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Showing 181 to 200 of 2063 Records
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2019 (1) TMI 1887
Rectification of mistake u/s 154 - corporate tax issues as mentioned at page 5 and 6 of the order of the Tribunal dt.11.12.2017, have not been adjudicated - HELD THAT:- We find that the Tribunal after recording the grounds at page 5 and 6 as not adjudicated the grounds relating to Corporate tax issues.
Accordingly the order dt.11.12.2017, passed by the Tribunal is recalled for the limited purpose of adjudicating the corporate tax issues mentioned above. Registry is directed to post the appeal for hearing in the due course.
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2019 (1) TMI 1886
The amount of Central excise duty for which the refund claims have been filed by the appellant, was infact not payable by the appellant in view of the notification No. 12/2012-CE dated 17.3.2012 since all the conditions attached to this notification was fulfilled by the appellant. Thus, the project goods received by the appellant from M/s. L & T(IDPL) should have been at Nil rate of Central Excise duty, but the appellant received goods from L&T(IDPL) on which Central Excise duty was paid by the appellant. As a consequence, if any amount of Central Excise duty has been paid by the appellant, which is otherwise not payable then it was certainly entitled for refund of such amount.
The appellant was justified in claiming the refund of Central Excise duty paid by it on procurement of certain equipment from M/s. L&T IDPL under section 11B of the Central Excise Act, 1944, which otherwise were excepted from payment of Central Excise duty.
Refund of Central Excise duty paid - Principles of natural justice - goods supplied by M/s. L&T IDPL were fully covered by construction under international competitive bidding and same were exempted from payment of Central Excise duty - N/N. 12/2012-CE dated 17 March 2012 - HELD THAT:- The Chartered Accountant certificate dated 14 March, 2016 categorically mentions that the Excise duty claimed by the appellant, was not shown as ‘expenses’ in the profit and loss account of the appellant firm, and, therefore, the requirement of fulfillment of conditions with regard to unjust enrichment was fulfilled. Such a certificate was given after due examination of the books of accounts of the appellant firm. The appellant therefore, has not passed the burden of central excise duty paid by it to the project owners and thus was not hit by unjust enrichment and was entitled for refund of Central Excise duty paid by it.
Appeal allowed.
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2019 (1) TMI 1885
Classification of services - underwriting services or merchant banking services? - activity to perform as the exclusive agent for Radico for identifying potential purchaser for the securities of Radico - reverse charge mechanism - HELD THAT:- At the adjudicating stage, the respondent had produced signed copies of the agreement dated 30.06.2006, which were examined in detail along with the reply to the show cause notice. The Adjudicating Authority found that in the facts and circumstances hereinabove mentioned, that the said agreement dated 30.06.2006 is a legal document. Thus, we find that the allegation in the show cause notice for disbelieving the said agreement dated 30.06.2006 is flimsy. We further find that the agreement dated 30.06.2006 has also got a binding effect on the parties to the transaction, that is between the respondent and the Jefferies, as it is provided in the letter dated 20.04.2006 that the parties shall enter into a formal agreement duly signed by both the parties, which shall morfefully define the terms and conditions of service or the nature of the transactions as well as the respective rights and liabilities.
The predominant services provided by ‘Jefferies’ to the respondent is in the nature of underwriting services and not the Merchant Banking Service, as classified by the Revenue - the transactions between the parties has taken place outside India and their remuneration has also not been remitted from India - the demand of service tax is bad, both for mis-classification and also on the ground of territorial jurisdiction.
Appeal dismissed - decided against Revenue.
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2019 (1) TMI 1884
Assessment u/s 153A - as per assessee in absence of any incriminating material found from the premises of the assessee, the action of the AO in making the assessment u/s 153A of the Act is against the law - reassessment proceedings under section 147 of the Act were found to be pending as on the date of issue of notice u/s 153A - HELD THAT:- In the instant case, the Assessing Officer has mentioned that assessment in the case of the assessee was reopened by way of issue notice under section 148 of the Act and those reassessment proceeding under section 148 were pending on the date of issue of notice u/s 153A - This fact has not been contorted by the assessee either before the AO or before the CIT(A). We are bound to conclude that as on the date of the issue of notice u/s 153A assessment proceedings were pending in the case of the assessee, which got abated. Hence, the contention of the assessee that no assessment proceedings were pending in the case of the assessee, is rejected. As the one of the condition required for holding addition made under section 153 proceedings as valid in terms of decision of Kabul Chawala [2015 (9) TMI 80 - DELHI HIGH COURT] has not been satisfied, we do not find any infirmity in the finding of the Ld. CIT(A) on this issue and accordingly we uphold the same. The ground No. 1 of the appeal of the assessee is dismissed.
