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Showing 181 to 200 of 1861 Records
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2018 (6) TMI 1683
Rectification of mistake u/s 154 - assessee did not show any long-term capital gains in the return of income for the relevant assessment year - HELD THAT:- The concurrent findings of the appellate authorities below appropriately recorded that a mistake apparent from the record had to be an obvious and patent mistake and not something which could be established by a long-drawn process of arguments or reasoning. The Supreme Court view on the relevant provision is also on similar lines.
Since both appellate authorities below found, as a matter of fact, that the Assessing Officer could not have reopened the matter on the basis that long-term capital gains had not been disclosed by the assessee, the order impugned herein does not call for any interference. The appellate authorities below were perfectly justified in holding that the issue as to capital gains was a matter of argument, reasoning and investigation which could not be regarded as a mistake apparent from the records.
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2018 (6) TMI 1682
Service of SCN - appellant pointed out that the matter of disputes which are prior to the period of issue of notice under Section 8 or filing of application under Section 9 - Application admitted inspite of pre-existing disputes - HELD THAT:- In view of his offer to protect the interest of the operational creditor, offers to keep the amount of ₹ 42,58,844/- in the Escrow account is accepted, to be completed within next 3 days. Confirmation of the same be given to the Registrar of this Tribunal - in view of this offer which is made and the interest of Operational Creditor having been protected let the case be decided in the regular course in the Appellate Tribunal.
In the meantime, order dated 01.06.2018 of the Adjudicating Authority will stand stayed till the next date of hearing - Post this matter for hearing on 10th July, 2018.
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2018 (6) TMI 1681
Penalty u/s 271(1) - search initiated u/s 132 - defective notice - Assessment Year involved is A.Y. 2008-09 and the due date of filing the return was 31-07-2008. The search operation was conducted on 13-10-2010 i.e. after the due date for filing the return 31-07-2008 - HELD THAT:- The facts are not denied that the assessee disclosed additional income in all the years in the return of income filed in response to notices issued u/s 153A of the Act. The ld. CIT(A) considered the case and held that Explanation 5A to Section 271(1)(c) is applicable in this case because the search was carried out after 1st of June 2007 i.e on dated 13.10.2010. However, simply because the assessee has agreed and offered the additional income during the course of the search and disclosed the same in the returns u/s 153A, does not obviate the necessity and is rather a precondition for the AO to make sure that the show cause notice u/s 274 r.w 271(1)(c), specifically state the grounds mentioned in S. 271(1)(c) i.e whether it is for concealment of income or furnishing of inaccurate particulars of income. Merely sending a printed performa without striking off the particular limb or specifying the particular ground or default would not satisfy the requirement of law. The assessee must know specifically the ground which he has to meet otherwise, no penalty can be imposed on the assessee.
AO has not specified which limb of the provision, the assessee was asked to reply. This does not meet with the requirement of law.
The Hon’ble Karnataka High Court in the case of CIT vs. M/s Manjunatha Cotton & Ginning Factory & Ors. [2013 (7) TMI 620 - KARNATAKA HIGH COURT] held that sending printed form where all the grounds mentioned in section 271 would not satisfy the requirement of law. The assessee should know the ground which he has to meet specifically, otherwise, the principle of natural justice is offended on the basis of such proceedings, no penalty could be could be imposed to the assessee. Notices issued u/s 274 r.w.s. 271(1)(c) of the Act dated 19.03.2013 are not valid and the same are quashed. - Decided in favour of assessee.
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2018 (6) TMI 1680
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in the business of providing non-binding investment advisory services to its associated enterprises i.e., to Saffron Capital Securities Limited, Mauritius. Assessee has benchmarked its international transaction under transactional Net Margin Method, thus companies functionaly dissimilar with that of assessee need to be deselected.
Only if Motilal Oswal Investment Advisors Limited is rejected from the list of comparables selected by the TPO, the arithmetic name of PLI of the comparable will fall within +/- 5% range prescribed u/s. proviso to Section 92C of the Act, as applicable to A.Y.2010-11. Accordingly, there will be no transfer pricing adjustment.
