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Showing 121 to 140 of 2046 Records
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2018 (10) TMI 1931
Stay on N/N. 04/2015-2020 dated 25.04.2018 and N/N. 05/2015- 2020 dated 25.04.2018, issued by the Director General of Foreign Trade, Ministry of Commerce & Industry, Department of Commerce - HELD THAT:- This Court finds that prima-facie the orders which has been issued by the Director General of Foreign Trade, Ministry of Commerce & Industry, Department of Commerce, are not in consonance with the requirement of Section 3 of Foreign Trade(Development and Regulation) Act,1992 and matter requires consideration.
Counsel for the respondent-Mr. Anand Sharma may file reply to the writ petition within a period of two weeks. In the meanwhile, the operation and effect of Notification No.04/2015-2010 dated 25.04.2018, Notification No.05/2015- 2020 dated 25.04.2018, Notification No.32/2015-2020 dated 30.08.2018 and Notification No.37/2015-2020 dated 28.09.2018 shall remain stayed.
List on 30.10.2018.
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2018 (10) TMI 1930
Stay on N/N. 04/2015-2020 dated 25.04.2018 and N/N. 05/2015- 2020 dated 25.04.2018, issued by the Director General of Foreign Trade, Ministry of Commerce & Industry, Department of Commerce by the Madras High Court by passing interim order - violation of Section 3 of the Foreign Trade (Development and Regulations) Act, 1992 - HELD THAT:- This Court finds that in earlier round of litigation in connected matter i.e. S. B. Civil Writ Petition No.12042/2018, this Court had passed interim order dated 01.06.2018 and thereafter the same notification is made subject matter of challenge before the Madras High Court and interim order has been passed staying the operation of the impugned notification.
This Court finds that prima-facie the orders which has been issued by the Director General of Foreign Trade, Ministry of Commerce & Industry, Department of Commerce, are not in consonance with the requirement of Section 3 of Foreign Trade(Development and Regulation) Act,1992 and matter requires consideration.
Counsel for the respondent-Mr. Anand Sharma may file reply to the writ petition within a period of two weeks. In the meanwhile, the operation and effect of Notification No.04/2015-2010 dated 25.04.2018, Notification No.05/2015- 2020 dated 25.04.2018, Notification No.32/2015-2020 dated 30.08.2018 and Notification No.37/2015-2020 dated 28.09.2018 shall remain stayed.
List on 30.10.2018.
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2018 (10) TMI 1929
CENVAT Credit - removal of input as such - segregation of impurities like iron, steel, rubber, plastic, dust etc. in respect of brass scrap before feeding in the furnace - Contention of appellant is that the Tribunal without any cogent reason and without considering the question whether the activity of the respondent in segregating the scrap would amount to manufacturing and also without discussing how the Board Circular dated 10.05.2016 would be applicable, which is even otherwise not retrospective in nature, has mechanically allowed the appeal of the assessee.
HELD THAT:- The Tribunal has by the impugned order only remanded the matter to the adjudicating authority, we are not inclined to interfere. However, we direct the adjudicating authority that it should decide both the questions afresh whether the activity of the respondent in segregating the scrap would amount to manufacturing and also whether the Board Circular dated 10.05.2016 would at all be applicable to the present case.
Appeal disposed off.
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2018 (10) TMI 1928
Penalty u/s 271D & 271E - loan was repaid by way of a journal entry - HELD THAT:- Penalty imposed u/s.271D and 271E was held to be not leviable in terms of decision of Bombay High Court in case of Triumph International Finance (I) Ltd [2012 (6) TMI 358 - BOMBAY HIGH COURT] - as observed that there was a reasonable cause for squaring all the accounts through general entries. As the facts and circumstances in the appeals before us are parimateria with the facts and circumstances discussed by the Tribunal respectfully following the order of the Tribunal in the case of group concern, we do not find any infirmity in the order of CIT(A) for deleting the penalty imposed u/s.271D and 271E - Decided against revenue.
