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Showing 181 to 200 of 1962 Records
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2017 (3) TMI 1785
Deduction u/s 10A - exclude the expenditure incurred in foreign currency from both export turnover as well as total turnover - HELD THAT:- Now the issue is covered against the revenue by the jurisdictional High Court in the case of Tata Elxsi [2011 (8) TMI 782 - KARNATAKA HIGH COURT] held that the same is required to be reduced from export turnover as well as total turnover. Respectfully following the ratio of the decision of the Hon'ble jurisdictional High Court we direct that expenses incurred in foreign exchange towards insurance, travelling and communication are to be reduced both from export turnover as well as total turnover.
TP Adjustment - Comparable selection - HELD THAT:- Assessee is into software development services thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2017 (3) TMI 1784
Both the Miscellaneous Petitions from the assessee stating that the assessee prefers to withdraw these two Miscellaneous Petitions. Ld. D.R did not object to the submissions of the Ld. A.R. Accordingly, these two Miscellaneous Petitions filed by the assessee are dismissed as withdrawn.
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2017 (3) TMI 1783
Penalty u/s 271AAB - no search in the case of the assessee firm - HELD THAT:- Opening words are “penalty where search has been initiated” a perusal of the provisions under Section 271AAB also talks of the assessee declaring any undisclosed income in the course of the search in the statement under section 132(4). Admittedly in the present case, that is in the case of the assessee firm in appeal there has been no search.
Search admittedly is on the residence of one of the partner of the assessee firm. A perusal of the order of the learned CIT(A) also clearly shows that the learned CIT(A) has cancelled the penalty on the ground that there was no search in the case of the assessee firm. The revenue has not been able to point out as to how this finding of the learned CIT(A) is erroneous. This being so the finding of the learned CIT(A) on this issue stands confirmed. - Decided against revenue
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2017 (3) TMI 1782
Rectification of mistake - deduction u/s 80IA on the basis of sale price of electricity - HELD THAT:- Co-ordinate Bench vide its order for Asst. Year 2005-06 to 2007-08 in assessee’s own case allowed assessee’s claim of deduction u/s 80IA of the Act by taking the sale price at ₹ 4.55 per unit. However, in para 24 of the Tribunal’s order dated [2016 (1) TMI 125 - ITAT AHMEDABAD] it was wrongly mentioned that ground of assessee is partly allowed and no interference is called for in the order of ld. Commissioner of Income Tax(A).
We are of the opinion that in these peculiar facts an apparent mistake has cropped up in the Tribunal’s order dated 19.11.15 giving rise to a contradictory view occurring in para 23 and para 24 of the order. We thus recall our finding mentioned in para 24 of the order dated 19.11.15 and replace it with the following paragraph :-
“Respectfully following the ratio of decision taken by the Co-ordinate Bench in assessee’s own case, we set aside the order of ld. Commissioner of Income Tax(A) and allow the ground of assessee.”
Miscellaneous application filed by the assessee is allowed
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2017 (3) TMI 1781
Provision for bad and doubtful debts on standards assets - HELD THAT:- This issue is squarely covered in favour of the assessee by the order of the Tribunal in the case of the assessee itself for Asst. Year: 2008-09. AR submitted that the case of the assessee was also covered by the decision of Hon'ble Punjab and Haryana High Court in the case of State Bank of Patiala Vs. CIT [2004 (5) TMI 12 - PUNJAB AND HARYANA HIGH COURT]
Disallowance of premium paid to LIC for covering leave encashment of its employees - AR submitted that the premium paid by assessee was deductible u/s 37 (1) of the Act as the assessee had paid the premium to insure its liability for payment of leave encashment to its employees at the time of their retirement or death - HELD THAT:- CIT(A) while confirming the disallowance has not considered the claim of the assessee u/s 37(1) of the Act and has confirmed the addition by holding that the provisions of section 43B(f) were applicable to the assessee. However, the claim of the assessee in its written submissions is that assessee had not created the provisions and in fact had made the payment and therefore the provisions of section 43B(f) of the Act were not applicable, it was also required that Ld. CIT(A) had confirmed the disallowance u/s 43B (f) without affording opportunity to the Assessee. Therefore, we deem it appropriate to remit this issue to the office of Ld. CIT(A) who should examine the claim of the assessee u/s 37(1) of the Act as the Assessing Officer had made the disallowance u/s 37(1) of the Act. CIT(A) should also hear the assessee on the applicability of provisions of section 43B(f) of the Act. In view of the above, the appeals filed by assessee are allowed for statistical purposes.
