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2023 (9) TMI 1507
LTCG - Addition on account of Section 50C - DRP had rejected the contention of the Appellant that the provisions of Section 50C would not be attracted in the fact and circumstances of the present case - HELD THAT:-We concur with the above finding of the DRP. Even if the benefit the decision of the Tribunal in the case of Maria Fernandes Chery [2021 (1) TMI 620 - ITAT MUMBAI] is granted to the Appellant, the provision of Section 50C of the Act would still be attracted in the fact of the present case as the value of INR 4,37,55,300/- assessable by the Stamp Valuation Authority exceeds 110% of the sale consideration of INR 3,96,00,000/- disclosed by the Appellant.
However, since the DVO has determine the fair market value of the capital asset at INR 4,00,32,000/-, the assessing officer is directed to re-compute LTCG by taking the same as full value of consideration.
Disallowance of deduction claimed by the Appellant in respect of the expense being fee paid for valuation, and expenses pertaining to travel of Appellant to India - We concur with the AO and the DRP that the deduction for the aforesaid expenses cannot be allowed as the same were not connected with the transfer of the capital asset. Expenses were incurred after the transfer of capital asset for the purpose of preparation of valuation report. While expense on travel of the Appellant were personal in nature and cannot be said to have been incurred for the transfer of the capital asset.
Claim for deduction being the amount paid by the Appellant to the Mahavir Co-op Housing Society Ltd - We find merit in the contentions advanced on behalf of the Appellant. We note that the Appellant executed the Deed of Transfer on 12/02/2018 which was registered 12/03/2018. As per Clause 15 of the aforesaid Deed of Transfer, the Appellant took over the obligation to pay the transfer fee payable to the Society for transfer of the capital asset in the records of the Society. On perusal of the details of cheque issued by the Appellant and receipt issued by the Society, we find that the Appellant had made paymen to the Society.
In our view, the Appellant had no reason to make a voluntary payment of around 3% of the sale consideration of INR 3,96,00,000/- to the Society after execution of Deed of Transfer except to aid registration of transfer in the name of the purchaser in records of the Society in terms of Clause 15 of the Deed of Transfer. The fact that the Society choose to treat the amount paid by the Appellant as a voluntary donation for repair and maintenance of the Society and issue a receipt to that effect is an issue to be addressed by the concerned regulator. As regards computation of LTCG in the hands of the Appellant, the Appellant parted with the money for discharging the his liability as per Clause 15 of the Deed of Transfer which crystallized on execution of Deed of Transfer on 12/02/2018.
We hold that the payment made by the Appellant to the Society by way of cheque was expense connected to transfer of capital asset and therefore, the same should be reduced from the full value of consideration while determining the amount of LTCG. AO is directed accordingly.
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2023 (9) TMI 1506
Rejection of application filed in Form 10AD for approval u/s. 80G(5) - registration u/s 12A of the Act has already been approved by the authority - HELD THAT:- CIT(E) has not considered the Affidavit filed by the assessee explaining the mistake in Form 10AD of the Act. In our considered opinion, non-consideration of the reply dated 05-01-2023 and the Affidavit thereon is clear violation of Principle of Natural Justice.
Therefore in the interest of fair play and justice, we thought it, is a fit case to set aside the matter back to the file of Ld. CIT(E) with a direction to consider the Affidavit filed by the assessee and call for any further explanation thereon and decide the application for approval filed in Form 10AD of the I.T. Rule and also by affording opportunity of hearing to the assessee. Needless to say, the assessee should cooperate by filing all necessary details in adjudicating the registration u/s. 80G(5) of the Act. Appeal filed by the Assessee is allowed for statistical purpose.
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2023 (9) TMI 1505
Addition u/s 41(1) towards cessation of trading liability - assessing Loan payable to company as the name of the said company was struck off on MCA - HELD THAT:- From persual of Provisions of Section 41(1), we notice that the same refers to a trading liability.
When the assessee purchases goods and the sundry creditor is appearing in the balance sheet and the same has remained unpaid for a long time and the assessee fails to prove that such liability is existing/live then in such cases Section 41(1) of the Act can be invoked, but in the present case the alleged sum is the balance of outstanding loan.
