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Showing 181 to 200 of 1076 Records
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2014 (10) TMI 904
Revision u/s 263 - deduction under Section 80IB(10)- HC [2012 (9) TMI 1010 - DELHI HIGH COURT] held it is certainly a debatable issue on which more than one plausible view is reasonably possible and merely because the Assessing Officer has taken one plausible view, it cannot be said that the assessment is erroneous or prejudicial to the interest of the Revenue.
Apex court ordered that matters are de-tagged. Leave granted.
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2014 (10) TMI 903
Assessment u/s.158BD - penalty order u/s.158BFA qua the said assessment - Revenue claims that there has been due recording of satisfaction by the A.O. (of the person searched), coupled with it’s conveyance, along with the relevant material, to the assessee’s A.O., in due compliance of the procedure contemplated u/s.158BD - tribunal’s finding that it is not so, which forms the basis of its quashing the assessment and, consequently, the penalty, is therefore factually incorrect, necessitating rectification
Held that:- We find no basis to hold that the tribunal had considered the letter dated 21.08.2000, as contended before us by the assessee; it, rather, proceeding on the premise of the absence of recording of any such satisfaction as being the admitted position. There has thus clearly occurred a mistake by the tribunal in so recording.
The letters 21.07.2010, 23.09.2009 and 29.12.2008; the statement recorded u/s. 132(4) of Shri G. R. Madani on 18.12.1998 (PB pg.4); the warrant of authorization dated 17.12.1998, et. al. are all supplementary materials, and have to be considered. Whether the satisfaction stands correctly recorded; whether the same is in the manner as contemplated under the Act; whether these matters are at all justiciable, etc. are all matters of arguments, which do not arise out of the tribunal’s order, including the questions raised, and the arguments made in pursuance thereof, before it. Even otherwise, it is doubtful if these aspects could be considered in the rectification proceedings. Rather, as apparent from the reading of paras 3 to 7 of the impugned order, the arguments pertained to the satisfaction dated 30.08.2000, i.e., by the assessee’s A.O., and which having not been separately recorded again by the present A.O., was argued by the assessee to be violative of the scheme of the Act. As we observe, the tribunal confused the issue of notice u/s.158BD, i.e., on 30.07.2001, with the recording of the relevant satisfaction - which is to be by the A.O. of the person searched, comparing the said date with that of the finalization of his assessment u/s.158BC on 29.12.2000, and which are clearly not to be compared, particularly in the facts and circumstances of the case. The satisfaction in terms of section 158BD, it is clear from the relevant provision, besides being by now well settled, is to be recorded by the A.O. of the person searched and not the assessee’s A.O., who though would issue notice u/s. 158BD.
Here it may also be pertinent to state that the Revenue had proceeded against the assessee u/s.158BC, i.e., in the first instance, in view of the specification of the assessee’s name in the warrant of authorization itself (copy on record), as sought to be emphasized by the assessee’s A.O. to the ld. CIT-DR vide the letters afore-referred. Also, there is no gainsaying, being a matter of trite law, that the exercise of power would be referable to a jurisdiction conferring validity upon it and not to a jurisdiction under which it would be nugatory. Further, the assessment u/s. 158BC, even if the assessee is not the person searched, is therefore to be construed as u/s.158BD, which only enables the assessment of the undisclosed income for the block period in respect of the person other than the person searched, and which (assessment) would only be u/s.158BC, as stands amply clarified by the amendment to section 158BD by the insertion of the words ‘under section 158BC’, after the words ‘shall proceed’ and before the words ‘against such other person’, by Finance Act, 2002 w.e.f. 01.06.2002, which is therefore only clarificatory in nature, operating to validate even the assessment in the first instance on 29.12.2000; the second being on 28.07.2003
In view of the foregoing, the impugned order is accordingly amended by vacating the findings by the tribunal per the impugned order, i.e., as to the absence of the jurisdictional facts for the Revenue to proceed u/s.158BD. The Revenue’s appeals are accordingly restored for being decided on merits, i.e., on all grounds, for which purpose the matter is to be placed before the regular bench. - Decided against revenue
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2014 (10) TMI 902
TDS u/s 194I - non deduction of tds on lease premium paid to Pimpri Chinchwad New Township Development Authority (PCNTDA) - demand raised under section 201(1) and 201(1A) - Held that:- The lease premium was paid to PCNTDA by the assessee as a pre-condition for entering into a lease agreement, the same cannot be said to have been paid consequent to the lease agreement executed between the parties. Further, the CIT(A) has given a finding that stamp duty had been paid on the market value of the plot represented by the lease premium, which has not been controverted by the learned Departmental Representative for the Revenue. We uphold the order of CIT(A) in holding that the lease premium paid by the assessee is outside the purview of section 194I of the Act and the Assessing Officer was not justified in raising the demand under section 201(1) and 201(1A) of the Act. The grounds of appeal raised by the Revenue are thus, dismissed. - Decided in favour of assessee.
