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Showing 181 to 200 of 2049 Records
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2018 (3) TMI 1873
Alternate ground of the appeal - Rectification of mistake - Reopening of assessment - addition made u/s 69 and u/s 69A of the Act towards unexplained investment in jewellery and cash deposits - as per CIT-A even if the above addition is deleted, it is still liable to be taxed u/s 2(22)(e) - assessee has raised the alternative grounds in both the appeals that it cannot be treated as a deemed divided u/s 2(22)(e) and Revenue filed the M.A. contending that the alternative ground raised by the assessee on similar lines as in A.Y 2010-11 has not been adjudicated by the Tribunal resulting in an apparent mistake which needs rectification - HELD THAT:- We have gone through order of the Tribunal and we find that the alternate ground of the appeal of the assessee has not been adjudicated. Further, we also find that even the revenue had filed MA [2018 (1) TMI 1599 - ITAT HYDERABAD] seeking recall of the order of the Tribunal for non-adjudication of the alternate ground of appeal and we had held that even if the alternate grounds raised by the assessee are not adjudicated, no prejudice is caused to the interest of the Revenue.
Thus, MA filed by the Revenue was rejected. In view of the same, we deem it fit and proper to recall the order of the Tribunal only for adjudication of ground of appeal No. 11.
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2018 (3) TMI 1872
Income declared during survey action - deemed income u/s.69A and 69B or business income as claimed by the appellant - appellant submitted do not any other source of income - HELD THAT:- The items at Sl.Nos.1, 3, and 4 of the table being gross profits and the unrecorded purchases, we are of the opinion that the same should constitute business income and they should be available for set off of the losses in question. To that extent, the order of CIT(A) and the AO are required to be reversed and therefore, the AO is directed to grant set off of benefit accordingly.
Excess cash - we find this is a case where survey action u/s.133A of the Act resulted in the discovery of the said excess cash and there is no dispute about it. Further, it is also undisputed that the assessee failed to explain the manner of earning of the said excess cash linked to the unaccounted sales of the ITC products. Assessee failed to explain the modus-operandi of earning of such excess cash from business sources of any kind.
We are of the opinion that it is reasonable to presume that assessee failed to discharge the onus on this aspect of establishing the business nature of the excess cash. This view is fortified by the legal proposition laid down in the case of Kim Pharma Pvt. Ltd. [2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT].
Where assessee failed to explain the nature and source of the cash received by that assessee and the same was treated as income u/s.68 of the Act and taxed under the head “income from other sources”. The Tribunal did not allow the benefit of set off against the business losses of the assessee against the said income.
Excess cash of ₹ 4,93,290/- being deemed income is not to be treated as “business income” of the assessee. Further, regarding the investment in the residential house, we find it is the case of appropriation of income earned by the assessee. Thus, the claim of the assessee is unsustainable. Therefore, these parts of the claim of the assessee are dismissed.
Only amount which is available for set off against the current year is brought forward loss amounts to ₹ 4,81,252/-, i.e. sum of 3 items of income mentioned at Sl.Nos. 1, 3 and 4 of the table above. AO is directed to grant the benefit of set off of the balance of current year loss of ₹ 2,65,457/- and the brought forward business losses to the extent of ₹ 2,15,795/- (i.e. ₹ 4,81,252 – ₹ 2,65,457). The balance of brought forward business loss is allowed to be carried forward to the subsequent assessment years for set off. Accordingly, the grounds raised by the assessee are partly allowed.
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2018 (3) TMI 1871
Sale of the vessel Sangita owned by the company in liquidation - HELD THAT:- The amount to be deposited by M/s. Vedant Ship Management shall be invested by the Official Liquidator in a Fixed Deposit of a Nationalized Bank. No amount shall be disbursed without seeking appropriate orders from the Court. The charges of the vessel including all port charges up to date shall be to the Official Liquidator's account and shall be paid from out of the sale proceeds. It is clarified that all claims against the sale proceeds of the vessel including maritime liens and claims shall be considered by the Official Liquidator in accordance with the applicable law of priority of claims.