The assessee took loan but the same has remained outstanding in the balance sheet only and it has never been claimed as a trading liability. Only the interest paid on such sum has been claimed as an expenditure. Even the assessee has also claimed that the loan liability was live as on the closing date of the year under appeal and this company was struck off at a later stage.
Thus, we are of the considered view that only the interest expenditure claimed by the assessee during FY 2001-02 needs to be added back to the income of the assessee but so far as the remaining amount is concerned it being not in the nature of trading liability, cannot be added in the hands of the assessee u/s 41(1) - Appeal filed by the assessee is partly allowed.
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2023 (9) TMI 1504
Revision u/s 263 - AO had not properly examined the issues for which reopening had taken place - HELD THAT:- Perusal of the order of the Tribunal indicates that it has observed that the Principal Commissioner of Income Tax sought to revise the assessment order only on the basis of presumptions. Relying on a decision in the case of Gayatri Enterprise vs. I.T.O [2019 (9) TMI 777 - GUJARAT HIGH COURT] the Tribunal set aside the order passed by the PCIT u/s 263 of the Act.
In the case of Gayatri Enterprise (supra), the Division Bench of this Court had examined the issue at hand from an angle whether a presumption could have been drawn about the excess amount alleged to have been made by the appellant-assessee at the time of the purchase of land. The Division Bench held that it is not permissible to draw an inference from the circumstances surrounding a transaction of sale of property that the purchaser of the property must have paid more than what was actually recorded in his books of account. No presumption can be drawn on this aspect.
Having considered the order of the Tribunal and in light of the decision in the case of Gayatri Enterprise (supra), no substantial question of law arises in the appeal, much less the question of law, and therefore, the tax appeal is accordingly dismissed
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2023 (9) TMI 1503
Rejection of representation and the promotion order of the incumbent juniors - Validity of Rule 4(b) of Ministry of Information Technology Rules, 1998 - whether the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? - HELD THAT:- It is a trite law that for striking down the provisions of law or for declaring any Rules as ultra vires, specific pleading to challenge the Rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brought into force. In the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation. Therefore, the High Court was not justified to declare Rule 4(b) as ultra vires.
The order dated 26.09.2008 of the High Court declaring Rule 4(b) of the Rules is set aside. Since the declaration of the High Court holding Rule 4(b) is set aside to be invalid consequently, the grievance of the Respondent No. 1 about any illegality in denial of promotion to her also does not arise. No case has been made out as to how in the event of Rule 4(b) being valid, how the denial of promotion to her was unjustified for in the years 1999, 2000 and for the years before 2007.
Appeal allowed.
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2023 (9) TMI 1502
Request for withdrawal of Advance Ruling Application - eligibility of ITC - HELD THAT:- The letter dated 12.09.2023 of the Applicant is taken on record, wherein they have stated that they have decided to withdraw the ARA application filed by them. As the Applicant has requested for withdrawal of their Advance Ruling Application, their request is considered and the application is treated as withdrawn without going into the merits or detailed facts of the case.
The ARA Application filed by the Applicant seeking Advance Ruling is disposed as withdrawn as per the request of the Applicant.
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2023 (9) TMI 1501
Delayed payment of employees' contribution towards Provident Fund (PF) and Employees State Insurance (ESI) - processing the returns of income under section 143(1) - HELD THAT:- Unless employees’ contribution to PF and ESI are deposited within the due date prescribed under the PF and ESI Acts, not only the assessee would get no deduction under section 36(1)(va), but the amount in question has to be treated as assessee’s income u/s 2(24)(x) of the Act. To that extent, the issue stands squarely settled by the ratio laid down in case of Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT]
Clear indication by the auditor in the audit report calls for suo motu disallowance of such amount paid beyond the due date, as it is in contravention of section 36(1)(va) of the Act, while computing the total income in the return of income. Instead of doing that, the assessee has claimed deduction of the amount under section 36(1)(va) of the Act. Thus, in our considered opinion, the adjustment clearly falls within the ambit of section 143(1)(a)(iv) read with Explanation (a). Therefore, we reject assessee’s contention in this regard.
The concept of prima facie adjustment under section 143(1)(a) has long been obliterated, as, after the amendment of section 143(1), first and second proviso to section 143(1)(a) provide for complying with the requirements of rule of natural justice in case of any adjustment. Thus, we do not find any merit in the submissions of the assessee contesting the adjustment made under section 143(1)(a) of the Act.
