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Case Laws
Showing 121 to 140 of 1962 Records
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2017 (3) TMI 1845
Dishonor of Cheque - Vicarcious Liability - leading of the evidence during the trial - Section 141 of the Negotiable Instruments Act - HELD THAT:- On a similar issue, Hon'ble Supreme Court, in the case of SAMPELLY SATYANARAYANA RAO VERSUS INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED [2016 (9) TMI 867 - SUPREME COURT], has held whether cheque was given as security or there existed outstanding liability or not is question of fact. Under such conditions, the High Court cannot entertain disputed question of fact under S. 482 CrPC. The High Court needs to exercise power under Section 482 CrPC with great deal of caution. Even though, defence of accused appears to be plausible, but it should not be considered, while exercising power under Section 482 CrPC. In the said case, post dated cheques were issued; as observed by Hon'ble Apex Court, postdated cheques is a well-recognized mode of payment and it depends on each case.
While dealing with a quashing petition, the Court has ordinarily to proceed with all the averments in the complaint, defence of the accused cannot be considered at this stage. The Court considering the prayer for quashing, does not adjudicate upon the disputed questions of fact. Therefore, the question has to be answered in favour of the respondent No. 2 and against the applicant - petition dismissed.
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2017 (3) TMI 1844
Reopening of assessment u/s 147 - excess deposit in his bank account which has escaped assessment - addition of agriculture income - HELD THAT:- AO noted that assessee made excess deposit in his bank account which has escaped assessment, therefore, assessee has not fully and truly disclosed all material facts necessary for assessment in assessment year under appeal. Assessing Officer, however, did not make any addition of excess cash deposit in the impugned re-assessment order. The assessee also produced sufficient evidence on record to prove that Assessing Officer has taken the lesser bank deposit because ₹ 10 lacs deposit have not been considered by the Assessing Officer in the bank account of the assessee. Ultimately, Assessing Officer was satisfied with the explanation of the assessee of bank deposits, therefore, no addition is made. The reasons recorded by the Assessing Officer were, therefore, wholly incorrect and did not lead to anywhere if there is any escapement of income.
AO also not recorded any fact in the reasons if agriculture income escaped assessment. Assessing Officer called for the details of agriculture income at original assessment stage and asked for all the evidences in support of declaration of agriculture income - The assessee produced sufficient evidence and material before AO at original assessment stage in support of earning of agriculture income.
Therefore, there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment with regard to computation of agriculture income. The Assessing Officer in the reasons for reopening of the assessment has nowhere recorded if assessee has not fully and truly disclosed all material facts for declaring agriculture income. The record, on the other hand, would reveal that assessee disclosed fully and truly all material facts of earning of agriculture income at the original assessment stage. Therefore, all the facts of earning of agriculture income supported by evidences were within the knowledge of Revenue Department/Assessing Officer at the time of making the original assessment.
The assessee has, thus, disclosed all the material facts of earning of agriculture income at the original assessment stage. No further material is supposed to have been disclosed by the assessee for earning of agriculture income - Therefore, on mere change of opinion, subsequent Assessing Officer is not competent to initiate proceedings under section 148 - Decided in favour of assessee.
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2017 (3) TMI 1843
Seeking extension of time for vacation of premises - extension sought many times, which was wasting court's precious time - HELD THAT:- The petitioners not only took the benefit of an order of the High Court granting them one year’s time to vacate the premises but obtained a further extension of a period of four months to vacate. The petitioners then filed a Review Petition before the High Court and moved another application, this time seeking an extension of five years to vacate the premises. The time of the High Court and, unfortunately, of this Court as well had to be devoted to a thoroughly frivolous proceeding - in the earlier proceeding that was instituted in the Small Causes Court, it was found that the premises have been granted under a conducting agreement and there was no relationship of licensor and licensee. That being the position, the petitioners would not acquire status as tenants with effect from 1 February 1973, there being no licence in their favour.