The charges receivable by the port authorities in respect of the vessel shall be recovered from the Official Liquidator. The Port authorities shall not hold up the delivery of the vessel to the purchaser for nonpayment of these charges - Application disposed off.
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2018 (3) TMI 1870
Issues:
1. Sale of three tugs in a liquidation scenario.
2. Distribution of sale proceeds.
3. Confirmation of sale and issuance of sale certificate.
4. Deposit and investment of sale consideration.
5. Maintenance of separate accounts by the Official Liquidator.
6. Disbursement of sale proceeds.
7. Payment of charges and expenses.
8. Sale of the third vessel, Sangita.
9. Retention of sum towards legal expenses.
10. Future hearing date.
Analysis:
1. The Company Application sought the sale of three tugs due to the Respondent being in liquidation. An Order directed the sale of two tugs to M/s Akil Corporation, who paid the entire sale consideration for the tugs. The distribution of sale proceeds remained undecided pending further decisions.
2. The Court confirmed the sale of the two tugs to Bansal Ship Breakers and directed the deposit of the sale consideration with the Official Liquidator. The Official Liquidator was instructed to invest the sale consideration in a fixed deposit and maintain separate accounts for expenses related to each vessel.
3. The sale certificate was to be issued by the Official Liquidator in favor of Bansal Ship Breakers, specifying that the tugs were free from encumbrances and purchased for breaking/scrap. The Official Liquidator was prohibited from disbursing any amounts without court orders and was required to consider all claims against the sale proceeds based on the priority of claims.
4. The expenses incurred for the vessels, including port charges, were to be paid from the sale proceeds. Charges payable to port authorities were to be recovered by the Official Liquidator, ensuring the delivery of the vessel to the purchaser was not delayed due to nonpayment.
5. The third vessel, Sangita, was also to be sold, with a reserved price fixed at INR 3.25 Crore. The Applicant was tasked with advertising the sale, allowing potential buyers three weeks to respond. Any expenses incurred towards manning the vessel were to be treated as liquidation expenses.
6. A sum was agreed to be retained by the Official Liquidator towards legal expenses from the sale proceeds. The judgment kept all rights and contentions of the parties regarding the sale proceeds open for future consideration, with the Company Application scheduled for a hearing on 28 March 2018.
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2018 (3) TMI 1869
Maintainability of suit - prayer for a decree against the defendant for a sum of ₹ 84,98,224/- together with pendants lite interest and interest on judgment @ 18% per annul and also for other consequential relief's - HELD THAT:- Material disclosed in the plaint shows that the suit is well maintainable in law as the plaintiff's claim for the dues against the defendant has not yet been barred. Cause of action for the suit arose partly within and partly outside the jurisdiction and having regard to the leave granted under Clause 12 of the Letters Patent, this Court is vested with the jurisdiction to try the instant suit - In this suit, despite service of writ of summons in due course, no one appeared for the defendant to contest the suit. Considering the report of the Deputy Registrar (Court) and (Judicial) dated 16th June, 2017, the matter was placed under the 'undefended' category and it was heard as an 'undefended suit'.
The plaintiff has claimed that there was an understanding between the plaintiff and the defendant that in case of any default, the defendant would be liable to pay interest on any sum due and payable by it, would be charged @ 18% per annum. However, in absence of any agreement or proof that the defendant is liable to pay interest @ 18% per annum, this Court holds that the defendant, in any case, should make payment of some interest on the admitted dues and in this case, in exercise of discretion, this Court holds that plaintiff is entitled to interest @ 9% per annum from 31.01.2017 as mentioned in paragraph 16 of the plaint. Therefore, the interest would be ₹ 7,24,393/- only, till the date of disposal of this suit. The defendant is directed to make payment of the entire sum together with interest as indicated above, within a period of three months from the date of communication of the decree failing which the defendant shall be liable to pay further interest @ 9% per annum on the entire decretal amount till realization thereof.
