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2014 (4) TMI 1149
Depreciation on assets purchased from certain parties and given back on lease - Held that:- We direct the A.O. to allow the claim of the assessee for depreciation on the assets given under sale and lease back basis. The A.O. is also directed to withdraw any corresponding benefit given to the assessee by excluding the value of capital component of the lease rent from the income of the assessee. See M/s ICDS. LTD. Versus COMMISSIONER OF INCOME TAX. MYSORE & ANR. [2013 (1) TMI 344 - SUPREME COURT ]
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2014 (4) TMI 1148
Issues involved:
1. Disallowance under section 14A read with Rule 8D(iii) of the Act.
2. Disallowance of direct expenditure under clause 8D(i) and clause 8D(iii).
3. Application of the decision of the Tribunal in similar cases.
4. Disallowance of proportionate management expenses under Rule 8D(iii).
Analysis:
1. The appeals were filed against the order passed by the Commissioner of Income Tax (Appeals) for the assessment year 2009-10 regarding disallowance under section 14A read with Rule 8D(iii) of the Act. The Assessing Officer disallowed amounts under clause 8D(i) and 8D(iii) as direct expenditure and 0.5% of average investments for earning dividend income exempt from tax. The Commissioner of Income Tax (Appeals) deleted the disallowance under clause 8D(i) but sustained the disallowance under clause 8D(iii), leading to appeals by both the assessee and Revenue.
2. The Commissioner of Income Tax (Appeals) considered the submissions and the decision of the Tribunal in similar cases, ultimately deleting the disallowance under clause 8D(i) based on the decision of the co-ordinate Bench of the Tribunal. The disallowance under clause 8D(iii) was upheld by the Commissioner of Income Tax (Appeals) based on legislative intent and the decision of the jurisdictional Bench of the ITAT, Chennai in a relevant case.
3. The Tribunal found no infirmity in the order of the Commissioner of Income Tax (Appeals) regarding the deletion of disallowance under clause 8D(i) based on the decision in the case of Sriram Capital Ltd. The disallowance under clause 8D(iii) was upheld by the Tribunal following the decision of the coordinate Bench of the Tribunal in a related case, affirming the correctness of the disallowance made by the Commissioner of Income Tax (Appeals).
4. The Tribunal upheld the disallowance under clause 8D(iii) based on the decision of the coordinate Bench of the Tribunal, which considered and approved the disallowance of proportionate management expenses while computing dividend income. The Tribunal dismissed both the appeals of the assessee and Revenue, affirming the orders of the lower authorities regarding the disallowances made under section 14A read with Rule 8D(iii) of the Act.
This judgment highlights the meticulous consideration of relevant legal provisions, precedents, and factual analysis in determining the disallowances under section 14A read with Rule 8D(iii) of the Income Tax Act, ensuring consistency and adherence to established legal principles.
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2014 (4) TMI 1147
Addition u/s.10B - whether the nature of services rendered by the assessee can be said to be ‘data processing and content development’ falling within the Notification issued u/s. 10A - Held that:- The term ‘data processing’ would be wide enough to cover the services rendered by the assessee. The CIT(Appeals) has only approved the findings of the AO and has not given his independent view on the issue. We therefore hold that the Assessee was engaged in the business manufacture of computer software as envisaged in Sec.10A/10B of the Act.
Admittedly the Assessee did not have the required approval as envisaged u/s.10B of the Act. The Assessee however claims it has the required approval for allowing deduction u/s.10A of the Act. With regard to the question as to whether the assessee can be allowed to shift the claim for deduction from section 10B to section 10A of the Act, we have already seen that in the past the assessee had been claiming deduction u/s. 10A of the Act. Thus the claim of the assessee should be directed to be examined in the light of the provisions of section 10A of the Act and for this purpose the report of the auditor in Form 56F of the Act filed before the CIT(A) is admitted as additional evidence. We are of the view that, in the interest of justice, the issue should be directed to be examined by the Assessing Officer afresh u/s. 10A of the Act in the light of the observations made by us in the earlier part of this order. Accordingly, we set aside the order of the CIT(Appeals) and remand the issue to the Assessing Officer for fresh consideration claim of the Assessee for deduction u/s.10A of the Act. The Assessing Officer will decide the issue afresh after affording the assessee opportunity of being heard.
