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Showing 101 to 120 of 1887 Records
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2017 (12) TMI 1792
Addition u/s 57(iv) - interest received on delayed payment of enhanced compensation in respect of compulsory acquisition of agricultural land - A.R submitted that interest received on compulsory acquisition of agricultural land is nothing but enhanced compensation on the land acquired by the Authorities and it is to be exempted u/s.10(37) - HELD THAT:- The argument of the ld.A.R is having no merit. Interest on delayed payment of enhanced compensation in respect of acquisition of immovable property is a revenue receipt and it is to be taxed and cannot be exempted u/s.10(37) of the Act and it cannot be considered as a part of consideration received in respect of agricultural land specified us.2(14)(iv) .
Assessee argument stating that spreading of interest received to different assessment years - The assessee in this case had not demonstrated that it is following mercantile system of accounting. Hence, it is to be taxed on cash system basis i.e. receipt basis. This ground of appeal is also rejected.
A.R submitted that proper opportunity of hearing to the assessee by the lower authorities was not offered during proceedings - There is a violation of principles of natural justice. Before me, the ld.A.R is not able to demonstrate how the opportunity is not given by the lower authorities in prosecuting the case before them. In the absence of any material to show that the lower authorities failed to give proper opportunity of hearing to the assessee, this ground of appeal is also dismissed.
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2017 (12) TMI 1791
Maintainability of appeal by revenue - low tax effect - addition u/s 40A assessee purchased agricultural land and payments towards such purchases were made in cash - CIT-A deleted the addition - HELD THAT:- The CIT's have to record their decision issue-wise and also notice tax effect and forward relevant authorisation letter and grounds of appeal to the concerned.
Since the grounds have to be specified by the Commissioner, if the tax effect is low, reasons as to why an appeal is to be preferred even on matters concerning appreciation of facts, such as the present matter, needs to be recorded. The AO relied upon CBDT Instruction 21/2015 dated 10.12.2015, whereas in the subsequent circulars i.e. Circular No.5/2017 dated 23.01.2017, the Board clarified that filing of appeals in cases where there is revenue audit objection should not be a matter of routine.
No evidence whatsoever is placed even before us to prove that the facts determined by Ld.CIT(A) are perverse. AO is bound by the Circular issued by CBDT and he could not have preferred appeal in a case whether the tax effect is less than the specified limit and that too in the routine manner. It is also doubtful as to whether the Commissioner concerned has directed the AO to raise this ground. It does not emanate from the authorisation issued by the Commissioner.
Even on merits we do not find any infirmity in the finding of CIT(A) that the disallowance is not permissible in this year. Appeal filed by the revenue is dismissed as unadmitted.
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2017 (12) TMI 1790
Revision u/s 263 - scope and powers under Section 263 of CIT - No enquiries during the course of the assessment proceedings. In the present case the tribunal found as a fact that the “Principle of Mutuality” - HELD THAT:- As decided in own case [2017 (2) TMI 1475 - DELHI HIGH COURT] order would be erroneous only when the assessing officer makes no enquiries during the course of the assessment proceedings. In the present case the tribunal found as a fact that the “Principle of Mutuality” had been examined threadbare by the assessing officer itself and therefore it was not a case where the Commissioner could have exercised jurisdiction under Section 263 of the said Act. In these circumstances, we do not feel that there is any substantial question of law which arises for the consideration, of this Court. - no substantial question of law.
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2017 (12) TMI 1789
Seeking direction to the respondent to Adjudicate and to pass Final Order/order in original pursuant to the SCN, after due opportunity to the petitioner within a reasonable time that may be fixed by this Court - The respondent has filed a counter affidavit stating that after adjudication of the matter, pursuant to the show cause notice issued, final order has been passed by Order-in-Original after giving reasonable opportunity to the petitioner - HELD THAT:- It is open to the petitioner to apply to the respondent to issue to him a fresh copy of the Order-in-Original and on receipt of the same, it is open to the petitioner to take further action in accordance with law.
