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Showing 21 to 40 of 1962 Records
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2017 (3) TMI 1946
Nature of land sold - capital asset or agricultural land - Deduction u/s 54F - main grievance of the assessee is that though the land was converted for industrial purpose, agricultural operations were continued to be carried on in the land and therefore, same should have been treated as agricultural land - HELD THAT:- We are of the considered opinion that it is not disputed fact that the land was situated beyond the prescribed limits of the Mysore City Corporation and also that the land was converted for non-agricultural purpose by the competent authority, the conversion was sought by the assessee himself.
Therefore, the intention of the assessee is manifest from the conduct of conversion of the land into non-agricultural land and the land ceased to be agricultural land. Even the character of land is shown as non-agricultural in the revenue records. Therefore, submission of the learned counsel for the assessee that the land continues to be agricultural land cannot be accepted.
New claim made before CIT(A)/FAA - Deduction u/s 54F - investment made in apartment - assessee had not made any claim before the AO for grant of benefit u/s 54F and it is only before the CIT(A) that this ground was raised praying for benefit of section 54F - No doubt, law is quite settled to the extent that new claim can always be made during the course of assessment proceedings even though not made in the return of income. But no new claim can be made for the first time before the appellate authority, though powers of the CIT(A) are co-terminus with that of the AO, it is equally settled law that the CIT(A) cannot do what the AO himself could not have done.
Thus we hold that the CIT(A) ought not to have entertained new claim which also requires verification of certain facts as to investment in new house etc. whether the investment was made within prescribed time or not. More so, without affording an opportunity to the AO. This action of CIT(A) offends rule 46A and also it amounts to CIT(A) acting beyond the powers vested with him u/s 250 of the Act or beyond the subject matter of appeal.
Appeal filed by the revenue is allowed.
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2017 (3) TMI 1945
Assessee in default for which the Income Tax department has sought to effect recovery - Learned counsel for the petitioner prays for liberty to withdraw the Writ Petition as also the Special Leave Petition and instead avail of his remedies under the provisions of the Income Tax Act. Liberty as prayed is granted. The Writ Petition as also the Special Leave Petition are accordingly closed on withdrawal with liberty as aforesaid.
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2017 (3) TMI 1944
Nomination of an Arbitrator - whether the Chief Justice of a High Court or any person or institution designated by him, while exercising power under Section 11(6) of The Arbitration and Conciliation Act, 1996 is bound to nominate an arbitrator as specified in the agreement for arbitration? - HELD THAT:- The issue is no more res integra. Though an arbitrator is specified in the agreement for arbitration, if circumstances so warrant, the Chief Justice or the designated Judge is free to appoint an independent arbitrator, having due regard to the qualification, if any, and other aspects as required under Section 11(8) of the Act.
On the facts of the present case, one wonders whether the issue actually arose or not. Clause 2900 of the Standard Conditions of Contract no doubt provides that the sole arbitrator shall be a Gazetted Railway Officer but in Clause 19.0 of the agreement dated 16.01.2012 executed between the parties, it is clearly stipulated that the contract shall be governed by the General Conditions and Special Conditions of Contract.
Thus, it is clear that there is no stipulation for appointment of a Railway Officer. It can be any person. The designated Judge of the High Court has only exercised his powers in terms of the agreement by nominating an independent arbitrator.
There are no merit in this appeal and the same is accordingly dismissed.
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2017 (3) TMI 1943
Refund of amount already deposited in respect of Water Tax and House Tax - HELD THAT:- Present case relates only to tax, i.e. house Tax and water Tax. Hence, the same is not leviable from petitioner in respect to property, which is admittedly Central Government's property. Impugned recovery is, therefore, quashed.
The petitioner will make a representation in this regard, giving details of deposit of such amount within two weeks from today. In case such a representation is made, the same shall be considered by authority concerned and if aforesaid amount has been paid towards tax, appropriate order shall be passed in accordance with law and in the light of observations made above and amount found refundable shall be refunded within two months thereafter. It is made very clear that if any amount has been realized or paid by petitioner towards service charge or fee etc., or any amount is due towards that aspect, Lucknow Nagar Nigam shall give details of such amount.
