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Showing 181 to 200 of 1976 Records
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2018 (4) TMI 1800 - RAJASTHAN HIGH COURT
Input tax credit - Default in payment of VAT amount - case of petitioner is that the amount is validly paid by them - onus to prove the payment - whether the benefit envisaged under the Rajasthan VAT Act especially under sub-Section (1) shall be allowed only after verification of deposit of the tax payable by the selling dealer in the manner as notified by the Commissioner? - Rule 18 of Rajasthan VAT Rules, 2006 - HELD THAT:- It will be impossible for the petitioner to prove that the selling dealer has paid tax or not as while making the payment, the invoice including tax paid or not he has to prove the same and the petitioner has already put a summary on record which clearly establish the amount which has been paid to the selling dealer including the purchase amount as well as tax amount - In that view of the matter, we are of the opinion that Rule 18 if it is accepted, then the respondents will to take undue advantage and cause harassment.
The purchasing dealer has to only prove that while making the payment, he takes the purchased amount.
Petition disposed off.
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2018 (4) TMI 1799 - GUJARAT HIGH COURT
TP Adjustment - India Netherlands tax treaty - HELD THAT:- Tax appeals are admitted for consideration of the following substantial questions of law :-
(1)Whether in the facts and circumstances of the case, the assessee was correct in contending that there being no erosion of tax base in the country, the Transfer Pricing provisions would apply and in this context, whether the Tribunal was correct in applying such provisions repelling the assessee's contention?
(2) Whether on the facts and circumstances of the case and in law, the Tribunal was right in holding that the benefit under Article 9(1) of the India Netherlands tax treaty read with Section 90 of the Indian Income Tax Act, 1961 is not available to the appellant?
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2018 (4) TMI 1798 - THE SECURITIES APPELLATE TRIBUNAL, MUMBAI
Violation of open offer obligations contained in the Takeover Regulations, 1997 - Failure on part of the appellants to make an open offer on acquisition of 43,600 shares - Penalty imposed - HELD THAT:- Fact that the appellants by failing to make open offer within the stipulated time have violated regulation 11(2) read with regulation 14(1) of the Takeover Regulations, 1997 is not in dispute.
Obligation cast on the appellants to make open offer was not dependent on SEBI acquiring knowledge about the violation or dependent on SEBI initiating action against the appellants for non- compliance of the open offer obligations. In other words, delay on part of SEBI in initiating action did not absolve appellants from their obligation to make open offer. Therefore, the appellants who are guilty of violating the open offer obligations contained in the Takeover Regulations, 1997 cannot escape penal liability by alleging that there is delay on part of SEBI in initiating action against the appellants for non- compliance of their open offer obligations.
Argument of the appellants that the penalty imposed is exorbitant or excessive is also without any merit. Penalty imposable under Section 15H(ii) of SEBI Act for violating the open offer obligations contained in Takeover Regulations, 1997 is up to ₹ 25 crore, however, the AO after taking into consideration all mitigating factors has imposed penalty of ₹ 7 lac and directed that the said penalty be paid by the appellants and other two PACs jointly and severally, which cannot be said to be unreasonable or excessive.
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2018 (4) TMI 1797 - ITAT KOLKATA
Rectification u/s 154 - additional grounds arise out of a rectification order passed by the AO - Adjustment to the international transactions of the Appellant with its Associated Enterprises - HELD THAT:- Though the assessee pleads that there is a merger, we are of the considered opinion that the proceedings made by the AO u/s 154/92CA(5) r.w.s. 92CA(3)/144C/143(3) of the Act dated 14.07.2017 is a separate proceedings and has to be separately challenged, as the assessee wishes to challenge as to whether the rectification in question carried out by the AO to the final assessment order are mistakes apparent on record or not. Such a challenge to the Sec.154 proceedings can be done only by filing separate appeal against the Sec.154 order.
Hence we do not admit these additional grounds of appeal. The assessee is free to file an appeal against the order passed by the AO u/s 154 of the Act. The delay in filing shall be considered sympathetically as and when the appeal is filed before the Appellate Authority.