Courts across the legal system - this Court not being an exception – are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable.
The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice.
The petitioners shall vacate the premises on or before 7 March 2017 - In case the petitioners fail to vacate the premises by the date indicated, they shall expose themselves to civil and criminal consequences under the law - SLP dimissed.
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2017 (3) TMI 1842
Principles of natural justice - assessment was made based on the Web Report - assessment made without furnishing the details of such report and without conducting any enquiry at all levels - HELD THAT:- The matter is remitted back to the Assessing Authority to redo the assessment after following the procedures/ directions issued by this Court in the above said batch of cases - Petition allowed by way of remand.
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2017 (3) TMI 1841
CENVAT Credit - statutory returns have been filed belatedly - period 01.04.2005 to 31.03.2007 - HELD THAT:- Since the appellant had not filed the ST-3 returns for the period after March 2005, the department issued show cause notice for the demand of service tax on the basis of the profit and loss accounts and income tax returns. However, ST-3 returns appeared to have been filed belatedly on 22.11.2007 in which it has been reported that the entire service tax liability has been discharged by making use of the accumulated cenvat credit through input services.
Discharging the service tax liability by making use of accumulated cenvat credit is a valid mode of discharging the liability. The appellant had admitted that relevant ST-3 returns were filed belatedly and the department did not consider such ST-3 returns reflecting the payment of services by making use of accumulated cenvat credit. There is also a difference in the liability of service tax projected in the show cause notice as well as claimed by the appellant through ST-3 returns which needs to be looked into and concluded - Since the original authority did not have the benefit of the ST-3 returns filed by the appellant belatedly, it is deemed appropriate to remand the matter to the original adjudicating authority.
Matter remanded to the Original Adjudicating Authority for denovo decision after considering the St-3 returns belatedly filed by the appellant - Appeal allowed by way of remand.
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2017 (3) TMI 1840
Maintainability of revision filed under Article 227 of the Constitution of India - Arbitral Tribunal was constituted for adjudication of the disputes - Tribunal did not entertain the application and proceeded to hear the arguments - HELD THAT:- The powers conferred under Article 227 is to ensure that all Subordinate Courts as well as statutory or Quasi Judicial Tribunal exercise the powers vested in them within the powers of their authority. It is the duty of the High Court to ensure that they all act in accordance with establishments of law. Normally the invocation of Article 227 of the Constitution is done when there is no revision or appeal is provided to the High Court. Therefore, the jurisdiction under Article 227 appears to be wider than the power given under Article 226 of the Constitution of India.
The dispute now raised is not for a remedy in public law. It is between private individuals who cannot be equated with State or instrumentalities of State within the meaning of Article 12 of the Constitution of India. A writ can be issued against the person who has some statutory or public duty to perform. Unlike an Arbitrator acting under Section 10A of the Industrial Disputes Act, who though may be a private individual discharges public function, the Arbitral Tribunal, which has passed the impugned order is not connected with a statutory authority or discharge any official duty under a Statute - It is a dispute between two individual entities and the order passed is interlocutory in nature. Although the petitioner herein has stated that he was vigilant in conducting the proceedings before the Arbitral Tribunal, had taken a calculated risk of not filing the documents at the relevant point of time, because of its voluminous nature.
Section 5 of the Arbitration and Conciliation Act, 1996 brings so clearly the object of the Act, viz., encouraging the resolution of the disputes expeditiously and less expensively when there is an arbitration agreement indicating that the intervention of the Courts should be minimal. When the intervention of the judicial authorities is restricted under Section 5, the revision cannot be entertained by this Court, against an order passed by the Tribunal, which is interlocutory in nature.
The revision fails as the same is not maintainable.