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2018 (6) TMI 1679
Time Limitation - Authorized Service Station's Service - Servicing of Motor Vehicles Service - Section 35-G of the Central Excise Act, 1944 - contention of the Department was that the Department became aware of illegal benefit of Cenvat credit only when the books of account were audited and, therefore, show cause notice was issued - HELD THAT:- The appeal does not involve any substantial questions of law for adjudication by this Court and the proposed questions of law framed by the counsel in the memo of appeal are purely factual and this Court cannot go into these aspects in the appeal provided under Section 35 (G) of the Act.
Appeal dismissed.
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2018 (6) TMI 1678
Levy of penalty u/s 271(1)(c) - recording of satisfaction or not by the AO while initiating penalty proceedings - levy of penalty on the returned income, which includes additional income offered during the course of Survey - once the income returned has been assessed in the hands of assessee as such without making any addition, there is no merit in levying penalty under section 271(1)(c) - Revenue on the other hand, is that the additional income has been offered in the hands of assessee pursuant to Survey and in case no Survey was conducted, such additional income would not be offered, hence, it is a fit case for levy of penalty - HELD THAT:- We find that similar case of levy of penalty on the additional income, which was offered in the return of income and whether the same was liable for levy of penalty under section 271(1)(c) of the Act, arose before the Tribunal in the case of Nandkishor Tulsidas Katore Vs. ACIT [2016 (12) TMI 1077 - ITAT PUNE]
The assessee herein had also offered additional income during the course of Survey in the return of income filed pursuant to Survey, which admittedly, was a valid return of income under section 139(1) of the Act. Applying the ratio laid down by the Hon’ble High Court of Delhi in CIT Vs. SAS Pharmaceuticals [2011 (4) TMI 888 - DELHI HIGH COURT] we find no merit in levy of penalty on the additional income which was offered to tax in the revised return of income filed after Survey. Accordingly, penalty levied under section 271(1)(c) of the Act is hereby cancelled.
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2018 (6) TMI 1677
Assessment u/s 153C - Addition made u/s 68 - unexplained cash credit - HELD THAT:- When all the documents have already been brought on record by the assessee during assessment proceedings in the completed assessment, the addition made by the AO u/s 153C is outside the scope of proceedings. So, the ld. CIT (A) has rightly deleted the addition on legal ground.
Even, on merits, when the assessee has brought on record complete identity with PAN, confirmation, bank statements, memorandum of article and audited financials of BJ Buildwell Pvt. Ltd. to substantiate the genuineness of the transactions, the AO cannot make addition on the basis of surmises that funds received by the assessee from BJ Buildwell Pvt. Ltd. were in fact has been received from Jain Brothers.
AO was not satisfied with the transactions explained by the assessee, the said amount is required to be assessed in the hands of BJ Buildwell Pvt. Ltd.. Even otherwise, for arguments sake, even if it is assumed that addition is to be made on the basis of satisfaction note, which is not recorded on the basis of any incriminating material nor it pertains to the year under assessment, qua amount received by virtue of the Agreement to Sell dated 05.05.2006, the addition on the basis of which can only be made in the relevant assessment year and not in the year under assessment. - Decided against revenue
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2018 (6) TMI 1676
Penalty levied u/s 271(1)(c) - non mentioning of specific charge - HELD THAT:- Specific charge as mandated u/s 271 (1)(c) of the Act. In such facts and circumstance the Hon'ble Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. Vs. Assistant Commissioner of Income Tax [2012 (12) TMI 981 - HIGH COURT OF GUJARAT]. has held that penalty cannot be imposed without mentioning the specific charge.
AO has not mentioned the specific charge in its penalty orders whether it was levied for concealment of income or for furnishing inaccurate particulars of income. Therefore, in our considered view, the penalty levied by the AO and confirmed by the learned CIT (A) is not sustainable. Hence, the ground of appeal of the assessee is allowed.
