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Showing 141 to 160 of 2063 Records
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2019 (1) TMI 1927
Addition u/s 2(24)(x) r.w.s. 36(1)(va) - delayed employees’ contribution to provident fund - Contribution received from the employees paid before due date of filing of the return - HELD THAT:- As decided in M/S. EASTERN POWER DISTRIBUTION COMPANY OF A.P. LTD. AND VICA-VERSA [2016 (9) TMI 1040 - ITAT VISAKHAPATNAM] we are of the view that there is no distinction between employees’ and employer contribution to PF, and if the total contribution is deposited on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made towards employees’ contribution to provident fund. The CIT(A) after considering the relevant details rightly deleted the additions made by the A.O. We do not see any reasons to interfere with the order of the CIT(A). Hence, we inclined to uphold the CIT(A) order and dismiss the appeal filed by the revenue
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2019 (1) TMI 1926
Deduction u/s 80IB(10) denied - No ownership to land - permission from the Nagar Nigam not valid - when the permission was not validly issued, therefore completion certificate for the same would also not be validly given, therefore, the A.O. disallowed the claim of deduction - as per AO Assessee is not undertaking development and construction of housing projects. The assessee is not owner of the land of which project is claimed to have been undertaken - HELD THAT:- As in the case of CIT Vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] wherein the Hon'ble High Court was of the view that the ownership of the land is not sine-qua-non for claiming deduction u/s 80IB(10) of the Act. Therefore, in our considered view, this objection of the A.O. is contrary to the judicial pronouncements cannot be sustained.
A.O’s objection that the assessee is merely acting as a contractor to the customer to whom land is independently sold and there after construction is being done as per agreement. This issue was examined by the Tribunal in original proceedings, wherein it has been decided in favour of the assessee. There is no change into facts and circumstances. Hence, this objection is also not sustained.
No valid permission - A.O. of the view that when the permission from the Nagar Nigam is not valid since same has been taken before acquiring the land, since we have not sustained the objection of the A.O. that ownership of land on which project is claimed to have been undertaken, we therefore, do not find any merit into this objection of the A.O. This objection is also not sustainable. Hence, same is rejected.
Disallowance u/s 14A - contention of the assessee is that the judicial pronouncement wherein it has been held that if the assessee has not earned exempt income in a particular accounting year, the resort to section 14A of the Act cannot be adopted - HELD THAT:- Admittedly, the assessee had not pressed ground against invoking the provisions of section 14A of the Act. In the ordinary circumstances, the assessee would have not been given an opportunity, but in the present case where the judicial pronouncement came later to the assessee’s withdrawal of the ground, we deem it proper in the interest of justice that atleast an opportunity by the Ld. CIT(A) should be given. We therefore restore this ground of cross objection to the file of the Ld. CIT(A) for decision afresh. The cross objection filed by the assessee is allowed for statistical purposes.
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2019 (1) TMI 1925
Valuation of imported goods - glass chaton - enhancement of value on the basis of NIDB data - document relating to such NIDB is provided or not - violation of principles of natural justice - HELD THAT:- Though the value of the imported goods was enhanced on the basis of NIDB data but without providing documents relating to NIDB data which amounts to violation of natural justice. Accordingly, the matter needs to be remitted back to the Adjudicating Authority. The Adjudicating Authority shall provide the necessary documents of the imports, relating to NIDB data and thereafter the matter may be decided afresh, after giving reasonable opportunity of personal hearing.
Appeals are allowed by way of remand to the Adjudicating Authority.
