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Showing 101 to 120 of 1957 Records
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2018 (11) TMI 1861 - DELHI HIGH COURT
Appeal by former Director - Person describing himself as a former Director of the Company which has already been wound up - HELD THAT:- Way back on 29th August 2003, the winding up order was passed with reference to the company in question. The Official Liquidator (OL) had taken over the entire assets of the company in question many years ago. Thereafter, the learned Single Judge has been dealing with the claims of creditors.
To entertain, at this stage, any appeal by one of the former Directors on the basis that he was a major shareholder, cannot be legally countenanced - Appeal dismissed.
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2018 (11) TMI 1860 - MEGHALAYA HIGH COURT
Refund of sale proceeds of the confiscated goods which were sold in public auction - HELD THAT:- Petitioner in effect seeks implementation of the order of CESTAT for which he has efficacious remedy by laying motion before the CESTAT. Writ petition, as such, is not worth to be entertained is accordingly dismissed with liberty to the petitioner to seek implementation of the order of CESTAT by laying proper motion before the CESTAT.
Petition dismissed.
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2018 (11) TMI 1859 - NATIONAL COMPANY LAW TRIBUNAL JAIPUR BENCH
Seeking restoration of name of respondent company in the Register of Companies - section 252 of Companies Act - HELD THAT:- It is required to be noted that the company is to satisfy this Tribunal about carrying on operations and business for an immediate period of two years prior to the date of striking off which in this case is evidently absent from the figures reflected in the financial statements by the company itself and is duly audited by the statutory auditor of the company. However, the agreement as entered into between the company and the society as named above clearly demonstrate that there is a scope for revival in the operations of the company and which is highlighted by the learned counsel for the petitioner during the course of his submissions constitutes a just ground for restoration of the name of the company.
Any business to say the least is attendant with business cycles and a company which is at its lowest ebb at a given point of time can always rise to its potential at a future date based on the upward movement of business cycle of that industry or dependent on the general economic conditions. Thus, mere lack of operations for two years immediately proceeding the striking off of cannot be the only determining factor and this Tribunal is also required to take into consideration the scope of revival of the operations of the company and consequent revenue generation if same is demonstrated by the company before this Tribunal at the time for seeking its restoration.
There being no significant objections raised by the respondent ROC in relation to the restoration of the name of the company and as well as by Income Tax, the name of the company shall be revived/ restored to the register of companies as maintained by the registrar of companies - Application allowed.
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2018 (11) TMI 1858 - ITAT MUMBAI
Capital gain computation on revaluation of asset on partners retirement - Transfer of capital asset on dissolution of firm or “otherwise” within the meaning of section 45(4) r.w.s. 2(14) when the money equivalent is paid by the partnership firm to the retiring partner - matter refereed to Third Member - whether where on revaluation of asset being land held by the partnership firm which resulted into enhancement of value of asset and this enhanced amount credited in capital account of partners and when a retiring partner takes amount in his capital account including enhanced value of asset, it gives rise to Capital Gain under section 45(4) r.w. Section 2(14) ? - HELD THAT:- Hon'ble Third Member answered both the questions in the negative and in favour of the assessee agreeing with the view of the Judicial Member. Since the Majority view of the Members is against the Revenue, the grounds raised by the Revenue in both the appeals are decided against the Revenue in confirmity with the order passed by the Third Member.
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2018 (11) TMI 1857 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Approval of the final resolution plan - Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 - HELD THAT:- The secured creditors are placed above other creditors in terms of receiving payments. The Resolution Plan provides for sale of security of only Axis Bank while securities of all other creditors are intact so therefore if the sale proceeds of security of Axis Bank, the sole charge holder, is being utilized to make payment, Axis Bank is to be given priority as it is just and legal. Therefore, different treatment given to secured financial creditor Axis Bank regarding priority payment in respect to other creditors is just and reasonable. This Bench is of the considered view that the prayer of Axis Bank, a secured creditor who is losing its security, to receive its share of dues in priority to other creditors is justified.