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2018 (10) TMI 1927
Penalty u/s 271D/271E - genuineness of the transaction journal entries - Contravention of provisions of section 269SS as assessee failed to establish the compelling reasons or genuine business constraints or reasonable cause for having transactions in respect of each and every journal entry with its group concerns - CIT-A deleted the addition - HELD THAT:- The decision of this Court in Triumph International Finance [2012 (6) TMI 358 - BOMBAY HIGH COURT] has only clarified / stated the position as always existing in law, the receiving of deposits / loans through journal entries would certainly be hit by Section 269SS of the Act. Nevertheless, prior to the decision of this Court in Triumph International Finance (supra), there was reasonable cause for respondents to receive deposit / loan through journal entries. This noncompliance with Section 269SS of the Act would certainly be a reasonable cause under Section 273B of the Act for non-imposition of penalty under Section 271D.
In the instant case the period during which the journal entries were made by the assessee was in the previous year 2011-12 relevant to the assessment year 2012-13. The decision in the case of Triumph International Finance (I) Ltd.(supra) was rendered by the Hon’ble Bombay High Court on 12.06.2012. Appeal dismissed.
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2018 (10) TMI 1926
Penalty u/s 271D & 271E - accepting & repayment in cash loan/ deposit/ transactions made through journal entries in excess of ₹20,000/-in violation of the provisions of section 269SS & 269T - HELD THAT:- In view of the judgement of Lodha developers Pvt. Ltd [2018 (2) TMI 603 - BOMBAY HIGH COURT] and case of Triumph International Finance (I) Ltd [2012 (6) TMI 358 - BOMBAY HIGH COURT] wherein it is held that where loan / deposit has been repaid by day to day accounts of the parties through journal entries, it must be held that the assessee has committed default for the contravention of provisions of section 269SS or 269T as the case may be.
But the Hon’ble Bombay High Court has clarified the position with effect from 12.06.2012 date when the judgement was pronounced and prior the date of decision of Hon’ble Bombay High Court in the case of Triumph International Finance (I) Ltd [2012 (6) TMI 358 - BOMBAY HIGH COURT]there was a reasonable cause for the assessee to receive deposit of loan or repayment of the same through journal entries. Accordingly, the assessee’s case is squarely falls under a reasonable cause under section 273B of the Act and therefore, in our view, penalties levied by the addl. CIT under section 271D and 271E of the Act has rightly been deleted by CIT(A). Hence, we confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed. - Decided in favour of assessee.
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2018 (10) TMI 1925
Classification of goods - Mahua De-oiled cake/ De-oiled Rice Bran, being used as an ingredient of Cattle Feed, Poultry Feed and other animal feeds - Waste generated during the Solvent Extraction process or not - availability of input credit of GST paid on purchase of Mahua Oil Cake/Rice Bran Oil cake used in the manufacture of solvent extracted oil - whether AAR was wrong in not following the precedent decisions of the higher judicial forum on the premise that the said cited decisions were of pre GST regime? - HELD THAT:- The contention of the appellant that de-oiled cake is waste, hence they cannot be treated as 'supply' fails and following the judicial principles, the above referred decisions are very much applicable to the present case and therefore the sale of de-oiled cake is undoubtedly 'supply'. Activities which are not supply are categorically outlined in the GST Act itself. Anything not covered by the exclusion will fall under the ambit of supply. Therefore, it is hard to comprehend the rationale of the appellant in not considering de-oiled cake as supply, since the definition leaves no ambiguity that anything that is sold with or without consideration, is supply.
Having settled the issue of sale of de-oiled cake being supply, it can be concluded that Section 17(2) of the GST Act 2017 is very much applicable.
De-oiled Rice Bran is covered by Chapter sub-heading 2302 and it has been fully exempted from CGST vide Notification No.07/2018-CT(R) dated 25.01.2018. So, in terms of Section 17(2) of CGST Act 2017, the input credit attributable to the supply of this exempted goods i.e. de-oiled rice bran has to be reversed by the appellant.