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2018 (6) TMI 1675
Interest on Refund of pre-deposit - refund made during the investigation of the case, after three months from the date of application for refund or after three months from the date of communication of the order - Section 35FF of Central Excise Act, 1944 - HELD THAT:- From Section 35FF, it is clear that whatever deposit was made shall be considered as pre-deposit and the refund of the same is governed by Section 35FF. Section 35FF does not discriminate to deposit made prior to enactment of Section 35FF or thereafter. Therefore, for deposit which is to be refunded shall be governed by Section 35FF. When the refund arose consequence to the order passed by this Tribunal in appellant’s demand case, Section 35FF was very much in existence. Therefore, any refund of pre-deposit shall be governed by Section 35FF during the relevant period.
Section 35FF clearly stipulates that if the refund is not granted within three months from communication of the order by the Appellate Authority, unless the order is stayed by higher forum the Revenue is under obligation to pay the interest from three months of the communication of the order - Therefore, the date of filing refund application is not significant in the present case.
There are no infirmity in the order of the Ld. Commissioner (Appeals) granting the refund of interest on refund already sanctioned - appeal dismissed - decided against Revenue.
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2018 (6) TMI 1674
Disallowance u/s.14A r.w.Rule 8D - HELD THAT:- The issue under consideration is squarely covered by the decision of the ITAT Special Bench in case of Vireet Investments [2017 (6) TMI 1124 - ITAT DELHI ] wherein it was held that only those investments should be considered for computing average value of investment which yielded exempt income during the year. Respectfully following the same, we direct the AO to recompute the disallowance by excluding the investment on which assessee did not yield any exempt income. We direct accordingly.
Addition u/s. 14A, while computing book profit u/s.115JB - This issue is also covered by the decision of Vireet Investment [2017 (6) TMI 1124 - ITAT DELHI] wherein it was held that only the expenditure debited in the P & L account relating to exempt income should be considered and not the disallowance worked out by AO. It was held by Special Bench that computation under clause F of explanation 1 to Section 115JB(2) has to be made without resorting to the computation contemplated u/s.14A r.w.Rule 8D. Respectfully following the decision of the Special Bench, we do not find any merit in the action of the AO for adding the disallowance computed u/s.14A, while computing book profit u/s.115JB.
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2018 (6) TMI 1673
The Gujarat High Court granted permission to the petitioner to withdraw the petition after fulfilling conditions for re-export of goods. No opinion expressed on the petitioner's proposals. Special Civil Application stands disposed of. (2018 (6) TMI 1673 - GUJARAT HIGH COURT)
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2018 (6) TMI 1672
Interest on margin money kept for obtaining bank guarantee for credit for power business as business income - Characterization of income - HELD THAT:- We find that the assessee was setting up a thermal power plant that during the year under appeal the project of construction of the power plant was under progress and no commercial activities whatsoever had begun that all the major expenses incurred in relation to the project were capitalised under 'capital work in progress that during the year under appeal the assessee had earned interest income out of the funds augmented for issuing bank guarantee to various parties in connection with the construction of the power projects as well as for meeting the various expenses for purchase of various assets required in the construction of the power plant, that the same was treated as capital asset by the assessee that it was accordingly reduced from the capital work in progress and was claimed as business income.
In our opinion in case money is borrowed by a newly started company which is in the process of constructing and erecting its plant the interest incurred before the commencement of production on such borrowed money has to be capitalised and has to be added to the cost of the fixed assets created as a result of such expenditure. Similarly if the assessee receives any amount which is inextricably linked with the process of setting up its plant and machinery such receipts will go to reduce the cost of its assets. We also hold that treatment of the receipts depends on the purpose for which the funds are utilised. The use of funds decides the characterisation of the amount.
In the case under consideration that the interest receipt was directly linked to setting up of business apparatus of the assessee. It was not idle money that was invested or parked for earning interest. We have perused the clause 2.4 of Significant Accounting Policies as appearing in Schedule XI and are of the opinion that the interest income earned by the assessee had direct and intimate connection with its business. Setting of power plants takes time and the assessee has to make investment with banks for availing various facilities.