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2017 (3) TMI 1839
Assessment u/s 153C - whether any satisfaction was recorded u/s 153A of the Act in the case of the person searched in order to initiate proceedings u/s 153C of the Act in the case of the assessee? - HELD THAT:- Even though the AO of the person searched and the assessee before us is the same, the requirement of law is that the satisfaction has to be recorded before initiating proceedings u/s 153C of the Act. Therefore, the Additional Grounds of appeal being legal grounds and the facts are already on record, we deem it proper to admit the grounds. Since the AO has reported that the satisfaction has not been recorded as required under the law, we are inclined to allow the additional ground and hold that the assessment u/s 153C is not sustainable. - Decided in favour of assessee.
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2017 (3) TMI 1838
TDS u/s 194A - interest paid to non banking financial company - non deduction of TDS - Revenue has claimed that as per the definition of interest provided under the act u/s 2 (28A), the amount qualifies as interest and was thus liable for deduction of tax at source, which having not been deducted - HELD THAT:- Counsel himself has stated that for the intervening period, when the amount was advanced by MMFSL to Mahindra and Mahindra Ltd. on behalf of the assessee and the amount was actually paid by the assessee to MM FSL on sale of the vehicles, the said charges were recovered by MMFSL from the assessee.
Clearly these charges were recovered for the credit facility which was given by MMFSL to the assessee by way of making payment on account of the vehicles billed to the assessee by Mahindra and Mahindra Ltd on behalf of the assessee till the assessee sold the vehicles ,collected the amounts due on them and paid them to MMFSL. Assessee has not been able to demonstrate before us to how the same was not a fee or charge in respect of credit facility availed by it from MMFSL. In view of the same the amount paid to MMFSL, we hold, was in nature of interest as defined under section 2 (28A) of the Act, which clearly states that interest includes any service, fee or other charge in respect of monies borrowed or debt incurred or in respect of any credit facility which has not been utilised.
The assessee having not deducted tax at source on the same has contravened the provisions of section 194A of the Act and therefore the expenditure did not qualify for deduction as per the provisions of section 40(a)(ia) of the Act. We have therefore no hesitation in upholding the order of the Ld. CIT(Appeals) and confirming the disallowance made of interest expenditure on which no tax was deducted at source under section 194A .
Disallowance of advertisement and publicity expenses under section 40(a)(ia) on account of non-deduction of tax at source on the same - HELD THAT:- The fact that the payment was made on account of purchase of XYLO kits is not disputed. Merely because the bill date and date of making payment is different or for the reason that the figure mentioned in the bill and the amount of actual payment made do not tally the contention of the assessee cannot be rejected. Nor can it be said that the assessee has failed to substantiate its claim. There is nothing untoward or unusual in making payments after the bills are raised or for that matter payments made not tallying actually with the amount raised in the bills. The fact remains that the assessee had make payments on account of purchase of XYLO kits, which has remained unrebutted before us. On account of this fact are we find merit in the contention of assessee that the payment made did not qualify as advertisement and publicity expenses and therefore there was no need to deduct tax at source on the same . In view of the same the disallowance made under section 40 (a) (ia) on account of payment made.
As for the payments made to M/s Sample enterprises and M/s Ad Vintage Communication it is not disputed that the payment credited at one time into the account of the above parties exceeded ₹ 20,000/-. The assessee was therefore clearly liable for deduction of tax at source under section 194C - Expenses incurred on account of the same are liable to be disallowed under section 40(a)(ia) - Decided partly in favour of assessee.
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2017 (3) TMI 1837
Issues:
Controversy settlement based on previous judgment and interim orders.
Analysis:
The High Court heard arguments from both parties' counsels and disposed of the writ petition at the admission stage with their consent. The controversy in question had already been settled by a Division Bench judgment and order dated 29.02.2012 in a related case. The High Court noted that the decision of the Division Bench had not been stayed by the Supreme Court, except for a stay on refund and a provision for interest if the assessee succeeded in the appeal. The writ petition was finally disposed of in line with the Division Bench judgment and the interim order of the Supreme Court. The benefit of the order was made subject to the final outcome of the pending appeal in the Supreme Court. Additionally, during the pendency of the special appeal before the Supreme Court, the respondents were restrained from realizing tax on molasses but were required to keep a record of molasses transactions. If the appeal failed, the petitioner would be liable to pay tax as per the law. Consequently, the writ petition was disposed of in accordance with the previous judgment and order of the High Court.
