|
Advanced Search Options
Case Laws
Showing 101 to 120 of 1639 Records
-
2023 (8) TMI 1539
Money Laundering - scheduled offences - Provisional attachment order - assets disproportionate of known sources of income - HELD THAT:- The first issue is in reference to the application of the Act of 2002. It is in reference to the offence under the Prevention of Corruption Act, 1988. It was not a scheduled offence in the year 2002 but was added by the notification issued in the year 2009 followed by further amendment in the year, 2013. According to the appellant, the check period to find out disproportionate property to the known-sources of income is of the period prior to the amendment and therefore the Act of 2002 could not have been enforced to attach the property. It is for the reason that amendment of year 2009 and 2013 has not been given retrospective effect - The relevant date to find out the scheduled offence is the date when one projects tainted property to be untainted or involves oneself in money laundering and not the date of actual commission of predicate offence. The check period of income may be from the year 2004 to 2014 but the FIR was registered in the year 2014 and thereupon, ECIR was recorded on 12.02.2015. It is much subsequent to the amendment in the Act of 2002 to make an offence under the Prevention of Corruption Act to be a scheduled offence. In view of the above, it is not found that amendment under the Act by the notification of year 2009 or 2013 have been given retrospective effect in this case.
It is to show that no offence under Section 13 (1) (d) or 13 (2) of the Act of 1988 is made out. The appellant is not having disproportionate property to the known-sources. It is found that facts available record prima facie shows a case of disproportionate property in the hands of the appellant to his known-sources.
An order of attachment pre supposes the conditions referred to above and given under Clause (a) and (b) of sub Section (1) of Section 5. In the instant case, the respondents have failed to show any likelihood of concealment or transfer of the properties so as to frustrate the proceeding of confiscation rather the property in question was attached by the Special Court much prior to the order for provisional attachment - The property can be attached by the respondent department under Section 5 of the Act of 2002 but it can be when they possess material to show that property may be concealed, transfer or be dealt with in any manner to frustrate the proceeding of confiscation. When the property was already attached by the Special Court, how it could have been transferred or concealed - reasons to believe were recorded without application of mind.
It is however with clarity that if, the Special Court withdraws the attachment order or the trial pursuant to the FIR is completed, the respondents would be at liberty to exercise their authority under Section 5 (1) of the Act of 2002 in case of an apprehension of concealment or transfer of property.
The appeal disposed off.
-
2023 (8) TMI 1538
Request of adjournments multiple times without valid reasons - Penalty u/s 271BA - On the date of third hearing when this case was called out for hearing, none appeared but an e-mail request received from assessee for adjournment which was placed before us - HELD THAT:- It seems that the assessee is not serious in perusing the present appeal as it is seen that the approach of the assessee is very casual before this Tribunal. The assessee as litigant cannot take the adjournment as right. The assessee should come and explain the reasons for seeking time. The bench in earlier two occasions granted the time as requested. Whereas in third application we note that the approach is very causal and the ld. AR of the assessee considering this court as ‘’walk-in- place’’ where appellant can approach whenever they want. Even though the sufficient opportunity were granted in earlier occasions the assessee did not file any paper book or written submission to substantiate the grounds of appeal.
In spite of the fact that on earlier two occasion the adjournment were granted but on the last date also the assessee very causally sent an application for adjournment. From this, it appears that the assessee is not interested to pursue their case.
So, in the circumstances, following the decision of CIT Vs. Multiplan India (P) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] and also on the judgement of Estate of Late Tukhoji Rao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] the appeal of the assessee is not admitted and is dismissed in limine.
-
2023 (8) TMI 1537
Accrual of income in India - assessee has “Permanent Establishment” in India or not? - HELD THAT:- We observe from the record that identical issue is decided in favour of the assessee in the A.Y.2010-11 [2019 (7) TMI 859 - ITAT MUMBAI] and held that assessee did not have a Permanent Establishment in India. Thus we allow the grounds raised by the assessee.