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2014 (10) TMI 901
Transfer pricing adjustment - inclusion of two comparables by the TPO namely, Brescon Corporate Advisory Ltd. and Sumedha Fiscal Services Ltd., for bench marking the assessee’s arm's length price - Held that:- The assessee has been rendering non–binding investment advisory support services to its A.E. TPG Capital L.P., the functional profile which has been incorporated in the forgoing paragraph reflects that the role of the assessee is limited to providing information and making recommendation for the investment in India. Such advisory services are not binding on its A.E. which take its own call after analysing the details and information given by the assessee. From the functional profile of Sumedha Fiscal Services Ltd., it is seen that it is mainly engaged in investment banking and security dealing.
Now coming to the Brescon Corporate Advisory Ltd., it is seen that this company is a leading player in distress and special situation advisory and investment services. It assists the companies in a special situation like re–capitalization, mergers and acquisition, infusion of private equity or direct investment. Its main revenue is from debt syndication and financial re–structuring advisory services. Thus, such a functional profile cannot be held to be comparable at all with the services / functions performed by the assessee which are mainly on account of advisory support services of providing information and investment recommendation. In view of these functional differences, it cannot be held that the said company is comparable on FAR analysis. Accordingly, Brescon Corporate Advisory Ltd., cannot be held to be a comparable company for the purpose of bench marking the assessee’s margin.
Thus, both the comparable companies as taken by the Transfer Pricing Officer should be excluded from the list of financial comparables. After excluding these two comparables, the assessee’s margin should be bench marked with the other list of comparables as taken by the Transfer Pricing Officer i.e., out of 10 comparables these two comparables are to be removed and based on the arithmetic means of the margin of the final set of eight comparables, the assessee’s margin should be bench marked accordingly. - Decided in favour of assessee.
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2014 (10) TMI 900
Disallowance u/s. 14A r.w.s. Rule 8D - Held that:- Calculation of the assessee was given but CIT(A) has not given any finding whether this calculation is as per law or not. The CIT(A) has not called for remand from the Assessing Officer, therefore, in the interest of justice and fair play, we restore this calculation to the file of CIT (a) is directed to recalculate the disallowance u/s. 14A r. w. Rule 8D of the IT Act, and CIT (A) is directed to pass the speaking order after considering this calculation and pass the order as per law giving opportunity of hearing to the assessee. - Decided in favour of assessee statistical purpose.
Contribution to Goa Infrastructure Development Company Limited, a Government undertaking, towards construction of Usgao Bridge - revenue or capital expenditure - Held that:- This bridge allowed only one way traffic at a time and was meant for light general traffic namely buses, cars etc. With increase in exports of iron ore from 16 million in 2005 to 50 million till March 2012, there was a need to build a new bridge without which it would not be possible to continue to export on sustainable basis. Until the new Usgao bridge came into operation there was long line of trucks waiting on either side of existing bridge to transport the iron ore. By this, precious time was lost which in turn trucks made less numbers Of trips per day. This in turn increased cost of transport. After the new bridge was commissioned loaded trucks and empty trucks moved in opposite direction without having to stop or wait for the bridge passage. This establishes clearly that the share of expenses for construction of the new Usgao bridge has resulted in revenue in terms of cost per ton transported as well as increase in the quantity of ore exported/sold. Expenditure incurred by company as share for construction of New Usgao bridge cannot be capital expenditure but is entirely revenue expenditure. Amounts paid as contribution for construction of a bridge for providing easier access for its workmen and movement of goods would be permissible revenue expenditure as had been held in CIT v. Coats Viyella India Ltd. [2000 (11) TMI 24 - MADRAS High Court ] following the decision in L.H. Sugar Factory and Oil Mills (P) Ltd. V. CIT [ 1980 (8) TMI 1 - SUPREME Court ] where a similar contribution for construction of a road to facilitate the business of the assessee was held to be revenue expenditure. The fact that such contribution resulted in capital asset would not make any difference, because the assessee is not the owner of such asset created by the contribution. - Decided in favour of assessee