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2017 (3) TMI 1836
Deduction u/s. 80IA - Claim made only in the revised return by the assessee - HELD THAT:- The assessee had filed the original return of income on 29.11.2006 which was before the due date specified u/s. 139(1) of the Act i.e. 30.11.2006. Thereafter, the assessee had filed revised return on 28.03.2008 wherein it claimed deduction u/s. 80IA of the Act. Since the assessee had filed its return of income before the due date specified u/s. 139(1) of the Act for the relevant year, the question of denying the benefit u/s. 80IA of the Act does not arise.
We find that the Ld. CIT(A) had made the very same observation after interpreting the section 80AC of the Act [similar to proviso to sec. 10A(1A)] i.e. claim of section 80IA shall be allowed if return is furnished before the due date of filing the return and held that the assessee is squarely entitled for deduction u/s. 80IA of the Act as all the conditions therein were duly fulfilled by the assessee. DR did not refute any of the findings of the Ld. CIT(A) by producing any cogent material or contrary evidence and the submissions made by the Ld. AR before us - No infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Appeal of revenue is dismissed.
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2017 (3) TMI 1835
Disallowance of the provision for warranty - HELD THAT:- It is pertinent to note that in this case the assessee has acquired this business from IBM and for the first year after acquisition i.e. for the Assessment Year 2006-07, the claim of the assessee for provision of warranty was based on the historical data of IBM. Thus in view of the above facts and circumstances of the case as well as by following the decision of this Tribunal in assessee's own case [2016 (5) TMI 1524 - ITAT BANGALORE] we decide this issue in favour of the assessee and allow the claim of the assessee on account of provision for warranty which was found to be based on scientific basis and method.
Transfer Pricing Adjustment - disallowance of marketing support service charges paid by the assessee to IBM - HELD THAT:- We note that an identical issue has been considered by this Tribunal in assessee's own case for the Assessment Year 2006-07 and again for the Assessment Year 2008-09 [2016 (5) TMI 1524 - ITAT BANGALORE] - It is pertinent to note that the market support service charges are paid under the same agreement as for the Assessment Yea₹ 2006-07 & 2008-09. Therefore following the decision of this Tribunal for the earlier Assessment Year as well as in the subsequent Assessment Year we decide this issue in favour of the assessee and allow the claim of the assessee.
Disallowance of superannuation fund - fund was not approved by the competent authority - CIT (Appeals) has confirmed the disallowance made by the Assessing Officer on the reason that though the approval was given on 13.7.2017 w.e.f. 13.03.2007 however the payment was made on 7.4.2007 when the assessee was yet to get the approval - HELD THAT:- From finding of the CIT (Appeals) it is clear that the approval was given to the fund on 13.07.2007 with retrospective effect from 13.3.2007. Therefore the approval to the assessee was given and effective before the end of the financial year relevant to the assessment year under consideration. The assessee paid the amount to the credit of the Govt. on 7.4.2007 which is well within the limit as prescribed under Section 43B of the Act. Therefore once the assessee has paid the amount in the fund before the time period prescribed under Section 43B and the fund was approved w.e.f. 13.3.2007 then there is no plausible reason to reject the claim of deduction on this account. Accordingly, in the facts and circumstances of the case where the assessee has complied with all the requisite conditions, we allow the claim of the assessee and consequently the orders of the authorities below are set aside.