Alternative plea of attribution of profits and estimation of gross profit - Since, we have already allowed of the appeal holding that assessee does not have a PE in India and thus income of the assessee is not allowable to be taxed in India, the aforesaid grounds of appeal are rendered academic and infructuous.
Levy of interest u/s.234A - We are inclined to remit this issue back to the file of AO with a direction to verify the records submitted by the assessee on merit and as per law. It is needless to say that assessee may be given a proper opportunity of being heard. Accordingly, Ground No. 8 is remitted back to the file of AO for statistical purpose.
Taxation of royalty income u/s. 44DA - We are inclined to remit this issue back to the file of AO with a direction to verify the records submitted by the assessee on merit and as per law. Assessing Officer is further directed to determine the royalty as per the direction of APA.
Appeal filed by the assessee is partly allowed for statistical purpose.
-
2023 (8) TMI 1536
Clandestine removal - differential value between the figures mentioned in return and balance sheet - period from January 2007 to February 2010 - HELD THAT:- Firstly, there is no direct evidence of clandestine removal such as transportation, recipient of goods, receipt of consideration etc. However, the difference between the balance sheet and ER-1 returns need to be explained as per the satisfaction of the Adjudicating Authority. On going through various documents such as balance sheet, ledger, chartered accountant certificate, we find that the appellant have claimed that there is no clandestine removal, hence, there is force in the said submission of the appellant. However, it is observed that the Adjudicating Authority has not properly verified such documents whereby the appellant have explained the difference between the sales figure shown in balance sheet and ER-1.
The matter needs to be re- considered as a whole on the basis of the documents submitted by the appellant.
Appeal allowed by way of remand to the Adjudicating Authority for passing a fresh de novo order within a period of two months from the date of this order.
-
2023 (8) TMI 1535
Denial of relief u/s 90 - Form 67 was not filed correctly - HELD THAT:- Form No. 67 has been filed by the Appellant before the processing the return of income under Section 143(1) of the Act. Therefore, respectfully following the decision of Sonakshi Sinha [2022 (10) TMI 107 - ITAT MUMBAI] we remand the issue raised in present appeal back to the file of AO with the direction to grant foreign tax credit to the Appellant as per the aforesaid decision after verification. Ground No. 1 raised by the Appellant is allowed for statistical purposes.
-
2023 (8) TMI 1534
Refund of amount wrongly paid by the petitioner due to a mistake in input tax credit - HELD THAT:- It appears that the Authority has adopted highly technical approach in the matter. When the competent authority i.e. respondent No. 1, after verification of the documents and facts has found that the petitioner has not claimed the input tax credit for the value of the passenger vehicle in question and paid the tax amount demanded by Exts. P3 and P4, the petitioner is entitled to get refund of the amount paid by him. The approach of the Authority does not appear to be proper.
The second respondent is directed to remit the amount of Rs. 4,61,942/- with interest at the rate of 9% with effect from 05.08.2020 i.e. date of the intimation by the first respondent to the second respondent. The principal amount and interest thereon is directed to be paid within a period of one month from today - petition allowed.
-
2023 (8) TMI 1533
Seeking permission to withdraw the Special Leave Petition with liberty to file a fresh petition in the event the predicate offence is revived - Money Laundering - the Settlement Commissioner completed the work that was assigned to him and submitted a report to this court, based on which, the prosecution was quashed by this Court - it was held by the High Court that 'the quash petition deserves to be allowed since the prosecution of the accused in the predicate offence has already been quashed by this court'.
HELD THAT:- The Special Leave Petition is disposed of as withdrawn, as prayed.