Whether material found during the course of the search at the premise of Sri Naresh Gupta, belonged to the assessee? - The material found from the premise of the Sh Naresh Gupta is digital record of the draft deed maintained in the computer of Sh. Naresh Gupta, Advocate (deed writer), which belonged to him. As the information contained in said agreement to sell was merely related to the assessee. The said document was prepared in ordinary course of his profession and thus he was rightful owner of the document, though the document contained related information to the assessee, it belongs to Sh. Naresh Gupta only. Therefore, the Assessing Officer correctly reopened the assessment under the provisions of section 147 of the Act. Since the said reassessment proceedings under section 147 of the Act were found to be pending as on the date of issue of notice u/s153A of the Act, the Assessing Officer is justified in completing the assessment under the provisions of section 153A of the Act. Accordingly, the ground No. 1 of the appeal challenging the validity of proceeding under section 153A of the Act is dismissed.
Sale of first floor of property - According to the Ld. Assessing Officer, on perusal of the contents of draft of sale of agreement found in the hard disk of computer as well as contents of the registered sale deed, he found that both are same except difference of amount of sale consideration - whether it can be presumed that the assessee received payment in cash of ₹ 83,50,000/-in addition to the amounts recorded in registered sale deed ? - HELD THAT:-The entire document found is a draft prepared by the deed writer, which is not signed by any of the party mentioned in the said draft. Such an unsigned document cannot be made basis of presumption that the assessee received cash on sale of the property. The assessee has been subjected to search but no other documentary evidence of receipt of cash by the assessee has been found in the course of the search. We also note that no attempt has been made by the Assessing Officer to make an enquiry from the buyer or to ascertain the prevalent market value of the property sold by the assessee.
We are of the opinion that no addition can be sustained only on the basis of the unsigned draft agreement to sell found from the premises of the third party and that too without any corroborative evidences. Accordingly, we set aside the order of the Ld. CIT(A) and the Assessing Officer on the issue in dispute and direct the Assessing Officer to delete the addition for alleged cash received on sale of 1st floor of the property under reference. The grounds No. 2 and 3 of the appeal are, accordingly, allowed.
Long term capital gain on sale of agriculture land - AY: 2012-13 - HELD THAT:- As perused the Notification No. 18/1/95/2008-3C1 dated 20/03/2010 issued by the Department of urban local bodies, Haryana government, which is available on page 114 of the paper book filed by the assessee. The said notification has included entire part of the revenue land of the village “Ghata”. There is no dispute between the parties that the land in question was situated in village Ghata. In view of the clear finding of the fact recorded by the Ld. CIT(A) that the land in question was situated within the 8 km of the limits of the Municipal Corporation, the sale of the land is liable to provisions of the capital gain. In view of the above, we do not find any error in the order of the Ld. CIT(A) on the issue in dispute, accordingly we uphold the same. The ground No. 1 of the appeal is, accordingly, dismissed.
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2019 (1) TMI 1883
Levy of Service Tax - Banking and other financial services - receipt of the reimbursement from State Marketing Federation - exemption under N/N. 8/2004-ST dated 09.07.2004, or any other notification - suppression of facts or not - extended period of limitation under proviso to Section 73(1) of Finance Act - penalties under Sections 76, 77 and 78 of the Finance Act, 1994 - HELD THAT:- The show cause notices have been issued on 20.10.2011 invoking the extended period of limitation for the disputed period 2006-2007 to 2010-2011. It is an admitted fact that the appellant was registered with the Service Tax Department and was maintaining proper records of their transactions and paying service tax on the services taxable under the Banking and other Financial services. They were also filing regular returns with the Department. Thus, there is no question of Revenue Intelligence getting into of any short payment of service tax. As regards, none-payment of service tax on receipt of reimbursement from the State Marketing Federation, the authorised person of appellant company explained, in the course of investigation, that the same is towards the assistance in procuring paddy. The reimbursement is for the expenses in the nature of various procurement expenses like godown expenses, expenses on transportation of paddy and expenses on staff and other incidental expenses.
