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Showing 201 to 220 of 2133 Records
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2018 (2) TMI 1934
Addition u/s 14A - HELD THAT:- In Godrej & Boyce Manufacturing Company Ltd. [2017 (5) TMI 403 - SUPREME COURT] has held that the literal meaning of Section 14A, far from giving rise to any absurdity, appears to be wholly consistent with the scheme of the Act and the object/purpose of levy of tax on income.
The statute does not grant any exemption to the strategic investments which are capable of yielding exempt income to be excluded while computing disallowance u/s 14A. Our decision is fortified by the decision of the Hon’ble Karnataka High Court in the case of United Breweries vs. DCIT [2016 (6) TMI 647 - KARNATAKA HIGH COURT]
As we have relied on the decision of the Hon’ble High Court, we are not adverting to the order of the Tribunal on the same issue. We hold that strategic investment made by the appellant are not be excluded while calculating average value of investment.
As the above details were not examined either by the AO or the Ld. CIT(A), we restore the matter to the file of the AO to make a fresh order on disallowance u/s 8D(2)(iii) only, after examining the shares of the appellant in the foreign company vis-a-vis its taxability and allowing the same for the purpose of working out the average investment. We direct the appellant to file the details of shares in foreign company before the AO. Needless to say, the AO would give a reasonable opportunity of being heard to the appellant before finalizing the order. Also the AO is directed to allow the benefit of ₹ 28,19,646/- suo motu disallowed by the appellant.
Grounds of appeal in respect of disallowance under Rule 8D(2)(i) and Rule 8D(2)(iii) are allowed, whereas, the appeal under Rule 8D(2)(iii) is allowed for statistical purposes.
Depreciation of leased assets - HELD THAT:- During the course of hearing, both the Ld. counsel and the Ld. DR agree that the issue may be sent back to the AO for verification.
Having perused the relevant materials on record, we restore the matter on claim of depreciation on leased assets to the file of the AO to verify the same and allow as per the provisions of the Act, after giving reasonable opportunity of being heard to the appellant. We direct the appellant to file the relevant documents/evidence before the AO. Thus the above ground of appeal is allowed for statistical purposes.
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2018 (2) TMI 1933
CENVAT Credit - input services - service tax paid on sales commission - scope of sales promotion mentioned under the inclusive part of the definition of input service prescribed under Rule 2(l) of Cenvat Credit Rules, 2004 - matter pending Appeal against the Division Bench judgment of this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD] - HELD THAT:- The present appeals are also disposed of with the liberty to both sides to approach the Tribunal soon after the verdict of the Hon’ble High Court in the pending Appeal against the Division Bench judgment of this Tribunal in Essar Steel India Ltd. s case filed by the Revenue - Appeal disposed off.
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2018 (2) TMI 1932
Maintainability of petition - the matter has been listed on the Judicial Side at Delhi - HELD THAT:- The question whether or not the appeal should be heard at Delhi or any other location, would be decided on the Judicial Side.
Petition disposed off.
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2018 (2) TMI 1931
Extension of stay granted - HELD THAT:- We heard rival submissions and perused the material on record. We are of the considered opinions that since the appeals were already heard, the earlier stay granted may be extended for a further period up to 31/03/2018.
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2018 (2) TMI 1930
Maintainability of petition - initiation of CIRP - Corporate debtor defaulted in repayment of amount - operational creditor - Existence of dispute or not - HELD THAT:- The Operational Creditor has issued valid purchase orders to the Debtor and also paid the Advance amount for the said purchase - on number of occasions the Debtor has accepted his default in payment of outstanding amount but has not repaid the outstanding amount.
The Operational Creditor has established that the nature of Debt is an "Operational Debt" as defined under section 5(21) of the Definitions under The Code, as the Operational Creditor has issued a valid purchase orders and also paid the advance amount for those purchases. Further, he has also established that there is a "Default" as defined under section 3 (12) of The Code on the part of the Debtor - We have also perused the notice sent under Section 8 (2) of the Insolvency and Bankruptcy Code, 2016 and it came to our notice that the said notice is duly served upon the Debtor. Further, 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. Hence, admittedly there is no "Dispute" in respect of the outstanding Debt.