Effect that the amendment to section 36(1)(va) by introducing Explanation-2 will apply prospectively - Even, accepting assessee’s aforesaid contention, as we have already discussed earlier in the order, section 36(1)(va) in its original form, sans the amendment, had no ambiguity, as it clearly provided that no deduction in respect of employees’ contribution to PF and ESI can be granted unless such contribution is remitted within the due date prescribed under the relevant Acts. Therefore, retrospective or prospective application of the amendment to section 36(1)(va) would be of no help to the assessee. Decided against assessee.
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2023 (9) TMI 1500
Seeking direction to unblock the Electronic Credit Ledger of the petitioner and to withdraw/recall all proceedings thereunder - reasons to believe - HELD THAT:- The non-functioning of the Taxpayer in the declared place of business is coming under the provision of Sub Clause-1(a)(i) of Rule 86A of the Odisha Goods and Services Tax Rules, 2017 about which being queried to the petitioner, he remained silent.
This Court is not inclined to entertain this writ petition and the same is dismissed.
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2023 (9) TMI 1499
Assessment u/s 147 - reasons to believe - addition as deemed income u/s 56(2)(vii)(b)(ii) - HELD THAT:- Failure of the A.O to make available to the assessee a copy of the “reasons to believe” that formed the basis for reopening his case goes to the very root of the validity of jurisdiction that he assumed for framing the impugned assessment. We, say so for the reason that as the assessee, despite a specific request for a copy of the “reasons to believe” was not provided the same by the AO, thus, had remained divested of his statutory right of objecting to the very basis on which his case was reopened u/s 147 of the Act.
As stated by the Ld. AR, and rightly so, as held in the case of GKN Driveshafts (India) Ltd [2002 (11) TMI 7 - SUPREME COURT] the assessee, after obtaining a copy of the “reasons to believe,” is vested with a statutory right to file his objections before the A.O., which the latter is required to dispose of based on a speaking order.
As in the case before me, there has been a complete violation of the applicable principle of law by the AO, who had, despite a specific request by the assessee, failed to communicate the “reasons to believe” that had formed the very basis for reopening of his assessment u/s. 147 therefore, the very assumption of jurisdiction by him and framing of the impugned assessment cannot be sustained and is liable to be struck down on the said count itself.
My view above is supported by the judgment of Agarwal Metals and Alloys [2012 (8) TMI 612 - BOMBAY HIGH COURT] after taking cognizance of the fact that the AO in the case before them had failed to communicate the “reasons to believe” based on which the case of the assessee was reopened, quashed the assessment by treating the same as having been passed in a brazen violation of the governing principles of law.
A similar view had been taken in the case of Pr. CIT Vs. Jagat Talkies Distributors [2017 (9) TMI 192 - DELHI HIGH COURT] held that on account of the failure of the A.O to make available to the assessee a copy of the reasons for reopening of the assessment u/s. 147 of the Act, the re-assessment proceedings would stand vitiated in law. Accordingly, as in the case before me, the AO despite the specific request of the assessee, had failed to provide him a copy of the reasons to believe based on which his case was reopened u/s. 147 therefore, as per the aforesaid settled position of law, the assessment framed by him being devoid and bereft of valid assumption of jurisdiction cannot be sustained and is herein quashed.
As the assessment in the present case is quashed for want of valid assumption of jurisdiction by the A.O u/s. 147. Assessee appeal allowed.
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2023 (9) TMI 1498
Interpretation of earlier judgments and their applicability in the present case - HELD THAT:- A perusal of the material on record will indicate that the learned single Judge has proceeded to allow the petition by placing reliance and following an earlier judgment of a co-ordinate Bench in the case of Sonal Apparel Pvt. Ltd. Vs. State of Karnataka and another [2016 (3) TMI 1286 - KARNATAKA HIGH COURT], which were allowed by this Court. A perusal of the said order will indicate that the coordinate learned Single Judge had followed and placed reliance upon an earlier judgment of Division Bench in the case of State of Karnataka Vs. Centum Industries [2015 (10) TMI 47 - KARNATAKA HIGH COURT].
There are no merit in the appeal and the same is hereby dismissed.