It goes without saying that observations made above in respect to service charges etc.; it relates to demand already made by Lucknow Nagar Nigam, and due against petitioner but if no demand has been made, for such contemplated demand, amount already realized towards tax shall not be adjusted and it will be refunded.
Petition allowed.
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2017 (3) TMI 1942
Complaint for an unfair trade practice or a restrictive trade practice adopted by any trader or service provider - Whether a complaint can be filed by a Trust under the provisions of the Consumer Protection Act, 1986? - HELD THAT:- On a plain and simple reading of Section 2(m), it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.
The National Commission was quite right in holding that the complaint filed by the appellant Trust was not maintainable.
Since it is concluded that the complaint itself was not maintainable, it is refrained from making any comment on the merits of the dispute - appeal dismissed.
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2017 (3) TMI 1941
Benefit of tonnage tax scheme provided under Chapter XII C of the Act - CIT(A) held that the assessee is eligible for tonnage tax scheme, thus further disallowance u/s 14A cannot be made - CIT(A) further deleting the addition of 14A for the purpose of 115JB disallowances holding that section 14A is not acceptable to shipping companies - As contended by the ld. DR that against the order of the Tribunal for the assessment year 2006-07, as has been followed in the assessment year 2008-09, the Department has filed an appeal before the Hon’ble Madras
HELD THAT:- As respectfully following the decision of the Coordinate Benches of the Tribunal in assessment year 2008-09 2015 (3) TMI 226 - ITAT CHENNA], we sustain the order of the ld. CIT(A), who has passed a well reasoned order by holding that the assessee is entitled for the benefit of tonnage tax scheme provided under Chapter XII C of the Act.
Disallowance under section 14A read with Rule 8D as well as inclusion of the said disallowance to 115JB of the Act, the ld. CIT(A) followed the decision of the Tribunal for earlier assessment years, wherein, the decision of Mumbai Benches of the Tribunal in the case of Varun Shipping Corporation Ltd. v. ACIT [2011 (11) TMI 370 - ITAT MUMBAI] has been followed. Under the above facts and circumstances, we find no reason to interfere with the orders of the ld. CIT(A) and all the three grounds raised in the all the appeals of the Revenue are dismissed.
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2017 (3) TMI 1940
Penalty levied u/s 271(1)(c) - Assessee had filed a belated return of income showing a loss which is not eligible to be carried forward, and was not claimed in any subsequent years - HELD THAT:- On a careful consideration of the facts it appears that there is no intention on the part of the Assessee to conceal the income or furnish inaccurate particulars of income. The return of loss filed belatedly is not useful to the Assessee since the loss cannot be carried forward and it cannot be set off against the income in subsequent years as the return was filed belatedly. Therefore the Assessee has to forgo whatever loss is shown in the return of income. It appears that the CFO was entrusted with the filing of return and he made a mistake in not properly uploading the return by filling up the return with the disallowances which were already reported by the auditors in the tax audit report.
CFO had undoubtedly made an error in filing electronically by uploading incorrect particulars. Therefore for the fault of the professional, the Assessee cannot be penalized. There is no intention of furnishing of any inaccurate particulars or concealment of income as the facts undoubtedly suggest in this case.
Hon’ble Supreme Court in the case of Price Waterhouse Coopers Pvt. Ltd. [2012 (9) TMI 775 - SUPREME COURT] considered a situation where the Assessee by mistake claimed deduction in respect of provision towards payment of gratuity in its return of income even though tax audit report indicated that such provision was not allowable.
Hon’ble Madras High Court in the case of CIT Vs. Balaji Distelleries Ltd [2012 (10) TMI 514 - MADRAS HIGH COURT] following the decision of the Hon’ble Supreme Court in the case of Price Waterhouse Coopers pvt. Ltd,[2012 (9) TMI 775 - SUPREME COURT] held that the absence of due care does not mean that the Assessee was guilty of furnishing inaccurate particulars to conceal his income.
We hold that there is no concealment of income or furnishing of inaccurate particulars of income by the Assessee, but it is only a mistake in not adding back the expenses disallowable in the computation of income while uploading the return of income in the given facts and circumstances of the Assessee’s case. Thus, we direct the AO to delete the penalty levied u/s 271(1)(c) of the Act. Appeal of assessee allowed.