Disallowance u/s 14A r.w.r. 8D - assessee submitted that the assessee has interest free fund in excess of the total investments in shares made, which had earned dividend income and that Rule 8D(2)(ii) of the IT Rules will not apply in view of the judgment of HDFC Bank Ltd.[2014 (8) TMI 119 - BOMBAY HIGH COURT] - HELD THAT:- We restrict the disallowance to the exempt income earned by the assesee i.e. ₹ 5,64,333/- by applying the judgment in the case of Joint Investment Pvt. Ltd. [2015 (3) TMI 155 - DELHI HIGH COURT] wherein held that the disallowance u/s 14A cannot exceed the amount of exempt income earned by the assessee.- We do not propose to go into those arguments, as it would involve a factual exercise which was not taken by the lower authorities. Suffice to say that this would not be taken as a precedent for the future years. The AO is directed to restrict the disallowance to ₹ 5,64,333/- only. In the result the assessee gets part relief. Appeal of the assessee is allowed in part.
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2018 (4) TMI 1796 - ITAT COCHIN
Disallowance of portion of the interest paid on secured loans from banks as proportionate interest pertaining to personal drawings made by the partners - Addition u/s. 36(1)(iii) - HELD THAT:- In this case, the partners of the assessee-firm had withdrawn amount from the assessee-firm only for personal purpose. The assessee has been paying interest on borrowed funds. The withdrawals made by the partners was not utilized for the purpose of business and the assessee-firm has not derived any business advantage from such withdrawals by the partners. The assessee-firm has not charged any interest on the withdrawals made by the partners by way of paying interest on its borrowings. However, at the same time, the assessee has incurred interest expenditure on the borrowals made by the partners of the assessee-firm.
The main contention of assessee is having sufficient cash balance to meet the withdrawals made by the partners. In our opinion, if the cash balance is available, it should be meant for the business purpose of the assessee-firm and not for the personal purpose of the partners of the assessee-firm. The assessee with liquidity cannot claim that it could give such cash balance for the benefit of the partners of the assessee-firm. Such advance made by the partners has not been used for the business purpose but for the personal benefit of the respective partners. Had the assessee-firm used such cash balance for the business purpose or for payment of borrowals made by the partners of the assessee-firm, it could have saved interest expenditure.
AR made an argument that only the withdrawals of the present assessment years is to be considered for computation of interest expenditure and the earlier old balance of advance in the name of the partners which was carried forward from the earlier years cannot be considered. In our opinion, this argument of the assessee’s Counsel has no merit as the assessee is paying interest on such carried forward opening balance and incurred interest expenditure on it. Therefore, the total advance outstanding in the name of the partners is to be considered for computation of interest disallowance in the case of the assessee-firm. Accordingly, we do not find any infirmity in the orders of the lower authorities. - Decided against assessee.
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2018 (4) TMI 1795 - CESTAT NEW DELHI
Area Based Exemption - N/N. 50/2003-C.E., dated 10-6-2003 - relevant date of production in the factory - Department is of the view that on the cut off date i.e. 31-3-2010, there was no production in the factory - HELD THAT:- It appears that the appellant has obtained the certificate from the Boiler Inspector in accordance with Section 7 of the Indian Boilers Act. As per the provisions of Section 9 of the said Act, such certificate is to issue only when the boiler is ready to use. It is also seen that the appellant has filed the VAT return for the period 1-3-2010 to 31-3-2010, the same was acknowledged by the Assistant Commissioner, Trade Tax, Roorkee. The necessary tax and VAT was already paid and the challan for the period under consideration has been produced - In addition, the appellant have produced the certificate issued by the General Manager, District Industries Centre, Roorkee where the initial date of commencement of production was mentioned as 30-3-2010.
The production was commenced on or before 31-3-2010 and hence, the assessee is entitled to the benefit of Notification No. 50/2003-C.E., dated 10-6-2003 - Appeal allowed - decided in favor of appellant.
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2018 (4) TMI 1794 - ITAT MUMBAI
Seeking recall of order - non-appearance of representative of the assessee - assessee sought an adjournment on the ground that Chartered Accountant is travelling - assessee has pleaded that the appeals of the assessee [2017 (9) TMI 560 - ITAT MUMBAI]were dismissed by applying the ratio of decision of Mumbai Tribunal in case of CIT vs. Multiplan India (Pvt.) Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] - HELD THAT:- Perusal of record reveals that Shri Ijeet Fernandes appeared on behalf of assessee, who sought an adjournment on the ground that Chartered Accountant is travelling. The ground of adjournment was vague, thus, adjournment was declined. Shri Ijeet Fernandes was asked to assist the bench, however, he expressed his inability. Thus, the bench left no option except to proceed on the basis of material available on record.