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2019 (1) TMI 1924
Money Laundering - summon of petitioner through arrest warrants - Section 482 of Cr.P.C. - HELD THAT:- The present petition is disposed of, in same terms as in S.B. Criminal Misc. Petition No.7892/2018, Pushpendra Agarwal vs Mukesh Kumar Meena, Assistant Director, EnforcementDirectorate, Jaipur Zonal, decided on 17.12.2018 [2018 (12) TMI 1808 - RAJASTHAN HIGH COURT], where it was held that
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2019 (1) TMI 1923
Money Laundering - summon of petitioner through arrest warrants - Section 482 of Cr.P.C. - HELD THAT:- The present petition is disposed of, in same terms as in S.B. Criminal Misc. Petition No.7892/2018, Pushpendra Agarwal vs Mukesh Kumar Meena, Assistant Director, EnforcementDirectorate, Jaipur Zonal, decided on 17.12.2018 [2018 (12) TMI 1808 - RAJASTHAN HIGH COURT], where it was held that
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2019 (1) TMI 1922
Estimation of income - bogus purchases in case of a diamond trader - CIT(A) sustaining addition of 3% of bogus purchase as against 8% done by the A.O. - HELD THAT:- Sales have not been doubted. No defect in purchase documentation has been noted. In identical case, in the case of M/s. Choron Diamond (I) Pvt. Ltd. [2017 (11) TMI 184 - ITAT MUMBAI] Sales have not been doubted. No defect in purchase documentation has been noted.Coordinate Bench while sustaining the order of the Ld.CIT(A) also considered the report of Task Group for Diamond Sector submitted to Department of Commerce, wherein it was submitted that net profit in diamond manufacturing is in the range of 1.5% to 4.5% and in trading it is in the range of 1% to 3%
The Task Group for Diamond Sector submitted to Department of Commerce also suggests that the profit margin in trading of goods is in the range of 1% to 3%. In the circumstance we direct the Assessing Officer to estimate the profit element from the purchases treated as non-genuine at the rate of 2% uniformly for all the Assessment Years 2007-08, 2008-09, 2010-11, 2011-12 and 2013-14
As in the present case the ld. CIT(A) on similar reasoning has directed 3% disallowance. The A.O. himself has made similar disallowance in the subsequent years. In our considered opinion, there is no infirmity in the same. Accordingly, we uphold the same.
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2019 (1) TMI 1921
Application by beneficiary of will - Whether the application under Section 301 of the Indian Succession Act, 1925 (the Succession Act) can be made only by a beneficiary or legatee, who accepts the Will and, as to whether it cannot be made by a person who seeks to dislodge the Will or contest the application for probate or Letters of Administration with Will annexed?
HELD THAT:- It is now more than well settled position of law that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. It is also equally well settled that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences.
It could thus be seen that it is the cardinal principle of construction of statute that when language of the statute is plain and unambiguous, the Court is required to give effect to the words used in the statute and it will not be open to the Court to adopt hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. Only if, on going through the plain meaning of the language of the statute, it is found that it leads to anomalies, injustices and absurdities, the Court may look in to the purpose for which the statute has been brought and would try to give meaning, which would adhere to the purpose of the statute - It is also equally well settled that casus omissus is not to be readily inferred.
It is equally well settled that for the purpose of providing casus omissus, all the parts of a statute or section must be construed together and every clause of a section should be construed with a reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute - Only when the provision is found to be ambiguous, it will be permissible for the Court to take recourse to the other principles of interpretation.
Perusal of Section 301 would reveal that the said provision cannot be said to be ambiguous or one, leading to anomalies, injustices and absurdities. It will be relevant to note that Section 301 falls in Part IX of the Succession Act, which deals with Probate, Letters of Administration and Administration of Assets of Deceased. Perusal of Section 234 of the Succession Act shows that it deals with grant of administration where no executor, nor residuary legatee nor representative of the said legatee is available - It could thus be seen that the question that could be considered by the probate court, is restricted only to find out as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The Caveator is entitled to contest the said proceedings.
The finding of the learned Single Judge that application under Section 301 for removal of executor can be made only by a beneficiary and legatee who accepts the Will and cannot be made by a person who seeks to dislodge the Will or contest the application for probate or Letters of Administration with Will annexed, is not sustainable.
The order of learned Single Judge holding that Misc. Petition was and was not maintainable is quashed and set aside - appeal allowed.