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2017 (3) TMI 1939
Validity of Notices under Sections 25, 26, 55 and 61 of the Rajasthan Value Added Tax, 2003 apart from assessment order - few petitions were filed at the stage of notices under Sections 25 or 26 of the Act of 2003, whereas, other petitions were filed after order of assessment pursuant to the notice under challenge.
HELD THAT:- It would not be appropriate for this Court to deal with the issues raised in reference to the notices under Sections 25 and 26 of the Act of 2003 as all those issues can be raised before the Appellate Authority having been decided by the Assessing Authority. The petitioners had raised all the relevant issues before the Assessing Authority and the order of assessment has been passed after considering those issues thus in the facts and circumstances of the case, there are no reason to set aside the impugned notices or the orders of assessment, rather, it can be challenged by way of appeal. The limitation to prefer appeal has already expired thus it would be appropriate to give liberty to the petitioners to prefer an appeal against the order of assessment within a period of 60 (sixty) days from the date of pronouncement of this judgment and, in that case, issue of limitation would not come in their way, as agreed by learned counsel for the respondents.
The direction aforesaid has been given on an agreement of learned counsel for the respondents as otherwise the period of limitation to maintain appeal is of 60 days from the date of assessment order.
All these writ petitions are dismissed.
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2017 (3) TMI 1938
Addition u/s 40(a)(ia) - non-deduction of tax at source towards courier charges paid - DR submitted before us that the Ld. CIT(A) had deleted the addition based on fresh evidence without obtaining a remand report from the AO - as requested that the matter may be remitted back to the file of Ld. AO for fresh consideration in the light of the evidence filed before the Ld. CIT(A) -HELD THAT:- Since it is evident that fresh evidence was filed before the Ld. CIT(A) based on which the Ld. CIT(A) has held the issue in favour of the assessee, we are of the considered view that the Ld. AO should also be given an fair opportunity to examine the fresh evidence placed before the Ld. CIT(A) for the first time. Therefore in the interest of justice we hereby remit the matter back to the file of Ld. AO for de-nova consideration. Appeal of the Revenue is allowed for statistical purposes
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2017 (3) TMI 1937
Addition of MAT credit entitlement when computing the book profits u/s 115JB - submission that the assessee was entitled to the credit of the MAT against the current year’s tax liability - HELD THAT:- A perusal of the profit and loss account and computation of under Section 115JB clearly shows that the assessee is adding back the net amount debited to the profit and loss account. The same is what is expected of the assessee under the provisions of section 115JB. This view also finds support from the decision of the coordinate bench of this Tribunal, in the case the JK Paper limited [2016 (10) TMI 1393 - ITAT AHMEDABAD]. In the circumstances the addition as made by the Assessing Officer and as confirmed by the CIT (A) stands allowed. In the result Ground No. 2 of the Appeal stands allowed.
Disallowance u/s 14A read with Rule 8D - mandation of recording satisfaction - HELD THAT:- As perusal of the assessment order clearly shows that the Assessing Officer has not recorded the satisfaction u/s 14A(2) regarding the incurrence of expenditure. In the circumstances respectfully following the decision of the coordinate bench of this Tribunal in the case of the Sesa Goa Ltd. [2013 (9) TMI 233 - ITAT PANAJI]
Further as it is noticed that the assessee has substantial own funds far in excess of the investments which has generated the exempt income. Consequently, in view of the decision of HDFC Bank Limited [2014 (8) TMI 119 - BOMBAY HIGH COURT] as also the decision in the case of SBI–DHFL [2015 (11) TMI 399 - BOMBAY HIGH COURT] we are of the view that no disallowance of interest under Section 14A is called for in the hands of the assessee. Consequently the disallowance as made by the Assessing Officer by invoking of the provisions of section 14A read with rule 8D stands deleted. In the result Ground No. 2 of the cross objection stands allowed.
Disallowance of the dimunition in the value of the fertilizers bonds u/s 37 - It was a submission that the assessee had been claiming the loss in respect of the dimunition in the values of the fertilizer bonds every year and the differential actual loss was claimed in the year of sale of the fertilizer bonds - HELD THAT:- Admittedly the assessee has not shown these bonds as investments in its books of accounts. They are shown as current assets. The bonds have been received by the assessee admittedly in the course of its business. It is noticed that the learned CIT(A) has directed the AO to allow the real loss as and when the bonds are sold. The assessee has not been able to show as to how the said direction given by the learned CIT(A) is erroneous. This being so the finding of the learned CIT(A) on this issue stands confirmed.
