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Showing 201 to 220 of 1861 Records
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2018 (6) TMI 1663
Rectification of mistake - HELD THAT:- There is no dispute that the assessee did carry a sum of ₹ 484,22,01,385/- to reserve from 1.4.1997 till 31.3.2003‖. We found that it is an apparent mistake in so far as the said sum was in fact carried to reserve from FY 1989-90 and not from 1.4.1997. Accordingly we correct the same.
In Para 16 of order dated 09/10/2015, reference has been made to sub-section 4A inserted in s 41 "by the Finance Act 1997. It has however been inadvertently stated that this sub section was inserted with from 1.4.2008. The correct year is however 1998 and not 2008. Since it is an apparent mistake, we rectify the same.
Issue whether, balance in ‘Profit & Loss Account‘ which is not in the nature of any other reserve having specific objectives‘, should form part of ‘general reserves‘ has not been specifically adjudicated by the Tribunal. As it is a mistake apparent from record, we recall the order to a limited extent of deciding whether balance in Profit and Loss Account which is not in the nature of ―any other reserve having specific objectives‖, should form part of general reserves‘. We direct according
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2018 (6) TMI 1662
Disallowance under Peripheral Development Expenses - allowable deduction u/s.37 - AO observed that the peripheral development claimed by the assessee are not incurred wholly and exclusively incurred for the business purpose - HELD THAT:- The expenditure claimed by the assessee has been incurred wholly and exclusively for business purposes as envisaged by the assessee however, the AO has to verify the claim as to whether the peripheral expenditure in the corporate office is for the particular area of the employees or as a whole. Accordingly, we respectfully following judicial precedence and the order of the Tribunal and we restore this issue to the file of AO to verify the nature of expenditure incurred on the peripheral areas and decide the same on merits. This ground of appeal is allowed for statistical purposes.
Disallowance of interest on disputed Govt. duty (Electricity duty and water charges) - HELD THAT:- As decided in own case [2012 (12) TMI 632 - ITAT CUTTACK] direct the AO to allow the claim of the assessee on account of interest on disputed Govt. duty (Electricity duty and water charges) and this ground of assessee is allowed
Disallowance of additional depreciation u/s.32(1)(iia) - HELD THAT:- We find the issue is similar to the . [2018 (4) TMI 1754 - ITAT CUTTACK ] present facts and circumstances of the case, and we respectfully follow the above judicial precedence of this bench of the Tribunal and remit the matter to the file of AO for reconsideration of claim of additional depreciation u/s.32(1)(iia) of the Act. Accordingly, we allow this ground of assessee for statistical purposes.
Disallowance u/s.14A - HELD THAT:- In various decisions, we find that the Tribunal has restored the disputed issue to the file of AO for re-examination and reverification and apply the provisions of Section 14A r.w.rule 8D and in the instant case, the issue being similar, we find that the AO has not complied with the mandatory requirement of Section 14A (2) of the Act read with Rule 8D (1) (a) of the Rules and we respectfully follow the above judicial decision of the Tribunal and remit the disputed issue to the file of AO for re-examination and verification and to decide the issue on merits after complying the mandatory requirement of the provisions of Section 14A of the Act and this ground of appeal is allowed for statistical purposes.
Treatment of short term and long term capital gain - AO has treated the short-term and long-term capital gain earned by the assessee as business income of the assessee - HELD THAT:- We agree with the ratio of judicial decision applicability to the present case and we direct the AO to treat the income under the capital gains and not as business income and allow this ground of appeal of the assessee.
Non-deduction of credit amount under provision for leave encashment disallowed in the past assessment years u/s.43B(f) - AO made disallowance on account of provision for leave encashment u/s 43B(f) of the Act, on the ground that the same is allowable only if the said expenditure has actually been paid by the assessee - HELD THAT:- As relying on its earlier order has restored the disputed issue to the file of AO
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2018 (6) TMI 1661
Validity of assessment order - reduction in tax liability - bitumen emulsion purchased by the petitioner outside the State - Section 49(1) of the Chhattisgarh Value Added Tax Act, 2005 - It is the case of the petitioner that he is paying purchase tax on purchase of bitumen emulsion from unregistered dealers outside the State and using the same / bitumen in execution of works contract.