It is found that these cakes have a very high saponin content which makes them unsuitable for animal or fish feed in general. Rather, these cakes are primarily used in pisciculture (fish cultivation) as weedicides (to kill and eradicate unwanted vegetation growth) and as piseicides (to eradicate predatory fishes) and as fertilizers in agriculture. Its role as fish feed, if any, is very limited as compared to its general use as fertilizer and weedicides. Accordingly, we do not agree with the contention of the appellant regarding its classification under 23099039. In fact the de-oiled mahua cake cannot fall under Chapter 23 of the tariff which comprises “Residues and waste from the food industries; prepared animal fodder”.
Since it is neither a residue nor a waste nor a prepared animal fodder. Thus, there is no specific entry for this item or similar product anywhere in the tariff and therefore it should be classified under the residuary entry serial number 453 of the Notification No. 01/2017-CT(R) dated 28.06.2017 having a GST rate of 18%. Hence, the appellant is required to pay GST @18% on the supply of de-oiled mahua cake and is therefore entitled to avail input tax credit.
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2018 (10) TMI 1924
Concessional rate of tax - mining services - generation of the electricity - Section 8(1) of the Central Sales Tax Act, 1956 - HELD THAT:- Since the Special Leave Petition is directed against the interim order, the impugned order need not be interfered.
SLP dismissed.
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2018 (10) TMI 1923
Suit for permanent injunction - seeking peaceful possession and enjoyment of the property by constructing a residential building in the land - legal right and title over the suit Schedule property - Whether the suit for permanent injunction is maintainable when the Defendant disputes the title of the Plaintiff?
HELD THAT:- It is well settled by catena of Judgments of this Court that in each and every case where the Defendant disputes the title of the Plaintiff it is not necessary that in all those cases Plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the Defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the Plaintiff, then necessarily in those circumstances, Plaintiff cannot maintain a suit for bare injunction - In the facts of the case the Defendant-Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the Plaintiff and in those circumstances Plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction.
The judgment and decree impugned in the appeal deserves to be set aside - Appeal allowed - decided in favor of appellant.
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2018 (10) TMI 1922
Revision u/s 263 by CIT - unsecured loans receipts - HELD THAT:- After examining the documents and also considering the statement of the investor, the Assessing officer accepted the transactions as genuine. However, out of the abundant caution, he also passed on the information regarding the aforesaid investment to the Assessing officer of the investor so that the source of investment of the investor if so required, may be further investigated by the Assessing officer of the investor so that nothing remains unverified and, in any case, if any evidence regarding the non-creditworthiness of the investor is found, the investment made by the investor could be treated as undisclosed income in his hands.
A perusal of the impugned order passed by the Ld. CIT(A) shows that the assessee furnished all the details and had given explanation on the issues raised to the Ld. PCIT but the Ld. PCIT without pointing out any defect in the explanation given by the assessee has simply opined that more verifications and discreet inquiries were required to be made by the Assessing officer.
PCIT, simply writing that the Assessing officer was required to made more inquiries without making or causing to make any enquiry himself and without pointing out as to what further enquiry which the Assessing officer was required to be made and how without those inquiries the order of the Assessing officer was erroneous and prejudicial to the interest of Revenue, could not have simply set aside the order of the Assessing officer.
AS decided in TORRENT PHARMACEUTICALS LTD [2018 (8) TMI 754 - ITAT AHMEDABAD] provisions of Section 263 although appears to be of very wide amplitude and more particularly after insertion of Explanation 2, but cannot possibly mean that recourse to Section 263 of the Act would be available to the Revisional Authority on each and every inadequacy in the matter of inquiries and verification as perceived by the Revisional Authority. The Revisional action perceived on the pretext of inadequacy of enquiry in a plannery and blanket manner must be desisted from.
As in the case of ‘Narayan Tatu Rane [2016 (5) TMI 1162 - ITAT MUMBAI]has held that the Explanation 2 to section 263 does not provide unfettered right to the PCIT to revise each and every order. It is the responsibility of the PCIT to show that the enquiry for verification conducted by the Assessing officer was not in accordance with the enquires or verification that would have been carried out by a prudent officer.