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2014 (4) TMI 1146
Demand - Clandestine manufacture and removal of non-alloy steel ingots - there were lying 45 ingots as against the production of only 37 ingots weighing 3.920 M.T.s shown in the log sheet - appellants had increased the capacity of their furnace in December, 2003 from 4 M.T.s per heat to 5 M.T.s per heat - Held that:- the revenue in their present appeal has not been able to introduce any evidence to show the clandestine manufacture and clearance of the ingots in question. On going through the impugned order, I find that the appellate authority has passed a detailed order dealing with each and every aspect. In fact, the entire case of the revenue is based upon the sole ground that on the day of visit of the officers, 8 ingots, in excess of the bar heat number of ingots were found lying therein. The charges of clandestine removal, cannot be upheld on the above basis, without any corroborative evidence. - Decided against the Revenue
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2014 (4) TMI 1145
Motor Accident Claims - compensation claimed on the ground that the sole breadwinner of their family, who was 46 years old, had died in a road accident - Held that:- It is evident from the order of the Tribunal as well as Salary Certificate filed as (Annexure P-2) the deceased was getting a gross salary of ₹ 14,103.77 ps. p.m. apart from benefits like GPF, D.A., and other allowances. It is also stated therein that the deceased was having another 12 years of service and there is a chance of revision of pay scales and getting one more promotion. Taking all these into consideration, the Tribunal arrived at a conclusion that the salary of the deceased would be ₹ 35,000/- p.m. at the time of his retirement and ₹ 25,000/- p.m. as his potential earning capacity on the date of his death. After deducting ₹ 10,000/- towards personal expenses, his liability towards taxation etc., the net contribution of the deceased towards his dependents was arrived at ₹ 15,000/- p.m., applied the multiplier 12 taking into consideration the age of the deceased and finally awarded an amount of ₹ 22,10,000/- as total compensation payable with interest @ 9% p.a. The High Court without properly appreciating the factum of the young age of the deceased and without taking future prospects of the deceased into consideration has reduced the compensation from ₹ 22,10,000/- to ₹ 13,90,000/- and the rate of interest from 9% p.a. to 7.5% p.a.
Even though we are not convinced with the calculation and reasoning given by the Tribunal, but keeping in view the peculiar facts and circumstances of the case, where the deceased died at an early age of 46 years, had 12 more years of service, would have got promotions, resulting in hike in his pay and emoluments, we feel that ends of justice would be met if the potential earning capacity of the deceased is fixed at ₹ 30,000/- p.m. Accordingly, we fix the potential earning capacity of the deceased per month at ₹ 30,000/- instead of ₹ 25,000/- as fixed by the Tribunal. After deducting 1/3rd portion from ₹ 30,000/- towards personal expenses, the dependency benefit for the appellants would come to ₹ 20,000/- and the multiplier applicable is 12 taking into consideration the age of the deceased. Accordingly, the loss of dependency is fixed at ₹ 20,000 x 12 x 12 = ₹ 28,80,000/-. In addition to that, the appellants are entitled to ₹ 50,000/- as conventional amount as granted by the Tribunal. Thus, the appellants would be entitled to a total compensation of ₹ 29,30,000/- with interest @ 7.5% p.a.
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2014 (4) TMI 1144
Cenvat credit - duty paid on the welding electrodes and gases used for repair and maintenance of the capital goods - Held that:- issue stands decided by various decisions of the High Court and followed by the Tribunal in the case of Maihar Cement Vs. CCE, Bhopal [2012 (5) TMI 550 - CESTAT NEW DELHI]. Therefore, by following the same, the impugned order is set aside. - Decided in favour of assessee
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2014 (4) TMI 1143
TDS u/s 194C - Disallowance of freight expenses u/s. 40(a)(ia) - Held that:- The second proviso to sec, 40(a)(ia) of the Act, inserted by the Finance Act, 2012 with effect from 1.4.2013 is clarificatory in nature and hence the benefit of the same should be applied retrospectively. However, the correctness of this contention has not been examined by the tax authorities. Hence, in the interest of natural justice, we are of the view that this contention of the assessee requires examination at the end of the assessing officer. Accordingly, we modify the order of the Ld.CIT(A) and set aside this ground to the file of the Assessing Officer with the direction to examine the above said contention of the assessee and decide the same in accordance with law, after affording necessary opportunity of being heard. See ITO vs. M/s. Gaurimal Mahajan & Sons [2015 (3) TMI 770 - ITAT PUNE]
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2014 (4) TMI 1142
Reversal of CENVAT credit - Payment was made on the depreciated value of the capital goods - whether on removal of used capital goods, the appellant is required to reverse the entire Cenvat credit originally taken by him at the time of receipt of the capital goods or not? - Held that:- The issue is no more res integra and stands settled by various decision of the Tribunal as also of High Court. Reference can be made to Hon’ble Delhi High Court’s decision in the case of Harsh International (Khaini) Pvt. Ltd. Vs. CCE (2012 (6) TMI 340 - DELHI HIGH COURT ) and Larger Bench decision in the case of CCE Hyderabad Vs. Novodhaya Plastic Industries Ltd. (2013 (12) TMI 82 - CESTAT CHENNAI ).