The assessee has filed both the appeal in the year 2012. The assessee is seeking adjournment on one pretext or the other since beginning. No documentary evidence to substantiate the grounds of appeal is filed on record. We have noted that the assessee has filed the present application on the ground that the appeal was dismissed by applying the ratio of decision of Multiplan India (Pvt.) Ltd. (supra) in the order dated 14.06.2017. The present applications are filed in a casual manner.
The contention of the application is contrary to the contents of order dated 14.06.2017. There is no reference of decision of Multiplan India (Pvt.) Ltd. (supra). However, keeping in view the principle of natural justice and invoking the power under Rule 24 of Income-tax (Appellate Tribunal) Rules 1963, the order dated 14.06.2017 is recalled. The assessee is directed to fully co-operate and not to seek adjournment without any valid and proper reason and shall file the necessary evidence, if any on record, without any further delay. In case further adjournment is sought on frivolous grounds, the assessee shall be burdened with heavy cost.
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2018 (4) TMI 1793 - DELHI HIGH COURT
Sale/transfer of shares - restarint from transferring, alienating, encumbering or otherwise dealing with or parting with possession of the 15,00,000 shares - HELD THAT:- The plaintiffs are not entitled to the continuation of the ad interim order which has remained in force for the last 12 years.
List on 21st May, 2018.
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2018 (4) TMI 1792 - ITAT JAIPUR
Validity of reopening of assessment u/s 147 - Addition u/s 68 - reasons simply states that the assessee is a beneficiary of the accommodation entry provided by Sh. S.K Jain group as per the information received from Investigation wing, Delhi - HELD THAT:- Even though the AO was in receipt of specific information that the assessee was beneficiary of accommodation entry, the fact remains that the information so received from the Investigation wing was not supplied to the assessee along with the reasons recorded before the issuance of notice u/s 148 of the Act and even the reasons so recorded are extremely scanty and vague and there is no mention of nature and quantum of accommodation entries which has escaped assessment. We also wonder as to how the ld CIT has accorded his approval on such scanty reasoning by the AO. Merely by stating that certain information has been received from the Investigation wing that the assessee is beneficiary of certain accommodation entry is not sufficient enough for the AO in assuming jurisdiction under section 147 in the instant case and the order so passed by the AO is hereby quashed and set-aside. In the result, ground no. 1 of the assessee’s appeal is hereby allowed.
Addition u/s 68 - in the instant case, the assessee company has filed copies of the share application form, return of allotment filed with ROC, copies of the bank statements, copies of the financial statements and confirmations of these parties. AO has issued letters u/s 133(6) to these parties and has also called for personal appearance of Sh G.L Gupta and one of the directors of the assessee company. It is also a fact that there notices have not returned back undelivered and at the same time, there has been no compliance. It is therefore a case which is shade different than the one we decided supra. At the same time, the fact remains that inspite of non-compliance of these notices and non-appearance which cannot be a sole basis for disallowance, the AO has to give a specific finding and record his satisfaction regarding non-acceptance of documents so submitted by the assessee. We are therefore of the view that that in absence of any falsity which have been found in the documents so submitted by the assessee company to prove the identity, creditworthiness and genuineness of the share transaction and any satisfaction to that effect recorded by the AO, these documents cannot be summarily rejected as has been done by the AO in the instant case - no basis for making the addition under section 68 - Decided in favour of assessee
Disallowance of various expenses - as argued AO only on surmises made a lump sum disallowance of 50% of these expenses and the ld. CIT(A) without any basis restricted it to 25% - HELD THAT:- We find that it is a case of adhoc disallowance of expenses which is not permissible in the eye of law. No finding has been given by the lower authorities that these are bogus expenditure or the expenditure has not been incurred for the purposes of the business. It is not the case of the Revenue that the business of the assessee has not been set up. In light of the same, the disallowance so confirmed by the ld CIT(A) is hereby deleted. The ground taken by the assessee is thus allowed.