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2017 (3) TMI 1780
Jurisdiction - whether the learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not? - HELD THAT:- In the instant case, we are really not concerned with the nature of the post held by Lokayukta or UpaLokayukta. We are also not concerned how the recommendation of the said authorities is to be challenged and what will be the procedure therefor. As has been held by this Court, neither the Lokayukta nor UpaLokayukta can direct implementation of his report, but it investigates and after investigation, if it is found that a public servant has committed a criminal offence, prosecution can be initiated.
On a plain reading of the aforesaid clause of the Letters Patent, it is manifest that no appeal lies against the order passed by the Single Judge in exercise of criminal jurisdiction. Thus, the question that is required to be posed is whether the learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not.
In the case at hand, the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence.Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation.
The irresistible conclusion is that the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside - Appeal allowed.
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2017 (3) TMI 1779
Issues Involved:
1. Early hearing of a writ petition sought by the appellant.
2. Competency of the person issuing a show-cause notice.
3. Existence of an alternative remedy affecting the admissibility of a writ petition.
Analysis:
1. The appellant sought an early hearing of the writ petition, which was disposed of without any order as to costs after being taken up for hearing by consent of the parties.
2. The writ petition challenged a notice to show cause dated April 19, 2016, on the grounds of the competency of the person issuing the notice. The petitioner's advocate argued that the person issuing the notice was not competent, citing a circular specifying the competent authority. The department's advocate referred to a similar issue raised before the Delhi High Court, where the Supreme Court stayed the decision. The department argued that since the petitioner had an alternative remedy available, the writ petition should not be entertained. The court found the petitioner similarly situated as others in a related case and decided not to interfere, disposing of the writ petition without costs.
3. The court considered the existence of an alternative remedy as a crucial factor in deciding the admissibility of the writ petition. Since the petitioner was in a similar situation as others with an alternative remedy available, the court chose not to interfere in the matter and disposed of the petition without imposing any costs. The judgment emphasized the importance of exhausting alternative remedies before seeking relief through writ petitions.
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2017 (3) TMI 1778
Deduction u/s.54 - deduction allowable based on the investment of LTCG - HELD THAT:- Claim of deduction is allowable based on the investment of LTCG and not based on completeness of the asset in question. While the payment of the gains to the builder is in the hand of the assessee, the completeness of construction and the if any is attributable to the builder.
In view of the above said facts and circumstances and in view of the above mentioned law, we are of the view that the CIT(A) has wrongly confirmed the addition which is liable to be treated as Long Term Capital Gain and entitled to be exempted u/s.54 of the Act. The Assessing Officer is directed to re-compute the assessment by allowing the addition as exempt as Long Term Capital Gain. Accordingly, this issue is decided in favour of the assessee against the revenue.
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2017 (3) TMI 1777
Grant of Bail - nature of alleged assault by the accused persons - ground of parity - HELD THAT:- In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to enlarge the appellants on bail, endevours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety call for axing of the order.
That apart, as we find from the narration of allegations from the order of the High Court, it is not a case where the trial court could have entertained a bail application by elaborate dissection of facts and appreciation of statements recorded under Section 161 Cr.P.C. The gravity of the crime should have been taken note of by the learned trial Judge.
The factors that have been highlighted by this Court from time to time were required to be adverted to and the accused persons should not have been granted liberty on the grounds that have been thought appropriate by the learned trial Judge. The perversity of approach by the learned Additional Sessions Judge, who has enlarged the appellants on bail, is totally unacceptable. It is reflective of sanctuary of errors. In such a situation, we are obligated to say that the High Court has performed its legal duty by lancinating the order passed by the learned trial Judge.
Appeal dismissed.
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2017 (3) TMI 1776
Whether an arbitral tribunal has the power to appoint the Court Receiver, High Court, Bombay as a Receiver under Section 17 of the Amended Act?