Petition disposed off.
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2017 (12) TMI 1788
No notice for hearing was communicated to the assessee - Penalty u/s 271C - assessee has failed to deposit the tax to the credit of Central Government and has also failed to deduct tax at source correctly causing short deduction of tax on the eligible amount - HELD THAT:- In the present case, it is noticed that the ld. CIT(A) noted that the case was fixed for hearing on 28.05.2015, 08.01.2016 and 01.02.2016 but nowhere he stated that the notice for hearing was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. We, therefore, by keeping in view the principles of natural justice, deem it appropriate to set aside the impugned order and remand the issue back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
Appeal of the assessee is allowed for statistical purposes.
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2017 (12) TMI 1787
Grant of Bail - Allegations of corruption and amassing of unaccounted money - allegation on the basis of few entries made in the measurement books - HELD THAT:- Considering the allegations levelled against the applicant and the evidence found during investigation against him in the supplementary charge-sheet filed against him reflects the nexus between the accused persons which is an organized crime that resulted in a multi crore scam in the NOIDA Authority in which the applicant also actively participated along with the coaccused persons, hence the prayer of the applicant to release him on bail is hereby refused.
There are no good ground for grant of bail to the applicant Ompal Singh - Bail application dismissed.
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2017 (12) TMI 1786
Grant of interim bail/anticipatory bail - concealment and suppression of material facts - private respondents cannot be held guilty of any suppression, concealment or fraud in this matter for the simple reason that the petitions were prepared on 15.09.2017 and accepted by the Registry of the Punjab & Haryana High Court on 17.09.2017 - HELD THAT:- The fact relating to the withdrawal of the Resolution passed by the District Bar Associations, Gurugram and Sohna cannot be said to be in the knowledge of the private respondents. Moreover, this plea had been dealt with by learned single Judge in the order dated 07.10.2017 and had been negated.
Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private respondents.
Coming to the merits of the case, on going through the FIR registered by the Police Station, Bhondsi dated 08.09.2017 which admittedly has been re-registered by the CBI, we find that no allegation has been made against the private respondents herein - thus, as on date, the CBI is yet to examine and analyse the role of the private respondents in this case and there is no evidence of their complicity in the crime and there is not even a pointer of involvement of respondents herein in the alleged crime. Their involvement cannot be established until and unless, there is some substantial evidence against them.
Without expressing anything on the merits of the case as the investigation is still under progress and the CBI is yet to come to a conclusion regarding the involvement of the private respondents in the crime, the private respondents herein have made out a case for grant of protection by way of interim bail till the presentation of Challan by the CBI as has been passed by learned single Judge. Therefore, the order passed by learned single Judge granting interim bail to the answering respondents till the presentation of Challan cannot be faulted with - Appeal dismissed.
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2017 (12) TMI 1785
TP Adjustment - applicability of the other method for bench marking international transactions under Section 92C for which the assessee claimed applicability of Rule 10B (brought into force w.e.f. 2012-13) - HELD THAT:- TP’s report in the present instance clearly claims that the other method is the most appropriate method and proceeds to outline why the revisions for its adoptions in certain transactions even while using the TNMM for others. This aspect has not been examined by the ITAT - and also apparently by the DRP - which had at the same time rejected the AO’s remand report. Given these facts and the circumstances that the other method was introduced for the first time, and also given the fact that there does not appear to be much judicial thinking on the application of the other method as most appropriate method and all the considerations should weigh to the tax administrators in this regard vis-a-vis revenue and cost allocation, this Court is of the opinion that the ITAT should have proceed with the matter afresh instead of having remanded the matter totally to the TPO, as it did in the circumstances.
In these circumstances, the impugned order is modified. The ITAT is directed to go into the matter afresh and return the findings both on the question of law and the facts afresh.
