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Showing 181 to 200 of 1739 Records
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2017 (8) TMI 1563
Exemption u/s 54F - HELD THAT:- It is seen from the orders of the Commissioner (Appeals) and the Tribunal that both of them proceeded on the basis of the interpretation given by various Courts, including the members of the family of the assessee, within the definition of the expression “assessee”. Commissioner (Appeals) as well as the Tribunal held that the investment made by the assessee was qualified for the benefit of Section 54F.
Revenue attempted to raise one more objection, namely, that the construction of the residential property was not completed. But the Tribunal recorded a finding of fact in paragraph-11.1 to the effect that the assessee’s representative produced a planning permission from the Corporation, water connection permission, property assessment receipt and electricity bill. The Tribunal also recorded a factual finding that the learned departmental representative verified the details and confirmed the same. We do not think that the questions of law raised arise for consideration. Hence, the appeal is dismissed. The miscellaneous petitions, if any, pending in this appeal shall stand closed
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2017 (8) TMI 1562
Benami nature of the property - Prohibition of Benami Property Transactions Act - restraining the appellant from transferring or changing the nature of property till passing of an order by Adjudicating Authority under the Prohibition of Benami Property Transactions Act - sole argument of appellant is that the documents necessary to submit response was not supplied by the Initiating Officer therefore, the proceedings have been conducted in an arbitrary manner - HELD THAT:- We do not find any merit in the present appeal. It is the Adjudicating Authority who is to decide the question of Benami nature of the property. The proceedings under Section 24 of the Act contemplates the issuance of show cause notice as to why the property specified in the notice should not be treated as Benami property. However, the substantive order of treating the property as Benami is required to be passed by Adjudicating Authority under Section 26 of the Act only.
Therefore, the appellant is at liberty to take all such plea of law and facts as may be available to the appellant before the Adjudicating Authority. The Adjudicating Authority shall decide the Benami nature of the property in accordance with law.
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2017 (8) TMI 1561
TP Adjustment - Comparable selection - TP issue including the turnover filter and 0% RPT filter applied by the DRP - HELD THAT:- As regards the turnover filter applied by the DRP and challenged by the revenue, the learned Authorised Representative of the assessee has submitted that the assessee has no objection if the directions of the DRP to the extent of applying the turnover filter are set aside. However the companies which were excluded by the DRP on this ground may be excluded on functional dissimilarity. In view of the statement of learned Authorised Representative that the assessee has no objection if the directions of the DRP to the extent of applying the turnover filter are set aside. We set aside the directions of the DRP to the extent of applying turnover filter in respect of the comparables selected by the TPO. The functional comparability of those companies will be examined separately.
0% RPT filter by DRP - when there is good number of comparables available then, we concur with the view of the co-ordinate bench that the RPT filter of 15% is proper in the case of the assessee. Accordingly we direct the Assessing Officer/TPO to exclude the comparable companies having the revenue of more than 15% from related parties. Since we have determined the RPT filter at 15% and the assessee has agreed not to apply any turnover filter, the only issue remained to be decided is functional comparability of various companies selected by the TPO and objected by the assessee.
Tribunal in the case of DCIT Vs. Electronics for Imaging India (P.) Ltd. [2016 (2) TMI 1123 - ITAT BANGALORE] companies not functionally comparable to the assessee and therefore the TPO / A.O is directed to exclude these companies from the set of comparables.
MINDTREE LIMTIED - There is a restructuring in this company which has influenced the profits however, the decision relied upon by the learned Authorised Representative in the case of HSBC Electornic Data Processing (I) Pvt. Ltd. Vs. ACIT [2015 (1) TMI 1063 - ITAT HYDERABAD] is not directly on the comparability of this company but it was in respect of some other company which was under restructuring of event like merger, demerger, etc. In the facts and circumstances of the case and in the interest of justice, we set aside the issue of functional comparability of this company to the record of the TPO/A.O. for considering the objections raised by the assessee and fresh adjudication.