Suit is decreed for the sum mentioned.
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2018 (3) TMI 1868
Deduction @100% u/s 80IC - Assessee claimed such deduction for first five years as there was no bar in the statute to claim deduction after undertaking substantial expansion within the prescribed period - HELD THAT:- We find that the AO by placing reliance in the case of M/s Hycron Electronics [2018 (3) TMI 1867 - ITAT CHANDIGARH] which confirmed the order of CIT(A) the disallowance of claim @ 100% made by the AO, we find the said decision of Chandigarh benches were challenged by a group of assesses before the Hon’ble High Court of Himachal Pradesh [2017 (12) TMI 69 - HIMACHAL PRADESH HIGH COURT]
We find that the Hon’ble High Court was pleased to quash the order of the Tribunal in confirming the order of CIT(A) and AO in denying allowance @100% u/s 80IC of the Act and held that Sub clause (v) of sub section 8 of section 80IC of the Act contemplates more than one ‘Initial assessment year’ and for a unit which completes substantial expansion, initial assessment year means A.Y. relevant to the previous year in which it completes substantial expansion.
In the present case, claim of the assessee was that substantial expansion was taken place during the previous year i.e. 2012-2013 and claimed deduction @ 100% for A.Y.2013-14. Assessee is entitled to claim deduction @100% u/s 80IC of the Act. We therefore find no infirmity in the order of CIT(A). Accordingly grounds raised by the revenue in 1 and 2 are dismissed.
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2018 (3) TMI 1867
Penalty u/s 271(1)(c) - AO held that the assessee is eligible for deduction u/s 80IC only @ 25% as against the claim of 100% made by the assessee - HELD THAT:- Assessee claimed deduction section 80IC in assessment year under appeal in a bonafide manner and mere fact that claim of assessee has been disallowed, would not prove it to be a fit case of levy of penalty for filing inaccurate particulars of income. The issue of claim of deduction was debatable and bonafide. There was conflict for determination of provision of law. Merely making a claim of 100% deduction against 25% as per opinion of the Assessing Officer under section 801C of the Act would not be at par with concealment of income or furnishing inaccurate particulars of income. The decisions relied upon by Id. counsel for the assessee support the contention of Id. counsel for the assessee that it is not a fit case of levy of penalty under section 271(1)(c) .
A mere making of a claim which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding tlie income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars - See Reliance Petroproducts Ltd. [2010 (3) TMI 80 - SUPREME COURT].
Since the assessee's claim of deduction under section 80IC have been allowed in earlier years @ 100% and admittedly assessee undertook substantial expansion in assessment year under appeal therefore, assessee made bonafide claim of deduction under section 80IC of the Act and there were no judicial pronouncements against the assesses: on the date of making such a claim. Therefore, it could not be construed that the assessee has furnished inaccurate particulars of income so as to levy the penalty under section 271(1)(c) - Decided in favour of assessee.
Levy of penalty on the claim of deduction u/s 80IC w.r.t. carrying out substantial expansion in the 8th year is directed to be deleted.
Penalty on interest incurred under section 14A - HELD THAT:- The appellant has claimed that the dividend received has not been included in the income eligible for deduction u/s 80IC and the same has been claimed exempt under the I.T. Act, 1961. The perusal of the computation sheet shows that the submissions of the appellant are correct with regards to reducing the dividend income from business income and claiming it exempt separately .Hence the A.O. is accordingly is directed to delete the penalty levied on this ground.
Penalty on foreign exchange fluctuation - Disallowance of deduction u/s 80IC on foreign exchange fluctuation - HELD THAT:- ITAT in assessee's own case has referred the matter back to the file of the A.O. in assessment year 2010-11. The ITAT has allowed the deduction u/s 80IC on foreign exchange fluctuation in case it is relatable to business receipts of revenue nature. The assessing officer in A.Y. 2010-11 has not levied penalty on this issue. Considering these facts, the A.O. is accordingly is directed to delete the penalty levied on the addition made on account of the foreign exchange fluctuation.