Extended period of limitation - suppression of facts or not - HELD THAT:- The issue involved is one of interpretation. Secondly, the service provided by the appellant – Cooperative Bank to Markfed, which is the Sate Marketing Federation, is in the nature of Business Auxiliary Services provided by a Commission Agent in relation to sale or purchase of agricultural produce, which is exempt from service tax under the Notification No.13/2003-ST read with Notification No.8/2004-ST. We further find that there is no suppression of records or contumacious conduct on the part of the appellant. The issue being one of interpretation, the extended period of limitation is also not available to the Revenue.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1882
Reopening of assessment u/s 147 - HELD THAT:- The very same petitioner approached this Court and filed a writ petition in [2021 (5) TMI 417 - MADRAS HIGH COURT] and challenged the said reopening proceedings. This Court, while entertaining the writ petition, has passed an interim order on 21.12.2018 permitting the assessment to go on and however, with a further direction to the Assessing Officer to keep the assessment order in a sealed cover. It is stated that the said order was communicated to the Assessing Officer on the very same day. However, he passed the assessment order on 21.12.2018 itself and communicated the same to the petitioner. Even though the AO is not prevented by this Court from passing the order of assessment, however, in view of the interim order granted by this Court, which was also communicated to him immediately, the Assessing Officer has to only keep the order of assessment in the sealed cover, without communicating the same to the Assessee.
Assessing Officer has not given effect to the interim order granted by this Court on 21.12.2018. Sending the order of assessment to the Assessee has in effect defeated the purpose of granting interim order by this Court, more particularly, when the very re-opening proceedings of the assessment has already put to challenge before this Court as stated supra. Therefore, under the above stated facts and circumstances, this Court is fully convinced to stay the impugned order of assessment, pending disposal of this writ petition, as the order to be passed will certainly have a bearing on the present impugned order of assessment.
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2019 (1) TMI 1881
Nature of expenditure - royalty held by the DRP as revenue expenditure - assessee submitted before us that the royalty in the year under consideration has been paid under a license agreement dated 27/10/2003 entered into with “Baxter International inc. USA” (in short the ‘Baxter USA’) for the right to use the patents, trademarks, know-how and software which is owned by Baxter USA and no ownership rights have been acquired or purchase by the assessee in any of the above - HELD THAT:- It is undisputed that the royalty in the year under consideration has been paid under the license agreement dated 27/10/2003 with the company namely Baxter USA. The addition made in earlier years has been deleted by the Tribunal in favour of the assessee.
Since there is no change in the license agreement in the year under consideration under which royalty has been paid as compared to the assessment year 2006-07 [2018 (8) TMI 2029 - ITAT DELHI] thus respectfully following of the decision of the Coordinate bench (supra), we uphold the finding of the learned DRP on the issue in dispute and dismiss the grounds No. 1 and 2 of the appeal of the Revenue.
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2019 (1) TMI 1880
Service of assessment order - validity of consequential recovery action - HELD THAT:- The assessment order was actually served on the petitioner. The petitioner's counsel is not in a position to say as to whether the said order was questioned in the manner known to law. The affidavit filed in support of the Writ petition is also silent. The petitioner has woken up only after the recovery action was taken. What is under challenge in this order is only the auction notice dated 27.07.2011. When the primary order has not been set aside or stayed in the manner known to law, the challenge to the consequential recovery action is not maintainable. Therefore, as long as the original order dated 30.09.2003 has not been challenged, there cannot be any challenge to the consequential recovery action. Of course the petitioner will be liable only to the extent of inheritance. There cannot be any personal liability for the legal representatives. The property of the original assessee alone can be proceeded against.
Petition dismissed.
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2019 (1) TMI 1879
Addition under the head ‘Income from House Property’ representing Annual Letting Value of unsold flat - notional ALV of the unsold flat, which is held by the assessee as stock-in-trade - HELD THAT:- We find that our case of C.R. Developments Pvt. Ltd. [2015 (5) TMI 1161 - ITAT MUMBAI] dealt with charging of notional income under the head ‘Income from House Property’ in respect of unsold shops which were shown by assessee therein as part of ‘stock-in-trade’. As per the Tribunal “The three flats which could not be sold at the end of the year was shown as stock-in-trade.