Petition admitted - moratorium declared.
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2018 (2) TMI 1929
Reopening of assessment u/s 147 - HELD THAT:- Revenue sought to argue that the factual basis of the Section 147 proceeding out of which this appeal arises is different from that in which Tribunal decided in favour of a partner of the assessee firm. But that is not what the Tribunal has held. In fact, the Tribunal has held otherwise. Moreover, the Revenue has not pleaded in the stay petition that the Tribunal went wrong on that count.
None of the suggested questions also indicate that the factual basis of the case against an assessee's partner was factually different. Both the statutory appellate foram have gone against the Revenue on the question of reopening of assessment and we do not find any substantial question of law is involved in this appeal. The appeal is, accordingly, dismissed. The stay petition would also stand consequentially dismissed.
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2018 (2) TMI 1928
Addition u/s 14A r.w.r. 8D - CIT-A taking note that assessee had not claimed any exempt income, deleted such disallowance - HELD THAT:- We find that the view taken by the Commissioner of Income Tax (Appeals) is in sync with the judgment of Redington India Ltd vs. Addl. CIT [2017 (1) TMI 318 - MADRAS HIGH COURT] . Accordingly, we are not inclined to interfere with the order of the ld. Commissioner of Income Tax (Appeals) on this issue. - Decided against revenue
TDS u/s 194C - payments were made to transport contractors - assessee not filed form No.26Q within the date prescribed under Rule 31A of the Rules - HELD THAT:- One of the submission of the assessee is that it had filed form No.26Q as prescribed under Rule 31A, though belatedly. It is true that quarterly returns specified in Rule 31A have to be filed on or before 15th of the first month of the succeeding the quarter. However, in our opinion, this time limit cannot be construed so strictly to mean belated filing will automatically result in a disallowance u/s 40(a)(ia). Sub Section (6) of Section 194C of the Act clearly say that there is no need to deduct tax on sums credited or paid to a contractor engaged in plying, hiring or lease charges, if the payer, who is the assessee here, gets a declaration that former was owning ten or less goods carriages and also gave their PAN numbers. Considering the facts and circumstances of the case, the issue requires a fresh look by AO. AO has to verify whether assessee had complied with Sub Section (6) of Section 194C. He also needs to verify whether the assessee had filed form No.26Q, though belatedly. If assessee has complied with these there can be no disallowance u/s.40(a)(ia) - Appeal of the Revenue is partly allowed for statistical purpose.
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2018 (2) TMI 1927
Addition on account of interest received on External Commercial Borrowings (‘ECBs’) extended to Indian borrowers - interest under section 234B - HELD THAT:- Identical issue having similar facts was a subject matter of the departmental appeal for the AY 2011-12 wherein the issue has been decided in favour of the department and against the assessee the present case, the Assessing Officer himself had admitted by grossing up the ECB interest by the amount of tax borne by the borrowers that tax at source has been deducted. We are thus of the view that no interest under section 234B of the Act can be levied for the tax demand on account of ECB interest and interest under section 234B is also not chargeable since ECB interest received by the assessee from the borrowers was subject to tax deduction at source under section 195 of the Act. The Assessing Officer is thus directed to delete the addition made on account of interest received from ECB given to Indian borrowers
Excess levy of the tax under section 234D - AO levied the interest under section 234D of the Act on the amount of refund granted to the assessee in the intimation under section 143(1) of the Act from the date of intimation i.e. 7th October, 2009 to the date of assessment order i.e. 28th July, 2016 passed pursuant to the remand back proceedings i.e. for a period of 82 months. - HELD THAT:- In the present case, the AO considered the regular assessment which was passed by the AO on 28th July, 2016 pursuant to the remand back proceedings on the direction of the ITAT. However, in the present case the regular assessment was framed by the AO on 29th August, 2012 in pursuant to the direction issued by the learned DRP, therefore, the interest on the excess refund was to be charged up to the date of regular assessment i.e. 29th August, 2012 and not to the assessment made on 28th July, 2016 in pursuant to the appellate order passed by the ITAT. We, therefore, direct the AO to charge the interest under Section 234D, if any, up to the date of regular assessment i.e. 29.8.2012 and not up to the date of subsequent assessment order passed i.e. 28.07.2016 in pursuant to the order of the higher authority i.e. the ITAT, in this case.