It is hereby held that the penalty cannot be levied on the claim of wrong deduction under section 80IC, claim of currency fluctuation, on disallowance of interest under section 14A, and claim of deduction on the interest received on margin money and misc. receipts as these do not constitute concealment of furnishing of inaccurate particulars of income with reference to the levy of penalty under section 271(1)(c). Decided in favour of assessee.
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2018 (3) TMI 1866
Request for inspection of public file with the Designated Authority (DA) - levy of anti dumping duty - delay in making request - it was held by the High Court that, having missed its opportunity of filing its appeal in the CESTAT within time, the Petitioner was seeking to build an ability to explain its delay and therefore applied for inspection of the DA’s file - HELD THAT:- There are no reason to interfere with the decision of High Court - SLP dismissed.
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2018 (3) TMI 1865
Disallowance of Corporate Social Responsibility expenses (‘CSR’) - HELD THAT:- We find that a view has already been taken by the Tribunal in assessee’s own case for immediately preceding AY [2017 (4) TMI 405 - ITAT MUMBAI] where the Tribunal, not convinced with assessee’s explanation, upheld the stand of revenue in disallowing the expenditure incurred on corporate social responsibility. - Decided against assessee.
Addition of provision of slow moving / obsolete stock to the book profit of the Appellant while computing the tax liability u/s 115JB - HELD THAT:- Similar issue arose in assessee’s own case for AY 2009-10 [2017 (4) TMI 405 - ITAT MUMBAI] where the matter has been remanded back by the Tribunal to the Ld. AO with certain directions. However, the Ld. AR made an attempt to distinguish the facts in the impugned AY by submitting that the assessee has written off the obsolete stock in the books, the complete details of which are available on record and therefore, the same is allowable to the assessee in terms of several judicial pronouncements.
We find the matter to be inter-connected one. Therefore, with a view to maintain consistency in the treatment thereof, without delving much deeper into the issue, we deem it fit to restore the matter back to the file of Ld. AO on similar lines and adopt a consistent approach. Resultantly, this ground stands allowed for statistical purposes.
Amortization / Depreciation claimed on Terminal Rights - rate of depreciation on certain intangible assets acquired by the assessee - HELD THAT:- Assessee has acquired Terminal Rights for 30 years and the expenditure is clearly a capital in nature and an intangible asset. The genuineness of the same is also not in dispute and consequently, the assessee is entitled to claim depreciation against the same. The only dispute is with regard to rate at which depreciation is allowable to the assessee. No doubt, the assessee is required to compute its income as per the provisions of Income Tax Act, 1961 and the assessee, is entitled for depreciation on capital assets in terms of Section 32 read with Rule 5 of Income Tax Rules at rates prescribed in Appendix-1 to Income Tax Rules, 1962. Upon perusal of the same, we find that the prescribed rate of depreciation on Intangible Assets being knowhow, Patents, Copyrights, trademarks, Licenses, franchises or any other business or commercial rights of similar nature is 25%, which assessee is eligible to claim. - Decided in favour of assessee.
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2018 (3) TMI 1864
Penalty u/s 271(1)(c) - Unexplained bank deposits - assessee failed to explain the source of such deposits - HELD THAT:- When the assessee has failed explanation source and the said addition has been confirmed even up to the stage of this Tribunal then, in the penalty proceedings only defence available to the assessee is that though the explanation of the assessee was not accepted by the AO however, the same is bonafide. We find that the assessee has not furnished any such explanation either before the Assessing Officer in penalty proceeding or before the ld. CIT(A) in the appellate proceedings.
Even what the assessee has contended before the ld. CIT(A) is only the same decisions as we have referred in the forgoing paragraphs and nothing else. The assessee has not uttered even a single sentence about the source of the deposit made in the bank account and therefore, when no explanation at all was furnished by the assessee then the question of the same being bonafide does not arise.