Estimating rental income by the AO for these three flats as income from house property was not justified insofar as these flats were neither given on rent nor the assessee has intention to earn rent by letting out the flats. The flats not sold was its stock-in-trade and income arising on its sale is liable to be taxed as business income. No justification in the order of AO for estimating rental income from these vacant flats u/s 23 which is assessee’s stock in trade as at the end of the year. Accordingly, the AO is directed to delete the addition made by estimating letting value of the flats u/s 23 of the I.T. Act.”
The aforesaid observation of our coordinate Bench squarely applies to the facts of the present case.
We find that Sec. 23(5) of the Act has been inserted by the Finance Act, 2017 w.e.f. 01.04.2018. In terms of the said section, it is prescribed that “where the property consisting of any building or land appurtenant thereto is held as stock-in-trade and the property or any part of the property is not let during the whole or any part of the previous year, the annual value of such property or part of the property, for the period up to one year from the end of the financial year in which the certificate of completion of construction of the property is obtained from the competent authority, shall be taken to be nil”. Though the said provision is effective from 01.04.2018, yet even if one is to see the present case from the standpoint of Sec. 23(5) of the Act, no addition is permissible in the instant year - completion certificate is stated to have been obtained on 28.11.2011 and going by the provisions of Sec. 23(5) of the Act, no addition is permissible in the instant assessment year. Be that as it may, we are only trying point out that the assessability of notional income in respect of unsold flat, which is taken as stock-in-trade, is not merited in the instant case - we set-aside the order of CIT(A) and direct the Assessing Officer to delete the addition. - Decided in favour of assessee.
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2019 (1) TMI 1878
Illegal procurement of bonus shares - thrust of the allegations in the complaint is that the shares in question were acquired from the funds of the complainant, though they have always stood in the names of the complainant and his brother - HELD THAT:- In the present case the shares in question, right since the date of acquisition have always been in the custody of Appellant No. 1. The material on record is absolutely clear that the acquisition was from the funds of Appellant No. 1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the Appellants in their application Under Section 245(2) Code of Criminal Procedure is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No. 2 and Respondent No. 2. If Respondent No. 2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum.
The material on record are considered, through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor [2013 (1) TMI 932 - SUPREME COURT] and it is convinced that the instant case calls for interference Under Section 482 Code of Criminal Procedure. Further, from the facts that Appellant No. 1 had disowned Respondent No. 2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed.
The application for discharge Under Section 245(2) Code of Criminal Procedure is allowed.
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2019 (1) TMI 1877
Reopening of assessment u/s.148 - addition on account of share capital and premium u/s.68 and addition on account of unexplained expenditure for obtaining the accommodation entry - HELD THAT:- Assessing Officer in the reasons for reopening of the assessment has also mentioned above information regarding accommodation entries of bogus purchases through bills without any delivery of goods by M/s. Maa Durga Trading Company. However, in the assessment order no such addition have been made by the Assessing Officer, because nothing adverse was found against the assessee. Payment for purchase could not be regarded escaped income u/s.148 of IT Act.
AO without verifying an information against the assessee merely acted on suspicion against assessee. The Assessing Officer without application of mind recorded the reasons for reopening of assessment. No specific material has been brought on record to justify reopening of the assessment, therefore, Assessing Officer has not validly assumed jurisdiction u/s.148 of the IT Act for reopening of the assessment in the matter. The documentary evidence filed on record also proved that assessee proved identity of the investor company, its creditworthiness and genuineness of the transaction in the matter. There was thus no justification to make any addition against the assessee. No evidence have been brought on record if assessee paid any amount as commission etc. for obtaining any accommodation entry. The issues are therefore covered by order of A.P. Refinery Pvt. Ltd.[2016 (5) TMI 55 - ITAT CHANDIGARH]. The decisions cited by ld. D.R. in the written submission would not support case of the Revenue. Appeal of the assessee is allowed.
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2019 (1) TMI 1876
Addition on account of undisclosed income as disclosed during the course of survey u/s. 133A - assessee contended that the firm is following Project Completion Method of accounting and the income would be offered to tax as and when the final sale deeds are registered - Commissioner of Income Tax (Appeals) deleted such addition which was confirmed by the Tribunal - as per HC no error in the view of the Tribunal - HELD THAT:- SLP dismissed.
