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Showing 121 to 140 of 2015 Records
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2018 (12) TMI 1897
Petitioners seeking relief from coercive action - apprehension of the arrest on account of summons issued under Section 14 of the Central Excise Act - Section 83 of the Finance Act and Section 70 of the Central Goods and Service Tax, Act 2017 - ready to adduce all possible evidence - HELD THAT:- Considering the voluntary nature of pleadings where the petitioners are desirous of getting themselves assisted by the adjudicatory process, Let them represent their case before the concerned authority. The authority concerned shall complete the same in 8 weeks' time and if there is a need for any apprehension after once the adjudicatory process is completed, if they are not ready to fulfill their obligation, they may be given an opportunity of two more weeks for taking necessary steps. Petitioners shall appear on or before 11/01/2019 before the concerned Police Station.
Application disposed off.
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2018 (12) TMI 1896
Seeking withdrawal of CIRP initiation application - HELD THAT:- The application filed by the applicant – Federal Bank Ltd. (1st Respondent herein) for withdrawal of the application under Section 7 in terms of Section 12A of the I&B Code, 2016 has been allowed and the ‘corporate insolvency resolution process’ against the ‘Corporate Debtor’ has been withdrawn. In view of such development no further order is required to be passed.
The appeal stands disposed of in terms of order dated 29th November, 2018 passed by the Adjudicating Authority.
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2018 (12) TMI 1895
Input Tax Credit - discounts given in the form of issuance of a credit note but Tax was paid only on the original purchase price - grievance of the Assessing Officer appears to be that the writ petitioner's purchase turnover being lower, he cannot claim ITC on the original purchase price - HELD THAT:- The stand of respondent / Assessing Officer cannot be accepted. It clearly runs counter to the statutory scheme set out in TNVAT Rules, 2006. Section 2(41) of the Act defines what is “turnover”. The Explanation (II) (ii) of Section 2 (41) states that any discount on the price allowed in respect of any sale shall not be included in the turnover.
In the case on hand, it is beyond dispute that the tax already paid by the selling dealer has not at all been disturbed. Therefore, the very approach of the second respondent is contrary to the statute.
Petition allowed - decided in favor of petitioner.
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2018 (12) TMI 1894
Addition u/s 2(22) (e) on account of deemed dividend - HELD THAT:- We find that Id. First Appellate Authority has recorded a finding of fact that assessee is not the share holder of both the companies. CIT(A) has followed the decision of Special Bench of ITAT in case of ACIT vs. Bhaumik Colour Pvt. Ltd. [2008 (11) TMI 273 - ITAT BOMBAY-E]. This decision of ITAT has been upheld by the Hon'ble Bombay High Court. Hon'ble Delhi High Court has also held in case of CIT vs. Ankitech (P.) Ltd. [2011 (5) TMI 325 - DELHI HIGH COURT] that the assessee should be a share holder in the lender company and such holding should be more than 10% of the voting "rights, only then Section 2(22)(e) would be attracted. As concurred with hon'ble Delhi High Court. Therefore, respectfully following the decision of Hon'ble Gujarat High Court in case of CIT vs. Daisy Packers (p.) Ltd.[2015 (7) TMI 253 - GUJARAT HIGH COURT] we do not find any error in the order of Id. CIT(A) on this issue. This ground of appeal is rejected.
Addition u/s 41(1) being cessation of liability - HELD THAT:- The assessee has shown sundry credit in the name of Sarovar Park Plaza, Mumbai which was carried forward from after year without any transaction from A.Y.2007-08. The assessee has shown outstanding balance of creditors account as liability in its books of account and such amount was not written back in Profit & Loss Account After taking in to consideration the decision in the case of CIT v/s. Bhogilal Ramjibhai Atara [2014 (2) TMI 794 - GUJARAT HIGH COURT] and in the case of CIT v/s. Nitin S. Garg [2012 (5) TMI 30 - GUJARAT HIGH COURT] as elabortaed in the findings of the Ld. CIT(A) we are of the view that there was nothing on record to demonstrate that there was remission or cessation of liability relevant to Assessment Year 2007-08. Therefore we do not find any error in the decision of the Ld. CIT(A). Accordingly the appeal of the revenue is dismissed.