Exclusion of telecommunication expenses from the export turnover while computing the deduction under Section 10B - HELD THAT:- As per the definition of export turnover provided in Expln. 2 below Section 10B(9A), the export turnover does not include freight, telecommunication charges or insurance attributable to the delivery of article or thing or computer software outside India or expenses if any incurred in foreign exchange in providing the technical services outside India. Thus from the plain language of the definition of the export turnover, it is clear that the expenses which are not in the nature of freight, telecommunication charges or insurance attributable to the delivery of article or thing or computer software outside India but expenses incurred in foreign exchange are to be excluded only when the same are incurred for providing technical services outside India. In the case of the assessee, the assessee has claimed that the traveling expenses incurred by the assessee are not for providing the technical services outside India and therefore the same are not required to be excluded from the export turnover. On principle, we do agree with the contention of the learned Authorised Representative that if the expenditure other than the freight, telecommunication charges or insurance attributable to the delivery of article or thing or computer software outside India incurred in foreign exchange not for providing the technical services outside India then the same are not required to be excluded from the export turnover.
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2017 (8) TMI 1560
TP Adjustment - ITES segment of its operations - Comparable selection - HELD THAT:- Acropetal Technologies Ltd., (‘Acropetal’) respectfully following the aforesaid decision of the co-ordinate bench of this Tribunal in the case of Swiss Re Shared Services (India) (P.) Ltd. [2016 (7) TMI 1359 - ITAT BANGALORE] we hold that the engineering design services segment of Acropetal Technologies Ltd., is functionally different and hence cannot be considered as a good comparable to the assessee in the case on hand who is providing only ITES services to its AE’s. The AO/TPO are, therefore, directed to exclude this company from the list of comparables in the case on hand.
CRA online Ltd., (See) (‘ICRA’) - We find that the co-ordinate bench of this Tribunal in the case of Swiss Re Shared Services (P.) Ltd. (supra), on which the assessee itself has placed reliance for exclusion of other comparable companies; has examined the comparability of this company and has held it to be a good comparable to companies rendering ITES.
Jeevan Scientific Technology Ltd., (Seg) - (‘Jeevan’) - Respectfully following the aforesaid decision of the coordinate bench in the case of Swiss Re Shared Services (India) (P.) Ltd. (supra), we restore the issue of examination of the comparability of this company, ‘Jeevan’ to the file of the TPO for fresh consideration with a direction that if the earnings of this company from BPO operations is less than ₹ 1 crore, then this company shall be excluded from the list of comparable. We hold and direct accordingly.
Infosys BPO Ltd., (‘Infosys’) - When the assessee found ‘Infosys’ to be functionally comparable at the time of its TP study, it is not clear to us as to what has now changed for the assessee to now claim that this company ‘Infosys’ to be functionally not comparable. Further, on a perusal of the record we find that the assessee had neither raised this issue of functional non-comparability before the TPO or specifically in the objections raised in Form No. 35 before the DRP. Therefore, it appears that this issue has been raised for the first time before us.
While it is an accepted principle that the assessee can raise objection to the inclusion of a company as a comparable before appellate authorities even though it was selected as a comparable in its own TP study, it is also an accepted principle that if the issue of non-comparability of a company is raised for the first time, then it is only in the fitness of things that the TPO shall also be afforded adequate opportunity to examine this issue. We set aside the matter of examination of the functional comparability of this company with the assessee to the file of the TPO for consideration and adjudication after affording the assessee adequate opportunity of being heard in the matter and to make submissions/file details required in this regard.
iGate Global Solutions Ltd., (‘iGate’) - HELD THAT:- Annual Report of the company, ‘iGate’ that its operations/revenue relate to the providing of software development services, contract centre Services and ITES. In this factual matrix of the case, we deem it proper to remand the issue of comparability of this company, ‘iGate’ with the assessee in the case on hand to the file of the TPO for fresh consideration by examining the specific services rendered by this company. The TPO is accordingly directed.
Working Capital Adjustment - HELD THAT:- Following the decision of the co-ordinate bench of this Tribunal in the case of Moog Controls (India) (P.) Ltd. [2015 (11) TMI 1719 - ITAT BANGALORE] we direct the TPO / AO to allow the actual adjustment towards the differences in working capital position between the assessee and the companies in the final set of comparables.