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2019 (1) TMI 1875
Penalty levied u/s 271(1)(c) - Defective notice - non specification of charge - A.O. framed assessment u/s 153A r.w.s. 143(3) - HELD THAT:- We find that the notice issued for levy of penalty dated 24.3.2015 do not contain the specific charge - The revenue has not brought any contrary material suggesting that a valid notice was served on the assessee for initiating proceedings u/s 271(1)(c)
A.O. ought to have made specific charge, moreover the notice u/s 271(1)(c) of the Act dated 24.3.2015 is ex-facie defective and contrary to the judgement of the Hon'ble jurisdictional High Court in the case of PCIT-I Vs. Kulwant Singh Bhatia [2017 (8) TMI 1375 - ITAT INDORE]- Decided in favour of assessee.
Penalty u/s 271AAB - assessee could not specify and substantiate the manner in which the undisclosed income has been derived - payments in cash for material purchases - search & seizure operation was carried out in the business as well as residential premises of the appellant group, Indore including the assessee along with other concerns/business associates - HELD THAT:- It is recorded by the A.O. that during the course of search evidences related to payment in cash for material purchase was found and on examination of books of accounts, it was found that these amounts were not accounted for by the assessee. It is also stated by the assessing officer that through this letter Shri Deepak Kalra stated that these payments were made out of income from undisclosed sources and admitted these amounts as additional income from undisclosed sources. This fact is not rebutted by the assessee by placing any contrary material on record. Since there is no ambiguity under the law and the assessee has not placed any material which could suggest that these payments in cash for material purchases was recorded in books of accounts before search was conducted. The grounds raised in this appeal are dismissed and order of the Ld. CIT(A) is affirmed.
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2019 (1) TMI 1874
Levy of penalty under section 271(1)(c) - non specification of charge - defective notice u/s 274 - HELD THAT:- From a perusal of this notice, it is crystal clear that the charge for which penalty is proposed to be levied under section 271(1)(c) of the Act, whether for concealment of income, or for furnishing of inaccurate particulars of income, is not specific. The law mandates that the authority who is proposing to impose penalty shall be certain as to the basis on which the penalty is being levied and the notice must reflect that specific reason, so that the assessee, to whom such notice is given, can prepare himself regarding the defence which he would like to take to support his case. This is even enshrined in the principles of natural justice and as has been upheld by Hon'ble Apex Court and other High Courts. See S M/S SSA'S EMERALD MEADOWS [2016 (8) TMI 1145 - SC ORDER] and M/S MANJUNATHA COTTON AND GINNING FACTORY & OTHS., M/S. V.S. LAD & SONS, [2013 (7) TMI 620 - KARNATAKA HIGH COURT]
Thus we arrive at the considered view that the show cause notice, which has not specified the charge and limb under which the penalty is proposed to be levied, is void ab initio and the consequent penalty imposed on the basis of such notice is, therefore, illegal and bad in law and liable to be deleted. We, therefore, direct deletion of the penalty. - Decided in favour of assessee.
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2019 (1) TMI 1873
Release of attached movable and immovable properties of Corporate Debtor - notice has been issued against the Enforcement Directorate, and the proceeding is still pending - HELD THAT:- As Adjudicating Authority under IBC, we cannot exercise the powers of Appellate Authority against the order of PMLA Adjudicating Authority. It is also to be clarified that attachment order has been passed in the criminal case, which has been initiated on the basis of the investigation done by the Enforcement Directorate, on the allegation of dishonest intention to cheat Andhra Bank and other public sector banks and for causing wrongful loss to the banks to the tune of ₹ 5383 crores. No such moratorium order has been passed to stay the criminal proceedings and appeal against the attachment order is already pending before the Appellate Authority of PMLA Adjudicating Authority.
Application dismissed.
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2019 (1) TMI 1872
Stay applications - assessee sought extension of the stay already granted and extended time to time - HELD THAT:- The stay orders have been lastly extended vide orders dated 06/07/2018 and 13/07/2018. The record shows that the delay in disposal of the appeals is not attributable to the assessee. Therefore, the stay already granted against outstanding demand are further extended for a period of six months in each case or disposal of the appeal, whichever may expire earlier, subject to the same terms. Stay applications are allowed.
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2019 (1) TMI 1871
Stay on recovery proceedings - Section 35A of Central Excise Act - HELD THAT:- Having regard to the fact that the recovery proceedings are seized of by the Appellate Tribunal, it is necessary that the criminal prosecution against the petitioners are initiated depending upon the decision of the Appellate Tribunal.
Petition allowed.
