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Showing 181 to 200 of 1903 Records
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2015 (11) TMI 1724
Consideration on sale of shares assessable as income from undisclosed sources - Held that:- Conclusion of the Assessing Officer is entirely based on the result of the investigations carried out in the case of Mr. Mukesh Choksi. Similar situation came up before the Tribunal in the case of Shri Ravindra Kumar Toshniwal [2010 (2) TMI 1157 - ITAT MUMBAI] for assessment year 2005-06, wherein also the sale and purchase of shares undertaken in M/s. Buniyad Chemicals was held to be a bogus transaction.
The relevant discussion in the order of the Tribunal dated 24/02/2010(supra) reveals that the arguments set up by the Assessing Officer were similar to those which are before me. The Tribunal considered the material sought to be relied upon by the Assessing Officer in the present case. Firstly, the Tribunal observed that merely because a transaction was not undertaken on the floor of Stock Exchange is no ground to doubt its veracity. In the present case too emphasis has been on the fact that the impugned transaction was an off- market transaction. Having regard to the precedent in the case of the order of the Tribunal dated 24/10/2010 in the case of Ravindra Kumar Toshniwal (supra), find no reason to uphold the stand of the Revenue. - Decided in favour of assessee.
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2015 (11) TMI 1723
TPO - comparable selection criteria - Held that:- Assessee is a company engaged in the business of Research, Design and Development of application solutions for semi conductor products, thus companies functionally dissimilar with that of assessee or involved in any extraordinary events like mergers and acquisitions need to deselected from final list of comparable.
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2015 (11) TMI 1722
Nature of income - arbitration debt received - business receipt OR Income from Other Sources - CIT-A directed the AO to treat the interest amount as part of business income of the assessee for the purpose of computing income u/s 44AD - Held that:- The assessee during the course of execution of contract had some disputes with M/s. Konkan Railway which went into arbitration and the assessee was awarded ₹ 11,65,889/- as claimed loss by assessee with interest for the delayed payment @ 10% p.a. of ₹ 26,79,266/-. In our opinion the interest is only the amount of addition and accretion to the assessee receipts from the contracts and it is obviously attributable and incidental to the business carried out by the assessee. In the decision referred to above in the case of Govinda Chaudhary and Sons (1992 (4) TMI 8 - SUPREME Court) similar issued came up for consideration before the Hon’ble Supreme Court and it was held by the Hon’ble Court that interest is also part of the business receipt of the assessee. We therefore, do not find any infirmity in the order passed by the CIT(A) and upheld the same by dismissing the appeal of the revenue. - Decided in favour of assessee.
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2015 (11) TMI 1721
ALV determination u/s 23(1)(a) - Municipal rataeble value adoption - Held that:- Hon’ble jurisdictional High Court in the case of Tip Top Typography, reported in [2014 (8) TMI 356 - BOMBAY HIGH COUR ] has upheld that Municipal rateable value can be adopted for determining the ALV u/s 23(1)(a). The Hon’ble High Court held that for disturbing the ALV or rent shown by the assessee, the AO must have cogent and satisfactory material in his possession indicating that the parties have concealed the real position. He must not make a guess work or act on conjectures and surmises. There must be definite and positive material to indicate that the parties have suppressed the prevailing rate and then only the enquiries can be made, for ascertaining the market rate. The Hon’ble High Court has also held that, if the standard rent is fixed by the Rent Controller or Municipal Rateable value is available then same is to be accepted as an ALV. Here, it is not a case that assessee has rented out the property and the rent received or receivable is less but the flat has been lying vacant, thus, it cannot be held that municipal ratable value cannot be the basis for determination of deemed ALV. Accordingly, respectfully following the decisions of the Tribunal and also the principle laid down by the Hon’ble jurisdictional High Court, we decide this issue in favour of the assessee
Undisclosed income in the light of section 69B - cash payment from unaccounted sources have been made - Held that:- Similar issue based on similar documents were there in the group concerns of the assessee wherein the Tribunal in all the decisions have decided this issue saying that there was no evidence that any extra cash other than the sale consideration as recorded in the deed had changed hands. No statement of the sellers of the land had been recorded. No other corroborative evidence has been produced on the file by the Revenue Authorities to substantiate their allegation. The addition in this case has been made on the basis of the entries in the loose paper found during the search action, which at the most can be considered to have raised a suspicion about the transfer of money other than the sale consideration, but the suspicion itself and solely cannot be held to be a justifiable ground for making the additions, especially in the absence of any corroborative evidence. Except the loose papers in question no evidence, what to say of any direct or corroborative evidence, even no circumstantial evidence has been detected or brought on record by the Revenue. Hence, the additions solely on the basis of suspicion, how strong it may be, in our view, are not sustainable in the eyes of law. - Decided in favour of the assessee
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2015 (11) TMI 1720
Confiscation - timber of Nepal origin - seizure - Section 110 of the Customs Act - the decision in the case of Union of India Versus Birendra Thakur [2015 (4) TMI 1214 - PATNA HIGH COURT] contested - Held that: - the decision in the above case upheld - delay condoned - appeal dismissed.