Nature of expenses - expenditure on the revamping of the plant and the machinery - AO had treated the expenditure as capital in nature - HELD THAT:- A perusal of the assessment order shows that the Assessing Officer has held that the expenditure in respect of the revamping of the Ammonia and Urea plant has provided enduring benefit to the assessee and led to a major revamping in the Ammonia and Urea plants. Consequently he has denied the assessee‘s claim of the same as revenue expenditure and held that the assessee could capitalise the same. This being so the Assessing Officer is directed the grant the assessee the depreciation in respect of the said capitalised amount. In the result Ground stands partly allowed.
Short TDS credit - HELD THAT:- Assessee has claimed that there is a short credit of TDS, the issue is restored to the file of the Assessing Officer for re-adjudication after granting assessee adequate opportunity to produce all such evidences in respect of the claim of the short credit of TDS.
Disallowance of the interest expenditure u/s 36(1)(iii) - HELD THAT:- Admittedly the assessee has adequate non-interest bearing own funds far an excess of the gross of the advances made to the subsidiary and the gross of the investments in the shares. This being so we respectfully following the decision of Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] Wherein it has been held “if there were funds available both interest-free and overdraft and / or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company, if the interest-free funds were sufficient to meet the investments”, the Assessing Officer is directed to delete the disallowance of interest. In the result Ground of the Cross objection stands allowed.
Expenditure incurred towards feasibility study report u/s 37(1) - AO had held that the expenditure was a capital expenditure - HELD THAT:- Admittedly when the assessee filed its returns the assessee did have the bonafide belief that it was going to proceed with the business expansion and diversification. However it has been admitted by the assessee that due to the market condition it was not feasible to proceed with business expansion and diversification and consequently the project has been dropped. As it is noticed that the assessee has dropped its intention of proceeding with the project of expansion and diversification the expenditure incurred on the feasibility study in respect of the Greenfield Urea Fertilizer Project cannot be treated as the revenue expenditure. Consequently the finding of the Assessing Officer and the learned CIT(A) in holding the said expenditure as the capital expenditure stands confirmed. Decided against assessee.
Disallowing the set off of loss arising out of the sale of the preference shares in sister concerns - HELD THAT:- Admittedly a perusal of the assessment order “nature of business” shows that the Assessing Officer has not recognised assessee as being in the business of purchase of sale in the shares.
A perusal of the balance sheet and Profit & Loss account of the assessee for the relevant assessment year as also earlier assessment year show that these preferential shares in respect of the sister concerns namely Zuari has been shown by the assessee only as investments. Further there is nothing on record to show that the assessee is in the business of purchase and sale of the preferential shares to hold that the explanation to section 73 of the Act was to apply to treat the loss as speculation loss.
As following the decision of Shri Gautamship Breaking Industries Limited [2010 (12) TMI 1213 - ITAT AHMEDABAD] AO is directed to allow the set off of loss on the sale of the preferential shares in sister concerns against long term capital gains as disclosed by the assessee. In the result ground of the assessee’s appeal stands allowed.
Addition u/s 41(1) on account of cessation liability - submission that there were certain trade liability which was being carried forward for substantial number of year - HELD THAT:- Admittedly these are trade creditors. The assessee does not have liberty to write off the creditors until and unless the creditors themselves write off the amount. In any case these are not liabilities which can be treated as being barred by limitation on account of the efflux of time leading to the expiry of period of limitation. As long as the liabilities are shown in the books the period of limitation does not expire. In the circumstances respectfully following the principle laid down by Bhogilal Ramjibhai Atara [2014 (2) TMI 794 - GUJARAT HIGH COURT], CIT vs. Jain Exports Pvt. Ltd. [2013 (5) TMI 690 - DELHI HIGH COURT], CIT Vs Nitin Garg [2012 (5) TMI 30 - GUJARAT HIGH COURT] and CIT vs. Hotel Excelisior Ltd. [2010 (12) TMI 1080 - ITAT DELHI], the addition as made by the Assessing Officer and as confirmed by the learned CIT(A) on account of the cessation of liability under Section 41(1) stands deleted
Disallowance on expenses claimed on account of participation in social activities around factory and on account of gifts to business associates under section 37(1) - HELD THAT:- Admittedly the assessee has not been able to place before us the details of the persons to whom the gifts have been given. In fact even the Assessing Officer has disallowed the same only on the ground that the assessee has failed to submit the details as to whom the gifts were given. This being so the finding of the learned CIT(A) and that the Assessing Officer in respect of the disallowances stands confirmed.