-
2023 (8) TMI 1532
Seeking grant of bail - offence punishable under Sections 132(1)(c), 132(1)(i) of the Central Goods and Service Tax Act, 2017 - it is submitted that the applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Code - violation of principles of natural justice - HELD THAT:- It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of STATE OF RAJASTHAN, JAIPUR VERSUS BALCHAND @ BALIAY [1977 (9) TMI 126 - SUPREME COURT], GUDIKANTI NARASIMHULU AND ORS. VERSUS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [1977 (12) TMI 143 - SUPREME COURT], RAM GOVIND UPADHYAY VERSUS SUDARSHAN SINGH AND ORS. [2002 (3) TMI 945 - SUPREME COURT], PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. [2010 (10) TMI 1199 - SUPREME COURT] and MAHIPAL VERSUS RAJESH KUMAR @ POLIA & ANR. [2019 (12) TMI 1461 - SUPREME COURT], the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, it is opined that it is a fit case for grant of bail.
Hence, the present bail application is allowed, subject to fulfilment of conditions imposed.
-
2023 (8) TMI 1531
Inaction of the respondent/Department for having failed to reimburse 12% GST on the tender amount - HELD THAT:- It is not in dispute that the entire tender process and allocation of work by respondent/Department is post coming into force of Goods and Services Tax. If petitioner, who is a registered Civil Contractor has completed the tender work, respondent/Department being a service recipient is under bounden duty to reimburse GST amount of Rs. 2,16,51,903/- in terms of Section 13 of The Central Goods and Services Tax Act, 2017. It is also not in dispute that petitioner, who is a class-I contractor having rendered service, is under mandatory duty to pay GST amount to the department. Equally respondent/Department is under bounden duty to reimburse the GST amount. It is borne out from the records that since necessary payment at the petitioner's end the applicable GST being statutory requirement, the respondent/Department ought to have reimbursed 12% GST amount on the total work done by petitioner. Since, there is total inaction on the part of respondent/Department, this is a fit case where mandamus needs to be issued.
The respondent is hereby directed to reimburse GST amount as indicated in the representation dated 15.04.2023 vide Annexure-E - Petition allowed.
-
2023 (8) TMI 1530
Seeking permission to withdraw the petition to avail remedy, if need arises in future - Seeking modification of the bail conditions - the High Court had dismissed the petition - HELD THAT:- The special leave petition is dismissed as withdrawn with above liberty.
-
2023 (8) TMI 1529
Accrual of income in India - payment received for rendering satellite transponder facilities by the respondent/assessee to its customers in India - HELD THAT:- Issue raised in the present appeal is covered by the decision of this Court in Intelsat US LLC (Erstwhile Intelsat Corporation) [2023 (7) TMI 1463 - DELHI HIGH COURT] held that revenue stated that issue raised in the present appeal is covered by the decisions rendered in M/s Asia Satellite Telecommunications Co. Ltd. [2011 (1) TMI 47 - DELHI HIGH COURT] and New Skies Satellite BV [2016 (2) TMI 415 - DELHI HIGH COURT].
We are told that the appellant/revenue has preferred Special Leave Petition(s) against the said decisions, which are pending adjudication. Accordingly, the appeal of the appellant/revenue is closed, following the abovementioned decisions rendered by the coordinate benches”.
Accordingly, in this case as well, the appeal is closed. In case, the appellant/revenue were to succeed in their appeals pending in matters of M/s Asia Satellite Telecommunications Co. Ltd. and New Skies Satellite BV [supra] parties will be bound by the decision rendered in said Special Leave Petitions.
-
2023 (8) TMI 1528
Nature of expenses - Salaries and wages expenses - HELD THAT:- This issue came for consideration before this Tribunal in assessee’s own case [2023 (6) TMI 1118 - ITAT BANGALORE] for the assessment year 2016-17 wherein, the Tribunal followed the earlier order of the Tribunal in assessee’s own case held that such expenses should be treated as revenue in nature.
Interest on advances to overseas subsidiaries - Since the assessee has entered for unilateral Advance Primary Agreement for assessment year 2016-17 to 2020-21, which is binding as per section 92CC(5) of the Act. Being so, these grounds are infructuous and dismissed.
Corporate guarantee commission - We have heard the rival submissions and perused the materials available on record. These grounds are infructuous in view of the APA entered by the assessee for the assessment year 2016-17 to 2020-21.