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2023 (9) TMI 1497
Assessment u/s 153A - reasonable estimate of net profit in the case of the assessee - HELD THAT:- As precedence in assessee’s case for earlier years on similar facts permeating in these years also becomes very relevant factor. Thus, in line with the earlier years, we estimate the profit in the following manner:-
i) In so far as direct contract receipts, that is, contracts which assessee has carried out as a contractor, estimation of net profit rate of 9% would be reasonable as compared to 11% estimated by the AO for the A.Y.2013-14 and 2014-15; and
ii) In so far as sub-contracts receipts, net profit @4.5% is estimated, instead of 5.5% by the AO. Thus, assessee gets part relief in both the years.
Rental receipts - As brought on record that in later years, ld. CIT(A) has estimated profit @85% of the rental receipts which has not been challenged by the department and has attained finality, therefore, we hold that on rental receipts, 85% of the profit should be estimated on the gross receipts. This issue is partly allowed.
Deduction under Chapter VIA - As we find that this issue has not been discussed in the ld. CIT(A) order and also no details have been discussed in the assessment order also. Therefore, we feel that this issue should be remanded back to the file of the ld. AO to examine the claim of deduction and onus is on the assessee to substantiate its claim for deduction and AO shall grant relief in accordance with law, if found admiissble.
Post Search Assessment Appeals - addition on account of bogus sub-contract charges - search and seizure operation was carried out and in response to notice u/s. 153A assessee has declared income on estimated basis, because the books of accounts were already rejected by the ld. AO in the original assessment proceedings - HELD THAT:- The net profit in various years is ranging from 7.77% to 14.95%. The assessee in the return of income filed in response to notice u/s.153A had shown net profit rate of 8% in the contract receipts to factor in the sub-contract charges; and 4% from sub-contract receipts. The impact of this addition, if made on the net profit rate of 8% which is already more than declared in the books of account is more, then as stated above the net profit rate in these years will increase furthermore, viz., A.Y. 2012-13- 11.52%; A.Y. 2013-14- 12.67%; A.Y. 2014-15- 8.78%; A.Y. 2015-16- 17.55%; A.Y. 2016- 17- 14.69%; and in A.Y. 2017-18- 13.19%. This is more than, what has been estimated in earlier years. In the regular appeal for A.Y.2013-14 and 2014-15 we have estimated 9% on contract receipts and 4.5% on sub-contract receipts. Such estimation applicable for regular assessments will also apply here. As held above in the regular assessment appeals for A.Y.s 2012-13, 2013-14 and 2014-15, we have applied 9% on the direct contract receipts and 4.5% on sub-contract receipts. Accordingly, for these years also we are applying net profit rate of 9% on the direct contract receipts.
Addition made by the AO separately for some of sub-contract charges -Assessee did carry out the work during the year as per the awarded contract, both as the main contractor and also have got the work done through subcontractor, the bogus sub-contract charges shown by the assessee would be a part of the business and expense. At the most net profit on the bogus sub-contract charges can be added to the net profit declared, because it is part of the contract work carried out by the assessee and if these sub-contract charges are treated to be bogus, then it means that assessee has tried to suppress profit from its contract business.
The best recourse would be to estimate the net profit rate in all these years instead of making separate addition of the subcontract charges over and above the net profit shown in the books of accounts. Thus we hold that estimate of 9% as held above is far reasonable to factor in the sub-contract charges added by the AO. Accordingly, assessee gets part relief and now instead of net profit on direct contract receipts declared at 8% in the return filed u/s 153A, it will be 9% and separate addition as held will get subsumed.
Additional income was declared by the assessee in its return of income pursuant to the notice u/s. 153A in the nature of interest received on fixed deposits with the banks as margin for issue of bank guarantees in favour of the Government organization - We find that before the ld. AO assessee has not made any such claim and it has offered it as income in the return of income. Further, this issue has not been challenged before the ld. CIT (A) also. Under these facts, we are not tinkering with the additional income declared by the assessee in the return of income and accordingly, this ground is dismissed.