The Resolution Plan approved by the Resolution Professional and the Committee of Creditors with 80.92% voting has been found in conformity Section 30(2) of the IBC along with the regulations 38 and 39 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 has been approved as per Section 31(1) of the IBC with modifications as stated - Application disposed off.
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2018 (11) TMI 1856 - MADRAS HIGH COURT
Exemption from Property Tax - section 101(E) of the Madras City Municipal Corporation Act, 1919 - Proper authority to pass this order - HELD THAT:- The petitioner has filed a writ petition earlier in W.P.No.25872 of 2003, challenging the demand notice dated 24.02.2003 as well as a communication that the petitioner is not exempted from payment of property tax under section 101(E) of the Madras City Municipal Corporation Act, 1919. The said writ petition was disposed of on 02.07.2018 by directing the Commissioner of Corporation of Chennai to consider the request of the petitioner seeking for exemption and pass reasoned order on merits and in accordance with law, after affording an opportunity of personal hearing to the petitioner - Therefore, it is evident that only the Commissioner, Corporation of Chennai, was directed to pass such order and not the Deputy Commissioner - Even though it is contended by the learned counsel for the respondents that the Commissioner has power to delegate the exercise to be done by the Deputy Commissioner, that could be done only under normal circumstances and not when a specific direction was issued by this Court.
Thus, it is for the Commissioner to pass an order as directed by this Court and not the Deputy Commissioner as has been done in this case - this Court is inclined to set aside the impugned order and remit the matter back to the first respondent for passing order on merits and in accordance with law, after giving due opportunity of hearing to the petitioner - petition allowed by way of remand.
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2018 (11) TMI 1855 - SUPREME COURT
Notice for terminating the tenancy of NTC - hand over vacant and peaceful possession of the suit premises to the Plaintiffs - principal ground urged by the Union of India is that the right, title and interest in the suit property had vested absolutely in the Central Government by virtue of Section 3(1) of the 1995 Act - HELD THAT:- It is not a case for taking contempt action for non-compliance of the direction of this Court inasmuch as the basis for issuing such direction has become non-existent in law. Similarly, the fact that NTC has already filed two undertakings with the approval of the Union of India, assuring to vacate the suit property, will be of no effect and cannot be enforced by operation of law. Further, the decree though validly passed at the relevant time by the concerned Court, would be of no avail nor could it be enforced against the Union of India in whom the rights of the protected or statutory tenant stood transferred to and vested in w.e.f. 1st April, 1994. The Trust may have to take recourse to appropriate remedy under the provisions of the applicable rent legislation to evict the real tenant, the Central Government. Those proceedings will have to be decided on their own merits in accordance with law, without being influenced by any observation made in the proceedings which have culminated in the judgment under review.
The Respondents are seriously opposed to showing any indulgence to NTC in the garb of Review Petition by the Union of India. For, the review petition is hopelessly time barred as there is delay of 837 days coupled with conduct of Union of India in according approval to NTC for filing two successive undertakings in compliance of the direction of this Court. The objection appears to be attractive at the first blush but it cannot be taken forward, because of the legal fiction introduced by the amendment Act and giving retrospective effect to the event of vesting of the rights of the statutory tenant in respect of the suit property in the Central Government and also rendering the decree and order including the undertaking given by NTC unenforceable.
As per the amended Section 3 of the 1995 Act w.e.f. 1st April, 1994, by operation of law the statutory or protected tenancy rights of Podar Mills Ltd. in respect of the suit property stood transferred to and vested in the Central Government and it continues to so vest in it and that the decree against NTC including the undertaking given by NTC has been rendered unenforceable by a legal fiction. As a result, the Trust being the landlord is obliged to take recourse to remedy against the Central Government (Union of India) to get back possession of the suit property, as per the dispensation specified in the concerned Rent Legislation, if it so desires.
Application for condonation of delay in filing review petition is allowed - Application for urging additional grounds in the review petition is allowed - Review peition disposed off.