It stands held that the requirement of reversal of entire credit is only when the capital goods are removed ‘as such’. Where the same are cleared after continuous use in a number of years, the depreciated value in terms the board’s circular No. 643/34/2002-Ex. Dated 1.7.2002 prescribing deduction of 2.5% of credit for each quarter of use of machine year from date of taking of Cenvat credit is required to be followed. Thus set aside the impugned order and remand the matter to the original adjudicating authority for arriving at the depreciated value of the capital goods in question inasmuch as nowhere find as to how the depreciated value stands arrived at by the appellant. However, do not find it a case of imposition of penalty the same is accordingly set aside.
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2014 (4) TMI 1141
Revision u/s 263 - Held that:- The direction issued by the C.I.T. to pass a fresh assessment order after examining the evidence and documents, is in the backdrop of the fact that pursuant to the notice issued under Section 131 of the Income Tax Act and subsequent proceedings thereunder, it transpired that the assessee had omitted to disclose sale of a sum of ₹ 1,52,83,632/-. The assessing officer taxed the gross profit at the rate of 9.33 per cent. The C.I.T. was of the opinion that the rate of gross profit could not have been less than 17 per cent.
The learned Tribunal, in its judgement, held that the purchases and the closing stock remained constant. If that is so, the sum of ₹ 1,52,83,632/- is clearly to be added to the profits of the assessee. Mr. Bharadwaj submitted that it would appear from the evidence that there were additional purchases. The additional purchases have been ruled out by the Tribunal in its order under challenge where it was held “……..on the accepted purchases and the closing stock remaining constant”. In case any further scrutiny of the evidence is required, as submitted by Mr. Bharadwaj, the learned Tribunal was not justified in tinkering with the order of the C.I.T. passed under Section 263 of the I.T. Act.
We are, as such, of the opinion that the learned Tribunal erred in allowing the appeal of the assessee. The order of the Tribunal is, therefore, set aside and the order of the C.I.T. passed under Section 263 of the I.T. Act is restored.
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2014 (4) TMI 1140
Credit of service tax paid on the inputs services on the basis of debit note raised by the service provider - Held that:- There are number of decisions allowing such credit. Pharmalab Process Equipments Pvt. Ltd. Vs. CCE, Ahmadabad [2009 (4) TMI 142 - CESTAT AHMEDABAD ], Karur KCP Packaging Pvt. Ltd Vs. CCE, Trichy [2009 (5) TMI 831 - CESTAT CHENNAI], Chemplast Sanmar Ltd. Vs. CCE, Salem [2009 (12) TMI 76 - CESTAT, CHENNAI ] and CCE, Indore Vs. Gwalior Chemicals Industries Ltd. [2012 (5) TMI 352 - CESTAT, NEW DELHI ].