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2017 (3) TMI 1936
Seeking quashing of FIR - re-payment of loan amount was made or not - HELD THAT:- The petitioners have paid the loan/settlement amount to the respondent No.2 and nothing remains to be adjudicated further, to remove the hurdle in the personal life of the present petitioners for leading better and peaceful life and to meet the ends of justice, it is deemed appropriate to quash the FIR No.107/2003, under Sections 406/420/468/471 IPC, registered at Police Station-Parliament Street, Delhi qua against the petitioners, namely Vijay Kumar Gupta, Raj Kumar Sharma and Vinod Chaudhary only to the extent of their role in commission of the alleged offence.
Petition allowed.
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2017 (3) TMI 1935
Condonation of delay filing appeal before CIT(A) - assessee filed the appeal before the CIT (Appeals) after a delay of 1460 days - assessee has submitted that this is a case of wrong advise and the assessee filed the appeal against the assessment order after the penalty u/s 271(1)(c) was levied - as submitted that the assessee accepted the addition / disallowance on the condition that no penalty would be levied as the assessee did not want his business effected due to involvement of multiple litigation but as assessee did not challenge the assessment order however subsequently the AO levied the penalty u/s 271(1)(c)
HELD THAT:- It is the case of the assessee that since the assessee accepted the proposed addition made by the Assessing Officer with the belief that no penalty u/s 271(1)(c) will be levied by the A.O. Assessee decided not to challenge the assessment order. However, when the Assessing Officer levied the penalty under Section 271(1)(c) of the Act, the assessee challenged its decision and then filed the appeal. This change of decision based on the order passed by the AO u/s 271(1)( c ) cannot be a reasonable explanation for such inordinate delay of 1468 days in filing the appeal.
It is a clear case that the assessee decided not to file the appeal against the assessment order till the penalty u/s 271(1)(c) was passed Thus the assessee never wanted to challenge the assessment order and therefore there is no reason/cause which has prevented the assessee from filing the appeal before the CIT (Appeals). The only explanation of the assessee is that the assessee consented to the addition made in the assessment order with the condition that the AO would not levy any penalty however such a condition cannot be imposed on the assessment authorities and therefore it cannot be taken as a reasonable cause for not filing the appeal before the CIT (Appeals).
When the assessee was not prevented by any circumstances or reasons which were beyond the control of the assessee to file the appeal then the reason explained by the assessee for such an inordinate delay cannot be considered as prudent or bona fide or reasonable cause for not filing the appeal. The decision in the appeal against the penalty order will not change the character of the reasons explained by the assessee. Accordingly, no interference is called for in the impugned order of the CIT (Appeals) for not condoning the delay. Appeal of assessee dismissed.
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2017 (3) TMI 1934
Disallowance u/s. 14A - sufficiency of own funds - submission of the assessee that the said investment was made by the assessee company out of non-interest bearing funds comprising share capital & reserves - HELD THAT:- As perused the judicial pronouncement of CIT v Corrtech Energy (p) Ltd [2014 (3) TMI 856 - GUJARAT HIGH COURT] held that as per section 14A of income Tax Act 1961 read with rule 8D of the income tax rules 1962 expenditure incurred in relation to income not includable in income in a case assessee did not make any claim for exemption of any income from payment of taxes, in that case disallowance u/s 14A of the act could not be made.
It is crystal clear that the jurisdictional High Court has decided to attract the provision of section 14A it is required that assessee should have earned an exempt income, if the assessee has not earned an exempt income and not claimed so in the return of income then the provision of section 14A are not applicable. We find that during the year under consideration the assessee company has not earned any exempt income and has not claimed any such exempt income in the return of income therefore as per our considered opinion the provision of section 14A are not applicable. - Decided in favour of assessee.