Transfer Pricing Adjustment - MAM - DRP accepted the objections of the assessee regarding the CUP as MAM instead of TNMM adopted by the TPO - HELD THAT:- Cause of action to file the appeal arises only after passing order framing assessment is passed in pursuant to the directions of the DRP. If the final order is not against or prejudicial to the interest of revenue then the revenue would have no grievance against the final order as well as the directions of the DRP. Even otherwise, the interest of revenue depends upon the demand raised by the Assessing Officer as per the final order to frame the assessment in pursuant to the directions of the DRP. Thus once the TPO/A.O. has not passed the final order in pursuant to the directions of the DRP, the revenue has no cause of action and consequently has no right to file the appeal against such order as well as directions of the DRP. When the directions of DRP is binding then the TPO/A.O. is bound to give the effect to the directions of DRP irrespective of the fact whether the same are acceptable or not to the department. The remedy against the directions is available to the department to file the appeal but only when a final order is passed in pursuant to the directions of the DRP. This conduct of the TPO/A.O. is otherwise a clear defiance and disregard to the binding directions of the higher authorities.
As regards the contention of the learned Departmental Representative that the DRP did not understood the order of the Tribunal in correct prospective, we are of the view that even if the directions of the DRP are not acceptable to the department and may be contrary to the precedent, the remedy is only to challenge the same in the appeal and not to refuse to give effect the same.
DRP has taken an independent view and not merely followed the decision of this Tribunal. The reference of the decision of this Tribunal has been made only to fortify the finding of the DRP. We further note that the Tribunal in assessee's own case for the Assessment Yea₹ 2007-08 & 2008-09 while dealing with an identical issue [2016 (5) TMI 1524 - ITAT BANGALORE] - we delete the addition made by the TPO/A.O. on account of transfer pricing adjustment.
Warranty provision as well as leave encashment while computing the book profit under Section 115JB - HELD THAT:- As regards the adjustment on account of warranty provision while computing the book profit under Section 115JB of the Act, in view of our finding on the issue of allowability of warranty provision the same cannot be treated as uncertain liability/provision. As regards the provision for leave encashment though the said claim was not allowable in view of the provision of Section 43B however in view of the decision of Hon'ble Supreme Court in the case of BEML [2000 (8) TMI 4 - SUPREME COURT] this is a certain liability though payable in future we further note that the Tribunal in assessee's own case for the Assessment Year 2011-12 we decide this ground in favour of the assessee and delete the addition made by the Assessing Officer on account of these two amounts while computing the book profit.
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2017 (3) TMI 1834
Grant of Bail - alleged fraud of huge amounts - forged and fabricated sale deeds - diversion of funds in the name of fictitious land development on the basis of forged invoices - non-compliance of relevant provisions while initiating collective investment scheme by the company - HELD THAT:- The important fact to be noted in the present case is that in the FIR, the investigation is being carried out where lakhs of investors have been cheated, their money misappropriated and forged documents prepared. In the decision of Narinderjit Singh Sahni & Anr. Vs. Union of India & Ors. the Hon'ble Supreme Court [2001 (10) TMI 999 - SUPREME COURT] held that each transaction of cheating and fraud with every individual investor is a separate cause of action wherein separate FIR could have been registered. Thus, though the CBI consolidated the case in relation to the offences committed qua all investors in one FIR, it would have been within its jurisdiction to have lodged separate FIRs on the complaint of each investor. Considering from that angle, the magnitude and severity of the offence in the present case is not only in relation to the quantum of money involved but also that offences have been committed against lakhs of investors.
The apprehension of the CBI that the petitioners are likely to hinder the further investigation being carried out and temper with the evidence is based on credible material as while in custody also efforts have been made to dispose of the property of the company - Considering the nature of serious allegations against the petitioners, the magnitude and severity of the offence allged impacting lakhs of investors and there being a genuine apprehension of causing obstruction in further investigation and tampering with the evidence, this Court does not find it to be a fit case for grant of bail to the petitioners.
Petition dismissed.