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2018 (4) TMI 1791 - ITAT DELHI
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged primarily in providing I.T. enabled services to its parent company thus companies functionally dissimilar with that of assessee need to be deselected from final list. See M/S RAMPGREEN SOLUTIONS PVT. LTD. (ERSTWHILE VCUSTOMER SERVICES INDIA PVT. LTD.) [2015 (11) TMI 1651 - ITAT DELHI]
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2018 (4) TMI 1790 - CESTAT CHENNAI
Revocation of CHA License - imposition of penalty - import of “Defective C.R. Coils” and “Defective Hot Rolled Coils” claiming benefit of Notification Nos. 46/2011-Cus. and 69/2011-Cus - allegation that importer had not submitted AIFTA Certificate of origin in the formats as prescribed in the notifications - violation of Regulation 11(d) of the CBLR.
HELD THAT:- There is no allegation that the certificates were not issued by the authority in the exporting country or that they did not cover the goods imported. In any case, on being pointed out about the discrepancy, the importers have paid up the differential customs duty - This being the case, no fraud or connivance can be attributed to the appellants. At the most, they could be hauled up for not having advised the importers suitably even after the discrepancy was flagged to them.
However, the revocation of the licence, is surely, an over-kill; the same cannot be sustained and is therefore set aside - However, the penalty of ₹ 50,000/- imposed by the adjudicating authority need not be interfered with.
Appeal allowed in part.
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2018 (4) TMI 1789 - ITAT AHMEDABAD
Delay in deposit of employee’s contribution to Provident Fund and ESI u/s 2(24)(x) r.w.s. 36(1)(va) - HELD THAT:- The aforesaid issue is squarely covered against the assessee by Hon’ble jurisdictional High Court’s judgment in the case of CIT vs. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it is categorically held that in the case of delayed deposit of employees’ contribution to PF, the same will not be deductable in computing income under section 28 of the Act. The law so laid down by the Hon’ble jurisdictional High Court is binding on us. The mere fact that an appeal against the said decision is pending before the Hon’ble Supreme Court does not dilute binding nature of this judicial precedent.- Decided against assessee
Addition towards Prior Period Expenditure - HELD THAT:- Issue decided in favour of assessee as relying on Adani Enterprises Ltd [2016 (7) TMI 1250 - GUJARAT HIGH COURT] assessee being a company was charged uniformly for all years and would therefore, have no revenue implication of whether the expenditure was recognised in this assessment year or earlier year. The second ground was that in any case, the Revenue had recognised the prior period income. If that be so, according to the Tribunal, it would be unfair not to recognise the expenditure also of the prior period.
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2018 (4) TMI 1788 - CESTAT CHANDIGARH
Non-imposition of penalty under Rule 13 of CCR, 2002 and Rule 15 of CCR, 2004, read with Rule 25 of CER 2002, and section 11AC of Central Excise Act, 1944 - Clandestine removal - allegation of non receipt of inputs like Ferro Manganese, Ferro Silicon Lumps, Ferro Chromes, manganese Ingot, Chrome Ingot etc. - demand based on statement of various persons - opportunity for cross-examination denied - Principles of Natural Justice - Difference of opinion - majority order.
Whether in view of the gross violation of principles of natural justice and lack of adherence to the procedure under Section 9D, the matter be remanded back to the adjudicating authority for de novo adjudication, as held by Member (Technical)?
HELD THAT:- Hon’ble High Court of Punjab & Haryana in the case of M/S AMBIKA INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 919 - PUNJAB AND HARYANA HIGH COURT] has clearly ruled that if the person whose statement has already been recoded is to be examined before the adjudicating authority and if the adjudicating authority arrives at a conclusion that the statement deserves to be admitted in evidence then the question of offering the witnesses to the assessee for cross-examination arises, I would have agreed with Ld. Brother Member (Technical) had this procedure been followed by the original authority that the witnesses whose statements were recorded were examined by the adjudicating authority. However the fact is that such examination-in-chief was not conducted by the original authority and therefore, the question of cross-examination does not arise. Therefore, no purpose shall be achieved by remanding the matter back to the original authority for denovo adjudication.
I further find that the allegation against M/s.BSPL were that they did not receive inputs but availed the Cenvat Credit only on the strength of invoices without receipt of inputs. The admitted facts are that the appellants, M/s.BSPL had manufactured the goods and paid Central Excise duty on the same and there are no investigations as to from where the inputs were procured by M/s.BSPL for manufacture of goods, if they had received only the invoices and no inputs from M/s.HSAL.