Whether the assessing authority and the revisional authority are justified in holding that bitumen emulsion would not fall within Entry 23 under Part II of Schedule-II appended to the VAT Act and would fall within the residuary entry and VAT would be chargeable at the rate of 12.5%?
HELD THAT:- The Supreme Court in A.R. Thermosets Private Limited's case [2016 (9) TMI 410 - SUPREME COURT] considered the question as to whether bitumen and bitumen emulsion are one and the same commodity for the purposes of interpretation of Entry 22 of Part A of Schedule II to the U.P. Value Added Tax Act, 2008 as was originally enacted and whether “bitumen emulsion” is covered within Entry 22 of Part A of Schedule II to the U.P. Value Added Tax Act, 2008 which only refers to “bitumen”. Their Lordships after detailed analysis of various dictionaries as well as Encyclopedia of Science and Technology defining “bitumen” held that the entry in question uses the word “bitumen” without any further stipulation or qualification and further held that bitumen emulsion is processed bitumen.
Reverting to the facts of the present case, it is quite vivid that it has been held herein-above by the Supreme Court also while dealing with the question whether bitumen emulsion is covered within Entry 22 of Part A of Schedule II to the U.P. Value Added Tax Act, 2008, which only refers to bitumen that bitumen includes bitumen emulsion. It has also been held that the words inside the brackets i.e. coal-tar in front of bitumen would not control the meaning of the words outside the bracket and it would not curtail or limit the scope of the words employed outside the bracket. The word bitumen is also known as commercially, coal-tar as such, the word coal-tar in brackets in front of bitumen is only clarificatory in nature and would not control the meaning and scope of the word bitumen in Entry-23 under Part II of Schedule-II of the VAT Act.
The bitumen emulsion is covered by Entry-23 of Part II of Schedule-II of the VAT Act and rate of VAT would be 4% or applicable rate as per notification.
Petition allowed.
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2018 (6) TMI 1660
Denial of natural justice - Joint Commissioner while granting an approval u/s.153D to an order passed u/s.153A gave no opportunity to be provided to the Appellant - HELD THAT:- As in the case of 'Gopal. V. Pandit [2018 (7) TMI 51 - KARNATAKA HIGH COURT] in which as regards first question, we have held that in the absence of specific provision in Section 153D of the Income Tax Act, 1961 the present Authority, namely, Joint Commissioner is not expected to give an opportunity of hearing to the Assessee before giving an approval to the Draft Assessment Order to be passed by the lower Authority, namely, Deputy Commissioner.
Seized material corroborates the income fixed under the head “Pooja”- Whether seized material does not disclose such income from “Pooja” ?- HELD THAT:- We have held that the same does not give rise to any substantial question of law as it is a matter of estimate based on the relevant material seized during the course of search and the statement recorded of the Assessee u/s. 132[4] of the Act as to what was the income of the Assessee who was working as Priest during the relevant period.
Unexplained expenditure - HELD THAT:- Margins are not recorded in the books of accounts therefore those were considered by the Assessing Officer as payment out of books. As it is apparent from these numbers written in the margin that a proper care was taken for distinguishing the amounts in thousands by putting a point [.] before the number as in the case of last number written as 0.5. Therefore the other numbers written in the margin with the dates clearly indicates the payment made by the assessee in lakhs. Therefore we do not find any error or illegality in the orders of the authorities below on this issue and confirm the addition
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2018 (6) TMI 1659
Salary paid to overseas expatriates of the assessee working in India by the Head Office - Disallowance of salary paid overseas to expatriates of the Appellant working in India by the Head Office (HO) and the Indian taxes paid thereon by the HO - Indian Permanent Establishment (‘PE’) from its HO/ overseas branches - HELD THAT:- Similar issue has already been adjudicated in assessee’s own case for the assessment year 2007-08 [2014 (10) TMI 150 - ITAT DELHI] the expatriates were working in India and salary had been subjected to tax for which form no. 16 was also issued to the expatriates - there cannot be any dispute regarding verifiability of these expenses -The expenses had been incurred wholly and exclusively for the Indian branch and no part of thee expenses could be allocated to any other branch by head office - there was no dispute amongst the members in regard to non-applicability of provisions u/s 44C - Decided in favour of assessee.