Disallowance in respect of belated contribution to provident fund and ESIC u/s. 36(1)(va) - HELD THAT:- As the assessee has failed to make payment of the PF/ESIC received from the employees within the time allowed as per the PF/ESIC act. We have further noticed that hon’ble high court in the case of CIT vs. GSRTC [2014 (1) TMI 502 - GUJARAT HIGH COURT] held that with respect to the sum received by the assessee from any of his employees to which provisions of sub-clause (10) of clause (24) of section 2 apply, the assessee shall be entitled to deduction of such amount in computing the income referred to in section 28, if such sum is credited by the assessee to the employees account in the relevant fund or funds on or before the due date. In the light of the above facts and judicial findings, we do not find any error in the decision of ld. CIT(A) in sustaining the disallowance, therefore, this ground of the appeal of the assessee is dismissed.
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2018 (12) TMI 1893
Disallowance of Legal and Professional Expenses paid to Associated Enterprise - HELD THAT:- Since, the AO and the Ld. DRP have held that the evidence on record is not sufficient to substantiate the contention of the assessee, the assessee has collected the additional documents from M/s Inventa Research and submitted before us for admitting as additional evidence. As perused these documents and we are also of the considered view that these documents are essential for proper adjudication of the issue raised by the appellant/ assessee.
Admittedly, these documents were not available with the assessee during the assessment proceedings or proceedings before the Ld. DRP, the assessee could not furnish the same before the authorities concerned. We therefore, admit these documents as additional evidence in the interest of justice - since these documents have been placed for the first time the same are required to be verified and taken into consideration by the AO - we set aside the findings of the Ld. DRP and send this issue back to the file of AO for deciding the same afresh after hearing the assessee in the light of the additional documents submitted by the assessee. Hence, this ground of appeal is allowed for the statistical purposes.
Disallowance towards commission on sale on the ground that payments made on account of commission on sales is not a genuine transaction or not incurred in relation to the business of the appellant - HELD THAT:- In the case of Commissioner of Income Tax vs. Septu India Pvt. Ltd.[2008 (2) TMI 306 - PUNJAB AND HARYANA HIGH COURT] has held that when the assessee had proved the actual payments of amounts of commission and service charges as well as receipt of the same amount by the parties concerned then the claim put forth by the assessee should not have been disallowed merely on the ground that the same was not supported by any documentary evidence - the assessee has discharged the primary onus of establishing the genuineness of the expenditure made in connection with its business. DRP has confirmed the disallowance without pointing out any cogent evidence which rebut the claim of the assessee. We accordingly allow this ground of appeal and set aside the DRP direction. Hence, we direct the AO to allow the expenditure claimed by the assessee.
Disallowance paid on account of proving financial consultancy and human resources consultancy services - HELD THAT:- We notice that the assessee has not produced any evidence to establish that the services of Smt. Namrata Goel and Nidhi Goel were availed by the assessee - assessee has not placed on record any evidence to explain the nature of services rendered by them for which the assessee company had paid each to the aforesaid parties during the year relevant to the assessment year under consideration. Even before us, the Ld. counsel did not point out any evidence available on record to substantiate that the expenditure was incurred and that too in connection with the business of the assessee.
Under section 37(1) of the Act, expenditures incurred wholly and exclusively for the purposes of the business are allowed in computing the income chargeable under the head. In the present case, even if it is assumed that the assessee had paid the said amount to the aforesaid parties, it has failed to establish that the expenditure has been laid out wholly and exclusively for the purpose of the business of the assessee. Hence, we endorse the findings of the Ld. DRP and uphold the disallowance made by the AO in terms of the DRP directions. Accordingly, we dismiss this ground of the appeal of the assessee.
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2018 (12) TMI 1892
Reimbursement of Differential tax - change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) with effect from 01.07.2017 - HELD THAT:- The petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019.
No coercive action shall be taken against the petitioner till 31.03.2019 - petition disposed off.