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2015 (11) TMI 1719
TPA - comparable selection criteria - Held that:- The assessee company is a subsidiary of Moog Inc., USA and provides software development services to its Associated Enterprise (AE) thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Working of adjustment - Held that:- AO/TPO is directed to allow the actual adjustment towards the differences in the working capital position between the assessee and the entrepreneurial companies selected as comparable.
Disallowance of software expenses - assessee has incurred expenses towards purchase of application software (i.e. obtaining or renewing the licenses for use of certain application software) and has deducted tax at source in respect of such payment towards application software - Held that:- The license fee paid represents usage charges of leased licenses. Further, the use of license does not give any ownership of the software to the assessee and thereby does not lead to creation of any capital asset. The license used by the assessee is application software designed to perform various business processes. The application software enables the assessee to carry out its business operations efficiently and smoothly and does not provide any enduring benefit. Such software enhances the efficiency of the operations. It is an aid in the manufacturing process. Considering the above facts and the judicial precedents relied upon by the assessee company, we hold that the said license fees and maintenance fees is to be allowed as revenue expenditure.
Since we have allowed the assessee’s claim of software expenditure to be treated as revenue expenditure, the alternate ground for non-grant of additional deduction u/s. 10B on account of capitalisation of software expenditure is not considered for adjudication.
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2015 (11) TMI 1718
Mortgage decree challenged - Held that:- In the present case, the mortgage done by the ABP itself is bad in law. We are of the clear view that this expectation is not valid at all in the eye of law. Moreover, this Court in number of decisions has held clearly that doctrine of legitimate expectation cannot be invoked by someone who has no dealing or transaction or negotiations with an authority or by someone who has a recognized legal relationship with the authority. Therefore, as the Bank is not having any recognized legal relationship with the State in view of the fact that the mortgage by the ABP in favour of the Bank itself is bad in law, there is no question of invoking doctrine of legitimate expectation in the present case as it applies to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation.
The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted a statute. The legitimate expectation should be legitimate, reasonable and valid. For the application of doctrine of legitimate expectation, any representation or promise should be made by an authority. A person unconnected with the authority, who had no previous dealing and who has not entered into any transaction or negotiations with the authority cannot invoke the doctrine of legitimate expectation. A person, who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment.
The High Court after having recorded a finding that the Bank being the nominee of the mortgagee has a right to make an application for conversion of Nazul land into a freehold land, without appreciating the fact that the Bank has not having any subsistence interest in the leasehold property obtained a mortgage decree behind the back of the State being the paramount title holder applied the doctrine of legitimate expectation.
In the instant case, admittedly, the State never recognized the Appellant Bank as a mortgagee. Further the State was not aware about the alleged mortgage said to have been created by the lessee ABP Company by deposit of Lease document. Moreover, the State never represented or promised either to the lessee or to the Bank to give any benefit under the lease. In such circumstances, we are of the definite opinion that the High Court has committed grave error in applying the doctrine of legitimate expectation in favour of the bank.