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2019 (1) TMI 1920
Requirement of issuance of notice - statutory requirement of a notice before imposing the liability to pay interest - Section 22(2) of Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- The impugned order is under Section 22(2) of the A.P. VAT Act. Since interest is automatic, the Statute does not stipulate any prior notice. But while framing Rules under the Act, the Government had provided for an opportunity, under Rule 24(4) of the A.P. VAT Rules, 2005. Obviously, the procedure prescribed by Rule 24(4) was not followed.
In cases where a larger opportunity is given under the Rules, the same also has to be followed, in order to comply with the principles of natural justice - the writ petition is ordered, directing the petitioner to treat the impugned demand itself as a show cause notice.
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2019 (1) TMI 1919
Reversal of CENVAT Credit - silver wire - common input services both for exempted as well as dutiable goods - no separate record for actual utilization of input services both for exempted as well as dutiable goods - HELD THAT:- It is a matter of record that respondent-assessee after it has been pointed out by the Audit party has reversed back the appropriate CENVAT credit of input services which have been availed by them and used for manufacture of exempted items, namely, silver wire falling under chapter sub-heading 7106 9210.
Rules 6(3AA) has been inserted vide Notification No. 13/2016-CEX(NT) dated 1.3.2016 wherein it is made clear, that a manufacturer who uses common input services both for exempted as well as dutiable goods in that case, he is entitled to calculate the appropriate credit which have been taken towards exempted goods and on his own can reverse the same along with interest - it is found that respondent-assessee on his own after being pointed out has determined the credit which is required to be paid back out of his total credit of inputs and input services along with the interest involved thereon.
There is no merit in the appeal of the department - Appeal dismissed - decided against Revenue.
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2019 (1) TMI 1918
Addition being provision for enhanced compensation on land acquisition - court has not yet quantified the exact compensation and interest payable - CIT-A deleted the addition - HELD THAT:- We in agreement with the view taken by the CIT(A) that the A.O on the basis of misconceived facts had made an addition in the hands of the assessee. D.R had also not placed before us any such material or raised any such contention which could persuade us to conclude that the factual observations of the CIT(A) suffer from any infirmity - the aforesaid expenses viz. (i). interest on service tax on transport of goods; (ii). Interest on Kerala State General Tax and (iii). Interest on leasehold land acquisition payments being in the nature of a revenue expenditures were allowable as a deduction while computing the income of the assessee, thus finding no infirmity in the order of the CIT(A) who had rightly deleted the addition - Decided against revenue.
Nature of expenditure - Addition on account of acquisition of land expenses - expense is related to the acquisition of land and cannot be revenue expenditure - CIT-A deleted the addition - HELD THAT:- Expenditure incurred by the assessee pursuant to an understanding with the State government of Kerala was in the course of its business of mining, hence the same being clearly in the nature of a revenue expenditure was to be allowed as a deduction while computing its income for the year under consideration. Apart therefrom, we find that the issue under consideration as regards the allowability of the aforesaid expenditure is squarely covered by the order passed in the assesses own case - We thus finding ourselves to be in agreement with the view taken by the Tribunal, thus are of the considered view that the amount incurred by the assessee was rightly claimed as a revenue expenditure. We thus not finding any infirmity in the order of the CIT(A) wherein the latter had ordered deletion of the addition - Decided against revenue
Addition on account of school expenses at Orissa - expense is related to the running of the school and not wholly and exclusively for the purpose of business - CIT-A deleted the addition - HELD THAT:- The aforesaid expense which had strictly been incurred by the assessee pursuant to government directive since 1990 onwards, as rightly observed by the CIT(A) was in the nature of a revenue expenditure which was to be allowed while computing the income of the assessee for the year under consideration. We thus finding ourselves to be in agreement with the view taken by the CIT(A) in context of the issue under consideration, uphold the his order. The Ground of appeal raised by the revenue is dismissed.