Addition on account of interest accrued/received by the Indian PE on the funds lying with the HO/other overseas branches - HELD THAT:- As decided in own case authorities below we are not justified in taxing the interest received by the Indian PE / branches of the assessee from its head office / other overseas branches as no person can make profit out of its self. The Assessing Officer is, therefore, directed to delete the addition in question. Decided in favour of the assessee.
Addition on account of interest received on External Commercial Borrowings given to the Indian Borrowers - HELD THAT:- As decided in own case In 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 sicne 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.
Taxability of interest u/s 244A on the income tax refund - HELD THAT:- Restoring the issue to the Assessing officer to determine / adopt the rate of tax on refund in the light of the relevant clauses of IndoFrance DTAA and the decision of Special Bench in Clough Engineering [2011 (5) TMI 562 - ITAT, DELHI]
Transfer pricing adjustment - main grievance of the assessee in these grounds is that the ld. DRP/AO/TPO used the erroneous comparable uncontrolled price (CUP) data obtained by issuing the notices u/s 133(6) of the Act but without providing any opportunity to the assessee, while determining the arm’s length price of the international transaction - HELD THAT:- AO/TPO collected comparable uncontrolled price (CUP) data by issuing the notices u/s 133(6) of the Act and used the said data for the purpose of determining the ALP of the international transactions entered into by the assessee with its AE. It is well settled that nobody should be condemned unheard. In the present case, it is alleged that the AO/TPO did not confront the assessee with the data obtained by issuing the notices u/s 133(6) of the Act while determining the arm’s length price. We, therefore, deem it appropriate to set aside this issue back to the file of the AO/TPO to be decided afresh after confronting the data obtained by issuing the notices u/s 133(6) of the Act to the assessee
Applicability of the tax rate at 40% plus surcharge and educational cess - HELD THAT:- Tribunal while referring Explanation (1) to section 90(2) has rejected the contention of the assessee that the applicable rate of tax on the income of the assessee attributable to its PE in India cannot exceed the applicable rate of tax in the case of domestic companies. In the said Explanation (1) to section 90(2) it has been declared that the charge of tax in respect of foreign company at a rate higher than the rate at which a domestic company is chargeable, shall not be regarded as less favourable charge or levy of tax in respect of such foreign company. Thus the grievance of the assessee that the authorities below have not adjudicate the issue under the provisions of Article 24 of DTAA does not stand. - Decided against the assessee.
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2018 (6) TMI 1658
Order of CIT-A u/s.250(6) - whether the order passed by the CIT(A) in treating the balancing figure at the time of amalgamation as goodwill and allowing the depreciation on the same is sustainable in the eye of law? - HELD THAT:- We have perused relevant materials on record. We have also gone through the judgement of the Hon’ble Gujarat High Court wherein the issue has been decided in favour of assessee in assessee’s own case for AYs 2010-11, 2011-12 & 2012-13. The Hon’ble Gujarat High Court while dismissing the appeal preferred by the Revenue and upheld grant of depreciation on goodwill - decided against revenue.
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2018 (6) TMI 1657
Exemption u/s 11 - not granting registration u/s 12AA - charitable activity u/s 2(15) - assessee society is at nascent stage - HELD THAT:- Where the assessee society is a nascent stage then it cannot be expected that the society must do some charitable work for grant of registration u/s 12AA
Construction of Hospital will be for charitable purposes and for needy and deprived public at large. Further from reply No.2 it reflects that the Hospital running will be charitable and will be a medical relief for the needy and the public which cannot afford the costly medical facility in present day . The hospital will be charitable and not for commercial gains. However from the amended aims and objects and rules and regulations of the society it does not reflect that the hospital will be charitable and not for commercial gains. On specific query raised by the Bench, which was acceded by the Assessee/Applicant Society that the assessee society shall get incorporate the condition that the Hospital will be charitable only and not for commercial gains, in the aims and object/ MOU of society.
We endorse the assent of the Ld. A.R.