Unsecured loan u/s. 68 - identity, genuineness and creditworthiness of the unsecured loan providers not proved - HELD THAT:- We have noticed that in the case of the assessee, the confirmation with the name, address, copy of ledger account, copy of balance sheet and profit and loss account, copy of income tax returns and computation of total income in respect of all the parties were filed before the assessing officer.
As perused the judicial pronouncement in the case of CIT-Rajkot v Ayachi Chandrashekhar Narsangji [2013 (12) TMI 372 - GUJARAT HIGH COURT] held that in case the loan amount has been repaid by the assessee in the immediate next financial years that indicate that the department has accepted the repayment of loan without proving into it. We have also observed that it was undisputed fact that the assessee had repaid considerable amount of the loans to the lenders in the next year along with the interest amount.
The assessment records of all the lenders are available with the income tax department and the assessing officer could have easily verify the same. We have also noticed that not any lender has made denial of not extending any loan to the assessee company.
All the transactions have been made through proper banking channels. The submission made by the assessee that the net worth of the lending companies were very high, the identity, creditworthiness, genuineness of the transactions have not been disproved by the assessing officer with cogent and concrete supporting evidences. The amounts in question had been received by way of account payee cheques. Having regard to the fact that the permanent account numbers and the income tax returns of all the investors had been furnished by the assessee, the Assessing Officer could have easily verified the same.
We have noticed that all the transactions of advances received were made through bank only and the assessing officer should have verified these transactions with the relevant banks and should have made further inquiries in this regard, which she has failed to do so. In all the cases the lenders were filing their returns on regular basis and copies of the returns of income were produced for verification in support of his case.
Not any evidence had been brought on the record which even remotely indicated that the money originally belonged to the assessee and it had returned back to the assessee again. We observed that during the assessment proceedings the assessee had furnished the details of the persons from whom loan had been received stating, name and the address, PAN, copy of account confirmation, copy of acknowledgement of ROI, copy of relevant portion of their bank account and the copies of the audited annuals accounts. Further we have noticed that the assessing officer had issued notices u/s 133(6) of the act and all the notices were duly complied by the lenders. Thus, from the facts noted hereinabove, it is evident that the assessee had produced all relevant details in its possession, namely, names, permanent account numbers, income tax returns, and bank statements of all the investors. The lower authorities have made findings mostly on the basis of assumption based on own analysis without disproving the supporting and evidences produced by the assessee as elaborated supra in this order. Decided in favour of assessee.
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2017 (3) TMI 1933
Computation of deduction u/s 10A - HELD THAT:- We find that this issue is covered by the Jurisdictional High Court’s decision in CIT v Tata Elxsi [2011 (8) TMI 782 - KARNATAKA HIGH COURT]. It clearly lays down the principle that while computing deduction u/s 10A, if the export turnover is calculated after excluding certain expenses, such expenses should also be excluded in computing the total turnover. Since the DRP’s decision is in accordance with the ratio of the jurisdictional High Court, supra, we confirm it. Therefore, the Revenue’s appeal grounds fail.
TP Adjustment - comparable selection - HELD THAT:- Comparables, ICRA Techno Analytics Ltd, Infosys Techologies Ltd, Kals information Systems Ltd (Seg) and Tata Elxsi Ltd (Seg) are functionally different, thus be excluded.
R S Software (India) Ltd be included as company is engaged in the provision of software development services. Onsite development should not be a criteria to judge comparability. Onsite revenue is not one of the filters adopted by the TPO in the order.
Persistent Systems & Solutions Ltd be included as per notes to accounts, the company is predominantly engaged in providing software development services to its global customers. As per revenue recognition, the company derives income from software services.
Nature of Donation - operating or non operating - assessee submitted that donation is not closely linked to the business operations and should be considered as nonoperating in nature - HELD THAT:- As decided in the case of M/s. Capital One Services India P. Ltd [2015 (4) TMI 1359 - ITAT BANGALORE] wherein it has been held that donation is not in the nature of normal business activity and hence should not be considered as operating. Following the decision, the AO is directed to treat donation as non operating one.
Risk adjustment seeked on the basis of additional ground - assessee submitted that suitable adjustment should be provided to account for differences in risk profile of the comparables - HELD THAT:- AR submitted that the TPO is not against granting any risk adjustment but the risk has to be established by the assessee . In the facts and circumstances, this issue is remitted back to the TPO/AO shall re-adjudicate it in accordance with law.