Addition towards Port Development Expenses - revenue expenses v/s capital expenses - Held that:- Such amounts may not be treated as capital expenditure merely because the benefit of such expenditure would overflow the expenditure itself. Such expenditure cannot be treated as capital expenditure. We are of the view the CIT (A) appeal is justified in treating dredging expenses as revenue expenditure - Decided in favour of assessee
Addition on account of Salvage Wreck Removal Expenses - revenue expenses v/s capital expenses - Held that:- we find that the M.V. Sanjeevani, a ship was sunk prior to 1996 and as per the Court order the assessee conducted the salvage operation of the ship in this year. The Assessing Officer denied the claim of the assessee. The company ship belong to the assessee and as per the Court order the assessee has incurred this expenditure for business purpose. The assessee offer for taxation of sale value of scrap generated in the year in which it is sold. The assessee has relied upon the decision of CIT vs. Crescent Films (P.) Ltd. (1998 (11) TMI 17 - MADRAS High Court ) wherein it is held that in the case of salvaging asset if the expenditure or nature of transaction is such as to be regarded as one in the revenue field, it cannot be treated as capital, merely because such expenditure is incurred for the purpose of salvaging the capital. We find that the CIT(A) is justified in his treating this expenditure as revenue expenditure - Decided in favour of assessee
Ship renovation Expenses - revenue expenses v/s capital expenses - Held that:-ant case Assessee has incurred heavy expenditure on replacement of part of ship but no new assets have been created by the Assessee. We find that new assets has come the character of the ship is not change. In order keep the vessels sea worthy Assessee has incurred the expenditure. The Assessee has not replaced old machine. In the instant case we find that entire hull of the ship was not changed. Every ship has to go for dry docking almost for every year and these annual repairs are essential because there is always lot of were and tear of parts, resting of steel plates of hulls with requires the replacement and repairs we cannot be made without taking into dry rock. We find that by incurring these expenses the sea sip in training condition. The assessee has made renovation and replacement of parts therefore, this is revenue expenditure.We are of the view that the CIT(A) is justified in his action and our interference is not required.
Addition on royalty payment - Held that:- Looking to the facts and circumstances of the case, we find that the assessee has submitted before the CIT(A) that assessee has paid the royalty with penal interest on 1,99,152 MT to Mining Department, Goa. It is a regular practice followed in Goa when that as and when the ore is extracted and moved from the mine for the sale, royalty is paid. The ore of 1,99,152 MT was lying on the mine during the financial year 2007-08 and it was moved out of mine in the financial year 2010-11. The royalty has been paid to Director of Mines on 18.10.2010 shows clearly the quantity and year of extraction of ore on which the royalty is paid and assessee has paid royalty of ₹ 25,17,281/-. We find that after considering this evidence the Commissioner of Income Tax was of the view that assessee has paid the royalty on this iron ore, therefore, he has deleted the addition and our interference is not required
Disallowance u/s 14A calculation - Held that:- DR could not bring any evidence before us to show that calculation of Commissioner of Income Tax is not as per the rule, therefore, we have no alternative except the endorse the action of CIT(A). We find that the CIT Appeal has held that the Assessee has not paid any interest or acquiring investments therefore, he has restricted these disallowance to ₹ 5,10,283/-. We are the view that CIT (A) is justified in his action in the result department appeal is dismissed - Decided against revenue
Expenditure on repairs and maintenance of Ship - Held that:- A.O. is directed to allow these expenses as revenue expenses and deleted the addition made on this account - Decided against revenue
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2014 (10) TMI 899
Determination of disallowance u/s 14A - Held that:- Determination of disallowance u/s 14A of the Act of ₹ 5,00,000/- was based on the employee costs and other costs involved in carrying out this activity. Further, assessee also explained that the shares which have yielded exempt income were acquired long back out of own funds and no borrowings were utilized. The mutual fund investments were claimed to be also made out of surplus funds. It was specifically claimed that no fresh investments have been made during the year under consideration in shares yielding exempt income.