Set aside the order passed by the Ld. CIT(E) and feel it appropriate to remand the case in hand to the file of the ld. CIT(E) for deciding afresh while taking into consideration the facts, circumstances and documents inter-alia, the amended MOA whereby the aims and objects have already been amended and further incorporation of condition in the aims and objects of society to the effect that the Hospital will be charitable only and not for commercial gains. - Appeal filed by the assessee society is allowed for statistical purposes.
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2018 (6) TMI 1656
Cancelling the registration already grated u/s 12AA(3) - charitable activity u/s 2(15) - main activities of the assessee’s trust are providing swimming pool facilities for aquatic events and training facilities for other sports like squash, billiards, table tennis, etc. - HELD THAT:- There is no change in activity of the assessee’s trust, what was in prior assessment years, and hence, the registration of assessee’s trust cannot be disputed merely because the proviso to section 2(15) of the Act has come into play. The effect of section 11 can be considered while framing assessment but registration has to be granted. The issue is squarely covered by Hon’ble Bombay High Court decision in the case of Khar Gymkhana [2016 (6) TMI 489 - BOMBAY HIGH COURT] respectfully following the same, we direct the DIT(Exemption) to grant registration. - Decided in favour of assessee.
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2018 (6) TMI 1655
Reopening of assessment u/s 147 - unexplained deposit under section 69A - HELD THAT:- A.O. merely noted in the reasons that since there is an information available on ITD System of the Department that assessee has made cash deposits of ₹ 14,75,000/- in his Bank Account, therefore, income chargeable to tax has escaped assessment.
Deposit in the bank account per se cannot be the income of the assessee. This is a mere suspicion of the A.O. based on incorrect fact that income chargeable to tax has escaped assessment and accordingly, quashed the reopening of the assessment. See TAJENDRA KUMAR GHAI C/O M/S. RRA TAXINDIA VERSUS ITO – 1 (5) RUDRAPUR [2017 (6) TMI 491 - ITAT DELHI] - Appeal of the assessee is allowed.
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2018 (6) TMI 1654
CENVAT Credit - goods supplied to SEZ Developer without payment of duty - common inputs used in the goods supplied to SEZ Developer/exempt goods - HELD THAT:- The issue stands settled by the Tribunal orders in case of M/s. Sujana Metal Products Ltd. v. CCE, Hyderabad [2011 (9) TMI 724 - CESTAT, BANGALORE] as upheld by Hon’ble High Court reported in Commissioner v. Sujana Metal Products Ltd. [2015 (3) TMI 781 - ANDHRA PRADESH HIGH COURT], Ultratech Cement Ltd. v. CCE, Nagpur [2014 (8) TMI 655 - CESTAT MUMBAI].
The views of the Hon’ble Court is that the supplies made to SEZ/SEZ developers is treated as export in terms of the SEZ Act, 2005 which overrides all the acts. Therefore in respect of the goods cleared for export, provision of Rule 6 of CCR, 2004 shall not apply.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1653
CENVAT credit - input services - outward transportation service - Place of removal - penalty - HELD THAT:- The issue of availability of Cenvat credit post 1-4-2008 has been settled by the Hon’ble Supreme Court in appellant’s own case [2018 (2) TMI 117 - SUPREME COURT] that the assessee is not entitled to avail Cenvat credit on outward transportation service - the appellant is not entitled to avail Cenvat credit on outward transportation charges although the same form part of value of the finished goods. Therefore, the Cenvat credit availed by the appellant is denied.
Penalty - HELD THAT:- Admittedly, there were divergent views during the impugned period, in that circumstance, no penalty is imposable on the appellant - the penalty is dropped.
Appeal allowed in part.
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2018 (6) TMI 1652
Imposition of penalties - section 67 of Kerela VAT Act - Compounded rate of tax - clause (b) of Section 8 of Kerala VAT Act - petitioner had installed a Vertical Shaft Impactor Machine, in addition to crushing machines, in their crusher unit - proposal to impose penalty on the petitioner on the sole basis that the output production capacity of the Vertical Shaft Impacter Machine in terms of the information furnished by the manufacturer of the machine in their website is 120 to 200 metric tonnes per hour.
Whether there can be a proceeding for imposition of penalty under Section 67 (1) of the Act solely based on website information?