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2017 (3) TMI 1932
The Supreme Court of India in 2017 (3) TMI 1932 - SC Order, with judges Mr. Madan B. Lokur and Mr. Deepak Gupta, condoned delay and admitted the appeal. The operation of the impugned judgment and order is stayed until further orders. Tagged with SLP (C) No. 6083 of 2014.
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2017 (3) TMI 1931
Maintainability of petition - efficacious alternative remedy available to the petitioner - Denial for permission to clear the goods on provisional assessment basis under Rule 7 of the Central Excise Rules, 2002 - HELD THAT:- It is true that for maintainability of a writ petition alternative remedy is not a bar but when to invoke the extra ordinary jurisdiction under Article 226 of the Constitution will depend on the facts of each case. The fundamental principles which have been pronounced by the Hon’ble Supreme Court from time to time and taking into consideration the facts and circumstances of this particular case, it is not required to invoke the discretion more particularly when the order impugned is a well reasoned order dealing with the entire aspects argued before it by the petitioner company.
The rule of exhausting the statutory remedy is a self-imposed limitation, a rule of policy and the discretion rather than a rule of law. A writ court in exceptional cases can issue a writ notwithstanding the fact that the statutory remedy has not been exhausted. However, the rule of policy relating to availability of alternative remedy can be ignored in the exceptional case only. The exceptional circumstances differ from case to case and facts to facts. In general, it can be said that if there is a complete lack of jurisdiction in the officer or the authority to pass the impugned order, if the order impugned is passed in flagrance violation of principal of natural justice, if the order under challenge is absolutely non-speaking and unreasoned and not effective challenge to that can be given by availing remedy of appeal, the violation of fundamental rights is apparent and availing of alternative remedy, statutory remedy shall be nothing but an empty formality.
Since none of the conditions exist in the present case and there is an equally efficacious alternative and statutory remedy of appeal under Section 35 of the Central Excise Act available to the petitioner, the jurisdiction under Article 226 of the Constitution of India not exercised in this case - petition dismissed.
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2017 (3) TMI 1930
Rectification of mistake - error apparent on the face of record or not - in para 8 of the impugned order, in place if ''three'' appeals,''two'' appeals are only mentioned - HELD THAT:- Necessary changes have been carried out.
The applications are accordingly allowed and the final order is corrected.
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2017 (3) TMI 1929
Taxability post scheme of merger - Recovery of tax statutorily due from the transferor or transferee company or any other person who is liable for payment of such tax due - HELD THAT:- As decided in [2015 (8) TMI 475 - SC ORDER] Income Tax Department is entitled to take out appropriate proceedings for recovery of any tax statutorily due from the transferor or transferee company or any other person who is liable for payment of such tax due.
We accordingly dispose of the appeal recording that the Income Tax Department would be entitled to take out appropriate proceedings for recovery of any tax statutorily due from the transferor or transferee company or any other person who is liable for payment of such tax due.
Needless to state if the Income Tax Department initiates any proceedings the respondents would be entitled to raise all issues and defences of law and facts.
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2017 (3) TMI 1928
Disallowance u/s 2(24)(X) r.w. Section 36(1)(va) - late payment of employees’ contribution to PF and ESI - HELD THAT:- As assessee had deposited the employees’ contribution to PF and ESI beyond the due date prescribed in the relevant Act but the same were duly remitted by the assessee before the due date of filing of return of income u/s 139(1) of the Act and accordingly CIT(A) by following the decision of M/s. Vijay Shree Ltd [2011 (9) TMI 30 - CALCUTTA HIGH COURT] held CIT(A) has failed to appreciate the fact that the assessee is not entitled to deduction of the employees’ contribution to provident fund & ESI which was paid after the due date as specified in Explanation to section 36(1)(va) of the Act, as section 43B cannot be pressed into service because section 43B comes into play only when a deduction is otherwise allowable under the Income-tax Act. Decided in favour of assessee.