TDS u/s 194C - transactions to be in the nature of ‘contract for work’ - HELD THAT:- Respectfully following the decision of the coordinate bench of this Tribunal in the assessee’s own case for asst. year 2009-10 (supra), we set aside this issue to the file of the AO to verify the assessee’s claim and if it is established that ‘TPL’ has included the receipts from the assessee in respect of these transactions, reflected the same in its books of account and offered the receipts for taxation in its return of income for asst. year 2011-12 and paid taxes thereon; to that extent the disallowance u/s. 40(a)(ia) of the Act is to be deleted.
Expenses towards promotional samples free of cost - HELD THAT:- What emerges is that free samples to Doctors can be allowed as business expenditure, but such allowance is attendant upon the examination of the facts of the cases. While it has been held that the MCI Regulations apply to Doctors and not companies like the assessee in the case on hand, that does not absolve the assessee the onus of establishing the genuineness and correctness of the claim made. This aspect has not been examined by the AO/DRP. In this view of the matter, we deem it appropriate to remand this issue back to the file of the AO to examine the assessee’s claim in the light of the judicial pronouncements relied upon by the DRP, our observations and also considering other judicial pronouncements on this issue. Consequently, ground No.2 of Revenue’s appeal is allowed for statistical purposes.
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2017 (8) TMI 1559
Rate of depreciation on Routers and IT Intelligence devices - @ 60% OR 80% - Power Transmission System - Depreciation u/s 32 on various assets or block of assets on the rates as prescribed in Rule 5 of the Rules - HELD THAT:- It is evident from the above sub items (8)(ix)(E)(k) that the asset qualifying for 80% depreciation should be energy-saving device for power transmission system. The assessee is engaged in trading and leasing of Routers, bridges etc.
We find that the assessee has failed to produce any documentary evidence to support that the Routers, and other equipments are part of power transmission system before the lower authorities. Before us also no documentary evidence in support in claim of the requirement of the said asset being part of power transmission system has been produced.
In view of the failure on the part of the assessee to produce documentary evidence in support its claim of depreciation at the rate of 80% on Routers bridges etc., no error in the order of the CIT-(A). The contention of the assessee to follow the order of the CIT-(A) in subsequent year in view of the rule of consistency also cannot be accepted as we are required to adjudicate the issue in view of the facts before us and the decision of the CIT-(A) in subsequent year is not binding on us. Accordingly, we dismiss the ground No.1 of the appeal.
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2017 (8) TMI 1558
Refund of service tax paid - input services used in export of goods - Business Auxiliary Services - transport of goods by road - refund denied on the ground of time limitation - HELD THAT:- The issue decided in the case of RAYMOND LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III [2014 (1) TMI 1508 - CESTAT MUMBAI] where it was held that Inasmuch as the appellant filed the refund claims in July, 2009 for the quarter ending October-December, 2008, the refund claims are within a period of one year from the date of export of the goods - the claim filed by the appellant is within time.
Refund claim - transportation of goods by the road - HELD THAT:- The issue was dealt in the case of Garware Polyester Ltd. [2011 (6) TMI 241 - CESTAT, MUMBAI] wherein empty containers from the yard to the factory for stuffing of export goods, refund of service tax paid on transport of empty containers from the yard to the factory is admissible. Therefore, the appellant is entitled to avail refund of transport of service tax - refund allowed.
Fulfilment of the condition 2(j) mentioned in the Notification No. 17/2009 - HELD THAT:- None of the authorities below has been given any specific finding and appellant has not given to reply to their query. Therefore, that purpose the matter is remanded to the adjudicating authority to examine the claim under the condition 2(j) of the said notification.
Appeal allowed by way of remand.
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2017 (8) TMI 1557
TP Adjustment - arm's length price adjustment to provision for ITES - Comparable selection - HELD THAT:- Asessee is engaged in providing human resource related services, payroll processing services, training and performance system data entry, etc. to its AE. As a compensation for these services, the AE remunerated Baxter India at a cost plus 10% basis , thus companies functionally dissimilar with that of assessee need to be deselected from final list.