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2019 (1) TMI 1870
Adjustment made on account of income tax on brand usage royalty - HELD THAT:- We find that this issue is covered by the co-ordinate Bench decision of this Tribunal in assessee’s own case for assessment year 2005-2006 in [2018 (12) TMI 1515 - ITAT MUMBAI] application made by the assessee to RBI for brand usage agreement specifically mentions that the royalty to be remitted is net of taxes. Further, the approval was received from the RBI to remit the royalty on brand usage by the assessee @ 1 % net of taxes. Considering the brand usage agreement vis-à-vis the approval granted by RBI, it can be safely inferred that taxes were liability of J&J India under the terms of agreement. The assessee has entered into a commercial arrangement with J&J US and it has been so arranged that the payment of taxes have to be borne by the assessee being a commercial arrangement, the same should not be questioned while calculating arms length price. Reliance by the assessee on the decision of the Tribunal in the case of Dresser Rand India Pvt. Ltd. [2012 (10) TMI 127 - ITAT MUMBAI] is well founded. Considering the entire facts in totality in the light of the brand usage agreement and the approval of the RBI, the findings of the Ld. CIT(A) is set aside. The AO is directed to delete the addition.
Adjustment made on account of payment of royalty on traded finished goods made by the assessee to Johnson & Johnson, USA - HELD THAT:- As perused the orders of the lower authorities and the material evidence brought on record in the form of paper book. In assessee's appeal, we have already held that the agreements between J&J India and J&J USA for payment of royalty has to be considered in the light of the approval of the RBI. We do not find any substance in the findings of the TPO that there is no need for paying royalty for technical/marketing know-how.
We also do not find any force in the findings of the TPO that this royalty is deemed to be included in Brand royalty. The Ld. CTT(A) has rightly considered the relevant clauses of the agreement between J&J India and J&J USA. We, therefore, do not find any reason to interfere with the findings of the Ld. CIT(A).
Technical know-how royalty payment at 2% / 4% instead of 1% as done by the ld.TPO - HELD THAT:- As relying on own case [2014 (2) TMI 978 - ITAT MUMBAI] payment of royalty has to be considered in the light of the agreement between the assessee and J&J USA.
Adjustment made on account of service tax paid by the assessee on know-how royalty - HELD THAT:- We find that this issue is covered by the co-ordinate Bench decision of this Tribunal in assessee’s own case for assessment year 2005-2006 in [2018 (12) TMI 1515 - ITAT MUMBAI] after considering the agreements entered into between the assessee and J&J US and also the decision in the case of Dresser Rand India P. Ltd. [2012 (10) TMI 127 - ITAT MUMBAI] that the taxes were liability of the assessee- company under the terms of agreements and accordingly disallowance made by AO were deleted. Further, we also observe that liability of payment of service tax is of recipient of services and since assessee is the receiver of services, it is the liability of the assessee company to bear service tax. Hence we hold that TPO was not justified to state that liability of bearing service tax was of assessee-company. In view of above, we hold that disallowances made by TPO on account of taxes, services tax is not justified and we direct to delete the same.
Adjustment made on account of sales and promotion expenses - HELD THAT:- Rule 10B specifically provides the procedure to be followed fordetermining Arm's Length Price. We observe that the TPO while suggesting the disallowance of 200.82 Lakhs out of the expenses incurred by assessee on publicity and sales promotion has not followed any of the method and therefore the said adjustment/disallowance suggested by TPO is outside its jurisdiction. During the course of hearing, id. DR submitted that the matter could be restored to TPO to decide afresh after considering the guidelines laid down in the case of L.G. Electronics India (P.) Ltd. [2013 (6) TMI 217 - ITAT DELHI]. Since no specific submissions were made and considering the fact that the assessee justified the payment of technical know-how royalty at the rate of 4% of net sales which is lower than Arm's length rate of 4.84% and the said fact, we have also discussed herein above in para 33 of this order, that the payment of royalty by assessee to its parent company is at Arm's Length, we do not find any justification to make the said disallowance of ₹ 200.82 lakhs as suggested by TPO towards the shares to be contributed by AE of the asses see-company. Therefore, we delete the said disallowance made by AO by allowing ground of the appeal taken by assessee.
Grand credit in respect of retained MODVAT credit relating to opening stock - HELD THAT:- CIT(A) allowed relief to the assessee by following the decision of Hon'ble High Court in Mahalaxmi Glass Works[2009 (4) TMI 182 - BOMBAY HIGH COURT] which was also followed by his predecessors in A.Y. 2003-04 & A.Y. 2004-05. Considering the consistent view on the issue which was followed by Id. CIT(A), therefore, we do not find any justification to interfere in his order.