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2019 (1) TMI 1917
Characterisation of income - addition as locker rent from the depositors - income from business or other sources - HELD THAT:- As i Mehsana District Central Co-operative Bank Ltd. [2001 (8) TMI 15 - SUPREME COURT] as held that locker rent derived by assessee was income from business of banking - no merit in levying locker rent on notional basis therefore, we are not inclined with the decision of the Ld. CIT(A). Appeal of the assessee is allowed.
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2019 (1) TMI 1916
Provisional attachment of properties - reason to believe that a person has committed offence under PMLA - non-record of reasons and non-communication of reasons can be held to be violation of the established principles of natural justice or not - Adjudicating Authority has only one Member - action initiated by the Adjudicating Authority suffers from coram non judice or not - maintainability of petition on the ground of availability of alternative remedies provided under PMLA - non-application of mind - interference at the stage of show cause notice or not - absence of production of relevant documents - offence of illegal quarrying - scheduled offences under PMLA or not - Adjudicating Authority, being non-conversant with the vernacular language of the state able to appreciate transactions of various properties which are documented in vernacular language (Tamil) or not.
HELD THAT:- The Court has given the following conclusions:-
i) That the absence of recording of reasons to believe under Section 5(1) of PMLA, does not result in violation of constitutional right to property of the citizens since it was only a provisional attachment which would be valid only for a maximum period of 180 days or less. Although the Section provides for record of reasons to believe by the authority, failure to record at worst is only a statutory infraction and the same can be pleaded before the Adjudicating Authority. In such circumstances, non-recording of reasons by the Authority initiating action under Section 5 of PMLA becomes curable while initiating action under Section 8 of PMLA by the Adjudicating Authority. It is not in doubt that under PMLA, a full-fledged trial is envisaged before the Adjudicating Authority and any initial infraction could always be rectified. Ultimately, it is the Adjudicating Authority which will confirm the attachment and also will recommend for confiscation of the property when such opportunity is available before the Adjudicating Authority consisting of experts, it cannot be gainsaid by these writ petitioners that their interest is irrepairably prejudiced and their constitutional right is violated.
ii) Further, nowhere in the Section itself, it has beenstipulated that the reasons must be communicated to the persons. In the absence of such stipulation, these writ petitioners have no right to claim that there should be communication of reasons in the form of show cause notice before ordering provisional attachment. The validity period of provisional attachment is only for a period of 180 days before confirmation by Adjudicating Authority and therefore, the initial order has all the characteristics of show cause notice and no further requirement is contemplated in the statute. As far as the present case on hand is concerned, de horse the above legal finding, this Court finds that the Authority has given reasons in terms of the scheme of Section 5 and to what extent such reasons could ultimately end up in confirmation or not, is for the Adjudicating Authority to decide after a detailed enquiry to be conducted under Section 8 of PMLA. Therefore, on merits, this Court finds that submission that the Authority has not recorded reasons is contrary to records and the same is liable to be rejected.
iii) The language used in Section 8(1) of PMLA is different from what it is used in Section 5(1) of PMLA. Both the expressions are different and distinct and the Adjudicating Authority is not required under Section 8(1) to record reasons as in the case of the Authority exercising under Section 5(1) of PMLA which means that the Adjudicating Authority, on the basis of the complaint filed by the initial authority under Sub Section 5 of Section 5 of PMLA, can proceed with the adjudication process on the basis of subjective satisfaction. In any event, the Adjudicating Authority has to follow procedure provided under Section 8 as well as the procedure contemplated under the Adjudicating Authority (Procedure) Regulations 2013. Therefore, the writ petitioners are provided with sufficient opportunities to put forth their plea before the Adjudicating Authority. Moreover, even in the show cause notice issued, it is mentioned that there is compliance of Section 8(1) of PMLA which compliance can be verified by obtaining a copy of the order by making necessary application to the Registry. Therefore, these writ petitioners cannot successfully maintain their complaint before this Court. Hence, this Court is of the considered view that there appears to be no legitimate cause for complaining on this aspect.