Additional income declared on the turnover of Directors - as argued it cannot be added as it is very high and excessive because in the seized documents, the turnover made by the Directors which was not according to regular books - The assessee estimated 12% from such turnover and offered it as additional income. Now the case of the assessee before us that, it is on higher side, not commensurate with the business of the assessee and lower percentage should be applied. We do not find any justification for such a plea that once the assessee has offered the income on the basis of seized document, then assessee cannot take a plea that the said additional income offered should be reduced by some adhoc percentage of net profit. Accordingly, ground No.4 is dismissed.
Disallowance of Foreign travel expenses - foreign visit of directors alongwith their family members is not wholly and exclusively for the purpose of business - Undisputedly this assessment had abated at the time of search, because the last date of issuing notice u/s.143(2) dated 30/09//2017 and search was conducted on 20/09/2017. On merits, we find that the ld. AO has given detailed reasons as to why assessee has failed to prove the foreign travel expenses and the purpose for the business, accordingly and without any proper facts and material brought on record to show that the foreign travel related to the business of the assessee, ground raised by the assessee is confirmed.
Bogus sub-contract charges - A.Y.2017-18 - As we have already held that since it is part of contract business of the assessee and no separate addition should be made and once we have estimated the net profit, this addition gets subsumed in the estimation of net profit. For this year we have estimated 9% on the contract receipts and therefore, this ground of the assessee is treated as partly allowed.
Cash sales at Ulwe Bambavi - As we have already held that no profit rate of 9% should be applied instead of entire cash sales. Accordingly, this ground is partly allowed.
Depreciation suomoto disallowed - case of the assessee before us is that assessee has wrongly offered additional disallowance of depreciation in the return of income filed u/s.153A and moreover this addition is not based on any incriminating documents found during the course of search - The contention raised by the ld. Counsel cannot be accepted because if the assessee has disallowed depreciation suomoto in the return of income under Section 153A, then it cannot be held that same is beyond the purview of Section 153A. It is not a case of any addition made on account of incriminating material or not. But then it had offered it as a disallowable depreciation and the same cannot be allowed unless the facts are brought on record. Thus, this ground raised by the assessee is dismissed.
Foreign travel expenses - As in this year assessment for A.Y.2017-18 had abated at the time of search because the last date of issuing notice u/s.143(2) dated 30/09/2017 and search was conducted on 20/09/2017. On merits, we find that the ld. AO has given detailed reasons as to why assessee has failed to prove the foreign travel expenses and the purpose for the business, accordingly, and without any proper facts and material brought on record to show that the foreign travel related to the business of the assessee. Accordingly, ground raised by the assessee is confirmed.
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2023 (9) TMI 1496
Disallowance of interest expenses u/s. 14A r.w.r.8D - AO construed the impugned investment made for earning exempt was made out of borrowed funds - CIT(A) deleted addition having sufficient interest free funds in the form share capital and reserves for making investments earning exempt income - HELD THAT:- CIT(A) was rightly deleted the impugned disallowance made by the AO u/s 14A r.w.r 8D in the light of various judicial precedents on the issue that when interest free funds are available, which is more than the investment made for earning exempted income, by the assessee, the presumption is that, investment so made is out of interest free fund. Before us, there is no material to support the case of the Revenue that the assessee had utilized borrowed funds for investment for earning exempt income. Admittedly, similar claim of the assessee was allowed by the CIT (A) for the earlier year, and was accepted by the Revenue.
The proposition that if interest free funds are more than that invested in shares and securities to earn exempt income, and that it was not proved that any borrowed funds were utilized for such investments, then the presumption is that the interest free funds were used for making investment and no disallowance under section 14A r.w.r. 8D is permissible, is settled in South Indian Bank Ltd. [2021 (9) TMI 566 - SUPREME COURT]
Thus, CIT(A) has rightly allowed the claim of the assessee and deleted the impugned disallowance made u/s 14A. Decided against revenue.
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2023 (9) TMI 1495
Nature of activity - deemed sale or supply of tangible goods services? - business of providing customised gas production units and cryogenic vacuum insulated storage tanks with all accessories such as vaporizer for storage of gas on rental / lease basis - HELD THAT:- From the reading of the definition of supply of tangible goods service, it is clear that the service under supply of tangible goods service will qualify not only by supply of the tangible goods for use simplicitor but with that the important rider attached is the said supply should be without transferring right of possession and effective control of machinery, equipment and appliances. In the fact of the present case though the machinery equipments were supplied for use by the customer but right to possession and effective control has been transferred.