No justification on the part of the Ld. PCIT in exercising his revision jurisdiction u/s 263 of the Act and thereby cancelling the assessment order passed by the Assessing officer. The order passed by the Ld. PCIT u/s 263 is therefore, quashed and consequential assessment / additions made, if any, are hereby set aside. - Decided in favour of assessee.
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2018 (10) TMI 1921
Production and sale of sub- standard wheat seeds, to the farmers for earning profits - complaint made by the Senior Agriculture Development Officer, Depalpur - offence under Section 3/7 of the Essential Commodities Act, 1955 and Section 420 of I.P.C. - HELD THAT:- Rule 23 A (2) of the Seeds Rules, 1968 provides that if a farmer has lodged a complaint in writing that the failure of the crop is due to the defective quality of seeds of any notified kind or variety supplied to him, the Seeds Inspector shall take in his possession the marks or labels, the seed containers and a sample of unused seeds to the extent possible from the complainant for establishing the source of supply of seeds and shall investigate the causes of the failure of his crop by sending samples of the lot to the Seed Analyst for detailed analysis at the State Seed Testing Laboratory and that he shall thereupon submit the report of his findings as soon as possible to the competent authority. In the present case no farmers have made any complaint regarding failure of his crop due to defective quality of seeds sold by the applicant.
The allegation in the complaint is that the samples of seeds taken from the godown of the applicant were found sub- standard. It clearly requires that a person to be prosecuted for the offence punishable under Section 420 of I.P.C. has necessarily to act in a manner which will amount to dishonestly inducing other person who has been deceived by the act of cheating to deliver any property or any valuable security - the ingredient of offence under Section 420 of I.P.C. is the dishonest inducement to the person cheated to deliver the property or valuable security. In the instant case on the face of the first information reports in question, does not disclose any fact which can constitute or prima facie establish an act of inducement by the applicant in the matter of or in relation to the seeds, therefore, absolutely no case is made out for the offence under Section 420 of I.P.C. on the face of the first information reports.
Quashing of the first information reports and the investigation by the Police by this order, however, will not debar the appropriate authorities under the Seeds Act to take necessary action and / or proceedings whichever legally permissible in accordance with the provisions of law - Application disposed off.
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2018 (10) TMI 1920
Rights of victims of crime - right to file an appeal - substantive right or not - grant of special leave - can a victim file appeal under the proviso to Section 372 of the Code of Criminal Procedure regardless of the date of decision of the Trial Court? - HELD THAT:- The proviso to Section 372 of the Code of Criminal Procedure must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal.
Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Code of Criminal Procedure must be given life, to benefit the victim of an offence - on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Code of Criminal Procedure would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits.
The language of the proviso to Section 372 of the Code of Criminal Procedure is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Code of Criminal Procedure The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word 'complaint' has been defined in Section 2(d) of the Code of Criminal Procedure and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Code of Criminal Procedure is concerned.
The matters are remitted back to the High Court to hear and decide the appeal filed by Kodagali against the judgment and order of acquittal dated 28th October, 2013 passed by the District and Sessions Judge, Bagalkot - appeals are allowed by of remand.
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2018 (10) TMI 1919
Assessment of trust - payment of rent to the trustee of the Assessee and invoking of provisions of Section 13(1) - HELD THAT:- As decided in own case [2016 (12) TMI 1567 - ITAT PUNE] in the instant case the assessee had filed certain details before the CIT(A) for calculation of fair rent of the property which has been ignored by him. Under these circumstances and in the interest of justice, we deem it proper to restore this issue to the file of the CIT(A) with a direction to adjudicate this issue in the light of facts and submissions made and the additional evidences filed before him. Since the issue which is raised is identical to the issue in A.Y.2006- 07, we, therefore, remit the issue back to the file of CIT(A) to decide the same in the light of our direction in A.Y.2006-07.
Acquisition of shares which were held to be in contravention of provisions of Section 13(1)(d) of the Act - HELD THAT:- As decided in own case [2016 (12) TMI 1567 - ITAT PUNE] there cannot be wholesale denial of exemption of the entire income of the assessee and at the most dividend on shares would lose the benefit of exemption. In view of the above, we restore the issue to the file of the Assessing Officer with a direction to find out the dividend income, if any, out of these shares including that of value of bonus shares that were received/obtained during the year and bring the same to tax. We hold and direct accordingly.