Adjustment for Specified Domestic Transaction (“SDT”) - We are of the opinion that this issue has been considered by this Tribunal in assessee’s own case in [2023 (6) TMI 1118 - ITAT BANGALORE] as held as during the course of hearing, after taking consent from both the sides, we think it will be appropriate to grant credit period of 45 days and interest is to be calculated using LIBOR 6 months+350 basis points. Accordingly this is sent back to TPO/AO to recalculate the interest on delayed receivables afresh following the LIBOR 6 months+350 basis points. This ground is allowed for statistical purpose.
Disallowance u/s 14A - After hearing both the parties, we are of the opinion that this issue came for consideration before this Tribunal in assessee’s own case [2023 (6) TMI 1118 - ITAT BANGALORE] held that a perusal of the assessment order passed by A.O. would show that the A.O. has observed that he was not satisfied with the working furnished by the assessee. A.O. has not examined the basis of the allocation and apportionment of expenses towards the exempt income. Hence, the coordinate bench has restored this issue to the file of the A.O. for examining it afresh. Accordingly, following the decision rendered by the coordinate bench, we restore this issue to the file of the A.O. The assessee is free to make its submissions and the AO shall decide the decide the issue in accordance with law, by duly considering the submissions made by the assessee.” - we restore this issue to the file of AO with similar directions. Since Rule 8D has been amended, the AO has to follow the amended Rule 8D. This ground is allowed for statistical purpose.
Computing book profit u/s 115JB for addition u/s 14A - HELD THAT:- As decided in [2020 (10) TMI 605 - ITAT BANGALORE] amount disallowed u/s 14A of the Act cannot be adopted for the purpose of computation of book profit u/s 115JB of the Act and the disallowance to be made u/s clause (f) to explanation 1 has to be computed independently without having regard to the provisions of section 14A of the Act. In view of the above, we are unable to sustain the addition made by the A.O.
Denying set-off of losses of STP units against other business income of the appellant in terms of Section 70 or Section 71 - HELD THAT:- We are of the opinion that this issue came for consideration before this Tribunal in [2023 (6) TMI 1118 - ITAT BANGALORE] to hold that the loss arising in eligible SEZ/STPI undertakings are not required to be adjusted against the profits arising from other SEZ/STPI undertakings and the said loss can be adjusted against profits arising from non-SEZ/non-STPI units this issue is decided in favour of the assessee.
Excluding income under the nomenclature of other income from the profits of the business of the undertakings eligible for deduction u/s 10AA - HELD THAT:-We are of the opinion that this issue came for consideration in assessee’s own case in [2023 (6) TMI 1118 - ITAT BANGALORE] as held that the income generated on sale of scrap/newspaper should be included in the profits of the undertaking eligible for deduction u/s 10AA of the Act. In this year also, the break-up details of “Other income” are not available. Accordingly, we restore this issue to the file of AO with the direction to examine the break-up details of other income which were debited into the profit & loss account in earlier years and decide the issue in accordance with the discussions made supra. Accordingly, this issue is partly allowed for statistical purpose.
Excluding net interest income from PCFC loans and surpluses for computing the deduction u/s 10AA - HELD THAT:- As decided in assessee’s own case [2023 (6) TMI 1118 - ITAT BANGALORE] cited (supra), wherein the Tribunal held as noticed earlier that the AO has taken the view that the surplus funds of undertaking located in SEZ are put into common bank account. Accordingly, the AO has observed that the surplus funds relating to SEZ division could not be separately identified, if all the surpluses of all divisions are put together, meaning thereby, it is the case of the AO that there is no nexus between interest income and income of business undertaking. In our view, the assessee may be given an opportunity to show that the nexus between SEZ/STPI divisions and the fixed deposits from which interest income was earned. If the assessee is able to show the nexus to the satisfaction of the AO, then the interest income to that extent should be eligible for deduction u/s 10A/10AA/10B of the Act.