Even before the ld. CIT(A), the assessee did not furnish any explanation regarding the source of the deposits made in the bank account. Hence, in the facts and circumstances of the case, we do not find any error or illegality in the orders of the authorities below. Accordingly we confirmed the levy of penalty u/s 271(1)(c) of the Act. - Decided against assessee.
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2018 (3) TMI 1863
Auction - recovery of dues - priority of charges over the property - whether the bank is having first charge over the property in question? - it was held by the High Court that the bank shall have preference over others - HELD THAT:- Issue notice.
Application for exemption from filing official translation is allowed.
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2018 (3) TMI 1862
TP Adjustment - assessee has not prepared segmental accounts initially and hence it could furnish only unaudited segmental accounts before TPO - HELD THAT:- TPO has rejected the same doubting about its reliability. Subsequently, the assessee has prepared proper segmental accounts and got it audited and furnished the same before the learned CIT(A). We notice that the CIT(A) has refused to admit the same for technical reasons. As held by the Coordinate Bench in the case of Smt. Avan Gidwani [2016 (4) TMI 809 - ITAT MUMBAI] the additional evidences furnished by the assessee in the form of audited segmental accounts may be vital documents that may be required to adjudicate the issue in judicious matter, particularly in view of the fact that the TPO has changed the methodology altogether to determine the ALP of international transactions. We admit the additional evidences. Since, the issue is required to be examine afresh, as per the plea of learned DR, we restore the issue relating to determination of arm’s length price to the file of Assessing Officer/TPO for examining it afresh by duly considering the additional evidences furnished by the assessee. After hearing the assessee, they may take appropriate decision in accordance with the law.
TP adjustment required to be made at entity level or to be restricted with the transactions entered between AE - HELD THAT:-This issue has since been decided in the case of CIT Vs. M/s. Thyssen Krupp Industries India P. Ltd. [2015 (12) TMI 1076 - BOMBAY HIGH COURT] wherein it was held that the adjustments should be restricted to transactions between the parties. CIT(A) has not adjudicated this issue. Since we have restored the matter relating to determination of arm’s length price to the file of the AO/TPO, we prefer to restore this issue also to them.
Deduction of foreign exchange loss on revaluation of debtors/creditors and advances/losses balances as at the year end - HELD THAT:- Since facts relating to the claim of the assessee are already available on record, we admit the additional ground raised by the assessee. Since the same requires examination at the end of the Assessing Officer, we restore the same to the file of the AO with the direction to examine the same by duly considering accounting policy consistently followed by the assessee and take appropriate decision in accordance with law.
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2018 (3) TMI 1861
Addition u/s 43D - Accrued interest on loans which are classified as "Non-performing Assets" - CIT-A deleted the addition - HELD THAT:- CIT(A) has adjudicated the impugned issue following the judgment of the jurisdictional High Court in Canfin Homes Ltd. - [2011 (8) TMI 178 - KARNATAKA HIGH COURT] . Unless and until the operation of the order of the judgment of the Hon’ble High Court is stayed by the Hon’ble Apex Court, it holds the field and all subordinate judicial authorities are supposed to follow the judgment of the jurisdictional High Court. Mere filing of SLP does not amount to stay of the operation of the judgment of the Hon’ble High Court. Under these circumstances, we are of the view that CIT(A) has rightly adjudicated the issue in the light of the judgment of the jurisdictional High Court and we find no infirmity therein. Accordingly, we confirm his order. - Decided against revenue.
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2018 (3) TMI 1860
Exemption u/s 11 - approval sought under Section 80G - application filed u/s 12AA was declined by the C.I.T. (E) inspite of granting sufficient opportunity, the assessee failed to produce details and documents in support of its claim for registration - I.T.A.T. while considering the objects (Annex.6) of the charitable Trust, held that as per Section 12A and 12AA what is intended thereby is only a registration simplicitor of the entity of a Trust, which is condition precedent for claiming of benefits under the other provisions of the Act regarding exemption of income, contribution etc. - HELD THAT:- No examination of the modus of the application of the funds of the Trust or an examination of the ethical background of its settlers is called for while considering an application for registration. The I.T.A.T. further held that stage for consideration of relevance of the object of the Trust and application of its fund arise at the time of assessment, when benefits are claimed by assessee in terms of Sections 11 and 12, the question as to the nature of such contribution and income can be looked into.