Set off brought forward business loss and unabsorbed depreciation - HELD THAT:- It was the common contention of both the parties that it is to be allowed as per law. We, direct the AO to decide this issue in accordance with law.
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2018 (2) TMI 1926
Revision u/s 264 by PCIT - Scope of amendment to Second proviso to Section 40(a)(ia) - retrospective or prospective effect - HELD THAT:- Against the impugned assessment order under Section 143 (3) of the Act, the assessee does not appear to have filed any regular appeal before the Commissioner of Income Tax (Appeals) as per the provisions of Section 246 of the Income Tax Act, 1961, but instead chose to file a Revision Petition under Section 264 of the Income Tax Act, 1961 on 20/02/2015 which came to be partly allowed by the Respondent Principal Commissioner of Income Tax as indicated above.
For the issues not decided by the learned Principal Commissioner, it is still open to the petitioner assessee to prefer a regular Appeal and the only objection regarding expiry of limitation as that the period has expired for preferring such regular appeal, which may be an issue.
Present writ petition is therefore disposed of, relegating the petitioner assessee back to the appellate remedy before the learned Commissioner of Income Tax (Appeals) and if such first Appeal is filed before the learned CIT (Appeals) against the impugned assessment order dated 28/02/2014 within a period of 30 days from today, the same shall be entertained by the said Appellate Authority, without raising any objections on the ground of bar of limitation
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2018 (2) TMI 1925
Depreciation on goodwill - AO has disallowed depreciation on the ground that cost of acquisition of goodwill is NIL and therefore it does not admissible to the assessee - CIT-A allowed the claim - HELD THAT:- Considering judgment of ZYDUS WELLNESS LTD. [2017 (10) TMI 373 - GUJARAT HIGH COURT] and order of the Tribunal in the case of assessee in different assessment years, we are of the view that the assessee is entitled for depreciation on goodwill. CIT(A) has examined all these facts, and thereafter, allowed the depreciation. CIT(A) has rightly appreciated the controversy and no interference is called for in his order. Accordingly, the appeal of the Revenue is dismissed.
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2018 (2) TMI 1924
Levy of penalty u/s. 271(1)(c) - CIT(A) disposed the appeal ex-parte, without giving a reasonable opportunity - HELD THAT:- Considering the fact that the order appealed is against the penalty order, we are of the opinion that the assessee should be given an opportunity of being heard before the appeal is disposed off and hence we remit the issue back to the CIT(A) for giving a reasonable opportunity to assessee and then pass a speaking order.
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2018 (2) TMI 1923
TDS u/s 194J - TDS liability on carriage fees - No deduction v/s short deduction - disallowance u/s 40(a)(ia) - HELD THAT:- CIT(A) has deleted the disallowance in question holding that carriage fees does not come within the ambit of the definition of Royalty. Therefore, the assessee was not required to deduct the tax at source u/s 194J. Further the Ld. CIT(A) has held that it is not the case of ‘no TDS’ but the case of ‘less TDS’ therefore, the disallowance made by the AO is bad in law. CIT(A) has relied on the decision of the Hon’ble Calcutta High Court rendered in CIT vs S. K. Tekriwal [2011 (10) TMI 10 - ITAT, KOLKATA]
This issue is covered by the judgment of CIT vs. M/s UTV Entertainment Television Ltd. [2017 (11) TMI 915 - BOMBAY HIGH COURT] in favour of the assessee. Similarly, the Hon,ble Gujarat High Court in CIT vs. Prayas Engineering Ltd.[2014 (11) TMI 1086 - GUJARAT HIGH COURT] and CIT vs. Kishore Rao & others (HUF) [2016 (4) TMI 430 - KARNATAKA HIGH COURT] have held that in case of shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under various TDS provisions, no disallowance can be made by invoking provisions of 40(a)(ia) of the Act.
