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Showing 121 to 140 of 1752 Records
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2016 (11) TMI 1637 - MADRAS HIGH COURT
Maintainability of petition - alternative remedy - Absolute confiscation - Sony brand LED TV sets - imposition of penalty - quantity of TV sets imported is admittedly a larger quantity - whether the petitioner by placing reliance on the BIS Certificate, dated 13.09.2013, would seek for release of the TV sets? - HELD THAT:- This issue is not primarily a question of law, but is the maximum question of fact and law. Therefore, to adjudicate the correctness of the impugned order, necessarily the disputed question of facts have to be gone into and this cannot be done in a Writ Petition, more so, when the petitioner has an alternative remedy of an Appeal as against the impugned order.
This Court is not inclined to interfere with the order on the ground that the petitioner has an alternative remedy by way of appeal - while rejecting the prayer made by the petitioner and holding that the Writ Petition is not maintainable, liberty is granted to the petitioner to file an Appeal before the Commissioner of Appeals and if an Appeal is filed within a period of 30 days from the date of receipt of a copy of this order - Petition dismissed.
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2016 (11) TMI 1636 - MADHYA PRADESH HIGH COURT
Maintainability of petition - Alternative remedy - seizure of goods - mechanism for adjudicating the dispute between the parties - HELD THAT:- This court is of the considered opinion that the petitioner does have a remedy to file reply to the show cause notice dated 02-11-2016 - the question of entertaining the present writ petition at the stage of issuance of show cause notice does not arise.
Admission declined.
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2016 (11) TMI 1635 - ITAT VISAKHAPATNAM
Disallowance of consultancy charges paid - assessee has paid consultancy charges to M/s. I.T. Lokam Services India Pvt. Ltd., which is a subsidiary company of the assessee - A.O. disallowed consultancy charges for the reason that the assessee has failed to prove the nexus between consultancy charges paid to M/s. I.T. Lokam Services India Pvt. Ltd. and generation of revenue - HELD THAT:- On perusal of the income tax returns filed by M/s. I.T. Lokam Services India Pvt. Ltd., the major source of revenue for the company is from consultancy charges received from the assessee. The recipient also paid more than 50% of consultancy charges as salary to its employees duly deducting tax at source wherever applicable, the proof of which has been furnished. On perusal of all these documents furnished by the assessee, it was clear that the consultancy charges paid by the assessee is genuine and also the assessee has proved the necessity of incurring such consultancy charges in relation to its works executed to M/s. IBM India Pvt. Ltd.
Even for some time, if we assume that the payments are fictitious and unproved, it will lead to wrong calculation of margins earned by the assessee that if the consultancy charges incurred by the assessee are added to the margins returned by the assessee for these assessment years, the net margin would go up to 51% which is quite contrary to the industrial average declared by the NASCOM. Therefore, we are of the considered view that the A.O. was erred in disallowing consultancy charges paid by the assessee.
Consultancy charges paid by the assessee to M/s. I.T. Lokam Services India Pvt. Ltd. is having nexus between earning of income. The assessee has proved beyond doubt with necessary supporting documents that it has incurred consultancy charges wholly and exclusively for the purpose of business.
CIT(A), without appreciating the facts, simply confirmed the additions made by the A.O. by holding that the impugned expenses have not been proved to be incurred wholly and exclusively for the purpose of assessee’s business. Therefore, we set aside order passed by the CIT(A) and direct the A.O. to allow consultancy charges paid by the assessee for the assessment years 2009-10 to 2011-12.
Disallowance of employees contribution to provident fund - addition u/s 2(24)(x) r.w.s. 36(1)(va) - contribution deposited on or before the due date of furnishing return of income u/s 139(1) - HELD THAT:- We find that the coordinate bench of this Tribunal, in the case of Eastern Power Distribution Company of AP Limited [2016 (9) TMI 1040 - ITAT VISAKHAPATNAM] has considered similar issue and held that if employees contribution to provident fund is paid on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made.
If employees contribution to provident fund is paid within the due date specified u/s 139(1) of the Act, then no disallowance can be made towards employees contribution to provident fund. Therefore, we direct the A.O. to allow contribution to provident fund for the assessment year 2009-10 to 2011-12.