All the aforesaid points raised by the assessee have not been addressed by the Assessing Officer and the same have been brushed aside by making a bland statement that the disallowance is “not acceptable”. Therefore, in our view, in the present case, the Assessing Officer has not recorded any objective satisfaction in regard to the correctness of the claim of the assessee, which is mandatorily required in terms of section 14A(2) of the Act and therefore his action of invoking rule 8D of the Rules to compute the impugned disallowance is untenable. Accordingly, the orders of the authorities below are set-aside on this aspect and the Assessing Officer is directed to retain the disallowance u/s 14A of the Act to the extent of ₹ 5,00,000/-, as returned by the assessee. - Decided in favour of assessee.
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2014 (10) TMI 898
Waiver of pre-deposit - order made prior to the amendment made u/s. 35F which came into force w.e.f. 6-8-2014 - Held that:- since vires of enactment is under challenge, let copy of petition along with documents annexed thereto be separately served in the office of Additional Solicitor General who is representing Union of India. In the meanwhile, the appeal preferred by the petitioner shall not be dismissed provided the petitioner comply with the condition of pre-deposit in terms of amending Section 35F introduced w.e.f. 6-8-2014 within a period of two weeks. - Appeal to be listed on another date
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2014 (10) TMI 897
Deemed Dividend addition u/s. 2(22)(e) - Held that:- Sec. 2(22)(e) of the Act covers only those transactions which benefit the shareholder alone and results in no benefit to the company. On the other hand, if the transaction is mutual by which both sides are benefited, it is undoubtedly outside the purview of provisions of sec. 2(22)(e) of the Act. From the above, it is clear that the loan account differs from current account and the provisions of section 2(22)(e) of the Act, being a deeming section, cannot be applied to current account. In such circumstances, we delete the addition. See Mr. Purushottam Das Mimani Versus Dy. Commissioner of Income Tax, Central Circle-V Kolkata [2014 (12) TMI 801 - ITAT KOLKATA ]
Disallowance on account of expenditure under miscellaneous receipts - Held that:- We find that the lower authorities have made addition on the basis that no supporting evidence for claim of this expenditure was filed even though enough opportunity was provided to the assessee. Even now before us the assessee failed to provide any evidence or made no argument. Hence, this issue of assessee’s appeal is dismissed.
Assessment under Section 153A - Held that:- It is not open for the assessee to seek deduction or claim expenditure which has not been claimed in the original assessment, which assessment already stands completed, only because a assessment under Section 153A of the Act in pursuance of search or requisition is required to be made.
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2014 (10) TMI 896
Cenvat Credit denied - demand confirmed along with interest and penalty on the ground that the said amount of Cenvat credit was inadmissible - Held that:- As contended by appellants that the “inputs” were not cleared by them as such and were actually used for manufacture. It is only when some parts were found to be defective during manufacture or testing of the transmission equipment that such parts were re-exported for compensation/replacement and therefore provisions of Rule 3(5) of the Cenvat Credit Rules cannot be invoked inasmuch as the same relates to clearance of the inputs as such.
We find that the Tribunal in an inter parties Final Order [2015 (5) TMI 93 - CESTAT NEW DELHI] involving identical issue has decided in favour of the appellants and set aside a similar demand (for a different period). Following the precedent and for the reason like, we dispense with the pre-deposit and allow the appeal.
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2014 (10) TMI 895
Denial of Cenvat credit - Availed on the basis of invoices issued by their head office registered as Input Service Distributor - Revenue contended that invoices issued were when the Head Office was not registered as Input Service Distributor, the credit has been availed on the basis of TR-6 challan and there are no invoices produced by the appellant, in some of the cases.
Held that:- by relying on the decision of Tribunal in the case of Doshion Ltd. v. CCE, Ahmedabad [2012 (10) TMI 952 - CESTAT AHMEDABAD], the distribution of credit by the Head Office without taking the registration, cannot be adopted as a ground for denial of the credit. By referring to the decision of Tribunal in the case of Gaurav Krishna Ispat (I) Pvt. Ltd. v. CCE, Raipur [
2008 (10) TMI 22 - CESTAT NEW DELHI] and also in the case of CCE, Goa v. Essel Pro-Pack Ltd. & Ors. [2007 (9) TMI 43 - CESTAT, MUMBAI], TR-6 challan can be considered to be a proper document for passing on the cenvat credit.