Findings of the CIT(A) are based on the evidence on record and in accordance with the principles of law laid down by the High courts including the jurisdictional High Court discussed above. We therefore do not find any reason to interfere with the same. Accordingly, we uphold the decision of the Ld. CIT(A) and dismiss the sole ground of issue of the revenue.
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2018 (2) TMI 1922
Benefit in respect of sale or purchase of agriculture produce - N/N. 13/2003 ST dated 20.06.2003 - appellant used the services of overseas agents for procurement of orders and paid commission to such agents - demand of service tax - HELD THAT:- The N/N. 13/2003 as amended by Notification No. 8/2004 dated 09.07.2004 has extended the benefit to commission agents in relation to sale or purchase of agriculture produce.
The nuts are to be treated as “Agriculture Produce”. The activity of the appellant is to remove the shell and recover the cashew kernels - this is very much covered under the definition of “Agriculture Produce” and hence the benefit of the Notification will be allowable to the appellant. Also the applicability of the Notification was clarified by the CBEC through clarification No. 143/12/2011-ST dated 26.05.2011 in which it has been specifically explained that the benefit is extendable to cashew nuts.
Appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1921
Disallowance u/s 80IB - reassessment proceedings when the assessee could not furnish audit report in prescribed form 10CCB during the course of Original Assessment proceedings - HELD THAT:- This Court has repeatedly taken a view that filing of audited accounts in the prescribed format is a procedural requirement and as long as during the assessment the same has been complied with, the deduction cannot be disallowed. Several other High Courts have taken a similar view.
This Court had referring to the judgments in case of Commissioner of Income-tax v. Gujarat Oil and Allied Industries [1992 (9) TMI 67 - GUJARAT HIGH COURT] and in case of Panasonic Energy India Co. Ltd. v. Assistant Commissioner of Income-tax [2014 (2) TMI 129 - GUJARAT HIGH COURT] expressed such a view.
Revenue would however rely on some of the observations made in the said judgments in case of Panasonic Energy (supra). It was the case in which without any justification the assessee had tried to submit the documents before the High Court in a Tax Appeal which was not permitted. The facts are therefore distinguishable. Tax Appeal dismissed.
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2018 (2) TMI 1920
Whether, when in the meeting dated 16.10.2014 the Chairperson and two members had heard the application for the change of the time schedule, the order could have been passed allowing the application by the two members (Chairperson and one member) alone, since the order was singed only by the Chairperson and one member, on 15.12.2014?
HELD THAT:- Although Rules, 1994 do not expressly provide that decision of the State Transport Authority shall be taken in accordance with the opinions of the majority but there being no special majority provided for decision to be taken in the meeting of the State Transport Authority, normal, rule that decision by majority of the members present has to be followed - In the present case when three members were present and quorum was complete, the decision taken by majority, i.e., opinion of two members shall form the valid decision of the State Transport Authority - the concept of taking decision by majority of votes of the members is very much present in the scheme of the Rules. Although, where a decision is to be taken by the circulation by votes a special majority is provided in Rule 65(4) but present being not a case of decision by circulation, simple majority by members present was sufficient for making a binding decision by the State Transport Authority.
The present is a case where decision by a multi¬member body is to be taken in the meeting of the Committee as per the statutory Rules. There being no such majority provided for taking a decision, the decision by majority has to be accepted as the opinion of the State Transport Authority.
