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Showing 141 to 160 of 2046 Records

• 2018 (10) TMI 1911
  

  Disallowance u/s.14A read with Rule 8D - AO worked out the disallowance being 0.5% of average value of investment under Rule 8D(2)(iii) - HELD THAT:- There is need for scrutinizing the facts of the present case qua the binding of the judgment in the case of Reliance Capital Asset Management Ltd. [2017 (10) TMI 177 - BOMBAY HIGH COURT] for the purpose of exclusion of the present case from the applicability of the formula laid down in Rule 8D(2)(iii) of the I.T. Rules, 1962. Therefore, agreeing with the Ld. DR, the issue stands remanded to the file of AO for fresh adjudication and for want of a speaking order. Accordingly, grounds raised by the assessee are allowed for statistical purposes.

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• 2018 (10) TMI 1910
  

  Income from house property u/s 22 - ALV of the unsold units - Adding the ALV of the unsold units which constitutes stock-in-trade - scope of amendment - HELD THAT:- In order to give relief to Real Estate Developers, section 23 has been amended w.e.f. AY 2018-19 (FY 2017-18). By this amendment, it is provided that if the assessee is holding any house property as his stock-in-trade which is not let out for the whole or part of the year, the annual value of such property will be considered as Nil for a period up to one year from the end of the financial year in which a completion certificate is obtained from the competent authority.

  In view of the above amendment to section 23, we are not adverting to the case laws relied on by the Ld. counsel and Ld. DR.

  In the instant case, the assessee is in the business of real estate development. The issue of taxability is with regard to unsold flats/units held by the appellant under the head ‘Closing Inventories’. The AY is 2012-13. In view of the insertion of sub-section (5) in section 23 by the Finance Act, 2017, w.e.f. 01.04.2018 narrated hereinbefore, we set aside the order of the Ld. CIT(A)

  Disallowance of interest expenditure on notional basis - HELD THAT:- We keep in mind that where an additional evidence has been allowed to be adduced, the interests of justice demand that the other side must be given an opportunity to explain or rebut such additional evidence as clarified in the decision in Smt. Urmila Ratilal [1981 (6) TMI 25 - GUJARAT HIGH COURT]; Hiralal Devdutt Jagadhri [1980 (2) TMI 282 - PUNJAB AND HARYANA HIGH COURT]

  We set aside the order of the Ld. CIT(A) and remit the matter relating to the 3rd and 4th ground of appeal to the file of the AO to make a de novo order as per the ratio laid down in Madhav Prasad Jatia [1979 (4) TMI 2 - SUPREME COURT] and Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO.

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• 2018 (10) TMI 1909
  

  Winding up of company - Section 433-434 of the Companies Act, 1956 - HELD THAT:- It is clear that only after completion of ten days and if the matter has not been settled, an application under Section 9 in Form-5 can be filed. Any application under Section 9 preferred before the completion of 10 days cannot be entertained and admitted by the Adjudicating Authority. Application under Section 9, therefore, being not maintainable on the date the application under Section 9 was filed, the impugned order dated 17th May, 2018 cannot be sustained - it is made clear that the transfer of petition be abated in terms of Rule 5.

  The order(s) passed by Adjudicating Authority appointing ‘Interim Resolution Professional’, declaring moratorium, freezing of account and all other order(s) passed by Adjudicating Authority pursuant to impugned order and action, if any, taken by the ‘Interim Resolution Professional’, including the advertisement, if any, published in the newspaper calling for applications and all such orders and actions are declared illegal and are set aside. The application preferred by Respondent is dismissed as abated.

  Appeal disposed off.

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• 2018 (10) TMI 1908
  

  Rectification of application u/s 154 - deduction u/s. 80HHC - whether CIT(A) erred in holding that the DEPB benefit in the case of appellant was 'face value of DEPB' or 'profit on transfer of DEPB' was a debatable issue - HELD THAT:- The decision of Hon‟ble Supreme Court in the case ACIT v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] as well as circular of the department vide circular no. 68 dated 17.11.1971 binds the Revenue and supports the contention of the assessee that the assessee will be entitled for deduction u/s. 80HHC with respect to the face value of DEPB as contemplated by Hon‟ble Supreme Court in the case of Topman Export [2012 (2) TMI 100 - SUPREME COURT] as face value of DEPB is covered u/s 28(iiib) of the 1961 Act as “cash assistance‟ and the assessee shall be entitled for deduction u/s 80HHC read with first proviso to Section 80HHC(3).