FAA had rightly held that in the case of interest receipts on margin deposits kept with the banks for the purpose of getting the Credit Facilities which were required for the construction of the plant it was to be allowed to be reduced from the cost of the plant and was to be held as not taxable. So confirming her order we hold that her order does not suffer from any factual or legal infirmity. Effective ground of appeal is decided against the AO.
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2018 (6) TMI 1671
Addition to 10% of expenditure claimed under the head ‘Growing Charges (Farmer)’ and under the head of Transportation Charge - CIT(A) restricted the addition by admitting fresh evidence in violation of Rule 46A - HELD THAT:- There is a mention of the remand report submitted by the A.O. in the impugned order of the Ld. CIT(A) which shows that a remand report was also sought by the Ld. CIT(A) from the A.O.
As already noted, the relief allowed by the Ld. CIT(A) to the assessee on both the issues is specifically challenged by the revenue on the ground of violation of Rule 46A which is not there. Moreover, the disallowance made by the A.O. on account of growing charges and other transport charges was highly excessive and unreasonable as found by the Ld. CIT(A) and there is nothing brought on record by the learned DR to rebut or controvert the findings recorded by the Ld. CIT(A) in this regard.
DR has also not been able to point out as to how the disallowance sustained by the Ld. CIT(A) out of growing charges and other transport charges is not fair and reasonable. The relevant facts and figures as discussed by the CIT(A) in his impugned order show that the disallowance so sustained by him is quite fair and reasonable and there is no justifiable reason to interfere with the same, Therefore, uphold the impugned order of the CIT(A) giving relief to the assessee on both the issues - Decided against revenue
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2018 (6) TMI 1670
The Bombay High Court accepted the statement given by the learned AGP that the notice of demand will not be enforced until the Supreme Court makes a final decision on a Civil Appeal challenging a previous judgment. The Writ Petition was disposed of accordingly.
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2018 (6) TMI 1669
Addition u/s 68 - whether the assessee has discharged the onus by proving the identity and creditworthiness of the creditor and the genuineness of the transaction in respect of unsecured loan from Ms. Jasmine Kochar Kapoor - HELD THAT:- Jasmine Kochar Kapoor has a permanent account number in India but has not filed any return of income in India on the ground that she is a non-resident during the year under consideration and therefore, do not have any income chargeable to tax in India. No evidence is filed with regard to her income in the country where she is living. What is her source of income has also not been explained. The bank account of the assessee in India is filed in support of explaining the source of income. However, from where the credit came in this bank account has also not been explained. In the above circumstances, we are of the opinion that the assessee has miserably failed to prove the creditworthiness of the creditor as well as genuineness of the transaction. We, therefore, hold that the assessee could not discharge the onus of proving the cash credit in the name of Ms. Jasmine Kochar Kapoor.
Quantum of addition - It is stated by the learned counsel that in assessment year 201314, the AO made the addition for unexplained unsecured loan but most of the credit is old credit in the assessee’s books of account and fresh loan during the year under consideration was only to the tune of ₹ 26 lakhs. During the course of hearing before us, he referred to the balance sheet of the last year as well as this year so as to point out that there were huge unsecured loans in last year also.
So far as the legal proposition is concerned, the addition for cash credit can be made only in respect of fresh credit during the accounting year relevant to the assessment year under consideration. However, what is the actual credit during the year under consideration is a factual thing which requires verification at the end of the AO.Therefore, set aside the issue of addition for unexplained loan to the file of the Assessing Officer and direct him to verify the quantum of fresh credit in the assessee’s books of account during the accounting year relevant to the assessment year under consideration and make the addition only in respect of fresh credit and not in respect of opening balance.
So far as assessment year 2014-15 is concerned, the learned counsel fairly accepted that the addition made for unexplained cash credit is ₹ 87 lakhs and which is the fresh loan taken from Ms. Jasmine Kochar Kapoor. Therefore, for the assessment year 2014-15, we sustain the orders of the lower authorities on this point and dismiss the assessee’s appeal.