As regards the third objection of the Revenue. It is seen that during the interim stage, Revenue was directed to verify the documents which the appellant contended to be with them and give a report. Some of the invoices issued by the provider Head Office were for pre-registration period. Inasmuch as the said aspect needs verification, we deem it fit for the original adjudicating authority to do so. Therefore, the impugned order is set aside and matter is remanded back to the original adjudicating authority for verification of the documents relatable to the third part of the demand. - Appeal disposed of
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2014 (10) TMI 894
Whether the detenue has to actually suffer the enforcement of the detention order to be given its copy and whether there is due and fair application of mind by the detaining authority on the proposal of the sponsoring authority is also an issue that would fall within this class of arguments - High Court held that without a copy of the detention order and the grounds of detention being served on the proposed detenue, it would be inconceivable that we should proceed to hear the matter on grounds as to the contents of the detention order or its grounds reported in [2014 (7) TMI 1193 - KERALA HIGH COURT] - Apex Court stayed the operation of impugned order pending further order from this court.
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2014 (10) TMI 893
Imposition of penalty - Section 53(2-A) of the Act - Non-submission of E-Sugama Form or E-Sugama Link - Held that:- Ffrom the notification it is clear that, this obligation was introduced into law from 1.4.2010. Now, efforts are made to educate the dealers and, the obligation to comply with the said requirement. In the earlier notification issued it was made clear that penalty should not be imposed unless the goods is intercepted by a Mobile Check Post. However, in a subsequent circular with reference to notification dated 28.2.2011 where also the rubber is included, again it is reiterated that penalty should not be imposed till the end of the said year. When law is amended, compliance is required from the dealers, whatever the advances in technology we have made, it takes some time to adjust to the new situations and circumstances.
When the authorities realizing this hardship by the circulars are insisting on compliance with the law and not to impose penalty for some time. Keeping in mind the said circulars and the fact that the law is amended with effect from 1.4.2010 and it is on 8.8.2010, hardly four months after the new provision came into force, the assessee committed the default. However, on pointed out, immediately he has complied with the said requirement of law.
There is no justification seen to impose the penalty. The Revisional Authority was in error in invoking his revisional powers to interfere with the matter of this nature as the law was new and there is compliance by the assessee immediately when it was brought to his notice. In the circumstances, it cannot be said that the order passed by the Appellate Commissioner is erroneous and prejudicial to the interest of the revenue. Therefore, the impugned order is set aside. - Decided in favour of appellant
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2014 (10) TMI 892
Waiver of interest payable under section 234B - earned single judge extending the benefit of the Board Circular, in particular, clause 2(c) in the case of the assessee and granting relief to him for waiver - Held that:- In any assessment or reassessment proceedings the advance tax paid by the assessee during such financial year is found to be less than the amount of advance tax payable on his current income and the assessee is chargeable to interest under section 234B or section 234C and the Chief Commissioner/Director General is satisfied that this is a fit case for reduction or waiver of such interest, he can exercise his power and grant the relief to the assessee. As is clear from the aforesaid clause, if any order is passed on the basis of any order passed by the High Court within whose jurisdiction the assessee is not assessable to income- tax, then the benefit of the circular is not available to the assessee. The said circular is carefully worded making it clear that it is only when a judgment of the High Court within whose jurisdiction the assessee is assessable is not liable to pay tax or if the Supreme Court of India declares the law, it is the law for the whole country and then only the assessee would be entitled to have such benefit. Therefore, the observations of the learned single judge, the decision of the High Court or the Supreme Court need not be in the case of assessee is not a correct statement of law having regard to the wordings of the circular. It is only the decision of the High Court within whose jurisdiction the assessee is assessable is invoked which is reversed by the Supreme Court or if the Supreme Court lays down the law in a case arising from any jurisdiction in the entire country, the assessee would be entitled to the benefit. Therefore, drawing analogy and giving a particular interpretation would not be in accordance with law.
