material must be real. Further, there must be nexus between the material and escapement of income.
Also in the present case one of the basis for reopening is the statement of Shri Kapil Kumar recorded at the time of survey. The statement made at the time of survey does not have evidentiary value, therefore, cannot be the basis for reopening. Reliance is placed on the judgment of the hon'ble Supreme Court in the case of CIT v. S. Khader Khan Son [2013 (6) TMI 305 - SUPREME COURT] and also Paul Mathews and Sons v. CIT [2003 (2) TMI 25 - KERALA HIGH COURT]. On this basis also the reopening initiated by the Assessing Officer is held to be bad in law. - Decided in favour of assessee.
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2015 (10) TMI 2748
Levy of service tax - appellant who are a Co-operative Housing Society were collecting monthly subscription from its members and utilised the funds so collected to manage, maintain and administer the buildings - Held that:- The matter stand covered in appellant’s favour in the case of MATUNGA GYMKHANA, TAHNEE HEIGHTS CO-OP HOU SOC LTD AND MITTAL TOWER PREMISES CO-OPERATIVE SOCIETY VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2015 (1) TMI 1146 - CESTAT MUMBAI], where it was held that In view of the decision of the Gujarat High Court in Sports Club of Gujarat Limited [2013 (7) TMI 510 - GUJARAT HIGH COURT], as the relevant provisions (namely Section 65(25a), Section 65(105)(zzze) and Section 66 of the Act), to the extent these provisions purport to levy service tax in respect of services provided by a "club or association" to its members is declared ultra vires, we hold that there are no operative legislative provisions of the Act legitimizing the levy and collection of service tax from the appellants, for providing "club or association" service, in so far as these relate to any services provided to members of these appellants.
Levy of service tax on such service is not sustainable - appeal dismissed - decided against Revenue.
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2015 (10) TMI 2747
Addition u/s 68 - bogus LTCG - unexplained share transactions - Held that:- There was a direct evidence in the form of purchase of shares by the assessees in financial year 2002-03 on payment made by account payee cheques, the reflection of the said shares as investment in the balance-sheets of the assessee as on 31.03.2003 and 31.03.2004 and sale of the said shares in the financial year 2004-05 by the assessee against the payments received again by account payee cheques. The claim of the assessee of these transactions in purchase and sale of shares was also duly supported by the contract notes issued by the concerned brokers.
Considering circumstantial evidence brought on record to come to the conclusion that the relevant transactions of purchase and sale of shares giving rising to long term capital gain to the assesses were genuine transactions and the additions made by the Assessing Officer under section 68 by treating the said transactions as bogus were not sustainable. - Decided in favour of assessee.
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9911796707