HELD THAT:- It is trite that penalty cannot be imposed for failure to carry on statutory obligations unless the party obliged to perform the act has either acted deliberately in defiance of law or was guilty of contumacious or dishonest conduct or acted in conscious disregard of his obligation. Such proceedings being quasi-criminal in nature, the factual allegations, on the basis of which penalty is proposed, must be clearly established from the materials on record. There is absolutely no scope for any inference in such proceedings and the facts are to be established by positive proof. Needless to say, mere suspicion of the facts is not enough.
There is no presumption in law that website information relating to merchandise are correct. It is common knowledge that website information, especially that of merchandise, may or may not be correct.
Indian Courts had occasion to consider the issue whether print outs of the judgments taken from websites can be relied on and the stand taken is that the same can be relied on, if its authenticity and reliability are not doubted. The pretensions of a manufacturer as regards the products manufactured by them would not bind even the manufacturer, in the absence of fraud, in the light of the principle caveat emptor - there cannot be penal proceedings at all on the presumption that the website information as regards merchandise are correct. The impugned order, in the circumstances, is one issued without jurisdiction.
Petition allowed.
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2018 (6) TMI 1651
Determining the LTCG as per the deeming provisions of Sec. 50C - as per assessee ‘reserve price’ of the property was to be taken as that which was applicable on 27.08.2009 i.e the date on which the ‘agreement to sell’ was executed - HELD THAT:- As is discernible from the records, the requisite conditions envisaged in the provisos to Sec. 50C appears to have been satisfied by the assessee viz. (i). that, the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the property are not the same; and (ii). that, part of the sale consideration as claimed by the assessee was received by the assessee by way of account payee cheques, on and before the date of the agreement for transfer. However, at the same time, we also cannot remain oblivious of the fact that the ‘agreement to sell’, dated 27.08.2009 was never filed by the assessee in the course of the proceedings before the lower authorities, and was in fact furnished for the very first time before us. Matter requires to be restored to the file of the A.O, who shall remain at a liberty to verify the veracity of the ‘agreement to sell’, dated 27.08.2009, as well as the claim raised by the assessee on the basis of the same to bring its case within the realm of the provisos to Sec. 50C. In case, the A.O is satisfied with the genuineness of the ‘agreement to sell’, and the claim raised by the assessee on the basis of the same are found to be in order, then, he shall redetermine the LTCG in the hands of the assessee u/s 50C in terms of our aforesaid observations.
Entitlement for claim of deduction under Sec. 54F in respect of an investment that was made by him towards purchase of a property, vide a registered agreement dated 10.07.2013 - HELD THAT:- The said claim was never raised by the assessee before the lower authorities. The assessee in support of his aforesaid entitlement towards deduction under Sec.54F had placed on record the copy of the ‘purchase deed’, dated 10.07.2013. Admittedly, an A.O in the backdrop of the judgment of the Hon’ble Supreme Court in the case of Goetze (India) Ltd. Vs. CIT [2006 (3) TMI 75 - SUPREME COURT] is not vested with any powers to entertain a claim for deduction/relief raised by the assessee, except for those raised either in his original return of income or through a revised return. However, we are of the considered view that as observed by the Hon’ble High Court of Bombay in the case of CIT Vs. Pruthvi Broker and Share Holders Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT] no such restriction is placed on the appellate authorities for entertaining an additional claim of the assessee. Accordingly, we restore the matter to the file of the A.O, with a direction to him to consider the said claim of the assessee in the course of the ‘set aside’ proceedings. Needless to say, the A.O shall in the course of the ‘set aside’ proceedings afford a reasonable opportunity of being heard to the assessee, who shall remain at a liberty to substantiate his aforesaid claim of deduction on the basis of supporting documentary evidence.