The allegations of non-receipt of inputs by M/s.BSPL is not established in the proceedings - The revenue appeal in respect of M/s.AG is for non-imposition of penalty. The same also does not survive because the fact remains on the records that M/s.BSPL manufactured the goods and paid duty on the same.
The opinion of the Ld. Member (Judicial) is agreed with - the file send back to the Division Bench.
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2018 (4) TMI 1787 - CESTAT NEW DELHI
Valuation - inclusion of reimbursed subsidy amount admissible under the Scheme towards the payment VAT on future sale, in assessable value - HELD THAT:- The same issue has been decided by this Hon’ble Tribunal in case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Appeal allowed - decided in favor of appellant.
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2018 (4) TMI 1786 - ITAT MUMBAI
Penalty u/s 271(1)(c) - defective notice - Addition u/s 68 - HELD THAT:- AO by not striking off the irrelevant default in the “Show cause‟ notice, had thus failed to clearly put the assessee to notice as regards the default for which penalty under Sec. 271(1)(c) was sought to be to be imposed on it. We thus in the backdrop of our aforesaid observations are of a strong conviction that as the A.O had clearly failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default for which it was being proceeded against, therefore, the penalty of ₹ 14,90,241/- imposed by him under Sec. 271(1)(c) clearly being in violation of the mandate of Sec. 274(1), thus cannot be sustained. We thus for the aforesaid reasons not being able to persuade ourselves to subscribe to the imposition of penalty by the A.O, therefore, set aside the order of the CIT(A) upholding the same.
Even on merits failure on the part of the assessee to adduce necessary documentary evidence as was called for by the A.O to prove the creditworthiness of the donor to his satisfaction, would though in the backdrop of such unproved claim of the assessee justify addition of the same as an unexplained cash credit under Sec. 68, but however, in the absence of any material having been placed on record by the A.O on the basis of which the aforesaid claim of the assessee could be disproved, no penalty u/s 271(1)(c) could have been validly imposed in the hands of the assessee. though the assessee by failing to place on record the specific documentary evidence as was called for by the A.O to prove the credit worthiness of the donor, viz. Sh. Arun Jatia, had thus failed to prove his claim to the satisfaction of the A.O, but however, in the absence of any material having been placed on record by the A.O which could disprove the genuineness of the said claim of the assessee to the hilt, no penalty under Sec. 271(1)(c) could have been validly imposed in the hands of the assessee.
We thus after deliberating at length on the merits of the case, not being able to persuade ourselves to subscribe to the views of the lower authorities, therefore, are of the considered view that the penalty imposed by the A.O under Sec.271(1)(c), which thereafter had been upheld by the CIT(A) cannot be sustained on merits and on the said count too is liable to be vacated. - Decided in favour of assessee.
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2018 (4) TMI 1785 - ITAT DELHI
Contravention of the provision of Section 144C - AO instead of passing a ‘draft assessment order’ as required u/s 144C has passed final assessment order u/s 143(3) - corrigendum issued by the Assessing Officer so as to cure the defect - assessment barred by limitation - scope of rectification u/s 154 - HELD THAT:- Firstly, AO has to follow the mandatory procedure of Section 144C (1), i.e., to pass a draft assessment order and if such a draft assessment order has not been passed and instead final assessment order has been passed, then such a final assessment order is null and void;
Secondly, merely by issuing a corrigendum, final assessment order passed cannot be converted into a draft assessment order especially when such corrigendum has been passed beyond the period of limitation; and
Lastly, if the draft assessment order has not been passed in accordance with the procedure laid down in Section 144C (1) and instead final assessment order has been passed though within the limitation time, then such an order cannot be cured after the limitation has expired by any subsequent rectification proceedings or corrigendum and in such a situation all the subsequent proceedings and final assessment order will get invalidated.
It is a trite proposition that errors which can be rectified either u/s.154 or some error in the printing work for which a corrigendum has been issued, cannot be resorted for curing the defect of jurisdictional nature and if there is an error of jurisdiction or limitation, then same cannot be validated by such an order. Rectification orders can only be exercised in respect of an order which is valid on the date of proposed rectification and if the order itself was void ab initio for want of following the correct procedure of law then such a rectification cannot revive its legality.