iv) The plea of violation of principles of natural justice can be tested on the golden touchstone of prejudice and in this case, no prejudice is occasioned or caused to the writ petitioners since they have multiple alternative remedies as provided under PMLA before the Adjudicating Authority under Section 8; and before the appellate Authority under Section 26; and further appeal before this Court under Section 42 of PMLA. Once multi-layered remedies are provided for effective adjudication of disputes, the plea of violation of principles of natural justice is baseless and unfounded.
v) The contention regarding coram non-judice, that the Adjudicating Authority is manned only by a single Member also cannot be countenanced with reference to explicit provision contained in Section 6 of PMLA and allied provisions, wherein it is provided for formation of Bench by less than three Members. Therefore, the issue of coram non-judice is answered against the writ petitioners, notwithstanding the fact that at the time of pronouncement of this order, the Adjudicating Authority is consisting of three Members.
vi) The plea of alternative remedy is not a bar for entertaining the Writ Petition, can it best be a general proposition of law, but the same cannot be applied to these writ petitions where the statute itself provide for multi layered alternative appellate remedies, one before the Adjudicating Authority, other before the Appellate Tribunal and another before this Court. Moreover, in these cases, there is no violation of any fundamental right nor action by the first respondent can be termed to be wholly unjustified nor there was a wholesale violation of principles of natural justice. In such scenario, this Court is not inclined to transgress beyond its selfimposed limitation not to entertain these writ petitions on the ground of availability of multiple appellate remedies under PMLA.
vii) The contention as regards Rule Nisi is concerned, this Court has dealt with the preliminary objection as to the maintainability of the writ petitions since these writ petitions are challenging the initial action of provisional attachment and show cause notice and in such event, non-production of documents is not material to the adjudication of a purely legal dispute as to the maintainability of the writ petitions.
viii) The plea of non-application of mind must be tested with reference to the factual aspects and the findings as found in the order passed by the initial authority under Section 5(1) of PMLA. It is certainly not open to this Court to render any finding on such factual dispute by interjecting its opinion with the findings of the authority who passed the order under Section 5(1), as such opinion on factual matters does not fall within the domain of judicial review exercised by this Court under Article 226 of the Constitution of India.
ix) The submission regarding illegal quarrying per se may notbe one of the scheduled offence, but by such operation it gave rise to several offences which are punishable under the provisions of IPC and other enactments, like Explosive Substances Act, 1908 etc. In the provisional attachment order various offences are enumerated on the basis of final report by the police. Since this argument is being canvassed in all its seriousness, the same may be addressed by the Central Government by initiating appropriate action to have illegal quarrying included in the schedule offences. Illegal quarrying per se is a affront on the rule of law, as it involves systematic plundering of national wealth and resources endangering natural and salubrious human habitat. Such activity will ultimately put the humanity as a whole to the precipice of irredeemable disaster.
x) The submission of non-familiarity of local language by the Adjudicating Authority cannot be a valid ground for this Court to interfere with the impugned action initiated by the authorities concerned as such argument is misconceived and the same is without substance.
These Writ Petitions are not maintainable - Petition dismissed.
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2019 (1) TMI 1915
Validity of minutes of the meeting - allegations of possible misappropriation of amounts with regard to the job works assigned to sub-contractors - HELD THAT:- Instructions are sought from the learned Central Government Counsel with regard to the possible date on which the NCLT, Kochi Bench is likely to commence sitting. It is submitted by the learned CGC that though the NCLT Kochi Bench has been notified and all employees and officers necessary have been appointed, the Members have not been selected and there is some delay in commencement of sitting. It is stated that the NCLT, Chennai Bench is hearing urgent matters and in case a direction is issued, the Chennai Bench will consider the instant case as well.
Since what is agitated is admittedly a matter which is to be considered by NCLT, Kochi Bench and in view of the fact that the NCLT Chennai Bench is considering matters arising from Kerala as well, the parties are to approach the NCLT, Chennai Bench for appropriate reliefs - Petition disposed off.