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2018 (11) TMI 1854 - ITAT HYDERABAD
Disallowance of expenditure u/s 14A - HELD THAT:- The grievance of the assessee is that disallowance u/s 14A cannot exceed the exempt income. We find that in the case of Joint Investments (P.) Ltd. [2015 (3) TMI 155 - DELHI HIGH COURT] held that the window for disallowance is indicated in section 14A and is only to the extent of disallowing expenditure incurred by the assessee in relation to exempt income. Therefore, we are of the view that disallowance under section 14A cannot exceed the exempt income, and, hence, we direct the assessing officer to restrict disallowance under section 14A to the extent of exempt income earned by the assessee. Accordingly are allowed.
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2018 (11) TMI 1853 - ITAT SURAT
Penalty u/s 271(1)(c) - as per assessee the AO has not recorded a firm conclusion in the penalty order whether it is being imposed for furnishing of inaccurate particulars of income or concealment of income - HELD THAT:- While passing final order, the AO has to record a specific finding accepting the fact that penalty is being imposed for furnishing inaccurate particulars or concealment of income.
After careful consideration of penalty order AO wished to impose penalty for furnishing inaccurate particulars of income and furnishing of inaccurate particulars of income. Both these situations contradictory to each other in the above order. Therefore, this order is not sustainable in view of decision of SNITA TRANSPORT (P.) LTD. VERSUS. ASSISTANT COMMISSIONER OF INCOME-TAX [2012 (12) TMI 981 - HIGH COURT OF GUJARAT]. In view of the above discussion, penalty is not sustainable. We allow ground of appeal, and cancel penalty imposed by the AO. - Decided in favour of assessee.
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2018 (11) TMI 1852 - ALLAHABAD HIGH COURT
Winding up of Company - HELD THAT:- There is no agreement or document filed before this court, whereby it can be concluded that the respondent-company has any agreement viz-a-viz for taking service or has admitted to have taken service from the petitioner, therefore, the respondent-company is not liable to pay the amount involved.
The question of fact is involved in this petition as to whether the respondent-company is liable to pay the amount or not, which can only be proved by a detailed evidence - it is not a proper case to be entertained - petition dismissed.
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2018 (11) TMI 1851 - ITAT MUMBAI
Penalty u/s. 271(1)(c) - disallowance of unpaid property tax as not paid before the due date for filing of return - HELD THAT:- AO levied the penalty not appreciating the submissions of the assessee and the Ld.CIT(A) sustained the penalty. On a totality of the facts and circumstances as narrated above, we find that the mistake of not disallowing the property tax paid appears to be a bonafide mistake and in any case the said expenses are not in doubt but only the allowability of the year. It is not known as to what details the Assessing Officer has called for, however, the assessee by letter dated 15.03.2013 surrendered same and it was submitted that it is a bonafide mistake.
In the circumstances, we do not see any concealment of income or furnishing of inaccurate particulars but it is only due to oversight assessee did not disallow the unpaid property tax during this assessment year which was ultimately allowed as expenses in assessment year 2012-13. Thus, we direct the Assessing Officer to delete the Penalty Order u/s. 271(1)(c) of the Act. - Decided in favour of assessee.
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2018 (11) TMI 1850 - ITAT CHENNAI
Penalty u/s 271(1)(c) - loss suffered in share trading has to be set off against the other income - whether mere making a claim for set off of losses in share trading amounts to furnishing of inaccurate particulars of income? - HELD THAT:- This issue was considered by the Apex Court in CIT Vs. Reliance Petroproducts (P) Ltd. [2010 (3) TMI 80 - SUPREME COURT] as found that after furnishing entire details, making a claim in the return of income does not amount to furnishing inaccurate particulars or concealing any part of income.
This Tribunal is of the considered opinion that if the assessee makes a claim after furnishing entire details, it is his personal opinion with regard to income-tax. There may be difference of opinion with regard to nature of transactions by the assessee at one end and opinion of Department at other end. This difference of opinion with regard to nature of transaction cannot be construed as furnishing inaccurate particulars of income as found by the Apex Court in Reliance Petroproducts (P) Ltd. (supra). - penalty levied by the assessee for both the assessment years are deleted. - Decided in favour of assessee.