Not allowing deduction of the ‘cost of acquisition’ of the property while computing the LTCG on the sale of the property under consideration - HELD THAT:- We find ourselves to be in agreement with the said contention. Admittedly, the assessee had failed to place on record the copy of the ‘purchase deed’ which would had supported the ‘cost of acquisition’ of the property under consideration. It is the claim of the assessee that the property under consideration was an ancestral property that was acquired by him alongwith the other four co-owners prior to 01.04.1981. Accordingly, the assessee has before us relied on a ‘Valuation report’ of a government approved valuer, as per which the ‘Fair Market Value’ of the property under consideration on 01.04.1981 u/s 55(2)(b)(ii) is stated to be ₹ 1,68,807/-. As the said ‘valuation report’, dated 18.02.2018 was not filed with the A.O in the course of the assessment proceedings, therefore, we restore the issue as regards determination of the ‘cost of acquisition’ of the property to his file. The A.O shall in the course of the ‘set aside’ proceedings remain at a liberty to verify the ‘cost of acquisition’ of the property under consideration - Assessee shall be afforded a reasonable opportunity of being heard and therein substantiate his aforesaid claim in the course of the ‘set aside’ proceedings. - Appeal of the assessee is allowed for statistical purposes
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2018 (6) TMI 1650
Rejection of grant stay of collection of the disputed tax amount notwithstanding the pendency of the appeal - period April 2012 to September, 2016 - Andhra Pradesh VAT Act - HELD THAT:- It was not for the revisionary authority to express such an opinion when the appeal filed by the petitioner concern was pending consideration before the Appellate Deputy Commissioner concerned. Such observations would invariably have a prejudicial effect upon the appellate authority who is subordinate in rank to the revisionary authority.
The impugned order suffers on counts more than one. When the petitioner concern already paid 12.5% of the disputed tax amount for the purpose of maintaining an appeal as required by law, it would be wholly unjust for the tax authorities to demand the balance of the disputed tax amount notwithstanding the pendency of the appeal - petition allowed.
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2018 (6) TMI 1649
Sunset Review - extension of Anti-dumping duty - HELD THAT:- We are inclined to keep this matter on 15.06.2018. So far as contention of Shri Modh is concerned, we would like to observe that the disposal of the earlier application with similar prayer would be prima-facie is not justified as the Court clearly issued direction in the judgment and the Court did except the authority to do the needful for due compliance of the Court's order in which the Court has observed that the sunset review deserves to be brought to its logical end. Non seeking of extension and permitting the sunset review on lapse of time, in our prima-facie view, amounts to bringing about abrupt end which deserves to be construed in its proper perspective.
Put up on 15.06.2018.
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2018 (6) TMI 1648
Deduction allowable u/s 10A - reducing the total turnover also by the same amount by which export turnover was reduced by the Assessing Officer in respect of foreign currency expenses incurred towards technical services rendered outside India - HELD THAT:- First purported substantial question of law raised by the Revenue is concerned, the same is covered by the Division Bench decision of this court in the case of Tata Elxsi Ltd. v. Asst. CIT [2015 (10) TMI 634 - KARNATAKA HIGH COURT] which has been affirmed by the hon'ble Supreme Court in the case of CIT v. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT].
Excluding the comparables, namely, M/s. Infosys Technologies Ltd., Kals Information Systems Ltd., Tata Elxsi Ltd., Persistent Systems Ltd. on the ground of functional dissimilarity - HELD THAT:- Companies functionally dissimilar with that of assessee as provider of software services need to deselected from final list.
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2018 (6) TMI 1647
Penalty u/s. 271(1)(c) - deemed dividend addition u/s 2(22)(e) - HELD THAT:- As decided in SHRI DIPESH L. SHAH [2017 (4) TMI 1458 - ITAT AHMEDABAD] Section 2(22)(e) of the Act creates legal fiction whereby loans/advances received by an assessee are deemed as taxable income in the hands of the recipient assessee in certain circumstances as specified therein. In view of section 2(22)(e) of the Act, loans/advances amount under consideration artificially partake the character of dividend and brought to tax as deemed dividend.
The aforesaid provision of section 2(22)(e) has brought a deeming and unnatural concept of treating the returnable loans/advances as taxable income in the hands of borrower in departure with the operation of the normal provisions. Admittedly, the relevant facts concerning the issue were available to the AO. Thus, there is no concealment of any ‘particulars’ of any fact per se.
Assessee has simultaneously claimed that the aforesaid advances have been received the course of ordinary business and owing to ongoing business transactions and thus not susceptible to provisions of section 2(22)(e) - while the provisions of s.2(22)(e) have been applied, the issue is not entirely free of any debate. As noted, section 2(22)(e) of the Act is only deeming provision of law and is not a substantive provision. Thus, in the absence of any perceptible mala fides, we find no infirmity in the order of the CIT(A) deleting the penalty imposed by the AO. Thus, we do not see any merits in the appeals of the Revenue.