TCS-e-Serve Ltd. functions included rendering of technical services like software testing etc., which required skilled persons. As far as the objection regarding related party transaction is concerned, we are in agreement with the reasoning given by ORP that since this company was taken over by TCS group, therefore, there was no question of any separate details being given about related party transaction. However, keeping in view the various factors, pointed out by Id. counsel for the assessee, which we have noted earlier, this company cannot be taken as a comparable to the tested party.
Infosys BPO Ltd is predominantly into areas like Insurance, Banking, Financial Services, Manufacturing and Telecom which are in the niche areas, unlike the assessee. Functionally not comparable, presence of brand and extraordinary event that has taken place during the year on account of acquisition of Australian based company, we are of the considered opinion that Infosys BPO Ltd. should not be included in the list of comparables
Excel Infoways Ltd. fails TPO's own filter of diminishing revenue and abnormal volatility in revenue and margins.The department has excluded such companies with consistent losses/diminishing revenue in an environment where Indian economy is growing at consistent rate. Having held so, the Assessing Officer included Excel Infoways Ltd. as a comparable without considering the fact that the said company does not pass the diminishing revenue filter - above company has super normal profits.
R System International Limited - Since the assessee in the instant case has provided the audited quarterly results of the comparable company and the margin of the relevant financial year has been calculated, therefore, following the decisions MCKINSEY KNOWLEDGE CENTRE INDIA PVT. LTD. [2015 (3) TMI 1226 - DELHI HIGH COURT] , the company cannot be excluded from the list of comparables
Addition on account of purchase of fixed assets - DRP directed the TPO to restrict the addition to the amount of depreciation claimed during the year without the mark-up which resulted into adjustment - HELD THAT:- Since the facts of the impugned assessment year are identical to the facts of the case in the immediately preceding assessment year, therefore, following the order of the Tribunal in assessee's own case we restore this issue to the file of the Assessing Officer/TPO with direction to re-compute the addition, if any, in the light of the direction of the Tribunal. The grounds raised by the assessee are accordingly allowed for statistical purposes.
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2017 (8) TMI 1556
Penalty u/s 271(1)(c) - inaccurate particulars of income with respect to the transfer pricing (TP) adjustment - HELD THAT:- Penalty deleted confirmed by this court in [2017 (4) TMI 1454 - DELHI HIGH COURT ]. Every step the assessee has been able to demonstrate that the notwithstanding the addition accepted by way of an estimate the claim that the arms length price has been computed in accordance with the provisions of section 92C of the Act stands unrebutted on record. The mere fact that addition has been partially sustained by itself in the facts and circumstances of the present case does not warrant the penal action. - Decided in favour of assessee
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2017 (8) TMI 1555
Validity of assessment order - TNVAT Act - petitioner's case is that in the impugned order there are calculation mistakes and the same has been passed without taking note of the specific objections raised by the petitioner - principles of natural justice - HELD THAT:- This Court grants an opportunity to the petitioner to file a petition under Section 84 of the TNVAT Act, within a period of one week from the date of receipt of a copy of this order and on receipt of the petition, the respondent shall consider the same and pass an order on merits and in accordance with law after affording an opportunity of personal hearing to the petitioner, within a period of two weeks from the date of receipt of the petition.
Petition allowed by way of remand.
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2017 (8) TMI 1554
Enhancement of income on account of total credits in Dummy HO Cash Book Account i.e. expenses debited to that account - NP determination - show cause notice issued u/s 251 - HELD THAT:- The assessee pointed out that detailed reply was filed before the AO and the assessment was made by considering the said expenses and by applying NP rate of 6%. The second plea of assessee before the CIT(A) was that the said documents pertained to number of assessee and the total credits on account of expenses could not be added in the hands of assessee. Later, another show cause notice was issued on 30.11.2012 asking the assessee as to why the total credits of ₹ 1.05 crores as shown in the Dummy HO Cash Book should not be added to the income of assessee.