At the time of registration of the Trust, going by the binding judgments of the Apex Court, what is to be looked into is whether the Trust is a genuine one and whether is a sham institution floated only to avail the benefits of exemption under the Act, therefore, the learned I.T.A.T. allowed the appeal filed by the respondent/assessee and passed order to grant registration under Section 12AA and 80G of the Act to the assessee with effect from filing of application.
Relevant provisions of law and the object of the Trust reproduced in paragraph 8 of the order, we are of the opinion that no substantial question of law arises for consideration.
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2018 (3) TMI 1859
Recovery of arrears of sales tax - sale of immovable property in an auction - HELD THAT:- Portion of the property has been sold by the Recovery Officer - II, Debts Recovery Tribunal -1, Chennai, the fourth respondent herein, and another portion of the property has been sold by the Official Liquidator, High Court of Madras. No material has been placed by the respondents that the writ petitioner was put on notice of the arrears of tax due and payable by M/s. Moolchand Exports Limited (In Liquidation), Chennai -108, and the creation of charge over the property. No encumbrance has been made in the office of the Sub-Registrar, within whose territorial jurisdiction, properties are situated - Though Mr. M. Hariharan, learned Additional Government Pleader (Taxes), contended that the Sales Tax Department had already informed the arrears of tax due and payable by M/s. Moolchand Exports Limited, to the Tribunal, sale notice does not reflect any condition imposed on the bidders to pay the arrears of tax, payable by M/s. Moolchand Exports Limited to the Government.
In the absence of any specific condition, in the sale notice that, arrears of tax due and payable by M/s. Moolchand Exports Limited, has to be paid by the auction purchaser, in the sale notice we are of the view that sale notice he should be treated as a be bona fide purchaser, without notice - the petitioner is bona fide purchaser and that he should not be imposed with any liability to pay arrears of tax, payable by M/s. Moolchand Exports Limited, (In Liquidation), Chennai.
Petition allowed - decided in favor of petitioner.
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2018 (3) TMI 1858
Validity of reopening of assessment - addition on protective basis - Whether AO has made addition on protective basis which has no relevance with the reasons recorded for reopening of the assessment? - search and seizure operation under section 132 - HELD THAT:- AO prior to issuing notice under section 148 has recorded the statement of the assessee and as per para 6 of the assessment order the AO has given the basis of the statement of the assessee wherein the assessee has specifically denied any land transaction as alleged by the AO. The assessee has also denied any relation with M/s. Kalyan Builtmart Pvt. Ltd. or has given any money or loan to the said company. The amount paid through cheque to Shri Madan Mohan Gupta also does not pertain to the year under consideration and, therefore, when the payment through cheque was at different point of time and is not a payment made to the land owners then on the basis of material which was available before the AO, it cannot be said that an income of ₹ 11.59 crores has escaped assessment for the year under consideration. AO while framing the assessment has made an addition on protective basis which itself manifest and established the fact that the reasons to form the belief by the AO for reopening of the assessment is not based on any tangible material to show that the income assessable to tax has escaped assessment.
AO has formed the belief only on presumption and not on the basis of material as referred in the reasons. Therefore, the reopening of the assessment merely on the basis of suspicion and presumption which is not supported by even the material as referred in the reasons recorded and available with the AO then the reopening of the assessment is not valid and liable to be quashed. We accordingly quash the reopening of the assessment as invalid and consequently the reassessment framed is also set aside being not sustainable. - Decided in favour of assessee.