There being neither any pleading nor any material to come to the conclusion that the third member has agreed with the opinion, we have proceeded to examine the present case as if, the third member did not agree with the order proposed. We have already noticed the reason for coming to the conclusion that the order issued by the State Transport Authority, signed by the Chairperson and one member is a valid order having been issued with the majority opinion of two out of three, who heard the application on 16.10.2014. Thus, in any view of the matter, no illegality can be attached with the order dated 15.12.2014, which was signed by the Chairperson and one member.
The decision dated 15.12.2014 issued with the signatures of Chairperson and one member was a valid decision in spite of the fact that one of the members who was present in the hearing when the meeting took place on 16.10.2014 and had been transferred in the meanwhile did not sign the order. The decision of the State Transport Authority dated 15.12.2014 was fully in accordance with the statutory scheme of the Rules, 1994.
Appeal allowed.
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2018 (2) TMI 1919
Penalty u/s 271(1)(c) - HELD THAT:- Once the penalty proceedings have been dropped by the Assessing Officer, after considering the submissions made by the assessee, penalty cannot be imposed later on for the same assessment year on the same issue. Considering the facts in totality in the light of aforementioned order of the AO, we decline to interfere with the findings of the CIT(A).
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2018 (2) TMI 1918
Reopening of assessment u/s 147 - HELD THAT:- Relevant details were not produced before the AO during the original assessment proceedings was not borne out from the assessment records in the original assessment proceedings. CIT (A) has further noted that not only the facts/details were presented during the original assessment proceedings, but they were also considered by the AO, as was evident from the note-sheet entries.
CIT (A) went on to hold that reopening on this ground was nothing but an attempt in changing the earlier opinion. CIT (A) has also taken note of the fact that for assessee’s own case for Asstt. Year 2007-08, on identical grounds, the AO had reopened the assessment and the assessee had preferred a Writ before the Hon’ble Delhi High Court wherein [2014 (12) TMI 393 - DELHI HIGH COURT] had set aside the notice and order. CIT(A) has also noted that the reasons recorded for assessment years 2006-07 and 2007-08 were identical and, therefore, the notice issued u/s 147 for reassessment proceedings was void ab initio and hence the subsequent proceedings u/s 143(3) / 148 of the Act were liable to be annulled. - we do not find any reason to differ from the findings of the CIT(A) as he as examined the issue in detail after going through the assessment records. - Decided against revenue.
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2018 (2) TMI 1917
Addition u/s 68 - unsecured cash credit - HELD THAT:- There is no discussion regarding confirmation being filed by these shareholders representing 55% of the share transaction in the assessment order. Notwithstanding the same, nothing has been brought to our notice which demonstrates that these confirmations were filed by the assessee company and accepted by AO during the course of assessment proceedings. Further, we donot agree with the contentions of the ld AR that the addition has been made by the AO merely for want of confirmation from these nine persons.
AO has stated clearly in his findings that even though the assessee has furnished details of share capital and share premium, it has not furnished the confirmation and other details with regard to investment made in share capital and premium receipts from nine specified persons amounting to ₹ 81,84,399/-. AO that it is necessary for the assessee to prove prima facie the transaction which resulted in share application and share premium by submitting proof which includes proof of the identity, capacity of the creditor or their share holder and lastly, the genuineness of the transaction. As stated by the AO that merely establishing the identity of the creditor or the transaction have been routed through bank instruments is not enough. As per AO that assessee has not complied with the legal obligation to explain the source of share application money and the premium and even the confirmations have not been furnished and the amount was accordingly treated as unexplained and added to the income of the assessee u/s 68
We deem it appropriate to set aside the matter to the file of the AO to examine the same afresh taking into consideration the above discussions. In the result, ground of assessee’s appeal is allowed for statistical purposes.