Accordingly, we hold that the proposed corrigendum issued by the Assessing Officer so as to cure the defect of the original final assessment order is bad in law and same could not have been done and consequently entire subsequent proceedings and final assessment order dated 30.10.2013 is held to be invalid being barred by limitation and is hereby quashed - Decided in favour of assessee.
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2018 (4) TMI 1784 - CESTAT CHENNAI
Refund of service tax - rejection on the ground that the premises of the respondents were not registered - Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- The issue whether credit is eligible even though the premises is not registered was settled by the decision of the jurisdictional High Court in the case of COMMISSIONER OF SERVICE TAX-III, CHENNAI VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, CHENNAI & M/S. SCIOINSPIRE CONSULTING SERVICES (INDIA) PVT LTD, CHENNAI [2017 (4) TMI 943 - MADRAS HIGH COURT] as well as the decision in the case of m-Portal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] where it was held that Registration not compulsory for refund.
Appeal dismissed - decided against Revenue.
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2018 (4) TMI 1783 - ITAT CUTTACK
Penalty u/s.271D - violation of provisions of Section 269SS - HELD THAT:- We find there is no dispute with respect to the source the ld. AR submitted that there is no tax evasion and relied on the provisions of the Act on levy of penalty. The ld. AR submitted that the assessee has filed return of income on 13.11.2015 whereas penalty order u/s. 271D of the Act was passed on 13.10.2015. We find the assessee has filed the return of income disclosing income from house property, business and profession and other sources and balance sheet was filed along with supportive financial statements.
AR’s contention that the assessee was holding the cash for the business operations at Jaipur and there is no malafide intention and the said transaction was disclosed in the income tax returns. Whereas the ld. DR submitted that the assessee has violated the provisions by accepting the cash loan. Further the ld. AR emphasized that the assessee has no intention to violate the provisions and has a reasonable cause in accepting the cash as the business transaction performed at Jaipur to be on cash to cash basis.
Considering business activity of the assessee and we find strength in the arguments of ld. AR on genuineness of transaction and circumstances of the case. Accordingly, we set aside the order of the CIT(A) and delete the addition and the grounds of appeal of the assessee are allowed.
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2018 (4) TMI 1782 - NATIONAL COMPANY LAW TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Maintainability of application - initiation of CIRP application - Corporate Debtor failed to make repayment of debt - existence of debt and dispute or not - HELD THAT:- In the present case respondent had raised disputes prior to the issuance of notice under Section 8 of the Code. Invoices pertaining to cost for supply of diesel has been disputed. Confusion on such claims/ invoices has not been clarified satisfactorily with supporting evidence. Issue of approval and reconciliation of the accounts were raised and communicated in the year 2013. Claim of dispute pending long since the year 2011 prima facie suggests the need of investigation on merit. In the factual background it is reiterated that in the present case existence of prior dispute having some substance cannot be ruled out. The moment there is existence of dispute, the corporate debtor gets out of the clutches of the Code.
Section 9 (5) (ii) (d) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility.
Petition rejected.
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2018 (4) TMI 1781 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - activity of mushroom farming is agricultural activity or not? - whether there was any new tangible material which was discovered by the Respondent No.1 ? - HELD THAT:- In the facts of the present case when the Petitioner had categorically asserted both in the reply to the reasons as well as in the present petition that the Circular dated 14 June 1979 has no relevance, the contention of the Petitioner that this Circular was issued in context of Section 80JJA of the Act which was in operation prior to insertion of explanation 3 to Section 2(1A) and it had no relevance, has not been dealt with by the Respondent at all, except stating that it cannot be ignored. If by subsequent amendments, the Circular had lost its efficacy and that it was substituted by another circular dated 27 March 2009, the same cannot be considered as new and tangible material. Whether the Circular has lost its relevance and is substituted by a subsequent Circular has not been explained in the order rejecting the reasons, neither in the affidavit of reply. How a preexisting Circular amounts to discovery of new tangible material is also not explained.
Therefore, what is before us is only a change of opinion of the Assessing Officer, without any new material. The Petitioner had placed the material before the Assessing Officer. The Assessing Officer is supposed to apply law, including the Circulars, to the material placed before him. The Assessing Officer took a particular view and the Respondent no. 1 has merely on a change of opinion sought to reopen the proceedings. Since the criteria for exercise of the jurisdiction are not met, the action of the Respondent no.1 is without jurisdiction and will have to be set aside.
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