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2018 (12) TMI 1891
Depreciation on goodwill - AO rejected the assessee’s claim, observing that the assessee had not claimed any depreciation on goodwill, but had allocated the entire amount of share capital issued to the share holders of M/s JKSL free of cost, among all the fixed assets of the assessee company and has thus enhanced the value of the fixed assets, which is not permissible - HELD THAT:- For all these years, the ld. CIT(A) reversed the orders of the AO on the ground that issuance of shares was towards part payment of purchase consideration and hence was included in the cost of acquisition of the cement undertaking; that therefore, the assessee could not be deprived of depreciation by merely debiting the issue of shares to the goodwill account. The CIT(A) held in the alternative that even if the consideration in the form of shares was paid for purchase of goodwill, this payment could be considered as payment for acquiring brands of the demerged company, on which depreciation was allowable u/s 32 - Tribunal followed “CIT vs. Smifs Securities Ltd.’, [2012 (8) TMI 713 - SUPREME COURT], ‘CIT vs. Manipal Universal Learning Pvt. Ltd.’, [2013 (7) TMI 169 - KARNATAKA HIGH COURT] and ‘CIT vs. Hindustan Coca-Cola Beverages (P) Ltd.’[2011 (1) TMI 138 - DELHI HIGH COURT]
Claim of additional depreciation - HELD THAT:- CIT(A) allowed the assessee’s claim, following ‘M/s Automotive Coaches & Components Ltd. vs. DCIT’,[2016 (4) TMI 34 - ITAT CHENNAI], for A.Y. 2008-09, wherein, it was held that if additional depreciation could not be allowed at the rate of 20% during the year in which the machinery was installed, the balance 50% has to be allowed in the subsequent year, and ‘CIT vs. Rittal India (P) Ltd.’, [2016 (1) TMI 81 - KARNATAKA HIGH COURT] in which, it was held that the proviso to Section 32 (1)(iia) of the I.T. Act would not restrain the assessee from claiming the balance of the benefit of additional depreciation in the subsequent assessment year.No decision contrary to the above decisions has been brought to our notice. Hence, finding no error therein, the order under appeal on this issue is also confirmed.
Receipt of interest subsidy from the Rajasthan Govt. - Revenue or capital receipt - HELD THAT:- The case of the Department is that in ‘Sahney Steel & Pressing Works Ltd. [1997 (9) TMI 3 - SUPREME COURT] as been held that in the case of subsidy, the assessee is free to use the money in its business entirely as it likes and it is not obliged to spent the money for a particular purpose. However, it has remained to be noted that this observation was in the context of the background that the subsidy in that case was given to the new industries at the commencement of business, to carry on their business and not as an aid for setting up of the industries. It was, therefore, that the subsidy was treated as operational subsidy and not a capital one. With regard to revenue subsidy, it was held that if it is given by way of assistance to carry on trade or business, it has to be treated as a trading receipt. In the present case, the interest subsidy was given only for the payment of loan acquired for acquisition of capital asserts. As such, it is a subsidy given for setting up of business. Hence, it has rightly been treated as a capital receipt.
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2018 (12) TMI 1890
Addition u/s 153A - Conflicting views - HELD THAT:- Admittedly, there was no material found during the course of search operation. When there are two conflicting views, this Tribunal is of the considered opinion that the view in favour of assessee has to be followed. Therefore, in the absence of material found in the course of search operation, there cannot be any addition under Section 153A. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
The cross-objections filed by the assessee become infructuous, therefore, stand dismissed.
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2018 (12) TMI 1889
Non-reimbursement of differential tax amount - difficulty faced by the contractors due to change in the regime regarding works contract under GST - HELD THAT:- The petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019.
No coercive action shall be taken against the petitioner till 31.03.2019 - The writ petition is disposed of accordingly.
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2018 (12) TMI 1888
Seeking Adjournment before AAR - Short period fixed for personal hearing - Classification of goods - Mahua De-oiled Cake - De-oiled Rice Bran - Input Tax Credit - purchase of Mahua Oil Cake/Rice Bran Oil cake used in the manufacturer of solvent extracted oil - HELD THAT:- Petition disposed off.
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2018 (12) TMI 1887
Application u/s 80G(5) rejected - charitable activity u/s 2(15) - assessee trust incurred expenditure more than 5% of religious nature - CIT(E) granted registration to the assessee society u/s 12AA - assessee has incurred certain expenses for upkeep and maintenance of the temple premises - HELD THAT:- It is not the case of the Revenue that the assessee society is governed by section 80G(5)(ii) and has in its instrument/object any provision for the transfer or application of the whole or any part of the income or asset for any purpose other than a charitable purpose. It is also not the case of the Revenue that it is for the benefit of any particular religious community or caste and any of its objects include any object the whole or substantially the whole of which is religious in nature. In view of the same, the provisions of section 80G(5B) cannot be invoked in the instant case and the order of the ld CIT(E) deserve to be set-aside on this ground itself.