From the circular No. 334/01/2008-TRU dated 29 February 2008 it is abundantly clear that in a case where there is a transfer of right of use in any goods the same is leviable to Sale Tax / VAT as deemed sale of the goods where the transfer of right to use involves transfer of both possession and control of the goods to the user of the goods, the same is not excigible to service tax under the category of supply of tangible goods service.
More or less similar issue in the appellant‟s group company‟s case that is Air Liquid North India Pvt Ltd. [2017 (6) TMI 476 - CESTAT NEW DELHI] was considered wherein though the demand was raised under business support service but the transaction was identical and the demand was set aside considering the transaction is a deemed sale in terms of Article 366 (29A) (d) of Constitution Of India.
The demand under supply of tangible goods service in the present case is not sustainable - the impugned orders are set aside - Appeal allowed.
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2023 (9) TMI 1494
Implementation of direction of this Court dated 20.05.2022 - suggestion for release of amount in favour of the identified small depositors in three deferential categories - HELD THAT:- This Court finds there is no difficulty in the release of minimum sum of Rs. 8,000/- in favour of the identified depositors/investors.
Finding clear statement of Mr. Kanungo, learned senior counsel for the Petitioners that there has been already payment of Rs. 10,000/- in favour of the 15000 and odd depositors, the Competent Authority while commencing the release process shall indentify such investors and to see that there is no payment over and above the deposit by any investor or depositor - Let there be complete disbursal of the amount at least within a period of two months from the date of communication of this order by the Petitioner.
Application disposed off.
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2023 (9) TMI 1493
Rejection of registration u/s 12AB - non satisfaction of genuineness of the activities of the trust - Assessee contended that non-consideration of the material available on record is clear in violation of principle of natural justice - HELD THAT:- We find that the primary rationale behind the Commissioner’s rejection of the application of the assessee for registration of the Trust was that the assessee had only partly given the details as called for by the Commmissioner during the proceedings. As we go through the details submitted by the assessee, it is evident that the Commissioner made his decision without a proper scrutiny of these records and, relying on unfounded assumptions, summarily dismissed the applicant's request based on perceived insufficiency of the details and information required for 12AB proceedings, which we are of the view, legally unsustainable.
Therefore, where the CIT asserts that the assessee has only partially furnished the information requirements, while the assessee contends that substantial compliance has been made in 12AB proceedings, we are of the view that the matter requires to be considered afresh. Consequently, the impugned order of the CIT(E) is hereby set aside, and we direct the CIT to examine the matter afresh in accordance with provisions of the law, after affording reasonable opportunity of hearing to the assessee. Appeal of the assessee for statistical purpose.
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2023 (9) TMI 1492
Petition filed under Section 482 CrPC seeking to sett aside of the impugned order - seeking direction to the SHO to register an FIR based on the complaint filed by the petitioners herein and initiate an investigation in the matter - HELD THAT:- This Court finds that there is no averment, categoric or otherwise in the present petition, to show that the present case is one such extra ordinary case which calls for interference by this Court under Section 482 of the CrPC. In fact, there is no denial of the said fact by the learned counsel appearing for the petitioners as according to him the present petition is also maintainable. This Court is unable to agree with the said contention.
It is trite law that a Court while interpreting a provision of the Statute is bound to abide by what is expressed and contained therein without interfering or altering or carving out either a new meaning or something which is not manifest thereform. As per the facts of the present case, admittedly, when an appropriate and specific remedy of law under the (same) Statute being the CrPC is already available to the petitioners, this Court in view of the aforesaid conclusion and even otherwise as per the legal position finds no reason to interfere with the impugned order passed by the learned Trial Court.
This Court is unable to understand the reasons for interfering into the merits of the matter when it has already once opined in the presence of the learned counsel for the petitioners that the present petition is prima facie not maintainable before this Court under the provisions of Section 482 of the CrPC.
Petition dismissed.
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2023 (9) TMI 1491
Bogus LTCG - exemption u/s 10(38) - pre-arranged and sham transaction -transaction carried out by the assessee are similar to the modus operandi of penny stock was misplaced - Tribunal confirmed the findings of the CIT(A) as, it held in favour of the assessee - HELD THAT:- Tribunal held, and in our opinion rightly so that there was no evidence available on record suggesting that the assessee or his broker was involved in rigging up of the price of the script of M/s Shree Nath Commercial & Finance Ltd. The assessee had acted in good faith. Tribunal, therefore, correctly held that the AO had acted only on assumption which was misconceived. CIT(A) order dismissing the revenue's appeal was confirmed.