  The assessee will be entitled for deduction u/s 80HHC on profits on sale of DEPB which is covered u/s 28(iiid) of the 1961 Act provided conditions as stipulated in third proviso to Section 80HHC(3) are met as it is admitted by the assessee that its turnover is more than Rs ten crores . our decision is in line with decision of Hon‟ble Supreme Court in the case of Topman Exports(supra) read in conjunction with provisions of Section 28(iiib), 28(iiid) and Section 80HHC of the 1961 Act . The AO shall allow relief to the assessee strictly in accordance with decision of Hon‟ble Supreme Court in the case of Topman Exports (supra) after considering assessee‟s factual matrix. We order accordingly.

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• 2018 (10) TMI 1907
  

  Maintainability of appeal - HELD THAT:- The present appeal is directed against the interim order passed by the Tribunal, but, since the appeal as a whole has been decided on merits, it has become infructuous.

  The appeal against the interim order of the Tribunal has become infructuous - the appeal is dismissed as infructuous.

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• 2018 (10) TMI 1906
  

  Reopening of assessment u/s 147 - reasons to believe or reasons to suspect - HELD THAT:- This Court after going through the ingredients of Section 147 of the Act, 1961 finds that the Assessing Officer has wider power, in respect of covering the escaped assessments for the purpose of reopening the assessment. The power under Section 147 of the Act, 1961, is to be exercised in various circumstances enabling the Assessing Officer to assess or reassess such income other than the income involved in the matters, which are the subject matters of any appeal, reference or revision.

  This Court finds, that in the instant case, in the notice which was communicated to the petitioner, it was informed to the petitioner that he was the actual beneficiary owner of some bank account in the case of one Munna Lal Pareek. This Court finds that the Assessing Officer has further given sufficient material to the petitioner by furnishing copy of assessment order of Munna Lal Pareek and order passed by the CIT (Appeals) in the case of Munna Lal Pareek. The said material or information available with the Assessing Officer has led the Assessing Officer to think that petitioner is required to be confronted by giving notice to explain the income, which was to be assessed in the hands of petitioner as the same is correct or not. In the instant case that there is no issue of jurisdiction which can be said to be raised by the petitioner and it is only allegation in respect of cryptic order passed by the Assessing Officer without having any reasons to believe or to initiate the proceedings under Section 148 of the Act, 1961.

  This Court further finds that the petitioner, who is given notice under Section 142 (1) to further explain and to place before the Assessing Officer the relevant facts relating to income which is now sought to be assessed, can always satisfy the authorities that the income which is now taken to be the income of the petitioner instead of one Shri Munna Lal Pareek, is well explained by their own sources.

  Considering, all the facts, this Court finds that there is no infirmity in the orders passed by the Income Tax Authorities and if any order of assessment/reassessment is passed, petitioner is always free to file an appeal contemplated under the Income Tax Act, 1961. The present writ petition is not maintainable before this Court.

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• 2018 (10) TMI 1905
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - One Time Settlement scheme - Master Restructuring Agreement - HELD THAT:- This Adjudicating Authority is satisfied that the Petitioner has clearly made out a case by establishing that the Corporate Debtor has defaulted on payment dues on various occasions to the Petitioner. Also, the petitioner has proved by placing overwhelming evidence viz., Sanction Letter, Facility Agreement, Amended Facility Agreement, Master Restructuring Agreement, Security Trustee Agreement etc., which reveal that default have occurred for which the Corporate Debtor was responsible to pay.

  The Petitioner has established clearly that the amount in default committed by the Corporate Debtor is genuine and is supported by the documentary evidence placed before this Adjudicating Authority. In the Circumstances, having satisfied with the submission put forth by the learned counsel for the Petitioner, the Instant Petition is admitted.

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• 2018 (10) TMI 1904
  

  Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with respect to dispensation with calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors or dispensing with the same, are issued - directions for issuance of notices with regard to the meetings are also given.

  The scheme is approved - application allowed.

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• 2018 (10) TMI 1903
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - debt due and payable or not - existence of debt and dispute or not - HELD THAT:- As per details furnished by the respondent, the respondent company is commercially solvent and going concern having 687 employees on its rolls, having current assets for more than ₹ 642 Crores, Reserves and surplus also for more than ₹ 643 crores, and earned total income for ₹ 43,684 lakhs for the year ended March, 31, 2018. Therefore, it is not the case of petitioner that the Respondent is commercially insolvent to pay its alleged dues. It is the case where the instant company petition do not lie under the provisions of Code.