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2019 (1) TMI 1914
Process similar to that of ‘Corporate Insolvency Resolution Process’ for the purpose of proper resolution to be followed - requirement of constitution of CoC - HELD THAT:- Such ‘Committee of Creditors’ cannot be constituted and in the meantime, the ‘Infrastructure Leasing and Financial Services Ltd.’ (ILFS) and its Board may be allowed to proceed with the matter. In such case, the parties are directed to address as to why this Appellate Tribunal will not direct that while matter to be supervised by a (Retired) Hon’ble Supreme Court Judge.
Pending arbitration proceedings - HELD THAT:- If any pending before one or other Arbitral Tribunal in which the ‘ILFS’ or any of its 348 Group Companies are parties, in such case, the Arbitral Tribunal may proceed with to determine the claim and counter claim, if any, made by the parties and may pass the award, and keep it in a seal cover. The Arbitral Tribunal are also prohibited to pass any order under Section 17 of the Arbitration & Conciliation Act, 1996 against ‘ILFS’ or any of its Group Companies.
‘IFLS’ will provide the details of arbitral proceedings filed by it or by any of its Group Companies or filed against ‘ILFS’ or any of its Group Companies by the next date - Post both the appeals on 28th January, 2019 at 2.00 p.m. when the main appeals are also likely to be listed.
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2019 (1) TMI 1913
Liability for damaged goods under the head other expenses - HELD THAT:- Issue decided in favour of assessee in its own case [2016 (7) TMI 1465 - GUJARAT HIGH COURT] provision is a liability which can be measured only by using a substantial degree of estimation and that a provision is recognized when (a) an enterprise has a present obligation as a result of a past event; (b) it is probable that an outflow of resources will be required to settle the obligation and (c ) reliable estimate can be made of the amount of the obligation - if these conditions are not met, no provision can be recognized. Therefore, we are of the view that the CIT(A) and the Tribunal have rightly disallowed the addition made by the Assessing Officer. We do not find any error in the same.
Depreciation on account of non-compete territory rights i.e. goodwill @ 25% - HELD THAT:- As decided in own case [2013 (5) TMI 610 - ITAT AHMEDABAD] issue decided in favour of assessee.
Written off advances in its P & L a/c related to advances to suppliers for purchase of material, staff advances, security deposit etc. - AO observed that only bad debt incurred due to sale of produce were allowable as an expense and in the instant case of the assessee the nature of expenses do not fall within the purview of section 36(1)(Viii), therefore, he has disallowed these expenses and added to the total income of the assessee - HELD THAT:- As observed that as per the ledger account of the assessee in the case of M/s Sellora Enterptise it had purchased finish goods on principle to principal basis and also paid to the supplier on their behalf. The assessee was purchasing the goods since April 2006 from the said party and also paid to the supplier on their behalf, however, the balance turned to debit which was not paid by the said party therefore it was written off in the books.
In respect of staff loan the assessee has advanced loan during the period of services of the employees and monthly recovery of loan was also made from the salary paid but the company could not recovered final settlement amount against due to resignation of its employees. Therefore, the company has written off of the unrecovered amount. The assessee has also given security deposit relating to the house for the staff which could not be recovered as the employees have not paid the maintenance and electricity therefore security deposit were forfeited which was written off by the assessee.
After considering the detailed findings of the Ld. CIT(A) we observed that the impugned advances made in the ordinary course of business were written off when these were irrecoverable . In the light of the above facts and after considering the detailed finding of the learned CIT elaborated with judicial findings we do not find any error in the decision of ld. CIT(A) on this issue. Accordingly, this ground of the revenue is also dismissed.
