|
Advanced Search Options
Case Laws
Showing 161 to 180 of 2024 Records
-
2017 (9) TMI 1869 - CESTAT BANGALORE
CENVAT Credit - common input services used for the manufacturing activity of finished goods and for the trading activities - input services - Management Consultancy Services - HELD THAT:- The provisions of Cenvat Credit Rules were amended by insertion of an explanation which indicated trading activity is an exempted services. Hon’ble High Court of Madras in the judgment of M/S. FL SMIDTH PVT. LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2014 (12) TMI 699 - MADRAS HIGH COURT], settled the law that explanation inserted from 1-4-2011 will apply for the period prior to 1-4-2011 also and following the said ratio, it is held that the trading activities undertaken by the appellant during the period in question has to be treated as an exempted services - Since it is undisputed that appellant is manufacturer of excisable goods and is discharging appropriate central excise duty, the proportionate Cenvat credit attributable to the trading activity needs to be reversed and the same should be arrived based upon the provisions of Rule 6(3A) of the Cenvat Credit Rules, 2004.
CENVAT Credit - input services - Management Consultancy Services - HELD THAT:- The said sub-rule starts with a non obstante clause, which would mean that this sub-rule has to be read independently and it provides for availment entire Cenvat credit even if the same is used for manufacturing of dutiable and exempted goods and are providing taxable and exempted services. In my view, appellants have made out a case for availment of the entire Cenvat credit of the service tax paid on Management Consultancy Services as per the above reproduced sub-rule - demand set aside.
Demand of interest - HELD THAT:- Since the demands are set aside on this ground, the question of interest does not arise.
Penalty - HELD THAT:- Since the issue is of interpretation no penalty is warranted on the appellant - The penalties are set aside.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1868 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Re-export of imported goods - baggage imported from Pakistan to India along with Cigarettes & Dupattas - applicability of section 150 of CA - HELD THAT:- After the applicant failed to comply with the condition for re-export of goods on payment of specified redemption fine, the goods stood confiscated on 5th September, 2011 and the ownership was vested with the Central Government. As a result the Attari Customs was having full authority to dispose of the said goods after 4-9-11 and no error is committed by them by disposing of the goods on 3-11-11. The applicant has heavily relied upon Section 150 of the Customs Act to assert her agreement that a prior notice to her was required before disposal of the goods. But the applicant has conveniently overlooked the significant fact that notice to the owner is to be given u/s 150 only if the goods are to be sold prior to confiscation and not after confiscation - Since in the instant case the goods were sold after confiscation thereof, section 150 is not applicable at all. Thus the applicant’s case that she was not sounded by the Customs authorities before the disposal of their goods is completely misplaced.
The Revision Application filed by the applicant is not maintainable and hence it is rejected.
-
2017 (9) TMI 1867 - BOMBAY HIGH COURT
Depreciation to assets transferred upon amalgamation from the amalgamating company by the order of the BIFR - HELD THAT:- Substantial question of law covered by our decision delivered in M/s. Ballarpur Industries Limited vrs. Commissioner of Income Tax [2017 (9) TMI 490 - BOMBAY HIGH COURT]
Disallowance of expenses in the nature of advisory fees - HELD THAT:- Issue covered by the decision of Punjab State Industrial Development Corporation Ltd. Vs. CIT [1996 (12) TMI 6 - SUPREME COURT]
-
2017 (9) TMI 1866 - ITAT VISAKHAPATNAM
Assessment u/s 153A - additions were made during the course of search & seizure operation relating to unsecured loans - addition on basis of incriminating material only - HELD THAT:- In the assessment order, the assessing officer has not brought on record any evidence found during the course of search relating to the additions made. On verification of the assessment order, it is evident that the addition was made on the basis of the entries made in the regular books of accounts but there was no reference with regard to the seized material.