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2014 (4) TMI 1139
Provision of leave encashment - admissible deduction - Held that:- After having perused the order of the Appellate Tribunal in the light of the judgment of Hon'ble Supreme Court in the case of “Bharat Earth Movers Ltd. v. C.I.T., (2000 (8) TMI 4 - SUPREME Court ) we are of the opinion that the point is covered against the Revenue and in favour of the assessee. In paragraph 25 of the order under challenge, the Tribunal has reproduced the observations of the Hon'ble Supreme Court wherein held that the amount should be capable of being estimated with reasonable certainty although the actual quantification may not be possible. In the present case material was brought before the Tribunal to show that the provision for leave encashment has to be made by the employer. That is pertaining to the benefit which is availed by the employees. Such of the employees who do not avail of the leave to their credit get the benefit of this scheme. The amounts have to be paid at the end of their tenure/service. In such circumstances, the provision is made by the assessee in the account for the same. That is an estimation and which is permissible in terms of the Supreme Court's judgment. The view taken by the Tribunal is possible in the given facts and circumstances. Therefore, on this count no substantial question of law arises for determination in this appeal.
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2014 (4) TMI 1138
Cancellation of tender process - discrepancies crept in the process of transfer of the land in favour of the respondent - Held that:- According to the material placed on record, the land concerned involves significant amount of public money. Therefore, its transfer in favour of the respondent attracts the greatest amount of responsibility and caution. The competent valuer had already determined the registered value of land at ₹ 4,24,72,124/-. Therefore, it was the responsibility of the concerned authority to ensure all steps which should have been undertaken to sell the land at a minimum cost of ₹ 4,24,72,124/- or above instead of its attempt to sell the same at a lower price merely on the pretext that no one would come up to purchase the land at the valuer’s price or that since the land is an encroached land, the lower price is justified cannot be accepted. The strong reliance placed by the learned senior counsel, Mr. Mehta on the report of the Joint Registrar of Co- operative Societies, is the basis for the High Court for grant of relief in favour of the respondent is wholly untenable in law and therefore, the same cannot be accepted by this Court. The High Court should have noticed the above relevant aspects of the case in passing the impugned order which would certainly affect the public interest.
In the light of the legal principle laid down by this Court with regard to Public Trust Doctrine in Mahesh Chandra’s case (1992 (2) TMI 367 - SUPREME COURT) we are inclined to observe that the liquidator did not act fairly and reasonably in the best interest of the public of the State whose interest he is required to uphold. As per the material evidence put on record, the liquidator and the concerned authority did not take any step to improve the condition of the land and sell it at reasonable and standard price prevalent at the time of sale of the property in question.
Hence, we hold that the tender process initiated by the appellants is not legal and is liable to be set aside. We direct the concerned authority to issue fresh notice of tender for selling the land. The notice shall be made available in government websites and other local and national newspapers so as to encourage and invite more bidders. In the meanwhile, the authority shall take all necessary steps to improve and restore the condition of the land so as to make the purchase of the land free from legal encumbrances.
Since, the respondent had paid up the entire bid amount, it is entitled to refund of the entire amount. Further, since it is also proved that the amount paid by the respondent has been used to pay the arrears, the respondent is entitled to interest for the amount paid @7% p.a. from the date of payment till the date of refund.
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2014 (4) TMI 1137
TDS U/S 194C - Disallowance u/s 40(a)(ia) - a contract for supply, erection, testing & commissioning - whether the appellant's income is exempted under Section 10(20) to which provisions of Section 40(a)(ia) do not apply? - Held that:- We concur with the views of learned CIT(A) that the expenditure under consideration was incurred on account of supply, erection, testing & commissioning of lights. M/s Mahaluxmi Enterprises has raised a consolidated bill on account of commissioning, erection of supply of material. The TDS was required to be deducted from the payments made for consolidated bill of material and services as is clear from the circular no. 715 dated 08.08.1995 issued by CBDT.
We concur with the views of learned CIT(A) that the provisions of section 40(a)(ia) of the Act are deeming provisions. The deeming provisions are applicable notwithstanding anything otherwise provided under the Act. The assessee has made violations of the provisions of section 194C of the Act and as per section 40(a)(ia) of the Act, no expenditure is deductible if the tax has not been deducted on such payments as per provisions of the Act. The plea of the assessee is that the exemption u/s 10(20) of the act is allowed on such disallowance, is also not sustainable. No benefits in the form of deduction or exemption could be allowed on violating the provisions of the Act. See Mahabir Cotton Traders [2013 (5) TMI 894 - ITAT AMRITSAR] - Decided against assessee.