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2018 (11) TMI 1849 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
NCLT sought to re-determine the Liquidation Value before considering the Resolution Plan - HELD THAT:- It is clear that once the Committee of Creditors has approved the plan and the Resolution Professional produced the same before the Company Appeal in the case of QUINN LOGISTICS INDIA PVT. LTD. VERSUS MACK SOFT TECH PVT. LTD., MOHD. SABIR PARVEZ AND MR. M.L. JAIN, (RESOLUTION PROFESSIONAL) [2018 (6) TMI 904 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], where it was held that the Adjudicating Authority has to approve the same if it is in consonance with Section 30(2) or to reject it if it is in violation of Section 30(2).
Prima facie there is no provision to direct the Resolution Professional at that stage to redetermine the liquidation value once the plan has been approved by the Committee of Creditors.
Let notice be issued - Post the case 'for admission (after notice)' on 12th November, 2018 on top of the list.
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2018 (11) TMI 1848 - ALLAHABAD HIGH COURT
Two Bail Applications - distinction of complicity between the two accused applicants - HELD THAT:- The Court has heard the case of both the applicants in the light of material gathered in the charge sheet filed on 19.5.2018. The charge sheet, prima facie, makes a distinction of complicity between the two accused applicants in the backdrop of their role which each of them has severally played in the business of the Company of which they are joint beneficiaries. The distinction lies in the framing of charges itself
This Court while dealing with the right of personal liberty must have due regard to such a fundamental right of a citizen and the procedure established by law has to be essentially weighed of which the premise cannot be founded on mere apprehensions. That apart, for any such conduct, it is always open to the investigating agency to approach the court of law for seeking cancellation of bail but at this stage nothing would turn on the basis of presumptive apprehensions of the investigating agency insofar as the grant of bail to Rahul Kothari is concerned.
The bail application of Vikram Kothari is rejected at this stage and that of Rahul Kothari, is allowed.
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2018 (11) TMI 1847 - UTTARAKHAND HIGH COURT
Concurrent Jurisdiction - whether the High Court and the Court of Sessions exercises concurrent jurisdiction under Section 438 of Cr.P.C.? - HELD THAT:- In the case of GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], their Lordships of the Hon'ble Supreme Court have drawn the distinction between an ordinary order of bail and an order of anticipatory bail. Their Lordships have also held that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair.
The principles of anticipatory bail have also been dealt with by the Full Bench of Himachal Pradesh High Court in MOHAN LAL AND ORS. VERSUS PREM CHAND AND ORS. [1980 (5) TMI 120 - HIMACHAL PRADESH HIGH COURT] where the Full Bench has held that the applicant cannot be compelled to apply to Sessions Judge before approaching High Court.
Thus, the High Court and the Court of Session have concurrent jurisdiction under Section 438 of Cr.P.C. It is for the accused to choose the forum and the same cannot be restricted by construing the provision of Section 438 of Cr.P.C. narrowly - the matter is remitted back to learned Single Judge who will proceed with the matter in accordance with law.
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2018 (11) TMI 1846 - SUPREME COURT
Wrongful retention of amount - commission of offence punishable Under Section 406 by not returning the amount of Rs. One Crore advanced by the Respondent No. 2 - HELD THAT:- There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction Under Section 482 of Code of Criminal Procedure even when the discharge application is pending with the trial court.
Fraudulent transfer of property - criminal breach of trust or not - HELD THAT:- This charge is wholly untenable and rather extraordinary since the alleged fraudulent transfer of property by the Appellant No. 1 to his wife, assuming it to be illegal, by no stretch of imagination can constitute the offence of a criminal breach of trust, since the property was not entrusted by the Respondent No. 2 to the Appellants. The property belonged to Appellant No. 1 and there was therefore no question of Appellants having been entrusted with their own property, and that too by the complainant, who had merely entered into a development agreement in respect of the property.