CIT(A) added sum of ₹ 1.05 crores to the income of assessee on account of unexplained receipts. Another addition which was made was on account of cash payment in advance of ₹ 2,19,726/- for which, no enhancement notice was issued by the CIT(A). In the first instance, since no enhancement notice has been given to the assessee in respect of addition of ₹ 2,19,726/-, the same merits to be deleted in the hands of assessee and hence, we direct the AO to delete the same.
Addition made by the CIT(A) by way of enhancement notice is on account of unexplained receipts - AO had considered the said seized documents and had estimated the profits in the hands of assessee by applying net profit rate. AO had considered the total receipts in the hands of assessee as per TDS certificates at ₹ 3.71 crores and had also noted the non-receipt of TDS certificates from Nashik Municipal Corporation. In respect of TDS of ₹ 27,581/-, which he held to be equivalent to contract receipts of ₹ 11,07,670/- and the total contract receipts were calculated at ₹ 3.82 crores. The Assessing Officer because of non-verifiability of expenses and the high turnover of contract, estimated the net profit at 6% of the gross receipts. The Assessing Officer thus, had accepted the total contract receipts in the hands of assessee but because of non-verifiability of expenses had estimated the net profit.
CIT(A) has found new source of income i.e. total receipts found in the Dummy HO Cash Book at ₹ 1.05 crores and has made the addition on that account. CIT(A) in the present case has travelled beyond the sources of income which was the subject matter of consideration by the AO, wherein the AO after accepting the contract receipts had doubted the expenses claimed by the assessee and accordingly, applied the net profit rate to determine the income in the hands of assessee.
CIT(A) had first started enquiries in respect of payments made by the assessee which was the issue considered by the Assessing Officer while completing assessment under section 143(3) of the Act. Later, the CIT(A) has issued the show cause notice, wherein reference was made to receipts, which were accepted by the Assessing Officer and not disturbed. In the absence of any enquiry by the Assessing Officer regarding receipts recorded in the Dummy HO Cash Book, the same was outside the purview of enhancement scope of the CIT(A). In case any new source of income is to be added in the hands of assessee which was not considered by the Assessing Officer, the jurisdiction to deal with the same in appropriate cases, is to be dealt with under section 147/148 of the Act and / or under section 263 of the Act, where requisite conditions are fulfilled. Such is the proposition laid down by the Hon’ble High Court of Delhi in CIT Vs. Sardari Lal & Co. [2001 (9) TMI 1130 - DELHI HIGH COURT] .
Applying the said propositions and the dictate of the Hon'ble Supreme Court on the issue, we hold that it is not open to the CIT(A) to introduce in the assessment a new source of income and the assessment had to be confined to those items of income which were the subject matter of original assessment. Accordingly, we reverse the order of CIT(A) in this regard and delete the addition of ₹ 1.05 crores. The grounds of appeal raised by the assessee are thus, allowed.
Levy of penalty u/s 271(1)(c) - HELD THAT:- Perusal of penalty order reflects that the penalty has been levied on account of enhancement made by the CIT(A), where the CIT(A) had directed the Assessing Officer to issue notice under section 274 r.w.s. 271(1)(c). The notice was returned by the postal authorities and thereafter, the same was affixed at the premises of assessee. The CIT(A) levied penalty on the addition of ₹ 1.05 crores and ₹ 2,19,726/-. Both these additions were made in the hands of assessee pursuant to enhancement made by the CIT(A). We have in the paras hereinabove already deleted the enhancement and in view thereof, we hereby delete the penalty levied under section 271(1)(c) of the Act on such enhanced income. The grounds of appeal raised by the assessee are thus, allowed.
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2017 (8) TMI 1553
Expenditure on advertisements being treated as revenue expenditure - HELD THAT:- The Court is not inclined to frame a question of law on this issue since the impugned order of the ITAT on this aspect suffers from no legal infirmity.