In terms of the nature of the Mandir Pooja expenses, it is noted that the said expenditure has been incurred in respect of an 100 years old mandir situated at village Jogalsar where the pooja is performed regularly by the locals at their expenses however, certain expenses in terms of upkeep and maintenance of the temple premises, distribution of prasad, etc is contributed by the assessee society. It has been stated that the contributions have been made to keep alive the interest of the locals in the said old heritage temple which is ancillary to assessee society’s main object to preserve and promote such heritage temple buildings. The temple is visited by all locals irrespective of their religion, caste, creed or gender and the temple premises is also used for various social and festival gatherings. The line of distinction between religious and charitable purposes is very thin and no water tight compartment between the two activities can be very established. In the facts of the present case, we donot believe that where the assessee has incurred certain expenses for upkeep and maintenance of the temple premises and distribution of prasad to public at large, it would be an activity related to a particular religion or community and the expenses so incurred would be in nature of religious expenses.
In case of Umaid Charitable Trust [2008 (5) TMI 232 - RAJASTHAN HIGH COURT] has held that unless objective of the assessee society is for spending its income for a particular religion and it is so found in the trust deed, the Revenue cannot reject the application seeking registration under section 80G merely because the assessee has incurred certain expenses for upkeep and maintenance of the temple premises and distribution of prasad to public at large
We hereby direct the ld CIT(E) to grant the necessary registration u/s 80G to the assessee society. - Decided in favour of assesee.
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2018 (12) TMI 1886
Revision u/s 263 - Revising the completed assessment under section 143(3) on the issue that the sum of receipt consisting of share capital and share premium from a company Secunderabad Healthcare Ltd. - HELD THAT:- We find that the assessee has filed complete details of all share holders of the company with full name and address of all share holders along with details of PAN. Even while completing assessment for AY 2012-13, all these details were filed before the AO regarding allotment of 1.40 lakhs shares at a premium to Secunderabad Healthcare Ltd. and all details resolution copies, bank statements, payment of call money letters and PAN Card Xerox were filed.
We are of the view that in the given facts of the present case the issue is covered on merits in the case of CIT vs. Orchid Industries Pvt. Ltd.[2017 (7) TMI 613 - BOMBAY HIGH COURT] wherein honorable High court has considered the decision of division Bench of Bombay High Court in the case of CIT vs. Gagandeep Infrastructure P. Ltd [2017 (3) TMI 1263 - BOMBAY HIGH COURT] & Hon’ble Supreme Court in the case of CIT vs. Lovely Exports (P) Ltd [2008 (1) TMI 575 - SC ORDER].
Revision order passed by PCIT under section 263 of the Act is not sustainable because the very basis of the order is that as per the information received from DCIT, Central Circle 2(2), Mumbai the assessee company is one of the beneficiaries of accommodation entry of bogus share premium from Secunderabad Healthcare Pvt. Ltd., the company operated by Shirish Shah, the company has been declared as shell company. We find that the PCIT has no where brought on record what was the information with him in regard to this aspect and how the receipts in the shape of share application money from Secunderabad Healthcare Pvt. Ltd. is part of bogus share premium as alleged by the PCIT. The assessment order framed by the AO is neither prejudicial to the interest of the Revenue nor erroneous for the reason that this information was not available at the time of framing assessment if at all it is true and for this the order cannot be held to be erroneous and prejudicial to the interest of the Revenue. Hence, we are of the view that the revision order be cannot be sustained and accordingly, quash. The appeal of the assessee is allowed.
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2018 (12) TMI 1885
Validity of reassessment proceedings - change of opinion - levy of purchase tax - penalty u/s 27(3) of the T.N.V.A.T. Act - Works Contract - HELD THAT:- The petitioners herein are works contractors. The purchase tax under Section 12 of the T.N.V.A.T. Act has been levied on them. It has been held in the decision of THE STATE OF TAMIL NADU VERSUS EAST COAST CONSTRUCTIONS AND INDUSTRIES [1985 (2) TMI 239 - MADRAS HIGH COURT] that where the goods have been used in the construction of buildings, such user cannot be said to be a disposal of goods as contemplated by Clause (b) of Section 7-A(1) of the Tamil Nadu General Sales Tax Act, 1959. The said provision is in pari materia with Clause (b) of Section 12 of the T.N.V.A.T. Act. The transaction in which the petitioners are engaged is said to constitute deemed sales.