  The Hon’ble Supreme Court of India, in a recent case, in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, [2017 (9) TMI 1270 - SUPREME COURT] has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down whenever there is existence of real dispute, the IBC provisions cannot be invoked.

  The instant case is not a fit case to initiate CIRP as prayed for and thus it is liable to be rejected - Petition dismissed.

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• 2018 (10) TMI 1902
  

  TP Adjustment - working capital and risk adjustment - HELD THAT:- DRP had rejected the prayer of the assessee for granting working capital and risk adjustment - it appears that neither the assessee nor the AR had come out with any convincing materials to justify the claim made before the Ld.Revenue Authorities - the objection raised by the Ld.AR is required to be reconsidered by the Revenue considering the intricacies of the business of the assessee. Hence we hereby remit the matter with respect to granting of working capital and risk adjustment back to the file of Ld.TPO for de-nova consideration, thereby affording one more opportunity to the assessee to present its case before the Ld.TPO on merits.

  Most of the selection of comparable companies except in the EDS Segment we have held against the Revenue - We are of the considered view that the entire exercise with respect to selection of comparable companies other than in the EDS Segment needs to be reworked afresh in order to arrive at the appropriate result based on the appropriate comparable companies. Therefore we hereby remit back the matter with respect to selection of comparable companies other than in the EDS Segment to the file of Ld.TPO for de-nova consideration.

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• 2018 (10) TMI 1901
  

  Scope of the functions of the Director of the Vigilance and Anti Corruption Bureau (VACB) in Kerala - grant of promotion to four Senior Police Officers of IPS rank to the cadre of Director General of Police - design hatched by the then Home Minister with the involvement of the Chief Minister, to by pass some senior police officers who had a better claim for posting as Director of Vigilance, and the then Government was very particular to post the first respondent as Director of the VACB - HELD THAT:- Investigation of corruption cases or cases under the P.C. Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required. In the investigation in corruption cases, the concept of participative supervision must be applied. This means that every investigation must be a team work, monitored and supervised by the superior officers. Crimes can be registered and investigation can be made under the P.C. Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant.

  The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions.

  This Court hopes that in future, the Police Officers and also the officers of the VACB will follow the guidelines in the discharge of their official functions - Petition disposed off.

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• 2018 (10) TMI 1900
  

  MAT credit u/s 115JAA - AO held that the MAT credit so worked out by the assessee, it has included surcharge and education cess which is not to be included for calculating the MAT credit as only tax is to be allowed to be carried forward as MAT credit and not surcharge and education cess as contemplated u/s 115JAA - whether for the purposes of computing the MAT credit u/s 115JAA of the Act, whether tax include surcharge and education cess or not? - HELD THAT- We refer to the provisions of section 115JB of the Act and in particular Explanation - 2 wherein the amount of income tax has been defined to include surcharge and education cess As decided in K. SRINIVASAN [1971 (11) TMI 2 - SUPREME COURT] Surcharge is part of income tax. This issue has been dealt with by the coordinate bench/Jaipur Bench of the Tribunal [2019 (1) TMI 30 - ITAT JAIPUR] and explanation-2 to section 115JB of the Act clearly states that tax includes surcharge and education cess. Thus, ground raised by the assessee as to whether income tax will include sur-charge and education cess so far as section 115JB and 115JAA are concerned, are allowed as indicated above.

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• 2018 (10) TMI 1899
  

  Principles of natural justice - copy of the paper-book has not been supplied to respondent due to which he is not able to file the reply - HELD THAT:- Learned counsel for the appellant undertakes to provide a copy of the paper-book to the learned counsel for the respondent during the course of the day. Respondent is allowed to file reply within ten days followed by the rejoinder, if any, by the appellant within seven days thereof.

  Post the case ‘for Admission (After Notice)’ on 28th November, 2018.

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• 2018 (10) TMI 1898
  

  Disallowance of Railway punitive charges - HELD THAT:- As decided in own case [2018 (1) TMI 850 - ITAT KOLKATA] expenses were not allowed as deduction. We are of the view that in the facts and circumstances of the present case the claim of the assessee for deduction was rightly allowed by CIT(A)

  Interest paid on belated deposit of TDS - HELD THAT:- This issue is squarely covered by the decision of the Coordinate Bench on identical issues in the case of M/S NARAYANI ISPAT PVT. LTD. [2017 (10) TMI 67 - ITAT KOLKATA] to conclude that the interest expenses claimed by the assessee on account of delayed deposit of service tax as well as TDS liability are allowable expenses u/s 37(1)

  Disallowance u/s 14A r.w. Rule 8D(2)(ii) and (iii) - HELD THAT:- As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in assessee’s own case [2018 (1) TMI 850 - ITAT KOLKATA] wherein the Coordinate bench held that disallowance of interest expenses in terms of Rule 8D(2)(ii) was originally deleted by ld. CIT(A) as the own funds of the assessee are more than the investments.