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2015 (11) TMI 1717
Scheme of amalgamation - Held that:- Notice of the hearing of the petition to be advertised in English daily, “Indian Express”, Ahmedabad Edition and Gujarati daily, “Sandesh”, Rajkot Edition, as submitted by learned advocate for the petitioner. Publication of notice shall appear in the aforesaid newspapers, at least, 10 days before the date of hearing so fixed.
Notice of the hearing of the Petition to be served on the Central Government through the Regional Director, ROC Bhavan, Opp. Rupal Park Society, B/h. Ankur Bus Stop, Naranpura, Ahmedabad, pursuant to Section 394 A of the Companies Act, 1956. Notice shall also be issued to Official Liquidator, who if required, may appoint Chartered Accountant. Notice of the hearing of the Petition on the Regional Director and to the Official Liquidator shall be served, at least 10 days before the date of hearing so fixed. Publication of the Notice in the Gujarat Government Gazette be and is hereby dispensed with
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2015 (11) TMI 1716
Claim of long term capital gain on shares rejected - addition of income from undisclosed sources - sale of demated shares - Held that:- We find that assessee has purchased the shares through off market deal and therefore such transaction for purchase of shares by the assessee ought not to have been registered with the Calcutta Stock Exchange. Secondly, the Voucher for shares sold to the assessee issued by M/s Badri Prasad & Sons, broker of the Calcutta Stock Exchange has not been found as bogus or fabricated documents.
The observation of the Assessing Officer that the transaction is not genuine and is engineered with a sole intention to show long term capital gain which is liable to a lower rate or income tax is because of (i) off market transaction, (ii) the payment for transaction is through cash (iii) physical delivery of shares has been given (iv) Kolkata Stock Exchange has denied having executed any transaction in the script i.e. Emerald Commercial Ltd. (v) shares were dematted in the month of August 2005 i.e. after more than one year of date of purchase (vi) shares were bought and sold in Kolkata has been duly rebutted and refuted by tendering sufficient evidence and therefore Assessing Officer Assessing Officer can only provoke a suspicion, much less a belief about the transaction. The suspicion of Assessing Officer cannot clinch the transaction against assessee. In view of the above CIT(A) was justified in holding that long term capital gain earned by assessee of ₹ 47,60,462/- should be treated as such and not taxed as income from undisclosed sources - Decided against revenue
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2015 (11) TMI 1715
Scheme of Amalgamation - orders for dispensing with the meetings of Equity Shareholders and Unsecured Creditors of the applicant company - Held that:- Having heard Mr. Pahwa, Ld. Advocate for the applicant and considering the fact that all the Equity Shareholders and the sole Unsecured Creditor of the applicant company have given their consents in writing as required u/s 391(2) of the Act to the proposed Scheme of Amalgamation for amalgamating the applicant company with eInfochips Limited the meetings of the Equity Shareholders and the Unsecured Creditor of the applicant company is ordered to be dispensed with.
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2015 (11) TMI 1714
Remand application - Evasion of payment of Service Tax - the petitioner seeks, inter alia, issuance of a mandatory order commanding the concerned respondent authorities to cancel and/or withdraw and/or rescind of the remand application dated 8th September, 2015 - Held that: - In the facts of this instant case, this application is not made bona fide by the petitioner. The reason is, a person who gives an undertaking before this Court - which evidently is not complied with, subsequently - and gets benefit of an order based on such undertaking and thereafter seeks to invoke this Court’s jurisdiction under Article 226 of the Constitution of India, is not a person worthy to be considered for being granted such discretionary reliefs, in the absence of palpable demonstration of bona fide conduct before seeking such discretionary reliefs - petition dismissed.