Hence, the reliance of the Ld. D.R. on statement of facts that the assessment was made on the basis of seized material is not correct. Ld. D.R. further argued the legal position subsequent to the introduction of provisions u/s 153A of the Act and 153C of the Act for search assessments the incriminating material not necessary is not tenable. This issue has been considered by the special bench in the case of All Cargo Logistics Limited cited [2012 (7) TMI 222 - ITAT MUMBAI(SB)] and answered that the assessment u/s 153A of the Act will be made on the basis of incriminating material. Therefore, the argument of the Ld. D.R. lacks merit on this issue. As discussed earlier, in this appeal no addition was made on the basis of seized material and the assessment got completed - Decided in favour of assessee.
-
2017 (9) TMI 1865 - SUPREME COURT
Termination of arbitration proceedings - non filing of the claim by the claimant - sufficient cause or not - Whether arbitral tribunal which has terminated the proceeding Under Section 25(a) due to non filing of claim by claimant has jurisdiction to consider the application for recall of the order terminating the proceedings on sufficient cause being shown by the claimant? - HELD THAT:- In the present case, the arbitral tribunal has rejected the application of the claimant by order dated 26.04.2012 taking the view that after an order is passed by him terminating the proceedings, he cannot pass the order recommencing the arbitration proceedings - the arbitral tribunal committed an error in holding that it has no jurisdiction to recall an order terminating the proceedings Under Section 25(a). The arbitral tribunal having not considered the cause shown by the claimant in its application, it is in the ends of justice that the arbitral tribunal be asked to consider the application filed by the claimant dated 20.01.2012 praying for recall of the order dated 12.12.2011 and to grant extension for filing the statement of claim.
Whether the order passed by the arbitral tribunal Under Section 25(a) terminating the proceeding is amenable to jurisdiction of High Court Under Article 227 of the Constitution of India? - Whether the Order passed Under Section 25(a) terminating the proceeding is an award under the 1996 Act so as to amenable to the remedy Under Section 34 of the Act? - HELD THAT:- The arbitral tribunal has jurisdiction to consider an application for recall of order terminating the proceedings Under Section 25(a), it is not necessary for us to enter into these issues for purposes of this case.
The interim order granting stay on the operation of order dated 13.02.2015 passed by the High Court stands discharged and the arbitral tribunal shall now proceed to decide the application of claimant-Respondent dated 20.01.2012 expeditiously - appeal dismissed.
-
2017 (9) TMI 1864 - ITAT CHENNAI
Addition on the basis of the so-called agreement said to be found during the course of survey operation - Addition of sum paid to Shri Basheer Ahmed HELD THAT:- It cannot be said that the assessee has paid ₹ 2.38 Crores to Shri Basheer Ahmed. When Shri Basheer Ahmed denied the fact of receipt of money, it cannot be concluded that the assessee has paid ₹ 2.38 Crores to Shri Basheer Ahmed. As per the observation made by the lower authorities, agreement for sale was for sale of property after disposal of cases pending before Principal Sub-Judge at Trichy. When the matter was pending before the Principal SubJudge for adjudication and the power of attorney, who entered into the agreement, claimed that he has not received any money, this Tribunal is of the considered opinion that there cannot be any presumption that the assessee has paid ₹ 2.38 Crores to Shri Basheer Ahmed. The assessment proceeding being a judicial proceeding, this Tribunal is of the considered opinion that addition has to be made only on the basis of concrete evidence. Presumption and surmise have no role to play in judicial proceeding. Therefore, the addition of ₹ 2.38 Crores made by the Assessing Officer as confirmed by the CIT(Appeals) cannot stand for the scrutiny of law. Accordingly, the orders of both the authorities below are set aside and the addition
Assessment u/s 153A - date of search and seizure operation conducted u/s 132A - HELD THAT:- Second proviso to Section 153A of the Act clearly says that the assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years, is pending on the date of initiation of search under Section 132A of the Act, the same shall stand abated. In this case, the search proceeding, admittedly, took place on 18.11.2011. Therefore, the assessment proceeding pending as on 18.11.2011 shall stand abated in view of second proviso to Section 153A of the Act. Therefore, the assessment order passed by the Assessing Officer under Section 143(3) of the Act cannot stand in the eye of law. In other words, the Assessing Officer has to pass an order under Section 153A or 153C of the Act as the case may be. Hence, the regular assessment passed by the Assessing Officer has to be quashed. Accordingly, the orders of both the authorities below are quashed and the appeal of the assessee allowed
Purchase of landed properties - search and seizure operation was conducted under Section 132A - HELD THAT:- In the absence of concrete evidence for payment of ₹ 2.38 Crores, the addition made by the Assessing Officer as confirmed by the CIT(Appeals) cannot stand in the eye of law. Accordingly, the orders of both the authorities below are set aside and the addition of ₹ 2.38 Crores is deleted.