  Disallowance under Rule 8D(2)(iii) - CIT(A) has followed the decision of the Tribunal in the case of REI Agro Ltd.[2013 (9) TMI 156 - ITAT KOLKATA]and has directed the Assessing Officer to exclude the investment which do not yield tax from income while working average value of investment. That is, only dividend bearing securities are included to compute the average investment. We note that the assessee’s issue is squarely covered by the judgment of the Coordinate Bench (supra) and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid finding of the ld. CIT(A) and the ld. CIT(A) has allowed the appeal of the assessee by following the decision of the Tribunal in REI Agro Ltd. (supra). We find no reason to interfere in the order of the ld. CIT(A) and the same is hereby upheld.

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• 2018 (10) TMI 1897
  

  Maintainability of private complaint - Registration of case and issuance of summons - argument of petitioner is that the complaint is filed by the General Power of Attorney Holder, as such, the private complaint filed under Section 200 Cr.P.C is not maintainable - offences punishable under Sections 500, 501, 502 of IPC - HELD THAT:- In the instant case, the private complaint filed clearly go to show that in the beginning paragraph i.e., in Paragraph No. 3 itself, the complainant has stated that he being the member of the Parliament and present President of J.D(S) Party in Karnataka, it is practically not possible and difficult for him to be present in the Court on all the dates of hearing, so as to assist, as such, he is being duly represented by a General Power of Attorney holder on his behalf to prosecute the case and he has been duly instructed, aware of the facts of the case in hand. Thus, the petition in the opening paragraph itself clearly mentions not only the fact that the Power of Attorney holder has been specifically instructed and authorized to institute the complaint but also he has the knowledge of the facts of the case.

  In the instant case, the General Power of Attorney, a copy of which is produced for reference during the course of argument shows that the executant of the Power of Attorney i.e., Sri. H.D. Kumaraswamy has stated that he is being aggrieved by the alleged act of the accused for which he intended to file a private complaint against the office bearers of a particular association and also publishers mentioned in the pamphlets. It is because of his pre occupation and inability to appear personally in the Court and to conduct the case, he is appointing Sri. K.T. Dhanukumar as his General Power of Attorney holder. Thereafter, he has prescribed as to what powers the Power of Attorney Holder has got to exercise on his behalf. Thus, it is clear that Sri. H.D. Kumaraswamy, in whose name the Power of Attorney has instituted the complaint in question has authorized the Power of Attorney to institute the present complaint and to prosecute the accused on his behalf - in view of there being no bar under Section 199 Cr.P.C for filing of petition through the Power of Attorney, in the instant case the Power of Attorney having clearly stated that not only he has been instructed by Sri. H.D. Kumaraswamy, to file a complaint on his behalf and to prosecute it and also the Power of Attorney clearly stating that he is aware of the facts of the case in hand, it cannot be said that he ought not to have instituted a complaint under Section 200 Cr.P.C for the alleged offences punishable under Sections 200, 501 and 502 of IPC.

  Petition dismissed.

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• 2018 (10) TMI 1896
  

  Exemption u/s 11 - Denying registration u/s 12A - grievance of the assessee is that the Director has unjustly denied registration u/s 12A notably, Sec. 12AA of the Act empowers the Director to grant registration after being satisfied about the objects of the Trust and the genuineness of its activities - HELD THAT:- In the present case, the primary object of the Trust is to administer financial assistance towards medical needs of the retired employees of Bank of India who are its Members and the dependent spouse of such retired employee-members in terms of the rules and regulations of the Scheme. As notable that the corpus of the Trust enures from one-time lump sum contribution equal to 100% of the basic pay last drawn received from the retired employees and the contribution received from Bank’s Central Welfare Committee. In sum and substance, the dominant object of the Trust is to provide assistance towards the medical needs of the retired employees of the Bank who are its Members in terms of the Scheme. At this stage, we may also observe that the expression “charitable purpose” has been defined in Sec. 2(15) of the Act to mean to include relief of poor, education, medical relief, etc. as well as advancement of any other objects of general public utility.