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2015 (11) TMI 1713
TPA - determination of arm's length price of the international transaction of Provision of investment advisory related support services by the assessee company to its associated enterprise abroad - selection of comparable - Held that:- The appellant company belongs to the world-wide Carlyle group, which is primarily engaged in originating/structuring and acting as lend equity investor in management lead buyouts, strategic equity investments, equity private placements etc. and is primarily engaged in the business of managing investments of high net worth individuals/institutional investors. The Carlyle Group has also several individual funds and it is operating in more than 19 countries. Carlyle Hong Kong, which is the holding company of the captioned assessee, provides consulting services including investment advisory, technology support, management consultancy and other advisory services to the Carlyle Group concerns who are engaged in operating and managing of funds in the Asia Pacific region. The appellant-company, which is operating in India since 2000 as a subsidiary of Carlyle Hong Kong, provides Investment advisory related support services to Carlyle Honk Kong. Thus companies functionally dissimilar with that of assessee need to be rejected from final list.
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2015 (11) TMI 1712
Disallowance of interest u/s 14A r.w.r. 8D - nexus between the actual expenditure required and the task to be performed. - meddle with the amount of expenditure reached by applying the formula prescribed under Rule 8D(iii) of the Rules - Held that:- CIT (A) found that an amount of ₹ 3.86 crores was available with the assessee on the sale of the investment out of which the assessee made fresh investment of ₹ 1.3 crores. Ld. CIT (A) further found from the record that the funds borrowed during the year were used for the business purposes and no part of borrowed funds was used for earning the exempt income. Ld. CIT (A) further noted that there is no finding of fact in respect of earlier years that the disallowance of interest was made in the earlier years in connection with the investments carried forward and held during the year. Basing on these factual findings, Ld. CIT (A) thought it fit to delete the addition of ₹ 75,94,474/- made under Rule 8D(ii) of the Rules. We see no reason to disturb this finding of fact based on record.
In view of the fact that making investment, maintaining or continuing with any investment in a particular share/mutual fund etc. and the time when to exit from one investment to another are all the activities requiring well coordinated and well informed management decisions, involving not only inputs from various sources but it also involves acumen of senior management functionaries. We further agree with the reasoning of the Ld. CIT (A) that there are incidental administrative expenses on collecting the information, research, etc. which helps in arriving at particular investment decisions and these expenses, relating to earning of income are embedded in the indirect expenses without which it would not be possible to carry out this herculean task. We, therefore, agree with the authorities below that the expenditure of ₹ 44,143/- does not reflect the true nexus between the actual expenditure required and the task to be performed.
With reference to ₹ 31.85 lacs, the administrative expenditure debited to profit and loss account, Ld. CIT (A) stated that out of this ₹ 31.85 lacs a sum of ₹ 26.54 lacs being spent on travelling cannot be allocated to the investment portfolio and has to be excluded from consideration. He apportioned the balance amount of 5.31 lacs to trading and investment and reached the figure of 2,65,500/- under Rule 8D(iii) of the Rules read with Section 14A of the Act. In our opinion this discretion is not available with the Ld. CIT (A) and only cap that could be put on the quantum of disallowance is the administrative expenditure debited to profit and loss account which is ₹ 31.85 lacs in this matter. Finding of the Ld. CIT(A), that the travelling expenses are excludable does not base on any material, much less a convincing one. We, therefore, find that the Ld. CIT (A) is not justified in exercising any discretion with the figure reached by the AO under Rule 8D(iii) of the Rules. However, keeping in view the fact that the total administrative expenses debited to the profit and loss account is only ₹ 31.85 lacs, we hold that the disallowance under Rule 8D(iii) of the Rules could be restricted to 31.85 lacs. To this extent, we allow the grounds of appeal. - Decided partly in favour of revenue
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2015 (11) TMI 1711
Scheme of Amalgamation - Held that:- Having heard Mrs. Sangeeta Pahwa, learned Advocate for the applicant and considering the fact that all the Equity Shareholders of the applicant company have given their consent in writing, as required u/s. 391(2) of the Companies Act, 1956, to the proposed Scheme of Amalgamation, the meeting of the Equity Shareholders of the applicant company is ordered to be dispensed with.