Whether an offence Under Section 406 made out? - HELD THAT:- It is not possible to hold that the amount of Rs. One crore which was paid along with the development agreement as a deposit can be said to have been entrustment of property which has been dishonestly converted to his own use or disposed of in violation of any direction of law or contract by the Appellant. The Appellants have not used the amount nor misappropriated it contrary to any direction of law or contract which prescribes how the amount has to be dealt with - there is a security deposit of Rs. One Crore and that he has misappropriated the dispute between the two parties can only be a civil dispute.
There are no no hesitation in quashing the FIR and the charge sheet filed against the Appellants - appeal allowed.
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2018 (11) TMI 1845 - ITAT HYDERABAD
Non issuing draft assessment order as per procedure laid down u/s 144C(1) - issuing the notice of demand u/s 156 of the Act & penalty notices u/s 271(1)(c) and 271AAB along with draft assessment order - AR submitted that the draft assessment was completed with demand notice u/s 156 and penalty notices u/s 271. By issuing such notices, the assessment order becomes final - HELD THAT:- As carefully considered the submission and case laws relied. In all the case laws relied on by the assessee, the common mistake made by the AO in those assessments were that AO passed the final assessment order instead of Draft Assessment Order, the courts have held that as per section 144C(1), the AO has no right to pass final order pursuant to the recommendations made by the TPO. Accordingly, the order passed by the AO, thus, lacks jurisdiction.
In the present case, the AO has passed the Draft ‘Assessment’ but sent demand notice and penalty notices along with the draft assessment order. Since the facts are not identical to the facts of the case laws relied on by the assessee, moreover, the AO has to pass draft assessment order as per provision and was accordingly passed by him. The accompanying notices along with the draft assessment order are only procedural mistakes, it cannot tantamount to passing of final assessment order. Accordingly ground raised by the assessee is dismissed.
ALP adjustment towards interest on advances - HELD THAT:- From the above ledger extract, it is clear that the assessee has given advance to its AE on 19/06/2013, 1807/2013 and 30/09/2013 and received back on 20/11/2013, 04/12/2013 and 05/12/2013. In the result, assessee has received more than that it has advanced. In our view, the advances given by the assessee to its AE are falls within the ambit of international transaction. But, assessee has taken conscious decision to advance without charging any interest. But, since, it falls within the definition of international transaction, the provision will attract accordingly. At the same time, we notice that TPO has charged interest for the whole year by Bench marking @ 14.45%. We find it to be a bit harsh on the assessee. As per the above ledger summary, it is clear that assessee has given loan for overall period of 139 days. TPO should have calculated the interest for ALP adjustment only for the 139 days on the basis of day-wise outstanding.
Whether the bench marking of interest based on SBI PLR is proper? - As the various courts and specially Hyderabad Bench of Tribunal has adjudicated in many cases that the bench marking on international transaction should be based on international bank rates relevant to the particular transaction. In the given case, the transaction is in USD, the bench marking should be on LIBOR plus only. We direct the AO/TPO to calculate the interest for the period of 139 days and on the day-wise outstanding basis commencing from 19/06/2013 to 04/12/2013 by adopting LIBOR + 200 Bps. Accordingly, ground raised by the assessee is allowed for statistical purposes.
Disallowance of deduction as claimed towards capital receipt - AO made the addition of the said amount on the ground that the assessee failed to substantiate its claim for exemption by way filing any documentary evidence to indicate the nature of receipt - HELD THAT:- As relying on assessee's own case [2018 (4) TMI 1742 - ITAT HYDERABAD] we remit this issue to the file of TPO/AO to decide the issue in line with the above directions given in AY 2013-14.The assessee made specific reference to the charging rate at Singapore @ 0.15%. We find that the assessee has a point since the Bench Marking is generally based on Bank rates when the banks are charging @ 0.15% on Bank Guarantee, the same should be adopted to Bench Mark. Therefore, the TPO is directed to collect the rates prevailing in Singapore Banks and adopt the same for bench marking. Accordingly, this ground is allowed for statistical purposes.