Disallowance u/s 14A r.w. Rule 8D - AO applied the provisions of second and third limb of the Rule 8D(2) of the Rules and made the disallowance - CIT(A) deleted the disallowance - HELD THAT:- The issue in dispute is covered by the decision of this Tribunal in the assessee own case, which has been subsequently approved by the Hon’ble Calcutta High Court M/S. REI. AGRO LTD. [2014 (4) TMI 713 - CALCUTTA HIGH COURT] - CIT(A) had rightly followed the said decision while directing the Ld. AO to re-compute the disallowance. Hence, we do not find any infirmity in the order of the Ld. CIT(A) in this regard. Accordingly, the grounds raised by the Revenue in this regard is dismissed for both the assessment years.
Appeals of the Revenue are dismissed.
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2017 (3) TMI 1927
Arbitral Award - fraud and collusion - jurisdiction of Arbitrator against JDs No. 2 to 5 - reference also to arbitration was not sought against JDs No. 2 to 5 - HELD THAT:- The legal position is that an objection that the Court which passed the decree had no jurisdiction to pass the same can be taken under Section 47 of CPC in execution proceedings provided the said objection is evident on the face of the record and does not require any determination of facts. Such an objection has been distinguished from objections of other illegalities committed by the Court passing the decree viz. of awarding a high rate of interest, not awarding interest without giving any reasons therefor, not making the decree executable first against the principal debtor and making it executable simultaneously against principal debtor as well as guarantors etc., which cannot be taken in execution proceedings. What further emerges from the aforesaid judgments is that an objection that the Court which passed the decree had no jurisdiction to pass the same can be taken in execution proceedings only if it appears on the face of the record and does not require any determination of facts, not otherwise.
Whether the said law applies to proceedings for execution of arbitral awards also particularly in the light of observations in MSP Infrastructure Ltd. and Bharti Cellular Ltd. [2012 (9) TMI 1239 - DELHI HIGH COURT]? - HELD THAT:- The observations MSP Infrastructure Ltd. and Bharti Cellular Ltd. supra to the effect that the judgments of civil law would not apply to a proceeding under special law as the Arbitration Act, apply to only the proceedings provided for under the Arbitration Act and cannot be extended to the proceedings for execution of an Arbitral Award, as if it were a decree of the Court. Once the Arbitration Act, 1996 itself has conferred on the Arbitral Award the status of a decree of the Civil Court and made the same executable in accordance with the provisions of CPC, there are no reason to apply the aforesaid observations made in an entirely different context i.e. to execution proceedings - the observations aforesaid in MSP Infrastructure Ltd. and Bharti Cellular Ltd. have to be harmonised with Jagat Ram Trehan [1996 (1) TMI 485 - DELHI HIGH COURT] which is a judgment on the proposition that a plea of lack of jurisdiction of the Arbitral Tribunal even if not taken by way of opposition to making the same rule of the Court, can be taken under Section 47 of the CPC in proceedings for execution thereof.
It is quite evident from the face of the record that the sale of paper were made by the DH to JD No. 1, the bills/invoices containing the arbitration clause were in the name of JD No. 1, the account in the books of the DH was in the name of the JD No. 1 and in accordance with the arbitration clause on the bills/invoices, reference of disputes to arbitration was sought by the DH from the Paper Merchants Association (Regd.) against JD No. 1 and the Paper Merchants Association (Regd.) made the reference of dispute between DH and JD No. 1 to Mr. Ram Bhaj Mittal aforesaid - The Arbitral Tribunal owes its jurisdiction to the arbitration agreement. The arbitration agreement in the present case is contained on the bills/invoices but which have been raised by DH on JD No. 1. From the arbitration clause contained on the said bills/invoices, JDs No. 2 to 5, even though Directors of JD No. 1, did not become privy to the arbitration clause. It has thus but to be held that Mr. Ram Bhaj Mittal, the sole Arbitrator appointed by Paper Merchants Association (Regd.) was neither authorised by Paper Merchants Association (Regd.) to adjudicate the disputes between DH and the JDs No. 2 to 5 nor under any agreement had such jurisdiction.
The objection of the JDs No. 2 to 5 in the present case falls within the ambit of the judgments cited by the senior counsel for the JDs No. 2 to 5 as well as within the ambit of Vasudev Dhanjibhai Modi [1970 (3) TMI 166 - SUPREME COURT] cited by the counsel for DH, and is entitled to succeed.
Thus, the execution petition, insofar as against JDs No. 2 to 5, is dismissed declaring the Arbitral Award against the JDs No. 2 to 5 to be without jurisdiction - application dismissed.
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