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2014 (4) TMI 1136
CAG Audit - Scope and ambit of the powers and duties of the Comptroller and Auditor General of India (CAG), the Telecom Regulatory Authority of India (TRAI) and the Department of Telecommunications (DoT) in relation to the proper computation and quantification of Revenue in determining the licence fee and spectrum charges payable to Union of India under Unified Access Services (UAS) Licences entered into between DoT and the private service providers - Held that:- As read Section 13, 16 and 18 of the 1971 Act along with Article 149 of the Constitution and Sections 3 and 5 of the TRAI Act, 1997 and, if so read, in our view, CAG is entitled to seek the records in terms of Rule 3 of TRAI Rules 2002 read with Clause 22 of the Licence Agreement. CAG, in that process, is not actually auditing the accounts of the UAS Service providers as such, but examining all the receipts to ascertain whether the Union is getting its due share by way of licence fee and spectrum charges, which it is legitimately entitled to, by way of Revenue Sharing. By adopting that process, CAG is not carrying out any statutory audit of the accounts of the service providers, but for the limited purpose of ascertaining whether the Union is getting its legitimate share by way of “Revenue Sharing”. Service providers are, therefore, bound to provide all the records and documents called for by the CAG.
CAG has, therefore, a duty to examine and satisfy himself that all the rules and procedures in that behalf are being met not only by the Union but also the service providers as a whole, since both, the Union, as well as the service providers, are dealing with the natural resources. CAG’s function is, therefore, separate and independent, which is not similar to the audit conducted by the DoT under Clause 22.5 or special audit under Clause 22.6. CAG’s function is only to ascertain whether the Union of India is getting its due share, while parting with the right to deal with its exclusive privilege to the Service Providers, who are dealing with a national wealth, to that extent, Rule 5(1)(ii) has to be read down, but the service providers are bound to make available all the books of accounts and other documents maintained by them under Rule 3, so as to ascertain whether the Union of India is getting its full share of revenue.
Legality of the communication issued by the Department of Telecommunications and Director General of Audit, Post and Telecommunication to the various Telecom service providers covered by Unified Access Service (UAS) License for making available all the accounting records for the purpose of audit by CAG - Held that:- Audit conducted by the licensor or the licencee, has nothing to do with the audit conducted by CAG. If the reasoning of the Tribunal is accepted, then the DOT can always stall an Audit sought to be conducted not only by CAG in exercise of powers conferred under Article 149 of the Constitution read with the 1971 Act and TRAI Rules 2002, but also an audit under clause 22.5 as well as special audit under clause 22.6. Consequently, an audit to be conducted by CAG would not depend upon the “formation of opinion” by the DoT that the statements or accounts submitted to it were inaccurate or misleading, which, in our view, would deprive the statutory and constitutional powers conferred on the CAG to conduct the audit or enquiry or inspection. Tribunal’s order, in our view, is an encroachment upon the constitutional and statutory power conferred on CAG under Articles 148, 149 of the Constitution as well as Section 16 of the 1971 Act read with Rule 5 of the TRAI Rules 2002 and the licensing provisions.
Clauses 22.5 and 22.6 are not meant for an audit to be conducted by CAG or TRAI, but meant for an audit by the DoT. The Tribunal also committed an error in holding that the “formation of opinion” under clause 22.5, that the statements or accounts submitted by the Licensee are inaccurate or misleading, is jurisdictional fact, referring to the jurisdiction of DoT/CAG to conduct audit under clause 22.5 or a special audit under clause 22.6. ‘Formation of opinion’ under clause 22.5 is a subjective opinion of Licensor or else the power to conduct any form of audit under clause 22.5 and 22.6 would be lost and Licensor has to go on convincing the licensee that the statements or accounts submitted by the Licensee are inaccurate and misleading.
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2014 (4) TMI 1135
Income derived from letting out buildings and providing services - whether to be assessed under the head Income from Business? - Held that:- The substantial question of law raised in this appeal is fully covered by the judgment reported in COMMISSIONER OF INCOME TAX-III v/s VELANKANI INFORMATION SYSTEMS (P) LTD [2013 (8) TMI 113 - KARNATAKA HIGH COURT ]
In the instant case the assessee-company has engaged in the business of developing, operating and maintaining an industrial park and providing infrastructure facilities to different companies as its business. In view of that, the substantial question of law is held against the Revenue.