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2018 (6) TMI 1668
Short cash found at the time of survey - Survey proceedings u/s.133A - HELD THAT:- We fail to understand the basis of making this addition. In fact, in the absence of any other evidence regarding the user of such cash available as per cash book but not found physically at the time of survey, the same should have been considered as utilized for purchasing goods which was found in excess of book stock and therefore, even in respect of excess book stock, extra income to be declared or added could have been reduced to the extent of short cash found.
But it is seen that the assessee has declared total amount of excess stock found as additional income. Be that as it may but in our considered opinion, no addition is called for in respect of short cash found at the time of survey in the facts and circumstances of the present case and hence, we delete the same. - Appeal of assessee allowed.
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2018 (6) TMI 1667
Appeal of Legal heir of the Assessee - absence of any evidence of legal heirship and/or death Certificate - HELD THAT:- Today Mr. Kotangle, on instructions from Mr. Rajesh Sawant, Income Tax Officer 23 (3)(3), Mumbai states that if an appeal is filed in physical form i.e. hard copy with the CIT (Appeals) [CIT(A)]34, Earnest House, Nariman Point, Mumbai, the same would be accepted by the Revenue.
In the above view, in case the petitioner does files an appeal in the physical form with the office of the CIT(A)34 at Earnest House, Nariman Point, Mumbai within a period of 2 weeks from today, the same would be entertained by the CIT(A) without taking up plea of limitation.
The petition is disposed of in the above terms.
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2018 (6) TMI 1666
Notice u/s 143(2) not served upon the appellant within the period specified under the proviso to subsection (2) of Section 143 - Tribunal cancelled the assessment order - HELD THAT:- Commissioner of Income Tax (Appeals) records the fact that besides the return of income indicating the new address, the appellant had by earlier letter dated 6th December, 2005 intimated the change of its address to the Assessing Officer and also requested a issue of fresh PAN. Besides, the Assessing Officer had in fact served at the new address, the assessment order under Section 143(3) of the Act on 30th November, 2006 in respect of Assessment Year 2004-05.
This was much prior to the statutory notice issued on 5th October, 2007 and 25th July, 2008 at the address of the respondent as recorded in the PAN. The respondent had taken up the objection with regard to non-service of notice during the assessment proceedings. Thus, as rightly held by the impugned order of the Tribunal that, in view of the proviso to Section 292(BB) of the Act, the notice not being served within time, cannot be deemed to be valid. Therefore, no fault can be found with the impugned order of the Tribunal.
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2018 (6) TMI 1665
Maintainability of application - initiation of CIRP - Exclusion from the total time period for the corporate insolvency resolution process of the Corporate Debtor - HELD THAT:- According to the RP a period of 22 days got lost owing to the various proceedings initiated by different entities including M/s. M.K. Shah Exports Limited questing various steps taken by the RP in taking the CIRP in progress towards its logical conclusion. That apart, some other entities too had filed other proceeding from time to time some dragging the RP and COC to the Adjudicating Authority again and again which also profoundly interferes with work assigned to COC and RP.
According to the RP, if the period is not extended, as prayed for, to compensate the period, so lost in defending various steps, taken by the RP/COC, then the RP or for that matter COC may be handicapped in presenting proper resolution plan(s) which is certainly not in the interest of any of the stakeholders, involved in the proceeding under consideration.
Application allowed.
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2018 (6) TMI 1664
CENVAT Credit - nexus/connection with the final product - whether the credit can be availed by the petitioner through an unconnected final product? - HELD THAT:- The answer can be traced from the N/N. 45/89 dated 11th October, 1989, wherein prohibition has been incorporated that the credit amount shall neither be refunded to the manufacturer nor adjusted against or utilised for payment of duty on any excisable goods under any other circumstances - The goods, which do not constitute a raw material and not used as input for manufacturing the final product, the credit though available cannot be utilised and used against the final product manufactured by the same assessee.
This Court, therefore, does not find that the CENVAT credit available to the petitioner can be used and utilised or adjusted against the final product, when the goods over which the petitioner has paid the excise duty, is not used as raw material or input therefor.
Petition disposed off.
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9911796707