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2023 (9) TMI 1490
Nature of receipt - compensation received for cancellation of a contract - revenue or capital receipt - agreements between the appellant and the Government of Iraq for running a hotel - as gulf war broke out, by mutual consent the agreements were terminated and compensation from the Iraqi authorities for premature termination of the agreements receipt - Indian tax authorities treated this as a revenue receipt and wanted to tax it. According to the appellant, it was capital a receipt not liable to be taxed.
HELD THAT:- On scrutiny of the impugned order of the tribunal we do not find that any inquiry or finding has been made by the tribunal in relation to the above essential facts. The above judgment of the Supreme Court was sought to be distinguished on facts. It has been stated by the tribunal that in the facts of the Supreme Court case there was an option to the appellant to buy the hotel, a capital asset which the appellant was deprived of. Here there was no such option.
The said premises on which the tribunal has proceeded is unfortunately flawed.
The main question to be answered was whether on a construction of the agreements, their execution, the conduct of the parties and so on the operation of the two hotels in Iraq by the appellant on a long term basis could be taken as creation of capital or a source of income? Whether on termination of these agreements, the compensation received by the appellant for not being able to carry out the agreements could be taken as one for loss of capital?
We, thus set aside that part of the impugned order of the tribunal dealing with above issue. We remand the matter to the tribunal with a direction upon it to decide the same upon hearing the parties preferably within a period of six months from date.
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2023 (9) TMI 1489
Applicability of Section 149 of Indian Penal Code - acquittal Under Section 378 of Code of Criminal Procedure - order of acquittal overturned by High Court - HELD THAT:- There is no discussion about the testimony of eyewitnesses for deciding whether their testimony could be believed. In fact, there are no findings recorded by the High Court after re- appreciating the evidence. There is not even a finding to indicate that the High Court considered the question whether the view taken by the Trial Court was a possible view. Without recording any reasons and without recording any finding regarding the role played by the Appellants individually and collectively, the High Court has jumped to the conclusion that the guilt of the Accused has been established. The judgment does not throw any light on the question who were the authors of the injuries sustained by the deceased and the injured witnesses. There is no finding as to how Section 149 of Indian Penal Code gets attracted.
The only conclusion which can be drawn is that the High Court, as an Appellate Court, while hearing the appeal against acquittal, has not done its duty.
The Trial Court found that the failure to investigate the cause of injury suffered by the Accused No. 1 is a serious lacuna in a prosecution case. On facts, it is further noted by the Trial Court that on the basis of prior complaint filed by the Accused No. 1 - Appellant No. 1 alleging commission of assault by PW-1, PW-2, PW-7, and PW-12, all of them got anticipatory bail from the competent court.
The impugned judgment dated 21st September 2010 is set aside - appeal allowed.
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2023 (9) TMI 1488
Maintainability of appeal - non-fulfilment of mandatory compliance of Section 35F CEA - HELD THAT:- Admittedly, the said amount of duty stands paid to the extent @ Rs. 750 PMT. Apparently and admittedly the said amount is more than the amount of 7.5% of the amount as is required for pre-deposit in terms of Section 35F of the Central Excise Act.
As apparent from verification report, it has been verified by the department itself that the burden of said amount of duty has been borne by the appellant itself. Irrespective of the issue about the liability towards the impugned amount of duty, whether it was of the buyer of molasses i.e. the appellant or it was of the khandsari unit i.e. the manufacturer of molasses, the fact remains is that the requisite amount stands already deposited with the department. The amount of duty which stands already paid has been held to be as good as the amount of pre-deposit.
There are no reason to differ from the findings that appellant cannot denied of being heard on merits in any appeal where more than 7.5% of the amount required for pre-deposit has already been recovered by the department though not from the appellant, but from its khandsari unit. Resultantly, it is held that since the amount of pre-deposit stands already paid, there is no such defect.
Registry is, therefore, directed to register the appeal and to list the same in due course.
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9911796707