Addition in respect of sundry creditors balances - HELD THAT:- During the course of survey operation on 17.11.2009, there were trade creditors to the extent of ₹ 2,08,76,976/-. The assessee claimed that a sum of ₹ 1,25,71,162/- was settled before hand. However, the same was not reflected in the accounts of the assessee. The assessee claimed that loans were obtained from relatives. Since the relationship among the relatives from whom the assessee said to have received loan was estranged, he admitted the same for taxation. Even the details of credits were not explained before the AO and the CIT(Appeals). Since the assessee admitted the credit balance, which was proportionately added in the hands of the assessee and other three children of the assessee, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Addition in respect of loan creditors - assessee claimed before the Assessing Officer that the loans were borrowed from close relatives - HELD THAT:- Statement reflected loan creditors to the extent of ₹ 11,89,000/-. The details of creditors were not furnished before the Assessing Officer and the CIT(Appeals). Moreover, such details were also not furnished before this Tribunal. When the assessee claims that the loan was borrowed from close relatives, it is for the assessee to establish the identity of creditors, creditworthiness of creditors and genuineness of the transaction. In the absence of such details to substantiate the claim of loans, this Tribunal is of the considered opinion that the Assessing Officer has rightly made addition
Assessment u/s 153C - Addition towards drawings - HELD THAT:- The provisions of Section 153C of the Act very clearly says that the assessment has to be made on the basis of material found during search operation, only the person other than the searched person. In the case before us, no material was found during the search operation with regard to personal expenses. The Assessing Officer appears to have estimated the expenditure without any material. The Assessing Officer on the basis of presumption found that the assessee was living in a joint family and not made any drawings, therefore, he added a sum of ₹ 3 lakhs towards personal expenses. This being an assessment proceeding under Section 153C in the absence of any material found during the search operation with regard to personal expenses, this Tribunal is of the considered opinion that there cannot be any addition. Moreover, when the assessee is found to be in joint family, the drawing of the other members of the family is also to be taken into consideration. In the absence of any material found during search, the addition of ₹ 3 lakhs cannot stand in the eye of law.
Unexplained payment - AO found that the assessee has paid a sum of ₹ 30 lakhs to each of his three sisters - oral evidence for payment of ₹ 30 lakhs to each of the sisters and the registered release deed discloses payment of ₹ 10,50,000/-, which one would prevail? - HELD THAT:- This Tribunal is of the considered opinion that the oral statement or evidence cannot override the registered release deed. The registered release deed would prevail over all the oral evidence available on record. Moreover, the sisters, who were said to be examined under Section 131 of the Act, have also filed affidavit denying they have not received ₹ 30 lakhs. This affidavit is in conformity with the registered release deed. Therefore, this Tribunal is of the considered opinion that the oral statement said to be recorded from the assessee or from sisters of the assessee cannot override the statement contained in the registered release deed and affidavit. Hence, the addition made by the Assessing Officer to the extent of ₹ 90 lakhs under Section 69C of the Act cannot stand in the eye of law. Accordingly, the orders of both the authorities below are set aside and the addition of ₹ 90 lakhs is deleted.