In this view, the learned single judge was not justified in extending the benefit of the said circular when it was not applicable to the case of assessee. - Decided in favour of revenue
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2014 (10) TMI 891
Addition on account of alleged perks paid out of un-disclosed sources - Held that:- Having regard to the retraction and the fact that there is no other material found during the course of search or even gathered in the course of assessment proceedings to corroborate the initial statement of Shri Mahendru, we are inclined to uphold the order of the ld CIT(A) in deleting the addition - Decide against revenue
Addition u/s 14A - Held that:- In the instant case, it is an admitted position that assessee had made investments of ₹ 53.73 crores at the close of the year. It is also not in dispute that there was dividend income from such investments which was claimed as exempt. Also assessee had made an adhoc disallowance u/s 14A of ₹ 2 lakhs in the instant year, in the return filed before the AO. The Assessment Year is 2008-09 and as such Rule 8D is applicable, thus once section 14A comes into operation, then disallowance as mandated u/s 14A read with Rule 8D comes into force. No specific challenge has been made against the computation made by the AO applying Rule 8D. Therefore we are inclined to affirm the order of the ld CIT(A) - Decide against assessee
Disallowance u/s 14A while computing the income u/s 115JB - Held that:- As per the Explanation to section 115JB of the Act, book profit is defined to be the net profit shown in the Profit & Loss Account for the relevant previous years as increased/reduced by the amounts specified in the clauses mentioned thereunder. The disallowance worked in the hands of the assessee under the provisions of section 14A of the Act is not covered by the aforesaid clauses. See ACIT Vs. Spray Engineering devices [2012 (7) TMI 587 - ITAT CHANDIGARH]. We respectfully concur and therefore delete the Disallowance u/s 14A to the Book Profits, while computing the income u/s 115JB of the Act - Decide against revenue
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2014 (10) TMI 890
Undisclosed income on account of the improper disclosure, or suppression of the production - Held that:- Superintendent of a Central Excise would not have ventured to record his own findings about the matters like burning losses or other relevant issues and would have chosen to avail of the services of a metallurgical expert. What we have extracted above is just a sample. The whole order is full of such discussions and instances. It is on the basis of such an exercise, that the Assessing Officer arrived at the conclusions that the undisclosed income on account of the improper disclosure, or suppression of the production for various assessment years is ₹ 1,22,86,712. Even the expenditure incurred for purchase of raw materials became the subject matter of extensive discussion, without indicating as to how the purchase of raw material can have any impact upon the income of an assessee, that too, of a manufacturing company. In the order of assessment, which runs into 31 closely typed pages, such instances are galore.
Obviously, to analyse and understand the approach of the Assessing Officer, the Tribunal discussed the matter at length. The order passed by it runs into 48 pages. At more places than one, it was pointed out that the stock available on ground, cannot be compared or verified with reference to the RG-I register. It was also pointed out that by-products or waste materials, such as slag, was treated by the Assessing Officer as the main product or an income yielding material and the conclusions were arrived at, only on the basis of assumptions. We agree with the findings recorded and view expressed by the Tribunal.
An Income-tax Officer cannot carry out the functions of an authority under the Central Excise Act and arrogate to himself the power to determine the quantity of production, or to utter a final word on the intricacies of the manufacturing process, that too, without referring to any reliable material. The Assessing Officer, in the instant case, was totally unsuited for undertaking the activity of determining the exact production of the material, which itself involves very complicated procedures.
In the appeal of the assessee also, we do not find any substance. The amounts that were untouched by the Tribunal represent the value of the land that was purchased during the block period. The relevant facts and figures were taken into account and a proper conclusion was arrived at. We do not find any basis to interfere with the same. - Decided in favour of assessee
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2014 (10) TMI 889
Penalty levied u/s.271D - Held that:- The assessee has been taking consistently inconsistent stand before different authorities. The assessee is trying to weave a cover up stories to cloth his follies. The explanations put forth are after thought which the assessee is trying to fit in by hit and trial. Therefore, it is difficult to believe on the stand taken by the assessee before the Tribunal. Be that as it may, it is an un-denying fact that the assessee has taken cash loan of ₹ 20.00 Lakhs in violation of provisions of section 269SS. Here it would be relevant to mention that whether the loan was taken for personal purpose or for the firm the provisions of section 269SS have equal applicability. The assessee has not been able to furnish explanation worth relying to set aside the penalty. In these circumstances, we are constrained to uphold the order of CIT(Appeals) confirming levy of penalty u/s.271D.