Investment in share in Co-operative Society are covered under section 13(1)(d) - HELD THAT:- Provisions of section 13(1)(d) cannot be invoked vis-à-vis investment in share in Co-operative Society. Since the assessee has not violated the provisions of section 13(1)(d) of the Act, the assessee cannot be denied the benefit of section 11 of the Act. Following the same parity of reasoning as held while deciding the assessee’s appeal in A.Y.2006-07 [2016 (12) TMI 1567 - ITAT PUNE] we uphold the order of CIT(A) and thus, the ground of appeal raised by Revenue is dismissed.
Disallowance of expenditure for it being of prior period - Addition on the basis of the report of Special Auditor appointed under Sec.142(2A) - as contented expenditure related to earlier period but since the liability for the expenses crystallized during the year, the expenses were allowable - HELD THAT:- We find that identical issue arose in Assessee’s case in AY 2006-07. The Coordinate Bench of Tribunal, by following the decision of Nagri Mills [1957 (9) TMI 30 - BOMBAY HIGH COURT] and Home & Life Solutions (India) Ltd [2013 (10) TMI 973 - ITAT AHMEDABAD] remitted the matter back to the AO - we therefore for the similar reasoning as given by the co-ordinate Bench of the Tribunal while deciding the Assessee’s appeal in AY 2006-07 and with similar directions set aside the issue to the file of AO. Thus the ground of Assessee is allowed for statistical purposes.
Amounts paid to various trusts in alleged contravention of provisions of Section 13(1)(c) - HELD THAT:- The Revenue has filed appeal against the decision of CIT(A) on the issue which is decided against the assessee. Consequently, assessee has not agitated the said decision of CIT(A).
Disallowance in respect to amounts written off - CIT(A) has noted that the AO has not discussed the issue at all on merits and in the absence of any discussion on the nature of amounts, he deleted the addition - HELD THAT:- Before us, Ld DR has not pointed out any fallacy in the findings of CIT(A). In such circumstances, we find no reason to interfere with the order of CIT(A) in allowing write off of preoperative expenses and thus, the ground No.6 of Revenue is dismissed.
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2018 (10) TMI 1918
Deduction u/s.80P(2)(a)(i) - assessee is a Co-operative Society registered under Gujarat Co-operative Societies Act, 1961 with the main object of providing credit to its members out of funds collected from members - HELD THAT:- As decided in ANDHRA PRADESH STATE COOPERATIVE BANK LTD. [2011 (6) TMI 215 - ANDHRA PRADESH HIGH COURT] Investment of funds by banks including the nonreserve is part of banking activities since no bank would like its reserve funds to remain ideal and not earn any interest. Therefore, the interest earned on such deposits is directly attributable to the business of banking and therefore exemption u/s.80P(2)(a)(i) of the Act.
Similarly,in the case of CIT vs. Baroda Peoples Co-operative Bank Ltd. [2005 (7) TMI 33 - GUJARAT HIGH COURT] has held that on a plain reading of the Gujarat Cooperative Societies Act 1961, the claim which unfolds is that in the case of a society carrying on a business of banking, it would be permissible to make investment or deposits in any of the specified investments as provided in section 71 of the Gujarat Co-operative Societies Act including in any of the modes specified in section 20 of Indian Trust Act 1882, without there being any upper limit as to the amount that can be invested, once the statutory requirement of reserve fund as stipulated in section 67(2) of the Gujarat Cooperative Societies Act is satisfied. Therefore, it was held that the assessee would be eligible for deduction in terms of section 80P(2)(a)(i) of the Act.
We are of the view that interest earned on FD’s placed with SBI is eligible for deduction u/s.80P(2)(a)(i) of the Act, accordingly we direct the AO to allow the same - Decided in favour of assessee.