Excluding deemed exports from export turnover of the undertaking for the purposes of computing deduction u/s 10AA - HELD THAT:- As in assessee’s own case [2023 (6) TMI 1118 - ITAT BANGALORE] we direct the AO to include deemed exports to SEZ as part of turnover while computing deduction u/s 10AA of the Act. Accordingly this ground is allowed.
Excluding revenues realized in convertible foreign exchange of communication link reimbursement, asset reimbursement, incentive and rewards and other reimbursement from the export turnover - HELD THAT:- As in assessee’s own case [2023 (6) TMI 1118 - ITAT BANGALORE] Expenditure incurred in development of software and which forms part of “direct cost of development of software” would not fall under the category of “technical services” or “services” rendered outside India, as contemplated in the definition of Export turnover. Hence the same is not required to be excluded from export turnover. Accordingly, what is required to be excluded is the expenses specifically mentioned in the definition of “export turnover”, viz., the expenditure incurred on freight, telecommunication charges or insurance attributable to the delivery of the computer software outside India or expenses, if any incurred in foreign exchange in providing technical services outside India alone are required to be excluded from the export turnover.
Further, if any amount is excluded from “export turnover”, the same is required to be excluded from “total turnover” also, as held in the case of Tata Elixi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT] and case of CIT vs. HCL Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT] - we set aside the order passed by the A.O. on this issue and direct him to compute the deduction u/s 10A/10AA/10B of the Act by following the discussions - issue is remitted to the file of AO/TPO to compute the deduction u/s 10AA of the Act on similar directions.
Computing the deduction u/s 10A - Include sale amount in the Export turnover while computing deduction u/s 10AA wherever the applications have been filed by the assessee to RBI through its bankers seeking permission to receive the export proceeds beyond the prescribed period.
Foreign tax credit - We direct the AO to allow the foreign tax & State Tax paid by the assessee, to the extent not allowed as tax credit u/s 90 & 91 as deduction from the business income of the assessee from the respective units.
Disallowance of payment made u/s 40(a)(i) of the Act for non-deduction of tax at source - HELD THAT:- It is the submission of the assessee that the Hon’ble High Court Samsung Electronics Ltd [2011 (10) TMI 195 - KARNATAKA HIGH COURT] has decided an identical issue against the assessee following its own decision rendered in the case of Samsung Electronics Ltd [2011 (10) TMI 195 - KARNATAKA HIGH COURT] which has since been revered in the case of Engineering Analysis Centre of Excellence P Ltd [2021 (3) TMI 138 - SUPREME COURT] The decision in the above said case has been rendered by Hon’ble Supreme Court subsequent to the passing of the assessment order.
Accordingly, we are of the view that this issue requires fresh examination at the end of AO. Accordingly we restore this issue to the file of the AO with the direction to examine this issue afresh applying the principles laid down by Hon’ble Supreme Court in the case, referred above. If the AO comes to the conclusion that the decision rendered by Hon’ble Supreme Court in the case of Engineering Analysis Centre of Excellence P Ltd is applicable to the payments made to Gartner group and there is no requirement to deduct tax at source, then there is no requirement of making any disallowance u/s 40(a)(i) - if the AO comes to the conclusion that the above said decision of Hon’ble Supreme Court is not applicable and the assessee is liable to deduct tax at source, then the AO shall grant enhanced deduction u/s 10A/10AA/10B of the Act by increasing the profits of undertaking by the amount of disallowance so made.
-
2023 (8) TMI 1527
Reversal of Cenvat credit on the quantum of electricity produced in the factory of the appellant and supplied to another unit of the appellant for use of in manufacturing of the final product of such other unit - HELD THAT:- The issue has been dealt by this Tribunal in the case of M/S. SHREE CEMENT LTD. VERSUS C.C.E. JAIPUR-II [2017 (6) TMI 502 - CESTAT NEW DELHI], wherein this Tribunal has observed 'Cenvat Credit on input and input services proportionate to the power transferred to sister concerns through the Central electricity grid, need not be reversed.'