Addition of export profit under the provisions of section 10A - HELD THAT:- In assessee’s own case for the assessment year 2003-04, we are of the view that for the purpose of determination of exemption u/s 10A, the turnover of the undertaking has to be considered, but not turnover of the assessee. The CIT(A), after considering the relevant facts and also following coordinate bench decision has rightly deleted additions made by the A.O. towards disallowance of exemption claimed u/s 10A. We do not see any error or infirmity in the order of the CIT(A). Hence, we inclined to uphold CIT(A) order and dismiss appeal filed by the revenue.
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2016 (11) TMI 1634 - ITAT MUMBAI
Disallowance u/s 14A - plea of assessee is that the assessee has not incurred any expenditure in earning of the exempt income and, therefore, the disallowance is not justified - HELD THAT:- AO was justified in making the impugned disallowance because he was not satisfied, having regard to the accounts of the assessee, that no expenditure was incurred in relation to earning of the exempt income. No doubt, the proposition canvassed by the assessee is tenable, so however, it has to be examined in the context of facts of each case. In the present case, having regard to the discussion in the assessment order, we find no reason to delete the disallowance made by the Assessing Officer by invoking Sec. 14A of the Act. Thus, on this aspect, assessee fails.
Assessment of rental income - Accrual of income - addition pertaining to Shiv Sagar property, which has been assessed in the hands of the assessee, whereas the plea of assessee is that it is not the owner of such property - HELD THAT:- insofar as the issue of assessability of rental income of ₹ 33,63,677/- relating to Shiv Sagar property is concerned, same is directed to be assessed in the hands of the assessee as held by the income-tax authorities following the order of Tribunal [2012 (2) TMI 681 - ITAT MUMBAI] in the case of assessee. Simultaneously, the Assessing Officer is directed to apply the final decision on the question of law, which is pending before the Hon'ble Bombay High Court in the earlier Assessment Year 2006-07 [2013 (3) TMI 825 - BOMBAY HIGH COURT ] without requiring the assessee to file appeal to the higher court in this year on the same issue. In this view of the matter, the issue is decided against the assessee, subject to the aforesaid observations.
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2016 (11) TMI 1632 - CALCUTTA HIGH COURT
Rectification of mistake u/s 154 - disallowance u/s 40a(ia) - HELD THAT:- We can point it out that this Court in the case of Piu Ghosh [2016 (8) TMI 99 - CALCUTTA HIGH COURT] held that “that the Finance (No.2) Act, 2004 got Presidential assent on September 10, 2004. The assessee could not have foreseen prior to that date that any amount paid to a contractor without deducting tax at source was likely to become not deductible u/s 40.
It could not be assumed that the Legislature was not aware or did not foresee this predicament. The Legislature therefore provided that the Act shall become operative on April 1, 2005. Section 11 of the Finance (No.2) Act, 2004 by which sub-clause (ia) had been added to section 40, 1961 did not provide that it was to become effective from the assessment year 2005-06. It had merely said that it was to become effective on April 1, 2005, which should have been meant to refer to the financial year. There was no scope for ambiguity or confusion. The Tribunal had erred in applying the provision of section 40(a)(ia) of the Income-tax Act, 1961 in disallowing the payment made to a contractor without deducting tax at source during the financial year 2004-05, corresponding to assessment year 2005-06.
The appeal, as such, is admitted. The question is answered in the negative and in favour of the assessee
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2016 (11) TMI 1631 - ITAT CHENNAI
Levy of penalty u/s 271(1)(c) - unexplained investment in jewellery - assessee has admitted undisclosed income under VDIS Scheme in 1997 - HELD THAT:- Though the assessee admitted jewellery of ₹ 2.23 crores and the cash of 3.00 crores under VDIS, she has not filed the wealth tax returns which implies that the wealth declared under VDIS has been exhausted and nothing is carried forward for subsequent year. The assessee is from the educated and from affluent family, assisted by the legal counsels and aware of the wealth tax provisions.
In the absence of any evidence for purchase of jewellery from the explained sources, and in the absence of wealth tax returns, we are unable to accept the source of jewellery was from explained sources/VDIS. The assessee cannot take an advantage of VDIS disclosure for explaining the source of investment in jewellery by evading wealth tax.
We are of the considered opinion that the explanation of investment out of VDIS and Stridhan, gifts is nothing but an afterthought. Even if the assessee acquires the gold from VDIS, and gifts she is bound to declare in wealth tax returns and pay wealth tax failing which it remains unaccounted. Therefore, we hold that this is clear case of penalty under section 271(1)(c) of act.