  The Director has denied exemption solely on the ground that assessee-trust’s objects are not for the benefit of the general public, but only for its specific Members/employees of Bank of India.The aforesaid proposition sought to be raised by the Director is quite untenable and is directly contrary to the observations in the case of Ahmedabad Rana Caste Association [1971 (9) TMI 8 - SUPREME COURT]

  Hon'ble Andhra Pradesh High Court in the case of Andhra Pradesh Police Welfare Society [1983 (3) TMI 19 - ANDHRA PRADESH HIGH COURT] the plea of the assessee for registration u/s 12A of the Act has to be upheld and on account of distinction in facts, in our view, the Director erred in relying on the decision of the Hon'ble Bombay High Court in the case of Zenith Tin Works Charitable Trust [1974 (7) TMI 29 - BOMBAY HIGH COURT] to deny registration u/s 12A of the Act to the assessee-trust.

  A perusal of the impugned order reveals that reference has also been made to the judgment of the Hon'ble Madras High Court in the case of Sakthi Charities vs CIT, [1984 (4) TMI 52 - MADRAS HIGH COURT]which, in our view, is also inapplicable as it was a case of a private employment.

  We hereby set-aside the order of the Director and hold that the assessee is eligible for registration u/s 12A of the Act. Accordingly, it is directed that registration u/s 12A of the Act be granted to be assessee. - Decided in favour of assessee.

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• 2018 (10) TMI 1895
  

  Disallowance u/s. 14A r.w.r 8D - assessee argued that disallowance cannot be made in the absence of exempt income earned during a year - HELD THAT:- Since, the assessee has not earned any dividend income, this case clearly falls within the ratio of the Jurisdictional High Court in the case of Redington India Ltd. [2017 (1) TMI 318 - MADRAS HIGH COURT]. Following the Jurisdictional High Court decision, supra, we hold that section 14A cannot be invoked and hence, dismiss the Revenue’s appeal.

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• 2018 (10) TMI 1894
  

  Disallowance u/s 14A r.w.r. 8D - claim restricted to the exempt income earned by the assessee - HELD THAT:- We find that in the case of VBC Ferro Alloys Ltd [2018 (8) TMI 130 - ITAT HYDERABAD] to which both of us are the signatories, have followed the precedents on the issue to hold that the disallowance u/s 14A read with Rule 8D cannot exceed exempt income.

  We are of the opinion that the disallowance under Rule 8D cannot exceed the dividend income earned and claimed as exempt. The disallowance worked out under Rule 8D(iii) being administrative expenditure is restricted to the amount of dividend earned. AO is directed to modify accordingly. Ground is partly allowed.

  As the issue under consideration is materially identical to the said decision, following the conclusions drawn therein, we direct the AO to VBC Ferro Alloys Ltd., Hyd. [2018 (8) TMI 130 - ITAT HYDERABAD] delete the disallowance made u/s 14A r.w.r. 8D(2)(iii) as the disallowance u/s 14A cannot exceed the exempt income. - Decided against revenue.

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• 2018 (10) TMI 1893
  

  Addition of capital gain - AO adopted guideline value of the land and assessed Long Term Capital Gain under section 50C - HELD THAT:- Before the ld. CIT(A), the assessee has raised a specific ground that the Assessing Officer should take the value fixed by the Valuation Cell of IT Department and rework the long term capital gain of the co-owners. However, we find that the ld. CIT(A) has erroneously taken the sale consideration at ₹.52.66 crores and wrongly concluded that the valuation adopted by the DVO of ₹.48.99 cores was less than the sale consideration returned by the assessee and accordingly directed to accept the returned income. Since the DVO value of ₹.48.99 crores is more than the sale consideration of ₹.32 crores, we set aside the order of the ld. CIT(A) and direct the Assessing Officer to adopt the DVO value of ₹.48.99 crores as sale consideration for the purpose of computation of long term capital gain. Thus, the ground raised by the Revenue is allowed.

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• 2018 (10) TMI 1892
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - whether issuing Section-8 notice without enclosing copies of invoices and then as to non-filing of invoices along with Section-9 Petition will amount to not furnishing of material papers as envisaged under section 9 (2) of the Code or not? - HELD THAT:- In this case, the document to prove goods supplied is invoices, which the petitioner has not produced before this Bench. That apart, the corporate debtor has not admitted the claim made by the petitioner. In this background, only one conclusion that could be drawn is the petitioner failed to prove the existence of debt.

  The first essential proof required to admit the case is existence of debt, which the petitioner failed to do, therefore the petition shall be dismissed.

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