Disallowance u/s 14A of the Act read with Rule 8D - HELD THAT:- The said issue stands answered by this Court against the Revenue by the order in Pr. Commissioner of Income Tax-6 v. Nilgiri Infrastructure Development Ltd.[ 2016 (2) TMI 1229 - DELHI HIGH COURT ] Accordingly, the Court declines to frame a question on this issue as well.
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2017 (8) TMI 1551
The Bombay High Court admitted an appeal based on substantial questions of law regarding the jurisdiction of a show cause notice issued under the Customs Act, 1962. The appeal questions the validity of the adjudication order and the Appellate Tribunal's decision. The case is to be heard along with Writ Petition No. 2338 of 2016.
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2017 (8) TMI 1550
Valuation - Iron Castings - related party transaction - Rule 9 read with Rule 8 of Central Excise Valuation Rules, 2000 - HELD THAT:- The appeal is admitted.
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2017 (8) TMI 1549
Addition u/s 68 - addition under the heading loan as cash credit - HELD THAT:- Assessee placed on record the evidence as well as copy of income-tax returns of the loan creditor, ROC filings, Boards Resolutions of investor companies, bank statement of investors from where loan money was received by appellant company etc. Revenue has all the power and ability to trace the person. AO ought to have issued notice u/s 133(6) or summons u/s 131 to share applicant companies to substantiate his findings in respect of bank account discrepancy at third and fourth level before drawing conclusions. Merely because the AO has not fulfilled his duty to show how the companies are bogus or their relationship with Shri Pravin Kumar Jam, addition u/s 68 cannot be justified in hands of the appellant.
Appellant has indeed proven the genuineness of the loan creditors. Accordingly the addition made by the AO under section 68 of the Act cannot be sustained. - Decided in favour of assessee.
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2017 (8) TMI 1548
Initiation of Corporate Insolvency Resolution Process - default in payment of dues on the part of Corporate Debtor - HELD THAT:- This Adjudicating authority is satisfied that the petitioner has made out his case by establishing that this Corporate Debtor has defaulted the payment dues on various occasions to this petitioner/OC and there is no dispute between the parties.
The instant petition is admitted - the Corporate Insolvency Resolution Process shall commence - moratorium declared.
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2017 (8) TMI 1547
Revision u/s 263 - Whether assessment order contrary to provision of Section 143(3) i.e. scrutiny assessment can not be supervised under revisionary powers given u/s 263 when income to the tune of ₹ 20 crore approximately is neither examined or verified by the Assessing Officer immediately before his retirement? - HELD THAT:- When the assessee has filed reply dated 31.08.2009 and when he has specifically contended that in the assessment proceedings, he has filed different reply than what has been referred by the assessee in its reply before the CIT (A) on different dates which has not been considered by the CIT(A), even the explanations which are given of all the six grounds are not considered, therefore, rejection of contention of the assessee and then without consideration of remaining questions remanding the matter back and passing the order under Section 263 requires to be considered and the Tribunal has not committed any error in setting aside the order of CIT u/s 263.
In our considered opinion, the conduct of the Commissioner of Income Tax-III while passing the order dated 12.10.2009 as under:-
In view of above stated facts the order passed by the AO under section 143(3) of the IT. Act, 1961 is not only erroneous but is also prejudicial to the interest of revenue. After taking into the fact and circumstances of the case the order u/s 143(3) of the Act dated 27.10.2008 is set-aside to be made de-novo. The AO is directed to made fresh assessment order after proper examination of the issues discussed above and investigations where- ever are necessary.
When no other material was placed before CIT (A), requires serious consideration by the Chief Commissioner of Income Tax. The appropriate proceedings, if he is in service or retired, be taken to put his house in order. - Decided in favour of assessee
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2017 (8) TMI 1546
Initiation of CIRP - existence of debt or not - nature of debt - operational debt or otherwise? - validity of Notice sent under Section 8 (2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is established by the Operational Creditor that the nature of Debt is an "Operational Debt" as defined under section 5(21) of the Definitions under The Code. It has also been established that admittedly there was a "Default" as defined under section 3(12) of The Code on the part of the Corporate Debtor. On the basis of the evidences on record the Petitioner has established that the advance was given against the goods to be supplied and invoices were raised to claim the amount but there was non-payment of Debt on the part of the Corporate Debtor.