HELD THAT:- The Court Receiver, High Court, Bombay, is an employee or a Department of the Bombay High Court and that it is this Court that has the powers to direct its duties and responsibilities. Even where another Tribunal, such as the Debt Recovery Tribunal, was allowed to give directions to the Court Receiver, it was for a limited transitory period of one year and only in those cases where the Court Receiver had already been appointed by this Court. What is of much significance is that this was permitted to be done by an Order of this Court on its judicial side. This was necessitated by the fact that as this Court lost its jurisdiction over bank suits, it would have been anomalous for this Court to continue to issue directions to the Court Receiver.
An arbitral tribunal cannot appoint the Court Receiver, High Court, Bombay, to act as a Receiver, under Section 17 of the Amended Act. This follows from the nature of the office and position of the Court Receiver, High Court, Bombay - also the language of Section 17 of the Amended Act does not alter this conclusion at all.
The language appearing after Section 17(ii)(e) of the Amended Act, really concerns itself with the powers to make interim orders. It is for the making of such interim orders that the arbitral tribunal's powers are treated as the same as that of a court. One cannot read into this language a conclusion that an arbitral tribunal is itself a particular court, such as the High Court, Bombay, so as to be able to do everything that the High Court, Bombay could do, such as appoint its employee or officer to function as a Receiver in a given matter.
The question is answered in negative.
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2017 (3) TMI 1775
Addition u/s 41(1) in respect to outstanding sundry Creditors - cessation of liability - HELD THAT:- Admittedly in the year under consideration i.e. the assessment year 2010-11 by way of remission or cessation no gain has accrued or arisen to the assessee in the given facts and circumstances of the case. Admittedly, as given in the chart above by the assessee before us, the assessee had already declared the credit to the Profit and Loss Account on account of cessation of liability under cessation of liability u/s 41(1) on account of sundry creditors and offered to tax. Assessee fairly agreed that this fact can be verified by the AO. Assessee's Counsel fairly agreed for verification of factum of offering of this amount of sundry creditors as income in their respective years, the AO can verify the same. However, in this year no addition can be made u/s 41(1) of the Act and we delete the addition .
Disallowance of foreign travel expenses - Expenses relatable to partner of the firm - HELD THAT:- Expenses relatable to partner of the firm can be allowed because they have gone for business purpose also and i.e. for studying new designs, new concepts of construction etc. In view of the above we direct the AO to allow the expenses of partners. Matter is remanded back to the file of the AO. This issue of assessee's appeal is partly allowed.
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2017 (3) TMI 1774
Review petition - Exemption under Exemption N/N. 6/2002-CE dated 01.3.2002, read with list -6(5), or N/N. 6/2006-CE dated 01.3.2006 - HELD THAT:- Having carefully perused the petitions for review and the papers connected therewith, we do not find any reason for reconsideration of the order impugned.
Review petition dismissed.
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2017 (3) TMI 1773
Deduction admissible u/s 80IB - assessee has not submitted audit report in Form No.10CCB along with return filed originally u/s 139 - HELD THAT:- No doubt sub-section (7) of section 80IA requires the assessee to submit audit report along with return for claiming deduction under section 80IB. But in various authoritative pronouncements, it has been held that it is a directory requirement and not a mandatory one. If the assessee has submitted such report during the course of assessment proceedings, and the AO has benefit of such report while evaluating claim of the assessee about admissibility of such deduction, then such claim would not be rejected merely on the ground that audit report was not filed while filing return.
The Hon’ble jurisdictional High Court in the case of Gujarat Oil & Allied Industries [1992 (9) TMI 67 - GUJARAT HIGH COURT] has considered this aspect while dealing with admissibility of deduction under section80IA. The Hon’ble Court was considering identical situation provided in section 80J(6A) and held that submission of audit report in support of claim admissible under section 80IB is a directory condition and if it is complied with even during the course of assessment proceedings, then deduction could not be disallowed to the assessee. CIT(A) has passed its decision relying rightly on the decision of Hon’ble jurisdictional High Court. No reason to interfere in the order of the CIT(A). Accordingly, appeal of the Revenue is dismissed.
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2017 (3) TMI 1772
Refund of service tax - export of readymade garments on commission basis - Department brought the said service under the clutches of the service tax but by order in original, the demand was set aside - HELD THAT:- Hon’ble High Court in the case of KONARK EXIM PVT. LTD., YOGMAYA TRADERS PVT. LTD., SIDH DESIGNERS PVT. LTD., G.D. MANGLAM EXIM PVT. LTD., DSM INTERNATIONAL VERSUS UNION OF INDIA & ANR. [2016 (12) TMI 1784 - DELHI HIGH COURT] observed that “the adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of service tax”. Thus, it is evident that Hon’ble Delhi High Court upholds the impugned order on merit. When it is so, then we find no reason to interfere with the impugned order.