Payment made to Shri S.A. Kandasamy - during the search operation Revenue authorities found a receipt for the payment made to Shri S.A. Kandasamy - assessee claimed before the Assessing Officer that the payment was part of payment made for Karur land purchase - HELD THAT:- The details of payment made for Karur land purchase are available at page 21 of seized material. It is not in dispute that these details do not reflect the payment made to Shri S.A. Kandasamy. When the details contained in the seized material with regard to payment made for Karur land purchase do not reflect the payment made to Shri S.A. Kandasamy, this Tribunal is of the considered opinion that the payment was made over and above the details contained in the seized material for the purchase of Karur land, hence, the same cannot be allowed in the absence of any evidence. Therefore, the CIT(Appeals) has rightly confirmed the addition made by the Assessing Officer. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Unexplained investment of the assessee in gold jewellery u/s 69A - HELD THAT:- The exemption claimed by the assessee under CBDT circular is only for seizure of gold jewellery during the course of search operation. As rightly submitted by the Ld. Departmental Representative, it does not absolve the assessee from explaining the source for acquisition of such jewellery. Therefore, the CBDT circular would not come to the rescue of the assessee. The assessee is expected to explain the source for acquisition of jewellery found during the course of search operation. Since proper explanation was not offered, this Tribunal is of the considered opinion that the Assessing Officer has rightly treated ₹ 13,67,995/- as unexplained investment of the assessee in gold jewellery, under Section 69A of the Act. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Unaccounted purchases made outside the books - CIT(Appeals) found that the assessee himself has taken into account the profit on unaccounted sales while calculating the gross profit, therefore, even the 10% need not be added - HELD THAT:- The assessee has taken himself the profit of unaccounted sales while calculating the gross profit. When the profit on unaccounted sales were taken into account for the purpose of calculating the gross profit, this Tribunal is of the considered opinion that there is no need for any further addition. Hence, the order of the CIT(Appeals) is confirmed and the appeal of the Revenue stands dismissed.
Unexplained jewellery under Section 69A - HELD THAT:- It is not in dispute that 744.28 gms of jewellery was found and the same was valued at ₹ 20,26,868/-. The assessee has disclosed unaccounted jewellery to the extent of ₹ 18,42,693/- in the cash flow statement. The balance of ₹ 1,84,175/- was added under Section 69A of the Act. The assessee claimed before the Assessing Officer that a married lady is entitled for 500 gms of gold jewellery. This Tribunal is of the considered opinion that 500 gms of gold jewellery for a married lady as per CBDT circular relates to seizure. It does not absolve the responsibility of the assessee from explaining the source of acquisition. In fact, the Assessing Officer has given relief in respect of gift / Sridhan jewellery received by the assessee’s wife during marriage and also most of the gifts said to be received. The relief given by the Assessing Officer was to the extent of ₹ 18,42,693/-. The assessee could not explain the source of acquisition of jewellery to the extent of ₹ 1,84,175/-. Therefore, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly confirmed the order of the Assessing Officer. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Addition under the head “Income from business” - addition from the profit from KAS Nagar project - assessee claims that the income to the extent of estimation made by the Assessing Officer, is very much available for making investment or the income from other sources - HELD THAT:- The contention of the Revenue appears to be that the assessee himself disclosed income from KAS Nagar project at 10% of sale value separately. This Tribunal is of the considered opinion that when the additional income was available due to estimation made by the Assessing Officer on KAS Nagar project, the same should be telescoped towards addition made under the head “Income from Other Sources”. Therefore, the CIT(Appeals) has rightly directed the Assessing Officer to telescope. Hence, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
-
2017 (9) TMI 1863 - ITAT BANGALORE
Deduction u/s 10A - Computation of deduction - HELD THAT:- This issue is covered in favour of the assessee by the judgment of Hon’ble Karnataka High Court rendered in the case of CIT Vs. Tata Elxsi Ltd.[2011 (8) TMI 782 - KARNATAKA HIGH COURT] this issue is decided in favour of the assessee and the AO is directed to reduce the telecommunication expenses incurred in foreign currency and attributable to computer software and also other foreign currency expenses which are reduced by AO from export turnover for the purpose of computing deduction u/s 10A allowed the assessee to reduce from total turnover also for the purpose of computing this deduction because it was held by Hon’ble High Court that total turnover is sum of total of export turnover and domestic turnover and therefore, if any amount is reduced from export turnover then the total turnover also gets reduced by the same amount automatically. Accordingly ground no. 4 is allowed.