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2018 (10) TMI 1917
Addition u/s 68 - unsecured loan receipts - AO made addition by placing reliance merely on the statements of Shri Bhanwarlal Jain Group which were recorded u/s.132(4) - HELD THAT:- No independent enquiry was carried out by the AO, he has not brought any corroborative evidence to substantiate that the transactions are non-genuine. Assessee provided various evidences to establish that the transactions are genuine, creditors are identifiable and credit worthiness is proved. Following information is furnished by the assessee.: (1) Confirmation of A/c. by the parties. (2) Income tax returns of the parties for A.Y.2012-13. (3) Bank Statements of the parties showing the loan transactions. (4) Audited Balance sheet & P & L A/c of the creditors along with the schedule wherein credit in the name of the assessee is outstanding in their books. (5) Reply given by the parties to the notice issued by the AO u/s 133(6) confirming the transaction with the assessee. (6) Payment of interest to creditors after subjecting the amount to IDS.
By providing all this information to the Assessing Officer the assessee has discharged the initial onus of proving genuineness of the transactions u/s. 68 - Even the creditors have responded to the notices issued u/s. 133(6) of the Act and confirmed the genuineness of the transactions with the assessee, therefore once the initial onus is discharged by the assessee the burden shifts to the Revenue to disprove the claim of the assessee - all the loans were taken through banking channels and the repayments for the same was also made through banking channels. The loans were repaid after paying interest and deducting TDS. Assessing Officer ignored the documentary evidences submitted by the assessee and has exclusively relied on statements of third party in making the addition. In spite of request by the assessee the Assessing Officer did not provide any cross-examination of the parties who have made the submissions.
No infirmity in the order passed in deleting the addition made u/s. 68 of the Act and the consequential interest on the credits. Thus, we sustain the order of the Ld.CIT(A) and reject the grounds raised by the Revenue.
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2018 (10) TMI 1916
Seeking permission that new RP to review the decision of the earlier RP - HELD THAT:- We do not feel persuaded to permit the new RP to review the decision of the earlier RP because a detailed well-reasoned order has been passed if such a course is permitted then every time new RP would come, he would start changing the decisions of his colleagues. Therefore, we do not permit review of that decision.
The application disposed of by directing the RP to comply with the order passed by RP on 20.08.2018 at the earliest but not later than two weeks.
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2018 (10) TMI 1915
Exemption u/s 11 - proof of Charitable activity u/s 2(15) - Principle of consistency - assessee has charging fee/consideration from the activity of vocational training - as per AO activity of the assessee involves advancement of any other abject of general public utility and its receipts exceeds the mandatory limit as specified under proviso to section 2(15) - Whether CIT(A) erred in allowing the benefit of Section 11(1)(a) & 11(2) of the Act which is contrary to the provisions of section 2(15) r.w.s. 13(8) of the Act.? - CIT-A deleted the addition
HELD THAT:- We note that there was no appeal preferred by the Revenue against the order of Ld. CIT(A) pertaining to the A.Y. 2011-12 which implies that the order of Ld. CIT(A) reached to its finality. In our considered view, once, the order of the Ld CIT(A) has reached to its finality to any of the assessment year then on the same ground no appeal by the Revenue can be preferred to the Hon’ble ITAT in other years. In this regard, we draw support and guidance from the judgment of Hon’ble Supreme Court in the case of CIT Vs. Excel Industries Limited[2013 (10) TMI 324 - SUPREME COURT].
As no change in the facts and circumstances in the impugned case in comparison to the previous assessment years and the Revenue in earlier year has accepted the same. Therefore in our considered view the principles of consistency should be applied - see RADHASOAMI SATSANG [1991 (11) TMI 2 - SUPREME COURT] - Decided against revenue.