Thus, the appellant has correctly taken the Cenvat credit on inputs and input services, which has been used for generation of electricity. The said electricity is supplied free of cost to the appellant’s sister unit for manufacturing of final product. Therefore, no demand is sustainable against the appellant as they have correctly taken the Cenvat credit.
The impugned order set aside - appeal allowed.
-
2023 (8) TMI 1526
Eligibility to Registration u/s 12AA - conjunctive tests to be considered at the time of registration - objects of the applicant are charitable in nature and establishment of genuineness of the charitable activities - mandation to pass the two tests cumulatively, and not alternatively - HELD THAT:- Charity is the core issue for registration u/s 12AA - Charity is its soul. Mere declaration of charitable objects is not adequate. Establishing the genuineness of charitable activities is an essential requirement for registration u/s 12AA of IT Act. Even in the case of Reham Foundation Lucknow [2019 (10) TMI 151 - ALLAHABAD HIGH COURT] on which the learned A.R. for assessee has placed reliance, it has been clearly enunciated that registration is subject to satisfaction over genuineness of the activities of the trust and over objects of the trust.
In this background, on perusal of the impugned order of learned CIT(E), we find that she has not commented on objects of the assessee trust and on the genuineness of the activities. Further, on perusal of the materials brought for consideration by way of the paper book filed from the side of the assessee trust, we are of the view that these materials are not sufficient for us, to reach a definite conclusion on genuineness or otherwise of the activities of the assessee trust.
Thus as relying on the case of Boondein [2023 (7) TMI 1461 - ITAT LUCKNOW] we set aside the aforesaid impugned order of learned CIT(E) and direct the learned CIT(E) to pass a denovo order in accordance with law after providing reasonable opportunity to the assessee and after giving due consideration to the submissions made by the assessee. We specifically direct the learned CIT(E) to give findings on charitable objects of the assessee trust and on genuineness of the charitable activities of the assessee, as claimed by the assessee - Assessee appeal is partly allowed for statistical purposes.
-
2023 (8) TMI 1525
Addition u/s 69 - CIT(A) restricted addition to the brokerage income being 2% - seized document during the search operation includes a satakat in the name of assessee as purchaser containing complete details of sellers and the assessee and his brother and contains the complete details of the property under transaction and the details of the advance payment made by assessee by way of cheques to the owners - HELD THAT:- CIT(A) recorded that the assessee has given advance for purchase of said land/plots.
CIT(A) on the basis of such circumstances, noted that once the assessee has given advance, getting commission on such land cannot be ruled out, thus the addition if any can be restricted to the brokerage transaction and not to the transaction of sale and purchase of land.
CIT(A) held that Satakhat relied and referred by Assessing Officer was never executed as seen from the seized material. There is no other evidence relating to the transaction, found during the course of search either at the premises of assessee or from Mr. Tarnish B Kania. On the basis of such observation, the ld. CIT(A) held that the transaction of investment in the lands is not proved. However, on the same time, the circumstances suggest that the assessee has taken brokerage. On such observation, the ld. CIT(A) estimated 2% of brokerage on the transaction of Rs. 2.22 crores, accordingly restricted the addition to the extent of Rs. 4,44,961/- thereby granted substantial relief to the assessee.it is an undisputed fact that the documents relied upon for making additions were found from the third party.
As no investigation was carried out by the investigating team against the assessee if the assessee has direct involvement in ultimate sale of the lands or not. There is no statement either during the search or post search enquiry or during the statement which can be proved that the transaction in these papers was ultimately resulted in the sale of the plots of land. Our view is also supported by the various case laws relied by ld AR for the assessee. Thus, no infirmity or illegality in the order passed by ld CIT(A), which we affirm with our aforesaid observation. In the result, the ground of the appeal of revenue is dismissed.