The facts of the assessee’s case are squarely covered by Hon’ble Supreme Court judgement in the case of MAK Data (P) Ltd. Vs. CIT–II [2013 (11) TMI 14 - SUPREME COURT] and this is a clear case for penalty under section 271(1)(c). Accordingly we set aside the order of the Ld.CIT(A) and confirm the penalty levied by the Assessing Officer and dismiss the cross objections filed by the assessee. - Decided in favour of revenue.
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2016 (11) TMI 1630 - ITAT MUMBAI
Disallowance u/s 80P - income earned on providing credit facilities to its members as provided under Section 80P(2)(a)(i) - HELD THAT:- Assessee society was not doing the banking business having no licence from RBI, therefore, the claim of the assessee was not hit by the provision of Section 80P(4). CIT(A) while deciding the matter of controversy relied upon the decision of Bombay High Court in the case of Quepem Urban Co-operative Credit Society Ltd. [2015 (6) TMI 573 - BOMBAY HIGH COURT] and KALPADI CO-OPERATIVE TOWNSHIP LIMITED [2016 (9) TMI 952 - MADRAS HIGH COURT]
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2016 (11) TMI 1629 - ITAT PUNE
Re-opening of the assessment order u/s 147 - non disposal of disposal of the objections raised by the assessee on the re-opening of the assessment - HELD THAT:- Since the AO has not disposed of the objections raised by the assessee on the re-opening of the assessment order u/s 147 we relying on the aforesaid decision in the case of KSS Petron [2016 (10) TMI 1112 - BOMBAY HIGH COURT] and following the same reasoning we quash the reassessment order passed u/s 144 r.w.s 148 of the Act. Since we have upheld the order of CIT(A) in quashing the re-assessment order framed u/s 144 r.w.s 148 of the Act, we are of the view that the other grounds raised by the Revenue on merits, require no adjudication.
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2016 (11) TMI 1628 - ITAT HYDERABAD
TP adjustment - selection of MAM - TNMM OR CUP as the most appropriate method - HELD THAT:- The requirement of law is that the most appropriate method suitable for determining the ALP is to be adopted. Merely because the assessee has adopted the CUP method, it will not become the most appropriate method. AO, after conducting the FAR analysis has to determine the most appropriate method. It has been held time and again that the proceedings before the first appellate authority are continuation of the assessment proceedings itself.
It is the bounden duty of the CIT (A) to examine the most appropriate method for determination of the ALP particularly when the assessee itself is challenging the method adopted by it in its TP study. In view of the same, we are satisfied that the TNMM is the most appropriate method and therefore, we deem it fit and proper to set aside the orders of the authorities below and remand the issue of determination of the ALP to the file of the AO by adopting the TNMM as the most appropriate method
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2016 (11) TMI 1627 - ITAT PUNE
Reopening of assessment u/s 147 - non deciding objections of the assessee against initiation of reassessment proceedings by passing a separate speaking order - HELD THAT:- AO has not passed any speaking order against the said objections so filed by assessee, which is a mandatory requirement as has been held by Hon'ble Apex Court in the case of M/s GKN Driveshafts (India) Ltd vs ITO [2002 (11) TMI 7 - Supreme Court] reopening order held void. - Decided in favour of assessee.
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2016 (11) TMI 1626 - SUPREME COURT
Complaint of defamation - Section 200 of the Code of Criminal Procedure, 1973 - offences punishable under Sections 500 and 501 read with Section 34 of the Indian Penal Code, 1860 - the petition filed by the Respondents Under Section 482 of the Code of Criminal Procedure has not been decided by the High Court on its merits - HELD THAT:- The case is remitted to High Court for reconsideration - We make it clear that all contentions which are available to the Appellant, including the maintainability etc. of the said petition, would be open to the Appellant which can be argued before the High Court and the High Court shall deal with the same - appeal allowed by way of remand.
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2016 (11) TMI 1625 - ITAT MUMBAI
TP Adjustment - comparable selection - HELD THAT:- Motilal Oswal Investment Advisors Pvt. Ltd is primarily in the business of Merchant Banking and, therefore, is not functionally comparable with the business of the assessee being investment advisory to its AE.