Additional income admitted on the day of search in a statement recorded u/s 132(4) - additional income was declared in the belief that there were certain discrepancies in the books of account of the assessee company - HELD THAT:- We notice that this addition by AO is not real income or additional income. Assessee withdrew the additional income declared by it during search proceedings. Since assessee has increased the turnover in order to declare the additional income and the same was withdrawn subsequently. Assessee should have modified the turnover and filed the return of income, but, assessee chose to keep the turnover intact as per P&L and tried to reduce the profit by showing this additional turnover as other deduction. In our considered view, it is not additional or real income and also not a deduction in real sense. Hence, the same is deleted. Accordingly ground raised by the assessee is allowed.
Addition on the basis of statement recorded at the time of search - HELD THAT:- In the given case, AO has not brought on record any incriminating material or cogent material in support of the above addition. Merely relying on the declaration given by the MD is not proper, since the same was withdrawn by the assessee subsequently.Hence, the addition cannot be sustained in the absence of any cogent material on record. Therefore, ground raised by the assessee is allowed.
Disallowance of interest expenses on sham transactions - HELD THAT:- As decided in own case [2018 (4) TMI 1742 - ITAT HYDERABAD]in our view, AO has not made any disallowance in purchases even though he satisfied himself that these are sham transactions. Further, he proceeded to disallow interest on purchases, which is not proper, even though, he proceeded to disallow the interest with improper data and improper method. Therefore, the disallowance made by the AO on interest is deleted.
Disallowance of interest expenses paid - HELD THAT:- As the issue is similar in this AY, following the decision in AY 2013-14[2018 (4) TMI 1742 - ITAT HYDERABAD] we remit this back to the file of AO to decide the issue in line with the directions given in AY 2013-14. This ground is allowed for statistical purposes.
Addition towards loss incurred on 4th quarter - HELD THAT:- AO has not found any misstatement or any wrong claim by the assessee in the result submitted by the assessee for the 4th Quarter. AO noticed the loss in the 4th Quarter and asked the assessee to substantiate the loss. This loss is incurred during regular course of business and it is not the case of AO that the loss was incurred due to discrepancies in the result for which he could have applied the rule ‘preponderance of probability’.
AO cannot breakdown the results of the business on quarterly basis when he accepted the annual results and he has not found any discrepancies in the annual results nor rejected the books of the assessee. AO cannot question the results of individual projects and determine the results of the assessee since the results declared by the assessee based on the overall results of all the projects carried on by the assessee. Breakdown the results based on period and projects, when the overall results declared by the assessee are acceptable and particularly no discrepancies were noted in the results declared by the assessee in terms of turnover, expenditure etc., are not proper. In the absence of any material in support of the result declared by the assessee for the 4th Quarter, merely because assessee incurred losses in the 4th quarter cannot be reason to make the addition or AO cannot infer merely based on the results declared. Therefore, the addition is accordingly deleted.
Appeal of the assessee is partly allowed for statistical purposes.
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2018 (11) TMI 1844 - ITAT BANGALORE
Disallowance u/s.14A r.w. Rule 8D - assessee contends that since it had earned no exempt income in the year under consideration, no disallowance can be made under Section 14A r.w. Rule 8D - HELD THAT:- In the factual matrix of the case on hand where the assessee has not earned any exempt income in the year under consideration, no disallowance can be made under Section 14A r.w. Rule 8D. In coming to this view, we drew support from the decision of the Hon'ble High Court of Delhi in the case of Cheminvest Ltd. Vs. CIT [2015 (9) TMI 238 - DELHI HIGH COURT] wherein held that when no exempt income is earned in the year under consideration, then no disallowance under Section 14A r.w. Rule 8D can be made.