Comparable selection - HELD THAT:- Various objections were raised by the assessee regarding various comparables such as high turnover, over size, brand and high profitability and on none of these objections, any specific finding has been recorded by the DRP and such a cryptic order of DRP cannot be approved. Hence, we feel it proper to restore this matter back to the file of DRP for fresh decision by way of a speaking and reasoned order.
Foreign exchange gain considered for computing profit percentage for the purpose of ALP - HELD THAT:- Foreign exchange gain is nothing but an integral part of the sales proceeds of an assessee carrying on export business. To this extent, there is no quarrel but in our considered opinion, even after holding that the Foreign Exchange fluctuation gain is operating profit, it has to be seen as to whether the same can be considered for the purpose of computing ALP if the said gain is not in respect of sale of the present year. This is so because for the purpose of ALP under TNMM, what is determined is the percentage of profit by dividing the profit of the year by turnover of the year and such profit percentage of the assessee is compared with the average profit percentage of the comparables. Hence, even after holding that foreign exchange fluctuation gain is operating profit, it has to be seen as to whether the said gain is in respect of turnover of the present year or turnover of the earlier year because if the gain is on account of turnover of the present year than the gain is included in the numerator i.e. profit but the relevant turnover is not included in the denominator and therefore, the result will be absurd. Hence, we restore this matter to the file of the A.O. with the direction that the foreign exchange gain should be considered for computing profit percentage for the purpose of ALP if it is in respect of turnover of the present year.
We feel it proper that either the foreign exchange gain of comparable should not be considered in that situation or such details should be obtained from the respective comparable companies u/s. 133(6) of the IT Act, 1961. Ground allowed for statistical purposes
-
2017 (9) TMI 1862 - ITAT BANGALORE
Unexplained jewellery in the case of the appellant owned by his daughters-in-law - HELD THAT:- This appeal came up for hearing on 14.09.2017 but none appeared despite valid service of notice of hearing. We therefore had no option but to hear the appeal ex-parte and accordingly revenue was heard.
We have carefully examined the order of the CIT(A) in the light of the rival submissions and we find that CIT(A) had adjudicated the issue raised before it in detail and since we do not find any infirmity therein, we confirm his order.
-
2017 (9) TMI 1861 - ITAT AMRITSAR
Capital gain computation - JDA - receipt of adjustable advance/earnest money and benefits in expectancy with in the ambit of transfer as contemplated u/s 53A of Transfer of Property Act - transfer as contemplated u/s 2(47) - HELD THAT:- As decided in C.S. ATWAL VERSUS ACIT [2015 (7) TMI 878 - PUNJAB & HARYANA HIGH COURT] we find that the order of Ld. CIT(A) is not sustainable as the Hon'ble. Court has decided that under these circumstances the capital gain has to be restricted to the proportionate amount of sale consideration received during the year and the rest of the capital gain will be taxable in the year in which rest of the consideration is received. Therefore the Assessing Officer is directed compute capital gains tax on the basis of actual receipts during the year.
-
2017 (9) TMI 1860 - RAJASTHAN HIGH COURT
Reopening of assessment u/s 147 - disallowance of additional depreciation u/s. 32(1)(iia) - Tribunal in upholding the decision of CIT(A) in quashing the reassessment proceedings - HELD THAT:- In this case the assessment year involved is A.Y. 2008-09 where the assessment under section 143(3) was originally completed on 31.12.2010 and notice has been issued u/s 148 on 17.08.2012. Therefore, the proviso to section 147 is not relevant and therefore not been considered by us.
Whether the issue of claim of additional depreciation has been examined by the Assessing Officer in the course of original assessment proceedings or not? - Briefly the facts of the case are that the assessee is engaged in the business of manufacturing of cement. For uninterrupted supply of power, assessee during the year, acquired and installed new P&M i.e. power plant at Morak and a windmill at Jaisalmer for production of electricity for captive consumption in manufacturing of cement. The electricity produced from power plant at Morak was directly utilized in manufacturing of cement whereas the electricity produced from windmill at Jaisalmer was supplied to Jaipur Vidhyut Vitran Nigam Ltd. who in turn reduce that quantity of electricity from the power bill raised on the assessee. On these P&M, assessee claimed additional depreciation u/s 32(1)(iia) of the Act.