-
2023 (8) TMI 1524
LTCG - Applicability of section 50C for determining the sale consideration of the property - HELD THAT:- From the bank statement filed by the assessee, we find the above amounts were received by the assessee as per the original sale agreement. It has been held in various decisions that the amendment to section 50C introduced by the Finance Act 2016 for determining the full value of consideration in the case of the immovable property is curative in nature and will apply retrospectively. As in the case of CIT vs. Shri Vummundi Amarendran [2020 (10) TMI 517 - MADRAS HIGH COURT] has decided an identical issue and has held that the provisions of section 50C(1) of the Act should be taken to be retrospective from the date when the proviso exists.
Since the assessee in the instant case has admittedly received the sale consideration of Rs. 22.00 lakhs vide cheques dated 15.06.2006 and 15.09.2006, amounting to Rs. 20.00 lakhs and an amount of Rs. 2.00 lakhs in cash as per the sale agreement dated 15.06.2006, therefore, in view of the amended provisions of section 50C(1) which according to us is retrospective in nature, the value adopted or assessed or assessable by the Stamp Valuation Authority on the date of agreement has to be taken for the purpose of full value of the consideration.
With this observation, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to verify the circle rate on the date of agreement dated 15.06.2006 and adopt the same for the purpose of calculation of the capital gain in the hands of the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes.
-
2023 (8) TMI 1523
Allowable business expenditure - disallowance of Pooja & Festival expenses - HELD THAT:- On perusal of the findings in the case of M/s.Hira Ferro Alloys Ltd. [2009 (8) TMI 732 - CHHATTISGARH HIGH COURT] which were directly on the issue in the present case, respectfully following the same, we do not find any infirmity in the order of the Ld.CIT(A) wherein the addition on Pooja & Festival expenses made by the AO, was sustained. We, therefore, in concurrence with the view taken by the order of the Ld.CIT(A), uphold the same. Consequently, Ground No.2 of the assessee stands dismissed.
Addition on account of additional depreciation - As per AO additional depreciation is available on new plant & machinery installed and put to use during the year under consideration and not on the addition to the plant & machinery - HELD THAT:- Since the conditions pertaining to allowing of additional depreciation to new industrial undertakings and expansion in installed capacity were also dispensed with, it can be easily interpreted that addition to plant and machinery, subject to certain conditions under the second proviso to section 32(1)(iia) of the Act, are entitled for additional depreciation.
Our interpretation is further fortified by the order of EFACEC Switchgear India P. Ld. [2022 (5) TMI 158 - ITAT DELHI] where in it was the observation that tools, dies, jigs, etc., are used by the appellant for its business of manufacturing switchgear products, it is evident that moulds, dies, and tools are not independent of the plant and machinery, but are parts of the machinery. Once they are worn out, the machines cannot turn out the product to the business specifications and this has to be obtained only on a replacement of the tools or dies and moulds. Accordingly, any addition in the plant and machinery are eligible for additional depreciation but subject to satisfaction of conditions carved out in the amended section 32(1)(iia) and its provisions.
In the present case, according to observations of Ld CIT(A), relevant details pertaining to additions in the plant and machinery have not been brought on records by the appellant in the claims made for additional depreciation. There is no material with respect to use of the impugned plant and machinery for the year under consideration along with relevant details. Though, it is also apparent from records that no such query was raised by the department at any stage may it be assessment stage or appellant stage, in the interest of natural justice, we are of the considered opinion that the matter should be restore back to the files of Ld AO to adjudicate the issue afresh - Appeal of the assessee is partly allowed for statistical purposes.
-
2023 (8) TMI 1522
Addition u/s 68 - undisclosed cash credit - non- compliance to the summons issued on the part of the assessee - HELD THAT:- We find that undisputedly the assessee has filed the evidences/details as called for by Ld. AO in respect of the share subscribers which has not been commented by Ld. AO in the assessment proceedings nor any defect has been pointed out meaning thereby that no further verification of these evidences was carried out by Ld. AO.
We note that though there was a non- compliance to the summon issued u/s 131 of the Act by the directors of the assessee company, but the just mere non- compliance to the summon issued u/s 131 of the Act cannot be a ground for adding the share capital/share premium raised by the assessee during the year as unexplained cash credit u/s 68.