Addition on account of payment on fees paid for legal counseling u/s 40A(2)(b) - HELD THAT:- We find that the Ld. CIT(A) has deleted the addition holding that for the payments for legal counseling, it is futile to think of comparables because counsels may not charge standard fee but may charge according to the issue involved. The Ld. CIT(A) further observed that if the AU wanted to disallow on the ground of excessive payment, he ought to have established excessiveness of the payment. This has not been done. Considering the decision of the Tribunal in assessee's own case, in the light of the observations made by the Ld. CIT(A), we do not find any reason to interfere with the findings of the Ld. CIT(A) .
Depreciation on testing equipment provided to laboratories and hospitals free of charge - HELD THAT:- Similar issue was raised in the case of assessee's sister concern, namely, NR Jet Enterprises Limited has held that depreciation should be allowed on the testing equipment provided to laboratories and hospitals free of charge as the said equipments have been provided to the laboratories and hospitals for making profit from the sale of slides. The learned Departmental Representative did not contravene this position.
Addition due to non-reconciliation of AIR data - HELD THAT:- As relying on SHRI S. GANESH [2016 (5) TMI 792 - BOMBAY HIGH COURT]assessee gave an explanation that the break-up as desired cannot be given and with regard to all payments. It is pointed out that at times, assessee receives fees directly from the clients or from the instructing Advocates or Chartered Accountants if such professionals have collected the amounts from the clients.Under these circumstances, the break-up as desired cannot be placed on record. An explanation which has been given by the assessee and accepted in the past has been now accepted by the Tribunal once again. Since it is accepted for the Assessment Year 2006-07, in the peculiar facts, in relation to the present assessee, we are of the view that this Appeal does not deserve to be entertained. It does not give rise to any substantial question of law,
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2019 (1) TMI 1869
Bogus LTCG - unexplained credit u/s.68 - denial of exemptions claimed u/s 10(38) - HELD THAT:- In the identical facts and circumstances, the Hon’ble ITAT Ahmedabad in the case of Ketulkumar D.Jaiswal [2017 (10) TMI 168 - ITAT AHMEDABAD] decided issue in favour of assessee stating that no direct or material evidence against the assessee to hold that the share transactions were not genuine - additions made by the AO u/s.68 are not warranted and are accordingly deleted.
In this case, transaction are made for the D-mat account and STT has also been paid. Assessee has sold his shares to authorized stock exchange and received Invoice duly paid STT on his selling shares. In our opinion, the order of the CIT(A) is not sustainable. - Decided in favour of assessee.
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2019 (1) TMI 1868
Smuggling - Gold - inability of the respondent to present coaccomplice who have given statement examination for cross –examination by the petitioner - HELD THAT:- In the present case, the 1st respondent has relied on the statements of appellant and co-accomplices while passing Order in Original. They are his employees and partners and partner’s brother who are either absconding or are not traceable and cannot be produced for cross examination - They have reportedly retracted their statements recorded under Section 108 of the Act though some of them have withdrawn their retractions and have stated that their original confessions to be true in their later statements. From the order impugned in the writ petition, it appears that certain admissions appears to have been made by the appellant relating to his involvement in which case there would be no necessity to cross examine the co-notices.
However there are no documents produced. Even if produced, we would have refrained from dissecting them while examining the order of the Single Judge - Therefore, denial of cross-examination of co-accomplice who have allegedly retracted their statements is of no consequence as far as the appellant is concerned.
An order of a quasi judicial officer is sustainable if the finding arrived therein are based on preponderance of probability and other overall evidences and documents on record. Whether the finding arrived in the impugned order is solely based on the statements of co-accomplices or based on preponderance of probability or not is something which can be examined only before the Appellate Commissioner and not in a writ proceeding - Scope of writ petition and the extent to which courts can interfere under Art. 226 is limited. The appellant should therefore explore options before the Appellate Commissioner and place all legal and factual submissions there. The remedies sought for by the appellant before this Court is available to him before the Appellate Commissioner.
The Appellate Commissioner can on proper examination of records can come to a just conclusion. As the jurisdiction to interfere is very limited, we would not like to pass orders on merits particularly in view of the statements which appears to have been given by the appellant before the 2nd respondent during investigation - appeal dismissed.
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