In similar factual circumstances as in the case on hand, where the assessee had not earned exempt income in the year under consideration. no disallowance could be made under Section 14A r.w. Rule 8D where the assessee had not earned exempt income in the year under consideration. Also see M/S. CHETTINAD LOGISTICS PVT. LTD. [2017 (4) TMI 298 - MADRAS HIGH COURT] - Decided in favour of assessee.
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2018 (11) TMI 1843 - ITAT KOLKATA
Disallowance of claim of payment of commission - Denial of claim of payment of commission on sales - assessee has claimed that during the course of business, he has paid commission to a number of parties for the purpose of business - non- appearance of the said commission agents in person - HELD THAT:- As decided in MADHUSUDAN RUNGTA & SONS (HUF) AND VICE-VERSA [2017 (11) TMI 1074 - ITAT KOLKATA] said commission agents even though did not respond to the summons issued by the Ld. AO by making their personal appearance, but had furnished the requisite details to the Ld. AO and had also given confirmation that they had indeed included the subject mentioned commission in their returns and paid taxes thereon. All these facts clearly proved the services rendered by the commission to the assessee achieving the payment of commission. There could be more than one justifiable reason for commission agents for not appearing before the Ld. AO in response to the summons issued thereon.
AO is empowered under the law to take necessary action against these commission agents for non-compliance to the summons issued to Section 131 - Statute provides for relevant remedial measures thereon - AO without resorting to such measures, cannot proceed to disbelieve the claim of commission paid by the assessee when the same are supported by various documents and confirmed by the said parties. In the instant case, the primary onus has been duly discharged by the assessee proving the claim of commission payments made by the assessee. There is absolutely no reason for the AO to doubt the veracity of the said transactions. Admittedly none of the commission agents were relatives of the assessee or interested parties with the assessee so as to allege some mala fide on the part of the assessee. Hence, in our considered opinion, there is no case made out by the ld AO to treat the commission transactions as ingenuine transactions in these facts and circumstances.
Disallowance of sales promotion, telephone expenses and motor car and travelling expenses - Assessee vehemently contends that no disallowance can be made on the ground that there is an element of personal use of telephone and motor car in the case of a Limited Company as there cannot be any personal use - HELD THAT:- After hearing the submission, we confirm the disallowance was made on an estimate basis of sales promotion expenses. We find that the Assessing Officer has disallowed the expenditure on an ad-hoc basis simply because there is a rise in the quantum of expenditure as compared to the expenditure incurred in earlier years. He estimated the expenditure at 60% and 40% of the claim and the balance was disallowed. This, in our view is arbitrary and without any basis.
TDS u/s 194C - disallowance u/s 40(a)(ia) - HELD THAT:- We find that the ld. CIT(A) has specifically held that in case of conversion charges, the assessee had deducted income tax at source @2% of such contractual payments and deposited the TDS in the Government A/c. On facts he held that there is no valuation of Section 194C of the Act and hence and no disallowance can be made u/s 40(a)(ia) of the Act
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2018 (11) TMI 1842 - ITAT MUMBAI
Bogus LTCG - companies were engaged in issuing bogus bills to assessee for providing long term capital gain/loss, speculation loss/profit etc. - AO has mainly placed his reliance on the statement given by Shri Mukesh Choksi.[accommodation entry provider] - CIT-A deleted the addition - HELD THAT:- It cannot be denied that the shares have been physically received by the assessee, since they have entered the demat account of the assessee. Thus, the demat account of the assessee proves the existence of shares in the hands of the assessee. Further, the assessee has sold those shares through another broker named M/s Kotak Securities Ltd.
These facts, in our view, proves that the statement given by Shri Mukesh Choksi that his group has provided only accommodation entries is wrong and against the facts available on record. We notice that the assessee has furnished demat account of the assessee and further she has purchased the shares by making payment through banking channels. It was not denied that the demat account shows the transactions of purchase and sale of shares. All these facts show that the very reason, on which the AO made the impugned addition would fail. The various case laws relied upon by the assessee support her claim. Accordingly we are of the view that the Ld CIT(A) was justified in deleting the impugned addition made by the AO. - Decided in favour of assessee.
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