Therefore, when the petitioners have already been visited with tax on that count, they cannot also be saddled with levy of purchase tax - petition allowed.
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2018 (12) TMI 1884
Order of refund some of its FDR (Fixed Deposit Receipts) of 17 investors within 30 days - non-compliance with the order - HELD THAT:- From the conspectus of the facts, it appears that the petitioner has no role in the allegations leveled against him. The post on which the petitioner was appointed as Director of the Company seems to be a mere paper arrangement only and unquestionably his tenure is of approximately four months i.e. from 07.11.2013 to 06.03.2014.
Assuming that the petitioner has in fact taken some decisions as per the say of the respondents, there is nothing to show that he had attended any Board Meetings as a Director or otherwise or he has formed any committee or has taken any decision during his tenure of three months by exercising powers of Director. No material is produced on record to show that the petitioner in fact had participated in any of the Board Meetings or had appointed any Committee as envisaged in Section 292 of the Act. As per section 283(1)(g) of the Act, the petitioner would seize to function as a Director, as he did not attend the Board Meetings for a period of three months. In the affidavit filed by the respondents in the aforenoted writ petition, it is admitted that the tenure of the petitioner was from 07.11.2013 to 06.03.2014. Thus, in absence of any material against the petitioner depicting his involvement in the affairs of the Company, it can be safely presumed that there was no role played by the petitioner in any capacity in taking any decisions which would attract the offences alleged against him in the impugned criminal cases.
This Court is of the considered opinion that the criminal cases filed by the Registrar of the Companies are liable to be quashed and set aside by invoking the inherent and extraordinary powers of this Court under Section 482 of the Code of Criminal Procedure in order to prevent the abuse of process of Court - Petition allowed.
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2018 (12) TMI 1883
Addition u/s 14A r.w.r. 8D - disallowance of expenses incurred in relation to earning exempt income - recording of satisfaction - HELD THAT:- As per assessee since no cogent reasons had been recorded by the Assessing Officer for rejecting the correctness of the claim of expenditure as computed by the assessee for the purpose of making disallowance under section 14A the disallowance could not have been made, we do not find any merit in this contention.
As per order of the AO and on perusing the same we find that the Assessing Officer had recorded due satisfaction with regard to the incorrectness of claim of disallowable expenses made by the assessee, before proceeding to work out the disallowance as per Rule 8D himself. We find that the Assessing Officer had recorded his satisfaction.
Assessing Officer was not satisfied with the correctness of the amount worked out by the Assessee since he had noted therein that the assessee had not apportioned expenditure of the nature of rent, taxes, salary etc. while working out his estimate of the expenditure to be apportionment u/s 14A - Assessee has been unable to controvert this contention of the Assessing Officer. In view of the above, there is no doubt about the fact that the assessing officer had duly recorded why he found the disallowance made by the assessee incorrect.
The act of the Assessing Officer in applying Rule 8D for the purpose of working out the disallowance under section 14A we hold has been rightly upheld by the Ld. CIT(A),as being in accordance with law. The contention raised by the Ld. Counsel for the Assessee in this regard is therefore dismissed.
Alternate contention of the assessee that the disallowance calculated as per Rule 8D(2)(iii) was to be restricted to those investments only on which exempt income had been earned is acceptable. We find that both the Special Bench of the ITAT in the case of Vireet Investments [2017 (6) TMI 1124 - ITAT DELHI] and ACB India Ltd. [2015 (4) TMI 224 - DELHI HIGH COURT] have laid down the preposition that for the purpose of calculating the disallowance u/s 14A read with Rule 8D, only those investments which have earned exempt income have to be considered.
Thus we hold that the disallowance under section 14A Read with Rule 8D(2)(iii) is to be calculated by taking into consideration only those investment which have earned exempt income during the year. The Assessing Officer is directed therefore to recompute the disallowance in accordance with aforesaid proposition laid down by the Courts. - Decided partly in favour of assessee.