IDFC - assessee is engaged in business of providing investment research and advisory services to Bain Mauritius, on a non-exclusive and non-binding basis, in connection with potential investment opportunities in India. IDFC rendered Portfolio Management services for hybrid infrastructure portfolio, agriculture opportunities portfolio and farm fork portfolio. IDFC is registered as portfolio manager with SEBI. Thus, IDFC is functionally different from the assessee which is engaged merely in non-binding investment advisory support services. Since, IDFC is functionally different, we direct the AO to exclude the IDFC from the list of comparables
CRA Online Limited operated in two strategic lines of business, i. e. knowledge Process Outsourcing and information Services and Technology Solutions, with a list of reputed global and domestic clients.
we direct the AO to exclude above mentioned three comparables from the final list. Effective ground of appeal is decided in favour of the assessee.
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2016 (11) TMI 1624 - SC ORDER
Export of service - Business Auxiliary Service - business of money transfers.
HELD THAT:- Issue notice.
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2016 (11) TMI 1623 - ITAT MUMBAI
Disallowance of commission expenses - assessee argued that the assessee wanted to adduce the additional evidence in support of his claim, therefore, the assessee should be allowed to produce the evidence before the AO in the interest of justice - HELD THAT:- No doubt these documents were not produced before the AO as well as before the CIT(A). But these documents seems relevant to decide the matter of controversy and to achieve the target of justice, therefore, in view of the said circumstances we allowed the additional evidence and direct the AO to consider the claim of the assessee accordingly by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, the finding of the CIT(A) on this issue has been ordered to be set aside and issue is directed to be restored to the file of AO to decide the matter a fresh in view of the above said observations and in accordance with law.- Appeal filed by the assessee allowed for statistical purpose.
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2016 (11) TMI 1622 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Cancellation/Annulment of trade – guilty of gross negligence by not installing requisite checks and balances as there was punching of erroneous selling order – Whether mistake of punching erroneous sell order constituted ‘material mistake in trade’ and was annullable under Bye law 5(a) framed by NSE - HELD THAT:- In view of the decision of this Tribunal in the case of M/s. Emkay Global Financial Services Limited vs. National Stock Exchange of India Limited & Ors. [2015 (8) TMI 335 - SECURITIES APPELLATE TRIBUNAL MUMBAI] which is subsequent to the impugned decision, the Committee of NSE would rehear all the parties and pass fresh order on merits.
Accordingly, the impugned order is allowed to be withdrawn with liberty to the Committee of NSE to pass fresh order on merits. NSE is directed to give all the relevant trade and order logs to all the parties before passing the fresh order.
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2016 (11) TMI 1621 - SC ORDER
Low tax effect - monetary limit - HELD THAT: - Delay condoned. Leave granted. Tag with Civil Appeal [2018 (8) TMI 1825 - SC ORDER] wherein held as a last opportunity, four weeks' time is granted to the learned counsel for the appellant(s)to file affidavit of valuation and deficit court fees, failing which the appeals shall stand dismissed for non-prosecution.
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2016 (11) TMI 1620 - ITAT KOLKATA
Mnatanability of appeal - low tax effect - HELD THAT:- On perusal of the Circular No. 21/2015 dated 10.12.2015 and the materials available on record, we could not see whether the impugned case falls under any of the exceptions contemplated in the said Circular. Circular makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals also.
We find that the Circular is binding on the tax authorities. This position has been confirmed in the case of Commissioner of Customs vs Indian Oil Corporation Ltd [2004 (2) TMI 66 - SUPREME COURT] wherein examined the earlier decisions of the Apex Court with regard to binding nature of the Circulars and laid down that when a Circular issued by the Board remains in operation then the revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the statute. Hence we hold that the appeal(s) of the revenue deserve to be dismissed in terms of low tax effect vide Circular No.21 / 2015 dated 10.12.2015
No proper Notice issued u/s. 143(2) served on the assessee - AO claimed to have issued notice u/s. 143(2) for fixing the date of hearing on 23-11-09 and argued that such notice was served on a person by name Sh. M. Sankar who is neither authorized nor concerned person to receive on behalf of assessee - HELD THAT:- AO recorded the issuance of notice u/s. 142(1) on 19-7-2010 for fixing the hearing on 02-08-2010 and thereafter, according to assessment order, probably, after 26-08-2010 another notice for initiation of penalty proceedings u/s. 271(1)(b)of the Act was issued.