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2017 (12) TMI 1784
Nature of expenditure - acquiring mining rights - capital or revenue expenditure - assessee made lump sum payment for the purpose of acquiring mining rights from the Government of Karnataka - HELD THAT:- In the light of the judgment of Aditya Minerals Pvt. Ltd. [1999 (9) TMI 2 - SUPREME COURT] the impugned payment made for acquiring mining rights is capital expenditure and cannot be allowed as revenue expenditure. The reliance placed by the ld.CIT(A) on the coordinate bench decision of Tribunal in the case of P.Abubakar [2010 (1) TMI 1235 - ITAT BANGALORE] and the decision of the Hon’ble jurisdictional High Court in the case M/s.Ramgad Minerals & Minings Pvt. Ltd.,[2012 (1) TMI 313 - KARNATAKA HIGH COURT] is misplaced in the light of the decision of the larger bench decision of the Hon’ble Supreme Court in the case of Aditya Minerals Pvt. Ltd [1998 (2) TMI 8 - SUPREME COURT]
Then an issue may arise as to whether this expenditure can be allowed on a staggering basis spread over lease period as revenue expenditure in the light of the decision of the Hon’ble Supreme Court in the case of Madras Industrial Corporation [1997 (4) TMI 5 - SUPREME COURT] Needless to mention that if the payment is capital in nature, expenditure cannot be allowed on staggered basis. Even for the purpose of spreading over period of lease, it is essential that the expenditure should be in the nature of revenue expenditure. Thus, grounds of appeal of the revenue are allowed.
Premium paid for Keyman Insurance disallowed - HELD THAT: - It is held to be allowable by the decision of the Hon’ble Delhi High Court in the case of B.N.Exports[2010 (3) TMI 186 - BOMBAY HIGH COURT]and also by the CBDT circular No.726 dated 18/2/1998, but the same is allowable only in the year in which premium was paid. In the present case, admittedly, premium was paid in the earlier years and the question of allowing it as deduction in the subsequent year does not arise as the liability of the expenditure had not crystallized during the year under consideration. Therefore, grounds of cross objections of the assessee are dismissed.
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2017 (12) TMI 1783
Stay of recovery - penalty u/s 271(1)(c) - HELD THAT:- Without going into merits of the appeal, considering the fact that the issue is in respect of penalty levied u/s.271(1)(c) of the Act and the assessee has paid ₹ 10 lakhs out of the demand of ₹ 50 lakhs and the appeal is posted for hearing on 02.01.2018, the assessee is granted stay of recovery of the balance of the disputed penalty for a period of two months from today. In the event that the assessee seeks an adjournment on 02.01.2018 being the date of hearing of the appeal, this stay granted to the assessee shall stand vacated.
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2017 (12) TMI 1782
Restoration of view taken by the Assessing Authority - addition of turnover and re-assessment - estimation of turnover based solely on surmises and conjectures - HELD THAT:- It is not disputed that the solitary bill was numbered 114 and dated 14 February 1999. On this basis the Assessing Authority as well as the Tribunal have incorrectly proceeded to assume that 113 additional transactions were presumably undertaken by the assessee. They have also further and for reasons which cannot possibly be countenanced or accepted proceeded to hold that all these 113 transactions would have been valued at ₹ 60,770/-. The Court is constrained to observe that this line of reasoning is totally arbitrary and cannot possibly ever appeal to logic let alone acceptance in judicial proceedings. Both the Assessing Authority as well as the Tribunal have proceeded in the matter without being educated by the principles which must necessarily govern a best judgment assessment. While it is true that in the course of estimation of turnover a certain degree of guess work must necessarily be recognized as vesting and inhering in the hands of the Assessing Authority, the same cannot possibly be construed as conferring a power to estimate turnover in a wholly whimsical manner as has been done in the facts of the present case.
The estimation of turnover of ₹ 10,00,000/- is based solely on surmises and conjectures. The mere fact that the bill in question bore the number 114, cannot automatically lead one to conclude or hold that it was preceded by 113 prior transactions and that too of identical value. Such a process of determination and assessment in the case of a taxing statute cannot be accorded approval by this Court.