Firstly, in the reason recorded before issue of notice u/s 148, the AO has stated as under:
As the additional depreciation was allowable only on such plan and machinery which came under the clause (ii) of section 32(i) of Income Tax Act, while the assets of power generating units have been covered under the clause (i) of the ibid section, therefore no amount of additional depreciation was allowance on the assets of Mangalam Power Plant, Morak unit and Mangalam Wind Power plant in Jaisalmer. - Decided against revenue
-
2017 (9) TMI 1859 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Scope of Financial Debt - whether the amount claimed from the Respondent by the Applicant is a financial debt or not? - HELD THAT:- "Financial Debt", to the extent relevant for the purpose of this case, is defined in Clause (a) of sub-section (8) of Section 5 of the Code. It says, "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes money borrowed against the payment of interest - it is clear that Unsecured Loans were given by the Applicant to the Respondent and in respect of which on interest amounts TDS at the rate of 10% was deducted. Therefore, the amount of debt due from the Respondent to the Applicant comes within the four corners of financial debt as defined in Clause (a) of sub-section (8) of Section 5 of the Code.
Whether the default has been committed by the Respondent in respect of payment of the financial debt to the Applicant? - HELD THAT:- The very fact that the Respondent deducted tax on interest on loan amount shows that there is an outstanding debt, which is a financial debt due from the Respondent to the Applicant. Even assuming that Respondent is entitled for certain amounts from the Applicant, it can only be treated as a set off or counter-claim and it can not be a dispute relating to the financial debt due to the Applicant from the Respondent - On the ground that there is counter-claim or set off as pleaded by the Respondent, it cannot be said that there is no default in repayment of the financial debt. Therefore, this Adjudicating Authority is of the considered view that there is occurrence of default in payment of financial debt by the Respondent.
It is contended by the learned counsel for the Respondent that columns at Serial Nos. 5, 6, and 8 of Part V of Form-I are not provided by the Applicant. It is stated in Column 5 of Part V as "Not Applicable". Since it is a case of Unsecured Loan from Applicant Company to the Respondent Company which reflects in the Statement of Account there is no financial contract and therefore it cannot be said that Column 5 is not answered by the Applicant. Column 6 refers to record of default. It is stated that it is "Not Applicable". Therefore, it cannot be said that Column 6 is not complied with - Coming to Column 8, Applicant has attached the documents that are available to show that financial debt is payable to it - the contention of the learned Counsel for the Respondent that the Application is incomplete in respect of Columns 5, 6 and 8 of Part V of Form-I does not merit acceptance.
This Application deserves to be admitted and it is accordingly admitted under Section 7(5) of the Code - Application admitted - moratorium declared.
-
2017 (9) TMI 1858 - ITAT MUMBAI
Disallowance u/s 40(a)(ia) - payment by way of rent and repairs - HELD THAT:- CIT(A) has recorded a finding that M/s CKIL has duly complied with TDS provisions at the time of making payments to the concerned payees. Thus, it is noticed that the payment by way of rent and repairs have been duly subjected to deduction of tax at source. The assessee has reimbursed the amount to M/s CKIL on which tax has already been deducted at source.
Since the impugned payments have been made M/s CKIL on behalf of the assessee and the tax has been deducted at source there from by M/s CKIL, it should be construed that M/s CKIL has deducted tax at source also on behalf of the assessee. The obligation of the assessee to deduct tax at source has been fulfilled by M/s CKIL and hence agree with the view taken by Ld CIT(A) that the provisions of sec. 40(a)(ia) would not get attracted in this factual matrix. Accordingly uphold the decision taken by Ld CIT(A) on the above said reasoning.