Addition u/s 41(1) - Outstanding sundry creditors - HELD THAT:- After considering the decision of on the Hon’ble jurisdictional High Court of Gujarat in the case of Commissioner of income tax -3 versus Bhogilal Ramjibhai Atara [2014 (2) TMI 794 - GUJARAT HIGH COURT] it is noticed that there was nothing on record to suggest that there was a remission or cessation of liability that too during the previous year relevant to the assessment year in the case of the assessee. In the light of the above facts, material on record and detailed finding of the learned CIT appeal we considered that outstanding were disputed liability was not ceased to exist, therefore, we do not find any infirmity in the decision of the Ld. CIT(A) therefore the appeal of the revenue is dismissed.
Disallowance u/s 14A r.w.r. 8D - as per assessee interest free funds of the company including reserves were utilized towards purchase of investment yielding tax free dividend, therefore, the question of entire disallowance of interest etc. did not arise - HELD THAT:- With the assistance of the learned consul we have gone through the material on record and have noticed that assessee had submitted comparative statement of tax-free income and taxfree investment and the learned CIT appeal afters taking into consideration such undisputed information has rightly directed the assessing officer to recalculate the disallowance u/s. 14A r.w. Rule 8D correctly after taking into consideration the correct figure submitted by the assessee. In the light of the above facts and circumstances we do not find any infirmity in the decision of learned CIT appeal therefore this ground of appeal of the revenue is dismissed.
Disallowance on account of administrative expenses incurred towards earning exempt income - HELD THAT:- As noticed that assessee was having sufficient interest free fund as against the investment made on which exempt income was earned. We have gone through working of disallowance made u/s. 14A r.w. Rule 8D of the I.T. Rule and it is noticed that major part of the disallowance was made by the assessing officer to the amount of ₹ 20,57,946/- being 0.5% of the average investment for administrative expenditure. After considering the nature of investment made in the form of Bonds & securities we are of the view that it will be appropriate to restrict the disallowance on account of administrative expenses incurred towards earning exempt income.
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2019 (1) TMI 1912
Seeking to leave to defend except on condition of securing the Plaintiff's claim - HELD THAT:- The suit is decreed against the Defendant in the amount of ₹ 1,21,71,243.00 with further interest on the principal amount of ₹ 1 crore at the rate of 12% per annum from the date of the suit till payment or realisation - This being a Commercial Suit the Plaintif is also entitled to a decree for costs under amended Section 35 of the Code of Civil Procedure 1908.
The Plaintif has paid the Court fees of ₹ 1,70,000/-. The reasonable litigation costs thereafter is estimated at ₹ 3.5 lakhs. The Plaintiff will be entitled to a decree on costs without interest in the amount of ₹ 5.20 lakhs - Drawn up decree expedited.
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2019 (1) TMI 1911
Reopening of assessment u/s 147 - Special audit u/s 142(2A) - period for submission of special audit report - time barring assessment order passed after the prescribed limit i.e. 60 days from the date on which the appellant was required to submit the special audit report - HELD THAT:- The time period commencing from the date on which the AO directed the assessee to get its accounts audited under sub-section (2A) of Section 142 of the Act, was 21st December, 2011 and ending with the last date on which the assessee was required to furnish a report of such audit was 21st March, 2012 in the instant case.
As the notice u/s 148 was issued on 29.04.2010, therefore the assessment was supposed to completed within 09 months from the end of the F.Y. in which the notice u/s 148 was served which in the instant case was 31st December, 2011. However, on 21st December, 2011, the assessee was directed to get its account audited u/s 142(2A) of the Act with a direction to file audit report within 90 days i.e. on or before 21st March, 2012 and thereafter, the time gets expired. However, it is the case of the Revenue Department that the time for filing of the audit report u/s 142 (2A) was extended by the Assessing Officer on 10.04.2012 for a period of 45 days which was expiring on 05.05.2012.
Admittedly the order dated 20-04-2012, does not find mention in the assessment order and the Revenue Department neither established the service of the said extension order upon the assessee nor brought any of the records such as receipt and dispatch register and/or any document maintained for dispatch of the letter dated 20.04.2012 or otherwise in normal routine, by which the existence and validity of the said order could be established.