The order of the Tribunal as well as the Assessing Authority dated 9 February 2007 and 24 December 2004 respectively, shall stand set aside and the decision of the First Appellate Authority dated 25 August 2006 shall stand restored - Revision allowed.
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2017 (12) TMI 1781
Seizure of goods along with vehicles - goods were not accompanied by an e-way bill generated by the recipient trader of Andhra Pradesh State/Telangana State - validity of G.O. Ms. No. 309, dated 24-7-2017/G.O. Ms. No. 180, dated 9-8-2017 - HELD THAT:- As the State Legislature is competent to make laws only with reference to the intra-State movement of goods or services, Rule 138 has to be construed as being applicable only to such goods or services. This being the position, prima facie this Court is of the opinion that G.O.Ms. No. 309, dated 24-7-2017, as extended by G.O. Ms. No. 446, dated 3-10-2017, upto 31-12-2017, issued by the State of Andhra Pradesh, and G.O. Ms. No.180, dated 9-8-2017, issued by the State of Telangana, are not enforceable insofar as the inter-State movement of goods and services is concerned.
In view of the prima facie findings arrived at by this Court hereinbefore, we are of the opinion that the detention of goods along with vehicles by the States of Andhra Pradesh and Telangana only on the ground of non-generation of e-waybill by the traders of their respective States receiving the goods, is not permissible.
The goods along with the vehicles belonging to the petitioners shall be released on their executing a bond to the effect that in the event of determination of tax liability, they will pay the tax along with the penalty, if any - Petition allowed.
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2017 (12) TMI 1780
Disallowance of Labour Charges - AO found certain discrepancies in the vouchers so maintained and as the assessee had failed to substantiate expenses made under the head ‘site expenses’ and also not maintained any muster roll or control register to monitor the said expenses and disallowed 5% of expenses - HELD THAT:- The assessee had incurred labour expenses at various sites totaling ₹ 5.02 crores. Revenue has not controverted the findings of CIT(A) in this regard. Now, the question which arises in the present appeal is disallowance made out of said labour charges by the authorities below.
The reason for disallowance is discrepancies noted in the vouchers maintained, wherein writing on the vouchers appeared to be the same person. Assessee had failed to maintain any muster roll or wage register. Also, no amount was deducted on account of Provident Fund and ESIC. The payees were also not verifiable. The case of assessee was that majorly payment was made through cheque. Merit in the aforesaid disallowance made by the authorities below. However, we restrict the same to 3% of labour charges. The grounds of appeal raised by the assessee are thus, partly allowed.
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2017 (12) TMI 1779
Correct head of income - premium received on account of the tenancy rights - Capital gain or income from other sources - allowed deduction u/s 54EC - HELD THAT:- We find that the issue is of recurring in nature and stood in assessee’s favor from AY 2007-08 to 2011-12 wherein held that legislature has intended to define the term “capital asset” in the widest possible manner. This definition has been curtailed to the extent of exclusions given in section 2(14) itself which include stock in trade and personal effects. The impugned asset does not clearly fall in the aforesaid exclusions given in section 2(14). The bundle of rights acquired by the assessee are undoubtedly valuable in terms of money. In our view, the said tenancy rights shall form part of a capital asset in the hands of the assessee and, therefore, any gains arising therefrom would be assessable under the head “Income from capital gains eligible for deduction u/s 54EC of the Act. - Decided in favour of assessee.