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2018 (6) TMI 1646
TDS u/s 194J - roaming charges paid for roaming agreements with OTOs - assessee is engaged in the business of providing telecommunication services in telecom circles of Punjab - HELD THAT:- We find that departmental appeals are without any merit. The facts taken on record which have not been upset are that for installation/setting up/repairing/servicing/maintenance/capacity augmentation etc. human intervention is required, however after this process is complete, the interconnection between the operators is automatic and at that stage, no human intervention is required.
These conclusions have been arrived after considering the Reports of the technical experts, their cross-examination etc. Interconnecting User Charges (IUC) which signifies charges for connecting two entities. The Coordinate Benches have relied upon the order in the case of i-Gate Computer Systems Ltd where decision of M/s Bharti Cellulars Ltd. [2010 (8) TMI 332 - SUPREME COURT] has been considered and also on the decision of Data Link transfer wherein considering similar facts, it has been held that it does not require any human intervention and charges received or paid on account of this is not fees for technical services as envisaged in section 194J read with section 9(1) (vii) read with Explanation-2 of the Act.
In the absence of any change in facts or law, the payments made for interconnection are not fees for rendering any technical services as envisaged in section 194J of the Act. Therefore, no tax is deductible at source u/s 194J of the Act on payment of roaming charges to the OTOs and the assessee therefore cannot be treated as an assessee in default. Apart from the various decisions of High Courts and ITAT orders cited, the issue stands concluded in favour of the assessee by the consistent orders of ITAT Bangalore and Jaipur Benches in assessee's own case. In the absence of any distinction on facts, circumstances or position of law, the departmental appeals are dismissed.
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2018 (6) TMI 1645
Ex-parte order of CIT-A - HELD THAT:- As noticed in the CIT(A)’s order, notice was served through Chartered Accountant but then, as is the contention of the assessee, the Chartered Accountant did not deal with the matter in intelligent manner and had therefore eventually disengaged by the assessee. We have also been assured by the assessee that given another opportunity of presenting his case before the learned CIT(A) he will scrupulously ensure early disposal of the appeal on merits and shall not resort to any dilatory tactics.
DR also does not oppose the matter being remitted to the file of the learned CIT(A) for fresh adjudication. In view of the above discussion and bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of learned CIT(A) for fresh adjudication on merits. Appeal is allowed for statistical purposes.
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2018 (6) TMI 1644
Ex parte order of CIT(A) - CIT(A) confirmed the order of AO without deciding the same on merit. - Disallowance of interest on interest free advance - HELD THAT:- The principle of audi alteram partem is the basic concept of natural justice. The expression “audi alteram partem” implies that a person must be given an opportunity to defend himself. This principle is the sine qua non of every civilized society. The right to notice, right to present case and evidence, right to rebut adverse evidence, right to cross-examination, right to legal representation, the disclosure of evidence to the party, report of inquiry to be shown to the other party and reasoned decisions or speaking orders.
We took this guidance for the right of hearing, from the ratio as is laid down by the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India [1978 (1) TMI 161 - SUPREME COURT] wherein laid down that rule of fair hearing is necessary before passing any order. We find that it is pre-decision hearing standard of the norm of the rule of audi alteram partem. We find that in this instant case, the assessee was not given a proper hearing. Therefore, we are of the view that the assessee must be given one more opportunity of hearing and to represent his case.
We also note that the assessee claimed not to have filed the copy of confirmation in respect of the loan obtained during the year before the AO at the time of assessment proceedings.
Therefore, in exercise of the power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of AO for reconsideration all grounds of appeal after allowing the proper opportunity of being heard by law. We are sending this appeal to the AO for fresh adjudication to avoid the multiplicity of the appeal. Nevertheless, to mention that the assessee will cooperate in the appeal proceedings and his failure will entail confirmation of the impugned addition made by the AO. The assessee will file necessary evidence on which he wants to rely upon at the time of the hearing. This ground of assessee’s appeal stands allowed for statistical purpose.
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9911796707