A person claiming to be representing the assessee as partner appeared before the AO for the first time on 10-12-2010 in response to notice issued u/s. 271(1)(b) of the Act and it concluded that the service of notice u/sec 143(2) on 30-09-09 and issuance of notice thereafter u/sec 142(1) of the Act was not in the knowledge of the assessee and as rightly contended by the Ld.AR notice u/sec 143(2) of the Act was not properly served on the assessee. We also find that there is a gap of one year between issuance of notice u/s. 143(2) and appearance of partner representing Assessee before the AO. Therefore, the order sheets of assessment record as filed by the assessee by way of paper book suggests that the assessee was not appeared before the AO in response to notice issued u/s. 143(2) of the Act as it was not in the knowledge of Assessee. Therefore, we hold that the statutory notice issued u/s. 143(2) of the Act was not properly served on the assessee, which is mandatory as per section 143(2) of the Act.
The notice as prescribed under sub section (2) of Section 143 of the Act was not properly served on the assessee. Thus, the assessment order dt: 30-12-2010 made u/sec 144 of the Act and as confirmed by the CIT-A is held to be invalid and it is quashed. - Decided in favour of assessee.
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2016 (11) TMI 1619 - ITAT MUMBAI
Service of notice by an affixture - mode of service of notice - Curable defect u/s 292BB - validity of assessment - No notice u/s 143(2) issued and served upon the assessee within the stipulated period prescribed in the proviso - wrong assumption of jurisdiction by the AO under section 143(2) - provisions of section 282 of the Act dealing with provisions relating to the service of notice - HELD THAT:- There is nothing to suggest that the assessee was intentionally hiding from the authorities for the purpose of avoiding service or there was any other good reason to conclude that the notice could not be served in an ordinary way. The inaction or delay on the part of the Assessing Officer in issuing notice under section 143(2) of the Act cannot be a ground to straightway effect service by affixture. Thus, in the instant case, the ordinary process not having been exhausted or carried out by the Assessing Officer, he was not justified in directly resorting to service of notice by an affixture merely because he had issued the notice at the last minute i.e. on 29//11/2011 so as to avoid the limitation expiring on 30/11/2001. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the Assessing Officer by issuing the instant notice under section 143(2) of the Act.
Plea raised by the Revenue is that the assessee had appeared before the Assessing Officer on 10/12/2001 and that on that basis it is sought to be canvassed that, in any case, assessee was aware of the notice under section 143(2) of the Act having been served on 29/11/2001 - as per assessee it is wrong on the part of the Revenue to contend that assessee attended before the Assessing Officer on 10/12/2001 in response to the notice issued under section 143(2) of the Act dated 29/11/2001. We find the aforesaid plea of the assessee quite potent and is in fact supported by the material on record. The Ld. Representative for the assessee had referred to a communication dated 10/12/2001 addressed to the Assessing Officer, wherein it has been communicated that the notice was received on 10/12/2001 itself, which ostensibly is the notice dated 6/12/2001 addressed to the Director of the company. Therefore, the aforesaid plea of the Revenue is misplaced and is hereby rejected.
Curable defect u/s 292BB - section 292BB, in any case, does not come to the rescue of the Revenue in the present case because it has been introduced by Finance Act, 2008 w.e.f. 01/04/2008 and it would not apply in the instant case.
Thus the notice under section 143(2) has not been served within the time and the mode prescribed under the Act and as a consequence, the impugned assessment framed under section 143(3) of the Act is void ab-initio. Accordingly, the assessment order dated 10.11.2003 is liable to be quashed. - Decided in favour of assessee
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2016 (11) TMI 1618 - DELHI HIGH COURT
Validity of SCN - Refund of the amount deposited together with interest - Section 32 of the DVAT Act, 2004 - HELD THAT:- The notices in question even if they were served upon the assessee, do not conform the Rule that was issued much later in the year 2012. What is more disturbing to this Court, however, is that all seven notices produced and relied upon by the Revenue demand “zero” from the assessee and assessed turnover at “zero”. It is not only to the utter dismay of the Court but is entirely un-comprehensible and goes completely untenable.
The respondents are directed to process the petitioner’s application and pass appropriate orders within a week. Any amount deposited by the petitioner, shall be refunded after adjusting tax due together with interest payable in accordance with law within a period of two weeks.
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2016 (11) TMI 1617 - SUPREME COURT
Benefits of section 80P - Deduction u/s. 80P(2)(a)(i) - Unexplained cash credits u/s. 68 - Non granting of deduction u/s. 80P(2) - treating the unexplained credits as ‘income from other sources’ - HELD THAT:- Delay condoned. Leave granted.
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