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2014 (4) TMI 1134
(1) Whether Exh.A1, the mortgage deed dated 1909-1910 is a valid mortgage deed and even if it is so, whether it is a simple or usufructuary mortgage in terms of Sections 58(b) and 58(d) of the Transfer of Property Act, 1882?
(2) Whether the concurrent finding of the Appellate Authority in its judgment passed in AA No. 216 of 1994 is based on legal evidence on record and in accordance with law?
(3) Whether the finding recorded in the impugned judgment by the High Court in exercise of its revisional jurisdiction with regard to possession of the property holding that the appellant is not in possession under the document Exh. A1- mortgage deed, and therefore, he is not the deemed tenant of the land in question under Section 4A of the K.L.R. Act, is legal and valid?
All the three points decided against the appellant.
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2014 (4) TMI 1133
Depreciation on DG Sets, transformers, photocopier system and security camera - Held that:- The Clause 3(c) of the Agreement mandates the assessee to furnish various facilities and clause 3(f) specifics the consideration for such facilities. In this case, it is necessary to examine the relevant provisions of the Agreement between the owner of the property and the user (tenant). The assessee was supposed to provide services like lift, transformer, DG sets which require employment of personnel to discharge such responsibility. The various arrangements that the assessee has to make on a day to day basis to ensure availability of services and amenities to the user (tenant) in accordance with the Agreement reflects a clear manifestation of organized activity and therefore the income appears to have been correctly computed. In our view, denying depreciation on lift is not justified while allowing depreciation for other assets used by the assessee for such activities. The learned CIT(A) has not given any convincing reasons but the fact remains that like any other items mentioned above, lift has also been used and it requires day-to-day maintenance and attendance. - Decided against revenue
Disallowance of professional charges - non deduction of tds - Held that:- Services are definitely in the nature of business and it cannot be considered to be ‘income from other sources’. The sum referred to as administrative expenses is not the expenses debited to professional fee account. The assessee has credited the professional charges account with the above sum as some of these expenses were earlier debited to professional charges. The AO has completely misconstrued the credit entry as debit entry. The observations of the AO, being based on non-existing facts, are liable to be quashed. The AO’s observation that tax has not been deducted at source is not based on any evidence. Even assuming that tax has not been deducted at source, it cannot be a ground for disallowance as section 40(a)(ia) was introduced only with effect from assessment year 2005-06. The assessee cannot receive without incurring expenses. The assessee has engaged the services of professionals who have been paid for the services rendered by them.- Decided against revenue
Interest towards the project development, property acquisition and also advances made to suppliers disallowed - Held that:- Where interest on borrowed funds are utilized towards other current assets and there is no finding that the loan has been taken for the specific construction activity, interest has to be allowed as a period cost and cannot he added to the cost of work in progress.- Decided against revenue
Claim of the assessee for deduction of interest allowed
Assessment u/s 153C - Held that:- With regard to the argument of the ld. counsel for the assessee that the documents seized should prima facie show undisclosed income to invoke the provisions of section 153C of the Act, we are of the view that the same cannot be accepted. In this regard, the decision of the Hon’ble Delhi High court in the case of SSP Aviation ltd. v. DCIT, (2012 (4) TMI 335 - DELHI HIGH COURT ), clearly lays down that at the time of arriving at a satisfaction for proceeding against the other person u/s. 153C of the Act, it is not necessary that satisfaction should be recorded that such article or documents found in the course of search showed undisclosed income.
The next argument of the assessee that proceedings u/s. 153A r.w.s. 153C should not be initiated for all the six assessment years and it should be restricted only to the assessment years relating to the incriminating documents found at the time of search unable to appreciated for the simple reason that once the condition for invoking the provisions of section 153C are satisfied, then the AO has to proceed in accordance with the provisions of section 153A of the Act, which mandates the AO to pass an order of assessment for six assessment years immediately preceding the assessment year relevant to previous year in which search is conducted or requisition is made. The request of the ld. counsel for the assessee is that in the context of section 153C of the Act, provisions of section 153A should receive the restricted meaning. In our view, such a course is not possible. If, after analysis of seized document, the AO finds no income chargeable to tax for the six assessment years referred to in section 153A of the Act, then he has to pass NIL assessment. Hence, in our view, the assessee cannot have any grievance whatsoever.