Disallowance of interest expenses u/s 36(1)(iii) - sole contention raised by Assessee was that since it had enough own funds available no disallowance under section 36(1)(iii) was warranted - HELD THAT:- Various courts have held that no disallowance u/s 36(1)(iii) is warranted where availability of sufficient own interest free funds is demonstrated by the assessee. The Ld. DR has failed to point out any contrary decision either of the jurisdictional High Court or the Apex Court. Therefore there remains no dispute with regard to the said proposition of law. Further the audited financial statements of the assessee show sufficient own funds in the form of share capital and reserves to the tune of ₹ 144 Cr. ,while the amount invested in building in relation to which the impugned disallowance has been worked out is RS.52,46,711/-The Ld. Dr has not controverted the said facts before us. Therefore ,in the light of the fact that sufficient own funds were available with the assessee,no disallowance u/s 36(1) (iii) was warranted in the present case. We therefore set aside the order of the Ld.CIT(A) in this regard. - Decided in favour of assessee.
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2018 (12) TMI 1882
Disallowance made on account of replacement of meters - HELD THAT:- Addition as consistently allowed by the ITAT and the Hon’ble Bombay High Court in assessee’s own case in assessee’s favour. The CIT(A) after relying on these decisions of the Tribunal and the High Court have deleted the disallowance - Thus we do not find any reason to interfere in the order of CIT(A) for deleting disallowance on account of replacement of meters.
Revised claim filed before the AO without filing revised return - revised claim with respect to long term capital gains earned on sale of units, which was not accepted by the AO on the plea that assessee has not filed revised return of income - claim of carry forward of long term capital loss - HELD THAT:- CIT(A) accepted assessee’s claim by observing that the revised claim filed before the AO without filing revised return are required to be admitted in view of the decision of Pruthvi Brokers & Shareholders Pvt. Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT]. We found that all the facts and figures are very much available before the AO. Therefore, the CIT(A) has verified assessee’s claim wherein he found that since units were held for more than 12 months assessee was eligible for benefit of long term capital gain. Accordingly, he directed the AO to exclude the amount from the total short term capital gain and to allow carry forward of long term capital loss after having the detailed observation - Detailed finding so recorded by CIT(A) are as per material on record, which has not been controverted by bringing any positive material on record. We therefore, do not find any reason to interfere in the findings of CIT(A).
Disallowance u/s 14A - disallowance of interest under Rule 8D(2)(ii) - HELD THAT:- CIT(A) has given relief with respect to the proportionate interest free funds alleged to be utilized for exempt investment. The CIT(A) has correctly relied on the judicial pronouncements of jurisdictional High Court in the case of HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] and Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] for reaching to the conclusion that no disallowance of interest is warranted in case assessee is having sufficient interest free funds. From the record we also observe that assessee was having sufficient free funds, which was more than the investment so made. Accordingly, following the decision of Jurisdictional High Court as mentioned by CIT(A), we do not find any infirmity in the order of CIT(A) for deleting disallowance of interest under Rule 8D2(ii) of the IT Act.
With regard to the assessee’s contention for excluding investment in subsidiaries while working out disallowance under Rule 8D(ii) find no merit in the action of CIT(A) and in so far as recently in the case of Maxoop Investment [2018 (3) TMI 805 - SUPREME COURT] held that investment in subsidiary should not be excluded for working out disallowance under Rule 8D(2)(ii) of the IT Act. Accordingly, we reverse the order of CIT(A) on this issue and upheld the order of AO.
Computation of book profit of 115JB - HELD THAT:- Issue under consideration is covered by the order of the ITAT in assessee’s own case for the A.Y.2010-11 and 2011-12, wherein it was held that provisions u/s.115JB is not applicable to the electricity supply company. In the instant case, the assessee has followed the accounting policies under the Electricity Supply Act and prepared its accounts in view of those very policies. Accordingly, assessee did not prepare the accounts in accordance with Part II and Part III of schedule VI of the Companies Act as the same is not applicable, hence, provisions u/s.115JB were not applicable in assessee’s case. No infirmity in the order of CIT(A).
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2018 (12) TMI 1881
Exemption u/s 10(23C)(vi) - Assessee’s activities including charging a franchisee fee could not be regarded as a charitable activity within the meaning of section 2(15) - purpose for which section 10(23C)(vi) of the Act was introduced, is adequately fulfilled and not disadvantageously circumvented by vested parties - HELD THAT:- SLP dismissed.