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2017 (12) TMI 1778
Custody and transportation of Metro Rails which are manufactured by EVRAZ East Metals AG - HELD THAT:- Defendant RRC agree and undertake that 3278.7 MT (18 Meter rails) and 253.14 MT (25 Meter Metro Rails) of Metro rails presently lying with them in their warehouse (in good condition) would be given delivery of to the Plaintiff LSI. Defendant RRC states that 250.35 MT of 18 meter Metro Rails are in transit from Mumbai to Nagpur and will reach MAHA METRO site in Nagpur within 7 days from today. Upon such delivery, RRC will hand over to LSI the MAHA METRO delivery receipt for the said 250.35 MT rails. Defendant RRC agree and undertake to handover 15 clamps as specified in the contract.
The matters will be taken up for hearing on 15th January, 2018 when this Court will consider all claims, contentions and submissions of all parties, inter alia, including on the following issues –
a. Whether any security should be furnished for the amounts claimed by RRC?
b. Which party should furnish the security, if any?
c. What is the amount for which the security should be furnished?
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2017 (12) TMI 1777
Capital gain computation - FMV determination - reference to DVO - Adoption of fair market value @ ₹ 300/- per sq. yard as on 01-04-1981 - HELD THAT:- There is a wide gap in land rate as given by Registered Valuer and actual sale instances cited by the DVO. Registered Valuer had simply stated in the Valuation Report that the rate of land as on 01-04-1981 is ₹ 1400/- per sq. yard based on local survey. No sale instance is quoted to arrive at such rate by Registered Valuer.
Registered Valuer’s valuation of land @ ₹ 1400/- per square yard is not based on any independent supporting document. It is simply mentioned in the valuation report that rate is based on local survey. However, what evidences were gathered in the survey to arrive at such rate is not provided. Therefore, in my considered view the value adopted by the Registered Valuer at ₹ 1400/- per sq. yard is very high and unreasonable. The DVO had given sale instances of the same locality. The assessee relied on sale instances which are from far away areas from the location of concerned property. Keeping all these relevant facts in view, the rate adopted by ITAT, Jaipur bench in first round at ₹ 300/- per sq. yard is quite fair and reasonable. Hence, the Bench directs to adopt the fair market value @ ₹ 300/- per sq. yard as on 01-04-1981.
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2017 (12) TMI 1776
Sanction of Scheme of Amalgamation - Sections 230 to 232 and Section 234 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme - Since all the requisite statutory compliances have been fulfilled, Company Scheme Petition No. 1075 of 2017 filed by the Petitioner Companies are made absolute in terms of prayer clause (a) of the Petition.
The Petitioner Companies to lodge a copy of this order and the Scheme duly authenticated by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same within 60 days from the date of receipt of the order - Petitioner Companies are directed to file a copy of this order along with a copy of the Scheme duly certified by the Deputy Director or Assistant Registrar, National Company Law Tribunal, Mumbai Bench with the concerned Registrar of companies, electronically, along with E-form INC 28 within 30 days from the date of issuance of the order by the Registry.
The Petitioner Companies to pay costs of ₹ 25,000/- each to the Regional Director, Western Region, Mumbai. Transferor Company 3 & 4 (First and Second Petitioner Company above to pay cost of ₹ 25,000/- to the Official Liquidator, High Court, Bombay - The costs to be paid within four weeks from the date of receipt of Order.
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2017 (12) TMI 1775
Dispensation with convention of meeting of the Equity Shareholders of the Petitioner Company - Petitioners submits that the Company Petition is filed in consonance with section 230 to 232 read with Section 234 of the Companies Act, 2013 along with the Order passed in Company Scheme Application No. 915 of 2017 by the Tribunal - HELD THAT:- At least 10 clear days before the date fixed for hearing, Petitioner Companies to publish the notice of hearing of the Petition in two local newspapers viz "Free Press Journal" in English and "Navshakti" in Marathi, both circulated in Mumbai.
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2017 (12) TMI 1774
TP Adjustment - transaction of rendering of services of market management support services - determining ALP adjustment in respect of management fee to intra-group services - HELD THAT:- CIT(A) had not examined any evidence to show that the agents have actually rendered their services. The learned CIT(A) had totally misdirected himself by examining the issue from the angle of tax deducted at source and he had failed to examine whether the services are actually rendered by the commission agents or not. Unable to sustain the order of the learned CIT(A) and hold that the commission payments in question are not allowable.