Appeal dismissed - decided against Revenue.
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2017 (3) TMI 1771
Jurisdiction - power under Section 362 of CrPC - inherent powers of High Court - HELD THAT:- Plain reading of these Sections indicate that the prohibition under the Section 362 of CrPC is absolute; after the judgment is signed even the High Court in exercise of its inherent power under Section 482 of CrPC has no authority or jurisdiction to alter/review the same. The inherent power under Section 482 of CrPC was purported to avoid the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code.
If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter.
Appeal allowed.
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2017 (3) TMI 1770
Demand of excise duty - principal-job-worker relationship - case of Department is that the appellant has supplied the raw material and hired the labour in the name of the job worker so the composite duty was demanded by the department from the appellant - HELD THAT:- The impugned order appears to be ambiguous on the aspect “whether the relationship between the appellant and job worker was principal to principal or not”. The impugned order is silent about the nature of the job work. This can be verified by him whether job charges or the labour charges were paid.
Matter remanded to the adjudicating authority to decide the issue denovo but by providing an opportunity of hearing to the assessee - appeal allowed by way of remand.
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2017 (3) TMI 1769
Non perusal of appeal - HELD THAT:- Assessee is not interested in pursuing the appeal filed before this Tribunal. Hence, following the decision of the Delhi Bench in the case of CIT v. Multiplan India P. Ltd., [1991 (5) TMI 120 - ITAT DELHI-D] and the judgment of the Hon'ble Madhya Pradesh High Court in the case of Late Tukojirao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] we dismiss the appeal in limine.
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2017 (3) TMI 1768
SSI exemption - use of brand name of others - imposition of penalty u/r 26 - HELD THAT:- The present appellants, even though they are owner of the brand name but merely because they have ownership of brand, charge of non-payment of excise duty on the product is on M/s. Swastik Appliances who are manufacturer. It is M/s. Swastik Appliances who is supposed to comply with the Central Excise provisions, as regard the dutiability of the product manufactured by them. Therefore the present appellant cannot be in any way implicated in the case of duty evasion done by M/s. Swastik Appliances.
Under the facts that customers is the owner of the brand name, charge of abetment of evasion of excise duty by M/s. Swastik appliances does not establish - penalty do not sustain - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1767
Late filing fee u/s 234E - late filing of TDS return by 41 days - fee levied for period prior to 01/06/2015 - scope of amendment - HELD THAT:- TDS statements which have been filed earlier to 01.06.2015 then no fee is leviable u/s 234E of the Act. All the judgments have been passed on the basis of the decision of the Hon’ble Karnataka High Court in case of Fatheraj Singhvi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] . In view of the said discussion and by relied upon the decision mentioned above, we are of the view that the finding of the CIT(A) is not justifiable, therefore, we set aside the finding of the CIT(A) in all the appeals and delete the fee u/s 234E of the Act. - Decided in favour of assessee.
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2017 (3) TMI 1766
Penal provisions applicability prospective or retrospective - offence under Section 3 of PMLA - enactment shows it was passed in the year 2002 as Act No.15/2003 and came into force with effect from 01.07.2005 pursuant to the Central Government notification No.GSR/436(E) of that date as per Section 1(3) of the PML Act - HELD THAT:- There is nothing to indicate retrospective in operation specifically that too by virtue of Article 12 of the Constitution of India, it cannot be retrospective in operation.
Once the provisions of the Act not given effect as on the date of the alleged act and it is not specific mention of retrospective in operation, there is no penal consequence under Section 3 of the Act to sustain charge against the petitioner/A.2 thereunder.
Having regard to the above, the discharge application filed of the petitioner/A.2 ought to have been allowed by the Court below rather than dismissal by impugned order dated 26.10.2016.
While setting aside the dismissal of the discharge application of the petitioner/A.2, the revision is allowed and A.2 is discharged for the offence under Section 3 of the Act and his bail bonds stands cancelled unless he is required for any other offence thereto.
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