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2018 (12) TMI 1880
Bogus LTCG - Denial of claim u/s.10(38) - HELD THAT:- This is not a case where the ld. Assessing Officer has been able point out where the assessee has made a bogus claim of long term capital gains exempt u/s.10(38) - As perusal of the assessment order clearly shows Assessing Officer has only made allegation in respect of these two companies and the modus operandi of the bogus claim u/s.10(38) of the Act.
The evidences clearly show that the transactions of purchase and sale of the shares by the assessee herein are through online transaction by paying STT. This is not a case for off-line purchase, nor is the case of direct purchase. Neither is the assessee’s name coming out in the Investigation report, which has been received by the ld. AO from Directorate of Investigation, Kolkata. This being so, the claim of assessee cannot be disallowed merely on presumptions and the ld. Assessing Officer is directed to grant the assessee benefit of exemption u/s.10(38) of the Act as claimed in respect of long term capital gains generated by purchase and sale of shares of M/s.NCL Research Limited and M/s.RISA International as claimed by the assessee. - Decided in favour of assessee.
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2018 (12) TMI 1879
Grant of Bail - Money laundering - predicate offences - matter having international ramifications - bogus purchase of software - HELD THAT:- Applicant was arrested in predicate offence, and, subsequently, he was granted bail. Investigation in respect to PMLA, had been assigned to respondents before the applicant was granted bail. It appears that the respondents have continued with investigation and collected evidence against the applicant. The complaint gives filed by the respondents alleges that applicant had played a major role in money laundering. The complaint details as to how the applicant and other accused are involved in the present case. The contention of the applicant is that he is not concerned with the companies allegedly involved in the transactions - There is prima facie material to show the involvement of the applicant in siphoning off the proceeds of crime showing tainted amount, as untainted. It is also observed that this is a serious matter having international ramifications. The offence is economic offence is involving public money and the applicant has played vital role in laundering money.
Bail cannot be granted - bail application rejected.
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2018 (12) TMI 1878
Revision u/s 263 - AO has not made inquiry in regards to receipt shown in service tax return of the assessee vis a vis as per P&L A/C and that the foreign Principals have paid taxes in India u/s 172 of the Act or not - HELD THAT:- We have noted that in the assessment order, the Assessing Officer has not discussed the issue, which is sought to be revised by ld. PCIT. However, the Assessing Officer during the assessment vide its notice dated 18.12.2015 raised the specific enquiry vide question no. 19, which we have reproduced below:
“19. Please file copies of service tax return along with the enclosures. It is observed that higher turnover reported in service tax return than the IT Return please reconciles.”
Assessee furnished re-conciliation income as per income tax return as well as service tax return. The assessee also furnished the complete details of service tax return. The assessee furnished Note on return filed with service tax authority and has clearly mentioned that assessee is an agent of various foreign shipping lines. The assessee on behalf of the principle collected the charges for shipping from consumer, which are freight and terminal handling charges out of freight and terminal handling charges, no handling charges is liable to be service tax and freight is exempt from payment of service tax. The service tax is collected and paid on such income on behalf of the agent. Therefore, the income of principle is included in the service tax return of assessee. The assessee is an agent earned fixed percentage of commission on export and import on freight. The assessee also collected documentation and other charges which service is taxable income. Thus, we have seen that the assessee has furnished complete details to the Assessing Officer. The Assessing Officer after his satisfaction and without mentioning anything about the issue accepted the contention of assessee.
Hon’ble jurisdictional High Court in CIT vs. Gabriel India [1993 (4) TMI 55 - BOMBAY HIGH COURT] held that when the Income Tax Officer (ITO) made enquiries with regard to the expenditure incurred by assessee. The assessee furnished detailed explanation in this regard by a letter in writing. All are part of the record of the assessee and the claim was allowed by ITO on being satisfied with the explanation of assessee. Such decision of ITO cannot be held to be erroneous in his order; he has not made elaborate discussion in this regard.
Also in SHRI ASHISH RAJPAL [2009 (5) TMI 18 - DELHI HIGH COURT] held that merely because the assessment order does not refer to query raised by Assessing Officer during the scrutiny and response of the assessee thereto it cannot be said that there was no enquiry and the assessment order is erroneous and prejudicial. As we have already noted and referred that the Assessing Officer made specific enquiry with regard to service tax return and receipt of income in the original assessment and accepted the same, therefore, in our view, the order passed by assessing officer is not erroneous. Therefore, the precondition for exercise of power under section 263 is not fulfilled. - Decided in favour of assessee.
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