Assessee company had miserably failed to demonstrate the actual services rendered by the agents to whom the commission payments were made, despite ample opportunity granted by this Tribunal to furnish evidence in support of service rendered by commission agent.
Condition of rendition of services should be satisfied by the assessee so as to allow the same as expenditure. In the present case, assessee- company had not produced any evidence in support of rendering of services before the TPO. It is only before us, by way of additional evidence, assessee-company has filed some material, in support of the actual services rendered by the AE.
CIT(A) had no occasion to examine this evidence as it was claimed that this evidence was filed for the first time before us . CIT(A), without examining the aspect of actual rendition of services by the AE in respect of IT services, had directed the allowance of expenditure. Therefore, in interests of justice, we restore this issue to the file of the AO for purposes of verification of this evidence and come to conclusion whether the services are actually rendered by the AE or not and direct the TPO/AO to bench mark the transaction of rendering of services of market management support services, after being satisfied himself that the services are actually rendered by the AE.
On the principle of consistency, we hold that each assessment year is separate and distinct. The principles of res judicata have no application to income-tax assessment proceedings. Simply because in the preceding year, this expenditure came to be allowed without any probe or enquiry it does not preclude the AO from making the enquiries on these issues.
In the present case, assessee-company had not discharged the onus of proving the receipt of services before lower authorities. Despite opportunities given to the assessee-company, no attempt was made by the assessee-company to lead necessary evidence in support of receipt of actual services from the AE. The submission of the assessee- company that an opportunity may be granted to the assessee-company to discharge onus, cannot be accepted because it is settled principle of law that the assessee-company cannot be accepted, because it is settled principle of law that the assessee-company cannot be given a second innings to make good its case.
Simply because in earlier years the issue was remanded back to lower authorities, remand cannot be ordered in the present year without valid reason in the light of the decisions cited supra. Needless to mention that each year is an independent and separate assessment year and the principle of res-judicata is not applicable. It may be mentioned here that in the earlier assessment year in the assessee's own case, this issue was decided against the appellant . Hence, the appeal is dismissed.
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2017 (12) TMI 1773
Rectification of mistake - TP Adjustment - AMP Expenditure - JV Agreement was not produced - joint venture company i.e. the assessee, has been entrusted with the responsibility to market the goods in India and which is contrary to the findings of the Hon'ble ITAT that obligation to incur the expenditure has been presumed to exist only on the basis of the quantum of expenditure - HELD THAT:- Basis for allowing the appeal by the I.T.A.T. and basis for holding that the AMP spend by the assessee was not an international transaction in the first place, was on account of the fact that the Revenue had failed to point out the existence of any arrangement or agreement between the assessee and its associated enterprise reflecting the entrustment of the liability/responsibility to carry out brand promotion expenses on behalf of the parent AE by the assessee.
The clauses now referred to by the Revenue in support of its contention that they reflect the entrustment of the responsibility of carrying out brand promotion to the assessee by AE, we find are of no relevance. Clause No.21 of the JV referred to by the Revenue only states that the assessee company would market the licensed products which are manufactured in India. This is just a normal sales promotion responsibility for the goods manufactured by the assessee, entrusted to the assessee.
It cannot by any stretch of logic be read to mean that the expenses for promoting the brand of AE was entrusted to the assessee. Similarly, the trade mark agreement at clause 22 of the Joint Venture agreement referred to by the Revenue in its Miscellaneous Application merely states that the trade mark name and logo of Widex is the exclusive property of the parent AE and separate agreement would be executed between the parties to ensure that it remains so in future also. We fail to understand how this throws any light on the entrustment of the responsibility to carry out brand promotion on behalf of the AE by the assessee, nor has the same been clarified before us - no error in the order of the I.T.A.T. - Decided against Revenue.
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