In our opinion, the mere non- compliance to the summons issued u/s 131 of the Act is not sufficient to make the addition u/s 68 - Decided in favour of assessee.
Addition u/s 14A - expenses incurred on earning exempt income - AO during the course of assessment proceedings observed that the assessee was holding investments which were capable of generating exempt income and noted that the assessee has claimed expenses of interest payment in the profit and loss account - HELD THAT:- We find that undisputedly the assessee has not earned an exempt income during the year and it is a settled position of law that if the assessee has not earned any exempt income, no disallowance is required to be made u/s 14A of the Act. We note that Ld. CIT(A) has passed the appellate after following the decision of case of Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] and Ashika Global Securities Ltd. [2018 (7) TMI 1425 - CALCUTTA HIGH COURT]. Accordingly, we are inclined to uphold the order of Ld. CIT(A) by dismissing the appeal of the Revenue.
-
2023 (8) TMI 1521
Cancellation of assessee’s registration u/s 12AA - AO held that the assessee was neither entitled for exemption u/s 10(23C) nor u/s 11 of IT Act - HELD THAT:- Appellant assessee before us has not approached ITAT with clean hands. Secondly, from the foregoing, it is also inferred that the activities of the appellant assessee are not genuine within the meaning of section 12AA(3) of IT Act. Thirdly, the assessee applicant is in violation of section 13(1)(c) of IT Act and is consequently hit by section 12AA(4)(a) read with section 13(1)(c)(ii) of IT Act. Fourthly, the assessee has not complied with Income Tax Act (not only by entering into collusive arrangements to evade recovery of tax dues, but also by not filing returns of income u/s 139 of IT Act, as is evident from perusal of impugned order dated 21/01/2021 of learned CIT(E). Therefore, the assessee, on strict and literal interpretation of Income Tax Act, is hit by section 12AA(4)(b) of the IT Act.
When the appellant does not have clean hands, it does not deserve liberal consideration of the appellate forum. The appellant only gets the relief on the basis of strict and liberal interpretation of law in the light of facts and circumstances.
We have already held in foregoing paragraph that the activities of the assessee are not genuine within the meaning of section 12AA(3) of the IT Act. We have further held that the assessee is hit by section 12AA(4)(a) read with section 13(1)(c)(ii) of IT Act, and by section 12AA(4)(b) of IT Act.
-
2023 (8) TMI 1520
Revision u/s 263 - disallowance u/s 14 is required to be made in respect of interest paid/ credited on the partners capital account & bank interest - as argued interest on partners capital account being allocation of profit is a revenue neutral transaction and it is not an expenditure of interest paid on capital borrowed for the purpose of business - HELD THAT:- When the PCIT has taken a conscious view on this issue then it cannot be said that any mistake apparent on record has crept in the order passed by her u/s 263 of the Act more particularly when there are number of decisions as mentioned hereinabove wherein it was held that interest paid on the capital account of the partners cannot be considered for disallowance u/s 14A of the Act.
Therefore, in the case of ITO vs Volkart Brothers and Others [1971 (8) TMI 3 - SUPREME COURT] wherein it is held that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record.
We also noted that decision of case of Munjal Sales Corporation (supra) [2008 (2) TMI 19 - SUPREME COURT] relied upon by the ld. PCIT is not applicable inasmuch as the assessment year involved in this decision are assessment year 1993-94 to 1997-98 whereas Section 14A was introduced in the Statute by Finance Act 2001.
Hon’ble ITAT, Jaipur Bench in case of ASK Partners [2019 (1) TMI 877 - ITAT JAIPUR] has also held that payment of interest to the partners as per the provision of partnership deed is not subject to disallowance u/s 14A read with Rule 8D(ii) of the Act. Thus when the PCIT has taken a view and that view is in accordance with the decision of Hon’ble ITAT Pune Bench and Jaipur Bench, it cannot be said that there is any mistake apparent on record. Assessee appeal allowed.
............
|
9911796707