The other arguments which challenge to the validity of initiation of proceedings u/s.153C of the Act in relation to assessment years 2004-05 and 2005-06 are as follows. These arguments proceed on the basis of the decision of the Hon’ble Special Bench in All Cargo Global Logistics Ltd vs. CIT, [2012 (7) TMI 222 - ITAT MUMBAI(SB)] wherein it was held that in respect of assessments that are completed prior to the date of search, than the assessment to be made u/s.153A/153C of the Act in respect of the 6 Assessment years covered u/s.153A/153C of the Act should be restricted to only assessing income that are not disclosed earlier and which are detected consequent to the material found in the course of search. In other words in respect of assessment that are abated, the AO retains the original jurisdiction as far as jurisdiction conferred on him under section 153A/153C of the Act of which the assessment shall be made for each of the six assessment years separately.
For the purpose of Sec.153A/153C of the Act an intimation u/s.143(1) is also an order of assessment. We are therefore unable to accept the argument put forth by the learned counsel for the Assessee with reference to AY 05-06.
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2014 (4) TMI 1132
Deduction u/s.80-IB(10) - Non-completion of housing project - Held that:- Hon’ble Bombay High Court in the case of CIT Vs. Brahma Associates (2011 (2) TMI 373 - BOMBAY HIGH COURT ), wherein, it has been held that up to 31.03.2005 (subject to fulfilling of other conditions) deduction u/s.80IB(10) is allowable to housing project approved by local authority having residential units which with commercial user to the extent permitted under DC Rules / Regulations framed by respective authority. Amendment in clause (d) of sub-section specifying commercial area up to 10% of project in housing project applies to the project approved after 01.04.2005 and the amendment affected by Finance Act (No.2) of 2004 w.e.f. 01.04.2005 would not have retrospective effect and that approval of housing project prior to 01.04.2005 with commercial user permitted under DC Rules / Regulations framed by respective local authority would still be exempt u/s.80IB(10).
It is clear that assessee received approval for C building from PMC vide certificate dated 03.02.2005 but work on C building could not start since additional FSI in lieu of road widening was not received from PMC. The assessee could not plan the work for C building since engineers and architects could not design the structure of building in the absence of FSI. The details of follow up done by assessee with PMC have been duly appreciated by CIT(A). The legislative intent read that the clear provisions of the requisite section, do not permit any proportionate deduction u/s. 80IB(10) of Act. However, in view of the decision in Ramsukh Properties (2012 (12) TMI 360 - ITAT PUNE ) as discussed above, the CIT(A) rightly allowed the proportionate deduction in respect of project completed during the impugned assessment year. The provisions of taxing statute should be construed harmoniously with the object of statute to effectuate the legislative intention. Under the circumstances, proportionate deduction u/s.80IB(10) of the Act is justified. - Decided in favour of assessee
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2014 (4) TMI 1131
Whether the order rejecting an application for condonation of delay amounts to the rejection of the main proceeding as well - Held that:- in view of the ratio laid down in the decision of Apex Court in the case of Shyam Sundar Sarma v. Pannalal Jaiswal & Ors. [2004 (11) TMI 523 - SUPREME COURT OF INDIA], there is no hesitation to arrive at the finding that the rejection of an application for condonation of delay amounts to the rejection of the main proceedings. The order impugned in this revisional application is, therefore, appealable under Section 130 of the Customs Act, 1962. It is found that the petitioners have efficacious alternative remedy by way of statutory appeal and, therefore, this Court does not find any grounds warranting the invocation of powers of judicial review. - Decided against the revenue
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2014 (4) TMI 1130
Review petition - Seeking dismissal of refund of the money allegedly collected by the review applicants - Applicants contended the writ appeal was allowed even at the time of admission, without affording an opportunity to the review applicants to present their case - Held that:- the grievance of the review applicants is fairly well founded. In view of the Judgment of Supreme Court in the case of Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Limited [2005 (3) TMI 754 - Supreme Court Of India], when a Court having jurisdiction to adjudicate, proceeds to do so, but in doing so commits a procedural irregularity which goes to the root of the matter, the case would be fit for review. Therefore, we need not even ask the review applicants to demonstrate that the order passed by this Court suffers from an error apparent on the face of the record or any other ground which may justify a review. Hence, the review application is allowed. - Decided in favour of review applicant
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9911796707