Validity of assessment framed under section 153A read with section 143(3) of the IT Act - HELD THAT:- from the seized material there is nothing to indicate or disclose any involvement of the assessee directly or indirectly in the transaction of purchase of the land in question and subsequently the company Shri Kalyan Buildmart Pvt. Ltd. was transferred to Shri Navratan Kothari, Shri Vimal Chand Surana HUF and Shri Kaushal Chand Surana. The ownership of the said company was not disputed as owned by Shri Madan Mohan Gupta and his wife and subsequently was transferred to these persons, namely, Shri Navratan Kothari and others. Even in the transaction of transfer of the said company, the role of the assessee was not visible and found much less the purchase and sale of the land in question. Therefore, in the absence of any incriminating material which led to disclosure of any undisclosed income belonging to the assessee, the AO cannot reassess the income of the assessee more than the income which was assessed on the original return of income. Accordingly, we will deal with this issue while considering the ground no. 2 of the assessee’s appeal and the ground raised by the revenue in the cross appeal.
Addition u/s 68 - When the addition is not based on the seized material then the ld. CIT (A) has no jurisdiction even having concurrence power of the AO to make any addition in the assessment framed under section 153A. Accordingly, the addition made by the ld. CIT (A) of ₹ 50,00,000/- is not sustainable and according deleted.
Issue raised by the revenue in the cross appeal, there is no dispute that the AO made only a protective addition in the hands of the assessee and, therefore, the AO cannot go beyond the assessment order. The revenue is seeking the addition on the basis of the remand report which is not the case of the AO in the assessment passed under section 153A. Therefore, applying the same principle of addition without any incriminating material disclosing the income of the assessee, we do not find any merit or substance in the appeal filed by the revenue. The same is dismissed.
Absence of giving an opportunity to the assessee to cross examine - on money paid by the assessee - HELD THAT:- In the case in hand the transactions recorded in the seized documents clearly pertains to the purchase of land in the name of the company and, therefore, the seized documents do not reveal who has paid on money in the said transaction. The AO has held that the on money is paid by the assessee whereas the transaction was in the name of the company M/s. Hemang Construction Pvt. Ltd. Further, when assessee as well as Shri Madan Mohan Gupta both were the directors of the said company then except the statement of Shri Madan Mohan Gupta there was no other material or record to establish that the said on money was paid only by the assessee and not by Shri Madan Mohan Gupta or by both or by the company. Therefore, this decision of the AO that the on money was paid by the assessee is absolutely based on the statement of Shri Madan Mohan Gupta and since Shri Madan Mohan Gupta was one of the Directors of the said company, therefore, the possibility of making a self serving statement cannot be ruled out. Accordingly, in the absence of giving an opportunity to the assessee to cross examine Shri Madan Mohan Gupta, the said finding of the AO is not sustainable in law and in view of the above discussion we hold that the addition made by the AO is not justified and the same is deleted.
Addition being on money paid in respect of the land at Jamna Vihar, Teelawala - HELD THAT:- assessee denied to have entered any transaction of purchase of land from Shri Mool Chand. However, the AO without bringing anything on record to disclose any transaction of purchase of land as alleged either by the assessee or by any group company of the assessee has made the addition only on the presumption that when a group concern of the assessee has purchased land in the past then this payment must have been made by the assessee for purchase of land. It is pertinent to note that when the AO has treated this as a payment made by the assessee for purchase of land then in the absence of actual transaction of purchase of land during the year under consideration or even in the subsequent years or in the immediately preceding year, the addition made by the AO is absolutely based on assumption of facts without any material disclosing any transaction of purchase of land or payment made by the assessee. Therefore, when the document itself does not reveal the transaction of payment by the assessee then the presumption of this fact based on the statement of Shri Madan Mohan Gupta without affording an opportunity to the assessee to cross examine Shri Madan Mohan Gupta, the said addition made by the AO is not sustainable.
Validity of order passed under section 153A read with section 143(3) - HELD THAT:- Since the assessment proceedings for the assessment year under consideration were not concluded but pending as on the date of search, therefore, the same got abated by virtue of search and seizure action u/s 132. This issue is common as raised by the assessee for the assessment year 2010-11. Accordingly as far as initiation of proceedings for reassessment u/s 153A is concerned, the same was valid. The addition made by the AO while framing the assessment are to be dealt with separately in other grounds of appeal Accordingly, this ground is decided against the assessee.