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2015 (11) TMI 1710
Scheme of Amalgamation - Held that:- Notice of the hearing of the petition to be advertised in English daily, “Indian Express”, Ahmedabad edition and Gujarati daily, “Divya Bhaskar”, Ahmedabad edition, as submitted by learned advocate for the petitioner. Publication of notice shall appear in the aforesaid newspapers, at least, 10 days before the date of hearing so fixed.
Notice of the hearing of the petition to be served on the Central Government through the Regional Director, ROC Bhavan, Opp. Rupal Park Society, B/h. Ankur Bus Stop, Naranpura, Ahmedabad, pursuant to Section 394A of the companies Act, 1956. Notice shall also be issued to Official Liquidator, who if required, may appoint Chartered Accountant. Notice of the hearing of the petition on the Regional Director and to the Official Liquidator shall be served, at least 10 days before the date of hearing so fixed. Publication of the Notice in the Gujarat Government Gazette be and is hereby dispensed with.
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2015 (11) TMI 1709
Scheme of Amalgamation - applicant company is the wholly owned subsidiary of the Transferee Company - Held that:- Having heard Mr. Pahwa, Ld. Advocate for the applicant and considering the fact that all the Equity Shareholders and the sole Unsecured Creditor of the applicant company have given their consents in writing as required u/s 391(2) of the Act to the proposed Scheme of Amalgamation for amalgamating the applicant company with eInfochips Limited the meetings of the Equity Shareholders and the Unsecured Creditor of the applicant company is ordered to be dispensed with. In view of the above, the present application is disposed.
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2015 (11) TMI 1708
Scheme of amalgamation - whether Holding Transferee Company is not required to take out separate proceedings for obtaining the sanction of this Court to the proposed Scheme of Amalgamation of its wholly owned subsidiary companies with itself? - Held that:- No separate proceedings is required to be undertaken by Transferee Company being the Holding Company under the provisions of Sec. 391(2) of the Companies Act, 1956.
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2015 (11) TMI 1707
Scheme of amalgamation - Held that:- In the facts and circumstances of the present case, it is ordered that separate meetings of the Secured Creditors and Unsecured Creditors of the Applicant Company shall be convened and held at The Pride Hotel, Judges Bungalow Road, Bodakdev, Ahmedabad - 380 054 in the state of Gujarat on Monday, the 21st December 2015 respectively at 4.00 p.m. and 5.00 p.m., for the purpose of considering and if thought fit, approving with or without modifications, the proposed Composite scheme of Arrangement in the nature of transfer of undertaking, amalgamation as well as restructure of Share Capital between Troikaa Pharmaceuticals Limited and Troikaa Exports Private Limited, as proposed between the Applicant Company and its creditors.
That at least 21 clear days before the meetings to be held as aforesaid, and adherence to other relevant provisions regarding Chairman appointment, quorum for the meeting, books of accounts of the company, etc. .
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2015 (11) TMI 1706
Dispensation of various meetings - It is stated in the petition that the registered office of the petitioner company is situated at Gurgaon, Haryana. The registered office of the Transferee company is situated in Maharashtra - Held that: - when all the equity shareholders and compulsory convertible redeemable preference shareholders of the Petitioner/ Transferor Company have consented to the Scheme of Amalgamation, convening of their meetings are ordered to be dispensed with. Since there is no secured and unsecured creditor of the Petitioner / Transferor Company, no meeting is required - petition allowed.
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2015 (11) TMI 1705
Addition of income - profit arising out of sale of shares - income from undisclosed sources - capital gains or or not? - assessments u/s 147/143(3) of the Income-tax Act, 1961 - Held that: - transactions of shares entered into by the assessee are evidenced by contract note of the share broker and these brokers are duly registered with SEBI and their registration number is mentioned on the contract notes. The complete name of the client, ID of the assessee, date of transaction, settlement numbers and settlement period is mentioned on the contract notes.
The CIT(A) has rightly treated the transactions as genuine and profit arising out of the same, i.e. out of sale and purchase of shares is rightly treated as capital gains - appeal dismissed - decided against Revenue.
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9911796707