Disallowance of power charges - AO held that the said sum relates to preceding year and the same was disallowed and added to the income of the assessee - HELD THAT:- There is no dispute that the year in which the liability has crystallized, the assessee shall be eligible to claim the same. However, from the material available on record, it is not clear whether the assessee has claimed the same in the earlier years to which the said payment originally belongs and whether the same was allowed for tax purposes. If it was already claimed and allowed in the earlier years, the AO is right in disallowing the same. Where it was not claimed and not allowed in the earlier years, the assessee shall be eligible to claim the same in the year under consideration. The matter is accordingly set-aside to the file of the AO to examine the said aspect of the matter and decide the same afresh. In the result, the ground is allowed for statistical purposes.
Estimating of gross profit rate - rejection of books of accounts u/s 145(3) - HELD THAT:- Pursuant to rejection of books of accounts u/s 145(3) of the AO, the AO has estimated the G.P rate of 1.84% as shown in the case of M/s Seth Alloys Pvt ltd, Bhiwadi which is claimed to be carrying on the same nature of business as that of the assessee and has applied the same on the estimated turnover of ₹ 4.50 crores. The turnover so estimated by the AO is not under challenge before us. Regarding the estimation of G.P rate, the AO has applied the G.P rate as that of M/s Seth Alloys Pvt ltd, Bhiwadi.
We agree with the contention of the ld AR that where any third party material is used against the assessee, the assessee should be provided an opportunity to rebut the same. We accordingly set aside the matter to the file of the AO for the limit purposes of disclosing the details of M/s Seth Alloys Pvt ltd, Bhiwadi as available on record and after allowing an opportunity to the assessee to examine the said details and provide its rebuttal, decide the same afresh. In the result, the ground of appeal is partly allowed for statistical purposes.
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2018 (2) TMI 1916
Addition u/s 68 - AO has observed that the assessee has failed to discharge the onus placed upon it u/s 68 - HELD THAT: - We notice that the assessing officer has made the impugned addition on the basis of search conducted by CBI in the hands of Arun Dalmia, wherein it was stated that the transactions of M/s Basant Marketing P Ltd are not genuine. However, it is noticed that, after the search action, the assessments of M/s Basant Marketing P Ltd have been completed for AY 2009-10 accepting the transactions as genuine.
Though the AO of M/s Basant Marketing P Ltd has taken a different view and held the transactions to be bogus in AY 2010-11, yet the said view of the AO has been set aside by Ld CIT(A), Kolkatta in the appellate proceedings by observing that the view so taken by the AO is not supported by evidences. It is pertinent to note that the order so passed by Ld CIT(A) has been accepted by the revenue and thus has attained finality. Hence the very basis, on which the impugned addition has been made, has failed.
From the arguments of the Ld A.R, we notice that the assessee has discharged the onus by proving the identity of the creditor, genuineness of transactions and credit worthiness of the creditor. The financial statements of M/s Basant Marketing P Ltd show that it was having sufficient sources to lend money to the assessee. The financial statements also show that M/s Basant Marketing P Ltd was carrying on certain trading activities and it has invested funds in Investments, inventories and in giving loans and advances. On the contrary, we notice that the AO did not disprove the contentions and submissions of the assessee, i.e., the AO has failed to discharge the burden of proof shifted to his shoulder. When the assessee is proving the transactions and further when the transactions have been accepted as genuine in the hands of lender, in our view, the theory of human probabilities could not be applied here.
CIT(A) was not justified in confirming the addition of ₹ 100 lakhs made u/s 68 of the Act - Decided in favour of assessee.
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2018 (2) TMI 1915
Procedure u/s 144C - draft assessment order - HELD THAT:- In view of the statement made on behalf of the petitioner and the respondents, we pass the following order:-
(i) Order dated 03.08.2017 would be treated as draft assessment order.
(ii) The demand notice etc. sent along with the assessing order would be accordingly treated as withdrawn.
(iii) The procedure under Section 144C would be applicable and followed. The petitioner/assessee would within 30 days from today file his acceptance to the variation made by the Assessing Officer or file objections in terms of sub-Section 2 of Section 144C of the Act.
(iv) The period during which the writ petition has remained pending, that is, from 26.08.2017 till 05.02.2018 will be excluded and will not be counted for the purpose of limitation.
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