Addition invoking the provisions of section 50C - objections raised by the assessee against the adoption of the DLC rates of adjoining area - HELD THAT:- Since undisputedly the DLC rates for the Keshav Vihar, Jaipur were not fixed and, therefore, not available for the purpose of adopting the same as full value consideration under section 50C of the Act, therefore, the AO has adopted the DLC rates of adjoining area, namely, Siddharth Nagar without giving the assessee an opportunity of hearing and defend its case against such adoption of full value consideration. Once the assessee has raised the objection against the adoption of the DLC rates of an adjoining area instead of the area in which the plot in question situated, the AO and ld. CIT (A) ought to have referred the matter to the DVO for determination of fair market value of the plot in question which could be taken as full value consideration. Accordingly, in the facts and circumstances of the case, we set aside the issue to the record of the AO for re-adjudication of the same after making the reference to the DVO regarding determination of fair market value of the plot in question and thereafter after considering the objection, if any, of the assessee to decide the issue as per law. Appeal of the assessee is partly allowed.
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2018 (3) TMI 1857
Refund of amount lying unutilised in PLA account - rejection on the ground of bar of limitation by observing that, inasmuch as the same amount is “due waiting to be debited”, the limitation as provided under Section 11B of Central Excise Act, 1944 would apply - HELD THAT:- The limitation prescribed under Section 11B applies to the refund of duty amount. Inasmuch as the lower authorities themselves observed that the amount in question is “duty waiting to be debited”, this clearly shows that the same is not duty, in which case, the provision of Section 11B would not apply.
Otherwise also, it is found that the PLA deposits are mere deposit for the purposes of their utilisation in the future and if the same is not in a position to be utilised, the depositor has to be held as owner of the said amount which is required to be refunded to them, in the absence of any limitation prescribed under the Act for such refund.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1856
Smuggling - Seizure of vehicle alongwith the goods - extension of period for issuance of SCN - Penalty - HELD THAT:- By Order dated 07.05.2013, the Commissioner extended the period of issue of Show Cause Notice upto 16.11.2013. It is seen from the record that the Show Cause Notice was issued on 12.11.2013. Hence, there is no need to go into this matter as the Show Cause Notice had already been issued. Hence, the appeal is liable to be dismissed as infractuous.
Penalty - HELD THAT:- It is found from the record that the allegation is that the seized goods namely Cough Syrup and Cough Linctus of huge quantity were admittedly smuggled to Bangladesh. The appellant is the Manager of the Transport Company and responsible for loading of the goods. He has not come up with reasonable explanation against the charges labeled against him. Therefore, the imposition of penalty is justified, but the quantum of penalty is reduced.
Appeal allowed in part.
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2018 (3) TMI 1855
Valuation of imported goods - zinc skimmings - enhancement of declared value, without rejection of transaction value - case of appellant is that no valid reasons have been given by the assessing officer to enhance the value - HELD THAT:- Without rejecting the transaction value, it was not fair on the part of the Revenue to enhance the same. The appellate authority also observed that there was not a single contemporaneous evidence of comparable import noticed by the Custom House and as such the value enhancement was unjustified.
Admittedly, the quantity imported by the respondent was a bulk quantity and they had entered into a negotiated price with their foreign supplier for huge quantity of the goods. There is also no evidence on record to show that the value entered by the importer with the supplier of the goods is not the correct value - the value enhancement was not on the basis of any concrete evidence.
Appeal dismissed - decided against Revenue.
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2018 (3) TMI 1854
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - existence of dispute or not - HELD THAT:- It is established that the Corporate Debtor has defaulted in making payment of the outstanding debt. The Financial Creditor has fulfilled all the requirements of law and has also proposed the name of IRP after obtaining the written consent in Form-2. Therefore, is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.
Application admitted - moratorium declared.
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