We are in agreement with the stand of the Revenue department that even in the absence of application by the assessee, the Assessing Officer can extend the period for submission of special audit report, however in the instant case, order u/s 142(2A) was passed on 21st Dec. 2011 and time limit for filing of the audit report was fixed as 90 days from the receipt of the order which was expired on 21st March, 2012 and up to 9th April, 2012, nothing happened, neither the assessee filed an application of extension of the time for filing of special audit report and/or not extended suo moto by the Assessing Officer, therefore, once the time limit gets expired by efflux of time, then the Assessing Officer is not empowered to extend it further, therefore on this reason also, the assessment order is void and cannot be acted upon. Hence under the peculiar facts and circumstances of the instant case and in view of considerations, deliberations and analyzations made above, the assessment order being void passed after the time prescribed under the law, consequently liable to be quashed and therefore quashed accordingly.
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2019 (1) TMI 1910
Cancellation of building plan approval with respect to the unauthorized construction - HELD THAT:- This Court directs the respondents 5 to 108 to give explanation to such show notices within a period of 2 weeks from the date of receipt of a copy of this order. On receipt of such notices, the second respondent is directed to pass appropriate orders on merits and in accordance with law, after affording an opportunity of personal hearing to them. The entire exercise shall be completed within a period of 12 weeks thereafter.
Petition disposed off.
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2019 (1) TMI 1909
'Mark to Market' loss arising on valuation of forward exchange contracts on the closing date of accounting year - HELD THAT:- The issue is squarely covered against the department by virtue of the judgment of this Court in the case of CIT Vs. M/s. D. Chetan & Co. [2016 (10) TMI 629 - BOMBAY HIGH COURT] we find that there was no submission recorded on behalf of the Revenue that the Respondent assessee should be called upon to explain the nature of its transactions. Thus, the submission now being made is without any foundation as the stand of the assessee on facts was never disputed - On present facts, it was never the Revenue's contention that the transaction was speculative but only disallowed on the ground that it was notional - thus as held that forward contract in foreign exchange when incidental to carrying on business of cotton exporter and done to cover up losses on account of differences in foreign exchange valuations, would not be speculative activity but a business activity. - Decided against revenue.
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2019 (1) TMI 1908
Levy penalty u/s. 271AAB V/S levy penalty u/s. 271(1)(c) - assumption of jurisdiction to levy penalty u/s. 271(1)(c) - assessee objected to penalty proceedings u/s 271AAB since no search u/s. 132 of the Act happened - AO mentioned in the penalty order that he inadvertently issued notice u/s. 271AAB of the Act and then levied penalty u/s. 271(1)(c) - As per assessee no search u/s. 132 of the Act was conducted against him, the penalty u/s 271AAB is not attracted in the instant case - HELD THAT:- Here in this case, we have reproduced the satisfaction of AO in the assessment order which was for levy of penalty u/s. 271 AAB of the Act and in the assessment order, the AO initiated penalty u/s. 271AAB of the Act.
AO without even initiating penalty u/s. 271(1)(c) of the Act in the assessment order itself, the imposition of penalty u/s. 271(1)(c) of the Act where in the assessment order AO adds any amount or disallowed while computing the total income or loss of an assessee in and the said order does not contains a direction for initiation of penalty proceedings under clause (c) of subsection (1), such an order of assessment or reassessment cannot be deemed to constitute satisfaction of the Assessing Officer for initiation of the penalty proceedings under the said clause (c).
We note that in the assessment order the AO has neither recorded satisfaction to levy penalty against the assessee u/s. 271(1)(c) of the Act nor has he initiated the penalty u/s. 271(1)(c) of the Act. Therefore, after recording satisfaction in assessment order to levy penalty u/s. 271AAB and initiation of penalty u/s. 271AAB of the Act, the AO does not have jurisdiction to levy penalty u/s. 271(1)(c) of the Act. We also rely on the Karnataka High Court decision in CIT Vs. MWP Ltd. [2013 (12) TMI 1214 - KARNATAKA HIGH COURT]
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