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2017 (3) TMI 1833
Nature of expenditure - Payment made by way of compensation by the assessee as per the direction of the Apex Court for mining lease to the Forest Department - revenue expenditure or a capital expenditure - HELD THAT:- Tribunal in the impugned order has relied upon its earlier decision in case of M/s.Ramgad Minerals and Mining Pvt.Ltd.,and the very decision of the Tribunal was carried before this Court in [2012 (1) TMI 313 - KARNATAKA HIGH COURT] and this Court has dismissed the appeal of the Revenue and it has been further stated that SLP was preferred against the aforesaid decision of this Court in case of Ramgad supra and the said SLP has also been dismissed.
We may record that in view of aforesaid decision as such, no substantial questions of law would arise for consideration. But even if it is to be examined, in view of the aforesaid decision that the decision of the Tribunal has been not interfered with by this Court and SLP is dismissed, the question has to be answered against the Revenue and in favour of Assessee.
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2017 (3) TMI 1832
Disallowance u/s 14A read with Rule 8D(2)(iii) - indirect expenditure for earning exempt income - HELD THAT:- Calculation of disallowance as per Rule 8D(2)(iii) is erroneous, as the AO without assigning any reason did not reduce the investment in mutual funds and group concern which does not quire incurrence of major expenditure.We restore this ground back to the file of A.O. for fresh consideration.
As we have restored the appeals of the Assessee, we also restore the appeals of the revenue to the file of the Assessing Officer who shall consider the submissions of the Assessee that the dividend income from the investments in HDFC Mutual Fund (Growth Plan) is taxable when the dividend is received and also the capital gains is attracted for the gain received on sale of these investments.
AO should also consider as to whether investment in foreign subsidiary company is also taxable or not. In case, the return from these investments are taxable, the question of applying disallowance under section 14A does not arise. The Assessing Officer should examine all these aspects and decide the issue in accordance with law after providing adequate opportunity to the Assessee.
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2017 (3) TMI 1831
Levy of fee u/s. 234E in order u/s. 200A - appellant has filed TDS statement u/s. 200(3) beyond the prescribed due date - HELD THAT:- As case of Tanish Industries Pvt Ltd [2015 (11) TMI 1507 - ITAT AHMEDABAD] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A.
The impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee.
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2017 (3) TMI 1830
Addition u/s 68 - statements made by the assessee’s Directors in the course of search under Section 132 - HELD THAT:- Following question of law arises for consideration in these appeals: -
“Did the ITAT fall into error in holding that the additions made under Section 68 of the Income Tax Act, 1961, on account of the statements made by the assessee’s Directors in the course of search under Section 132 of the Act were not justified.”
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2017 (3) TMI 1829
Addition on account of retraction from income admitted as undisclosed and not recorded in the books of accounts in the statement of the Director of the assessee company recorded on oath - Survey operations u/s 133A - ITAT upholding the decision of CIT(A) of deleting the addition - HELD THAT:- The appellant and the other sister concerns are independent and merely on 133A statement the addition could not have been made. Therefore, the CIT (A) as well as the Tribunal have not committed any error in deleting the addition.- Decided in favour of assessee.
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2017 (3) TMI 1828
Excess stock found during the survey - partner of the assessee firm admitted that the investment had been made out of undisclosed sources - Suddenly in the books of accounts, the assessee has incorporated this transaction by debiting the purchase account and crediting the income from undisclosed sources - HELD THAT:- The net effect of this double entry accounting treatment is that firstly the unrecorded stock of rice has been brought on the books and now forms part of the recorded stock which can be subsequently sold out and the profit/loss therefrom would be subject to tax as any other normal business transaction. Secondly, the unrecorded investment which has gone in purchase of such unrecorded stock of rice has been recorded in the books of accounts and offered to tax by crediting the said amount in the profit and loss account. Had this investment been made out of known sources, there was no necessity for assessee to credit the profit/loss account and offer the same to tax. No infirmity in assessee’s bringing such transaction in its books of accounts and the accounting treatment thereof so as to regularise its books of accounts. In fact, the same provides a credible base for Revenue to bring to tax subsequent profit/loss on sale of such stock of rice in future.