-
2017 (9) TMI 1857 - ITAT JAIPUR
Ad hoc disallowance of expenses - as pleaded by assessee that once the addition has been made by estimating the income then ad hoc disallowance out of various expenses claimed in the P&L account should not have been made or sustained by the CIT(A) - HELD THAT:- We do agree with the contention of the ld AR that where income has been estimated after rejecting the books of account then no further disallowance is required to be made out of various expenses claimed in the P&L account. However, the facts of this case are completely different. CIT(A) has sustained the net profit of 25% of the gross commission earned @ 6% on the sales which were not reflected in the assessee’s books of account and these sales were made for the other Adathiyas.
CIT(A) sustained net profit @ 25% of gross commission. The revenue is not in appeal on relief granted by the ld. CIT(A). No reason but to agree with the order of the ld. CIT(A) for estimating net profit @ 25% of gross commission. Hence ground No. 4 of the appeal stands dismissed.
Disallowances are out of the various expenses debited in the P&L account against the declared turnover by the assessee in its books of account. These disallowances are made for lack of supporting vouchers and documentary evidences and where no details were submitted with regard to the cash discount. Since the ld. CIT(A) has estimated net profit @ 25% of the commission @ 6% on the sales of ₹ 92,02,368/-, therefore, in the interest of justice direct to estimate net profit as 1.5% of declared sales of ₹ 5.00 crores, thus part addition sustained. The declared turnover was of around ₹ 5.00 crores. Hence the estimated income on this turnover comes at ₹ 7.5 lacs. Instead of net income declared in the return of income, the income from declared turnover shall be at ₹ 7.5 lacs. Thus, the total income from the business of Adathiya is estimated at ₹ 8,88,035/- ( 7,50,000/- + 1,38,035/-). Accordingly grounds No. 1 and 2 are partly allowed and ground No. 4 of the appeal is dismissed.
-
2017 (9) TMI 1856 - ITAT AMRITSAR
Claim of depreciation on buses @ 15% instead of 30% - assessee company engaged in the business of transportation of passengers and is registered under the Motor Vehicle Act - CIT-A allowed the depreciation @ 30% to the assessee - HELD THAT:- In over all consideration of the "definition" of the Motor Vehicles Act, 1939 as well as perusal of the judgment and submissions of the parties, we do not have any hesitation to hold that Public Transport carries the passenger may be for one stop or more than that may be for smaller which can be limited or even otherwise certainly there is implied contract between passenger and the buses owner for "hire" and in our considered opinion, it cannot be said that the passenger individually or passengers jointly do not have any contract with the bus owner while carrying on journey'.
The submissions of the Revenue Department does not sound good to the extent that the Ld. CIT(A) erred in holding that there is no difference between hiring out the vehicle for a specified period & for a consideration and letting the passenger travel in a vehicle on payment of charges ignoring that a passenger traveling in a bus purchases only right to travel between fixed points as per terms and conditions of the transporter. Hence, the appeals lack the merits and therefore, the order passed by the Ld. CIT(A) is uphold - Appeal filed by the Revenue Department stands dismissed
-
2017 (9) TMI 1855 - ITAT PUNE
Deduction u/s 80IB(10) - proportionate deduction - HELD THAT:- On the issue of proportionate deduction, we also find that Hon’ble Madras High Court in the case of CIT Vs. Arun Excello Foundations (P.) Ltd [2012 (12) TMI 415 - MADRAS HIGH COURT] has approved the principle of proportionate deduction to the extent the assessee has complied with the provisions of Sec.80IB(10) of the Act. Following the aforesaid decision of Hon’ble Madras High Court we are of the view that the assessee cannot be denied the deduction for the complete housing project and therefore find no fault in the order of Ld.CIT(A) and thus the grounds of Revenue are dismissed.
Denial of deduction u/s 80IB(10) on account of non compliance of the condition stipulated in clause (f) to Sec. 80IB(10) clauses (e) and (f) were inserted to Sec.80IB(10) by Finance (No.2) Act, 2009 w.e.f 01.04.2010 - The object behind the introduction as explained by the Memorandum explaining the provisions is that the objective of the tax benefit for housing projects was to build housing stock for low and medium income households by ensuring the size of the residential unit. It was circumvented by the developers by entering into agreement to sell multiple adjacent units to a single buyer. Accordingly the new clause was inserted to provide that the undertaking which develops and builds the housing project shall not be allowed to allot more than one residential unit in the housing project to the same person not being an individual and where the person is an individual, no other residential unit in such housing project to spouse or minor children of such individual, to HUF in which the individual is a karta.