Notice sent under Section 8 (2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- If the Respondent wanted to place on record evidence of 'dispute' then he could have raised the objection within 10 days as prescribed under section 8(2) of The Code which had also lapsed now - As a consequence, after the expiry of the period as prescribed and keeping admitted facts in mind that the Operational Creditor had not received the outstanding Debt from the Corporate Debtor and that the formalities as prescribed under The Code have been completed by the Petitioner we are of the conscientious view that this Petition deserves 'Admission'.
Having admitted the Application, the provisions of Moratorium as prescribed under Section 14 of the Code shall be operative henceforth with effect from the date of order shall be applicable by prohibiting institution of any Suit before a Court of Law, transferring/encumbering any of the assets of the Debtor etc. However, the supply of essential goods or services to the "Corporate Debtor" shall not be terminated during Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan prescribed under Section 31 of the Code.
Petition admitted.
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2017 (8) TMI 1545
Taxability - incentives received from the Airlines while undertaking freight forwarding activity - HELD THAT:- Record reveals that show-cause notice appearing at page 28 to 31 of appeal folder does not bring out what are the material facts and evidence on which the alleged service was intended to be taxed. It may be stated that a show-cause notice is foundation of adjudication.
In absence of such foundation, opportunity of defence being denied to the appellant, the order appealed suffers from legal infirmity which is incurable at this stage.
The adjudication order fails to stand for which appeal is allowed.
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2017 (8) TMI 1544
Assessment u/s 153A - no incriminating material being available against assessee in search u/s 132 on basis of which notice was issued u/s 153(A)(1)(a) - HELD THAT:- We find the assessee in the instant case has filed his original return of income on 30th March, 2012 declaring total income of ₹ 3,92,11,220/-. In response to notice u/s. 153A of the IT Act, the assessee filed return in response to notice u/s 153A on 5th January, 2015 declaring the same income. The assessee in his return of income had claimed exemption of long term capital gain of ₹ 5,62,61,726/-.
The assessment order was passed u/s 143(3) read with section 153A by making addition of the long term capital gain as bogus. From the order of the assessing officer, we find nowhere it is mentioned that any incriminating material was found during the course of search. The entire addition made by the AO is based on post search inquiries. There is also no ground by the revenue that any such incriminating material was found other than the statement of Shri Sundeep Gupta at the time of search. Under these circumstances, we have to adjudicate as to whether the CIT(A) has erred in deleting the addition made by the AO in absence of any incriminating material.
Hon’ble Delhi High Court in the case of Pr. CIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] has held that addition cannot be made in absence of any incriminating material and the decision in the case of Smt. Dayawanti Gupta has been duly considered
Since the Hon’ble Jurisdictional High Court has clearly held that addition in order passed u/s 143(3)/ 153A cannot be made in absence of any incriminating material and since in the instant case, there is no evidence whatsoever on record that any incriminating material was found during the course of search and since the addition was made on the basis of certain inquiries conducted subsequent to the search on the basis of return already filed, therefore, on this issue itself addition has to be deleted. We, therefore, uphold the order of the CIT(A) and dismiss the ground raised by the revenue.
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2017 (8) TMI 1543
Initiation of Corporate Insolvency Resolution Process - Corporate Debtor - main argument of the Petitioner is that, if time be granted then the finances of the Company can be restructured and the Loan can be repaid - HELD THAT:- It is justifiable to invoke the provisions of section 10 of The Code. The position of accounts have demonstrated that the Corporate Debtor have committed default in repayment of Debt to the Banks and the private investors. A timely intervention is now required. The Management of the Corporate Debtor having the complete information of the financial affairs of the Corporate Debtor is directed and should cooperate in submitting the total data to IRP without fail because time is the essence in the proceedings to be initiated under IB Code. A Committee of Creditors to be constituted which shall comprise Financial Creditors.
The application under section 10 of The Code is hereby “Admitted” - The “Moratorium” shall commence henceforth.
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9911796707