Whether the amount surrendered by way of investment in the unrecorded stock of rice has to be brought to tax under the head “business income” or “income from other sources”? - In the present case, the assessee is dealing in sale of foodgrains, rice and oil seeds, and the excess stock which has been found during the course of survey is stock of rice. Therefore, the investment in procurement of such stock of rice is clearly identifiable and related to the regular business stock of the assessee. The decision of the Co-ordinate Bench in case of Shri Ramnarayan Birla [2016 (9) TMI 1354 - ITAT JAIPUR] supports the case of the assessee in this regard. Therefore, the investment in the excess stock has to be brought to tax under the head “business income” and not under the head income from other sources”. In the result, ground No.1 of the assessee is allowed.
Addition of interest - assessee has given loan and advances to Smt. Rita Gupta and charged interest @ 10%, whereas assessee firm was paying interest @ 14%-17% on loans availed by it - HELD THAT:- It is noted that the advance was given to Smt. Rita Gupta in earlier years for construction of godown and the same was given on rent by the assessee. The test of commercial expediency for giving the advance having being established, the AO is not correct to challenge the rate of interest which has been charged by the assessee. Further, no nexus has been established between the borrowed funds and funds advanced to Smt Rita Gupta. In the result, the ground no. 2 of the assessee is allowed.
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2017 (3) TMI 1827
LTCG Computation under section 50C - Valuation of property - Additional capital gain made by invoking the provisions of section 50C - refer the matter before the DVO - value adopted by the DRO - HELD THAT:- Before confronting the fair market value adopted by the SRO as higher, the assessee has not directly approached the AO to refer the matter before the DVO to determine the fair market value, but against the value adopted by the SRO, the assessee has appealed before another authority i.e., District Revenue Officer (Stamps), Chennai.
Against the value determined by the District Revenue Officer (Stamps), Chennai, which was adopted as market value of the property by the SRO, neither the Department nor the Tribunal can alter or modify the value. The dispute over the valuation of market value ended with Revenue authorities of the State Government. Therefore, the value adopted by the DRO cannot be challenged before the Tribunal.
After challenging the value determined by SRO before the DRO (STAMPS) for assessing the market value, and paid the difference of stamp duty and got released the document on 16.08.2011, the assessee cannot confront the rate determined by the DRO before the Assessing Officer. Even though the Assessing Officer obtained DVO rates, which is similar to the value determined by the DRO, the Assessing Officer taken the difference in value of DRO and SRO for working out the long term capital gains and the actual difference was brought to tax. Under the above facts and circumstances, we sustain the addition made by the Assessing Officer and confirmed by the ld. CIT(A) and thus, the ground raised by the assessee is dismissed.
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2017 (3) TMI 1826
Maintainability of petition - time limitation - Section 433 in Companies Act, 2013 - HELD THAT:- The basic feature of the Petition under consideration is that the relief claimed are prima-facie perpetual in nature. Such as "Prayer" to appoint an appropriate person to manage the affairs of the Company is an issue of continuing in nature. Likewise, a request is for appointment of a Chartered Accountant. Further seeking restraint order against the Respondent not to account false entries in the Account Books. All these instances referred from the Main Petition thus indicate that the issue raised is continuing in nature. A distinction is therefore visible that in a situation when no specific period for filing a Petition is prescribed in the Companies Act then the period of three years is unwarranted.
The grievance being in the nature of "continuing wrong" hence the provisions of Limitation Act do not apply. The Petition under consideration cannot be thrown out of litigation at this preliminary stage. The Petitioners can also not be thrown at the very threshold. The objection of maintainability is rejected.
Application dismissed without cost to be consigned on record.
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9911796707