In the present case at the time of making sale/booking a unit and for complying with the requirement of clause (e) and (f), the assessee is required to exercise normal due diligence expected of a normal businessman and proceed on the basis of the documents/information furnished by the other person and is not supposed to act like a detective and microscopically investigate and go behind the documents and verify the background of those submissions. Further no guidelines have issued by Revenue Department to show as to what and how the verification has to be conducted and therefore it is not a case of Revenue that the required guidelines issued by Revenue Department so as to check the compliance of clause (e) and (f) have not been followed by assess
Assessee had prima facie exercised normal due diligence expected of a normal businessman more so when the purchasers at the time of booking had given different addresses, were having different surnames and then later on they turned out to be closely related. In such a situation, we are of the view that the assessee cannot be denied the deduction u/s 80IB(10). Claim of deduction u/s 80IB(10) be allowed and thus the grounds of assessee are allowed.
-
2017 (9) TMI 1854 - CESTAT ALLAHABAD
Smuggling - Gold - release of seized goods - Confiscation - redemption fine - penalty - HELD THAT:- Only prohibited goods cannot be released on payment of redemption fine. Admittedly, the gold in question is not prohibited goods under the Customs Act or any other law in force.
The goods in question cannot be absolutely confiscated in terms of Section 125 of the Customs Act, 1962 - Confiscation set aside - appeal filed by the Revenue is dismissed.
-
2017 (9) TMI 1853 - MADRAS HIGH COURT
Registration of FIR - grievance of the petitioner is that in spite of a complaint given by him on 11.07.2017 to the second respondent, seeking for register the FIR the same has been kept in abeyance without any action - HELD THAT:- Though the petitioner has given complaint only to the second respondent, he is directed to give a fresh complaint to the first respondent police.
On receipt of such complaint, the first respondent is directed to register the complaints subject to conditions required to be complied - petition allowed.
-
2017 (9) TMI 1852 - SC ORDER
Classification of imported goods - Rubber Process Oil - whether hazardous goods or not? - whether the goods are classifiable under chapter sub heading 2707 9900 as canvassed by the revenue or 2710 1960 as canvassed by the Appellants or under 2713 9000 as alternatively pleaded by the Appellants?
HELD THAT:- There are no reason to entertain the appeals - appeal dismissed.
-
2017 (9) TMI 1851 - SUPREME COURT
Maintainability of a suit - Whether a suit which is, in substance, a suit filed under Section 34 of the Specific Relief Act is maintainable at the behest of a legal representative of a dead plaintiff?
HELD THAT:- It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act.
The examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage.
Thus, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law.
Appeal disposed off.
-
2017 (9) TMI 1850 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of CIRP - Initiation of CIRP - Corporate Debtor defaulted in repayment of amount - It was submitted that, the Corporate Debtor has not raised any dispute/objection to the Demand Notice of the Operational Creditor after filing of this Application under I&B Code, 2016 - HELD THAT:- It is established by the Operational Creditor that the nature of Debt is an "Operational Debt" as defined under section 5(21) of the Definitions under The Code. It has also been established that admittedly there was a "Default" as defined under section 3(12) of The Code on the part of the Corporate Debtor. On the basis of the evidences on record the Petitioner has established that the advance was given against the goods to be supplied and invoices were raised to claim the amount but there was non-payment of Debt on the part of the Corporate Debtor.
As a consequence, after the expiry of the period as prescribed and keeping admitted facts in mind that the Operational Creditor had not received the outstanding Debt from the Corporate Debtor and that the formalities as prescribed under The Code have been completed by the Petitioner we are of the conscientious view that this Petition deserves 'Admission' - petition admitted - moratorium declared.
............
|