Penalty u/s.271E - Held that:- The Assessing Officer in the penalty order has re-produced the extract of questionnaire wherein Mr.A.Kannan has admitted that he runs money lending business, he lends money in cash and receives back in cash. He does not lend or receive back in cheque or draft. The assessee took loan in cash from a private money lender. Once in the trap of private money lender, the assessee was forced to follow his diktat. The assessee even if willing to re-pay the loan amount through banking channel was forced to pay in cash due to the terms imposed by the money lender. The assessee re-paid the loan amount in instalments of ₹ 2.00 Lakhs each in the period spread over in the AYs.2008-09 & 2009-10. Once in debt, assessee had no option but to accept the terms imposed by the money lender, Mr.A.Kannan for re-payment of loan amount. In these circumstances, we are of considered opinion that the assessee was constrained to re-pay loan amount as per the whims and fancies of Mr.A.Kannan by violating the provisions of section 269T. In the facts of the case, we are satisfied that the re-payment of loan amount in cash was out of compelling reasons. The penalty levied u/s.271E is deleted, the impugned orders are set aside and the appeals of the assessee are allowed.
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2014 (10) TMI 888
Long term capital gains - indexation of the cost of the property - whether the index cost for acquisition is applicable for 1981-82 or financial year 2005-06 in which the property was inherited by the assessee - assessee taking into account expenditure in connection with transfer and indexed cost of acquisition for computation capital gain - Held that:- Special Bench in the case of Manjula J Shah Vs. DCIT (2009 (10) TMI 646 - ITAT MUMBAI) which has been confirmed by the Hon’ble Bombay High Court reported in (2011 (10) TMI 406 - BOMBAY HIGH COURT) wherein held that when the assessee sells his immovable property which is acquired under gift or will, while computing the capital gain the index cost of acquisition has to be computed with reference to the year in which previous owner first held the asset and not the year in which the assessee became the owner of the asset. Therefore, the ratio of this decision is squarely applicable to the facts of the present case of the assessee.
Thus we direct the AO to allow the cost inflation indexation to the assessee from 01.04.1981 for computation of capital gains. - Decided in favour of assessee
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2014 (10) TMI 887
Payment of Service tax - Reverse charge basis through Cenvat credit - Held that:- the Appellate authority has correctly relied upon the decision of Tribunal in the case of CCE Vs. Nahar Industrial Enterprises Ltd. [2007 (3) TMI 201 - CESTAT NEW DELHI] which stand approved by the Hon'ble Punjab & Haryana High Court reported in [2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT]. Therefore, no reason found to interfere in the impugned order. - Decided against the revenue
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2014 (10) TMI 886
Bad debt claim disallowed - Held that:- The proviso to Section 36(1)(vii) does not, in absolute terms, control the application of this provision as it comes into operation only when the case of the assessee is one which falls squarely under Section 36(1)(viia) of the Act. We may also notice that the explanation to Section 36(1)(vii), introduced by the Finance Act, 2001, has to be examined in conjunction with the principal section. The explanation specifically excluded any provision for bad and doubtful debts made in the account of the assessee from the ambit and scope of `any bad debt, or part thereof, written off as irrecoverable in the accounts of the assessee'. Thus, the concept of making a provision for bad and doubtful debts will fall outside the scope of Section 36(1)(vii) simplicitor. The proviso, as already noticed, will have to be read with the provisions of Section 36(1)(viia) of the Act. Once the bad debt is actually written off as irrecoverable and the requirements of Section 36(2) satisfied, then, it will not be permissible to deny such deduction on the apprehension of double deduction under the provisions of Section 36(1)(viia) and proviso to Section 36(1)(vii). This does not appear to be the intention of the framers of law. The scheduled and non-scheduled commercial banks would continue to get the full benefit of write off of the irrecoverable debts under Section 36(1)(vii) in addition to the benefit of deduction of bad and doubtful debts under Section 36(1)(viia). Mere provision for bad and doubtful debts may not be allowable, but in the case of a rural advance, the same, in terms of Section 36(1)(viia)(a), may be allowable without insisting on an actual write off.
Substantial question of law framed in this case is answered in favour of the assessee
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2014 (10) TMI 885
Condonation of delay - Held that:- From the perusal of the Impugned Orders that proceedings were held ex parte. The show cause notices were served by affixation. The cause for delay in instituting the appeal after a gap of more than seven years appears to us to be sufficient and convincing. There is no proof on record that the show cause notices or the Adjudication Orders were duly served upon the applicants/appellants. The delay condonation applications are supported by uncontroverted affidavits. In this view of the matter, the applications deserve to be allowed.
Consequently, the applications in all the appeals noted herein above are allowed and the delay in filing the instant appeals is condoned. Registry is directed to register the appeals and list the appeals on 17-12-2014.
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