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2018 (10) TMI 1914
Bogus LTCG - unexplained income u/s.68 - denial of exemption of long term capital gains arising on transfer of shares claimed u/s.10(38) -importance of providing an opportunity to cross examine the witness - HELD THAT:- As transactions claimed by the assessee whether real or sham, requires a revisit by the ld. Assessing Officer. Similar directions as given in the cases of Vimalchand Gulabchand, Praveen Chand, Gatraj Jain & Sons and Mahendra Kumar Bhandari [2018 (4) TMI 701 - ITAT CHENNAI], read along with the directions given in the case of Heerachand Kanunga [2018 (6) TMI 1329 - ITAT CHENNAI] are given here also. Useful reference may be made to the law laid down by Hon’ble Apex Court in the case of CIT vs. Sunita Dhadda, [2018 (3) TMI 1610 - SC ORDER] while affirming a judgment of Hon’ble Rajasthan High Court in the case of CIT vs. Smt. Sunita Dhadda [2017 (7) TMI 1164 - RAJASTHAN HIGH COURT] where the importance of providing an opportunity to cross examine the witness has been stressed. Their lordship held that this was an important constituent of natural justice - Appeal of assessee partly allowed for statistical purposes.
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2018 (10) TMI 1913
Addition u/s 68 - Addition towards long term capital gains on sale of shares - whether the LTCG on sale of shares of Cressanda Solutions Ltd earned through sale in recognized stock exchange and subjected to payment of STT through a registered share broker could be treated as genuine or not? - conflicting views on an issue for and against - HELD THAT:- As the entire issue with regard to sale of shares of Cressanda Solutions Ltd had been the subject matter of adjudication by this tribunal in the case of Navneet Agarwal, L/H of Later Kiran Agarwal [2018 (8) TMI 509 - ITAT KOLKATA] wherein we are bound to consider and rely on the evidence produced by the assessee in support of its claim and base our decision on such evidence and not on suspicion or preponderance of probabilities. No material was brought on record by the AO to controvert the evidence furnished by the assessee. Under these circumstances, we accept the evidence filed by the assessee and allow the claim that the income in question is a bona fide Long Term Capital Gain arising from the sale of shares and hence exempt from income tax.
We direct the ld AO to delete the addition made u/s 68 of the Act in respect of sale consideration of sale of shares and the corresponding addition towards commission income. Accordingly, the grounds raised by the assessee are allowed in all the appeals herein before us. - Decided in favour of assessee.
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2018 (10) TMI 1912
Assessment u/s 153A - disallowance of trading loss on sale of shares as bogus - Addition based on statement recorded u/s 132(4) - assessee argued as retracted statements of third parties have been relied upon without giving any opportunity to the assessee to cross-examine such third parties - HELD THAT:- We find that the ld AO had placed reliance on the investigation report of DDIT and finding of SEBI in respect of scrips traded by the assessee. There is absolutely no evidence brought on record linking the assessee with the alleged malafides. Hence the entire disallowance of trading loss was made only based on suspicion, surmises and conjectures without bringing on record with material evidences, the linkage of the assessee and by proving the connivance of the assessee with the stock brokers, stock exchange and the third parties from whom purchases were made and to whom sales were made. There is no evidence to prove that the assessee had received back the monies in cash from the concerned parties after making the purchases and similarly there is no evidence to prove that the assessee had passed on the cash to the concerned parties after receiving the sale proceeds of shares by cheque.
As decided in BLB CABLES AND CONDUCTORS PVT. LTD. [2018 (8) TMI 525 - CALCUTTA HIGH COURT] to hold a transaction as bogus, there has to be some concrete evidence where the transactions cannot be proved with the supportive evidence. Here in the case the transactions of the commodity exchanged have not only been explained but also substantiated from the confirmation of the party. Both the parties are confirming the transactions which have been duly supported with the books of accounts and bank transactions.
We find that the statement recorded u/s 132(4) of the Act cannot be considered as an evidence or material found during the course of search - see BEST INFRASTRUCTURE (INDIA) PVT. LTD. [2017 (8) TMI 250 - DELHI HIGH COURT] and BEST INFRASTRUCTURE (INDIA) PVT. LTD. [2017 (8) TMI 250 - DELHI HIGH COURT] - Also M/S. CONSISTENT VYAPAAR PVT. LTD. VERSUS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3 (3) , KOLKATA [2018 (9) TMI 1745 - ITAT KOLKATA]. - Decided in favour of assessee.
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9911796707
