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Showing 201 to 220 of 1677 Records
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2016 (9) TMI 1483
TPA - Comparable selection - functinal similarity - Held that:- The assessee company is engaged in the business of software development research center and provides software development services of electronic integrated circuits. It also provide support services to Infineon, Singapore. The operation of the assessee are organized into 2 business development center (STPI unit) and sales and market support division (non STPI unit) thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Disallowance of project specific costs u/s 40(a)(i) - Held that:- This issue is covered against the assessee and in favour of Revenue by the decision of the Hon'ble High Court of Karnataka in the case of Samsung Electronics Co. Ltd. [2011 (10) TMI 195 - KARNATAKA HIGH COURT].
Adjustments made to the Total turnover in computing deduction u/s 10A - Held that:- Issue covered by the decision of Tata Elxsi [2011 (8) TMI 782 - KARNATAKA HIGH COURT].
Lower deduction u/s 10A - profits of the software (STPI) unit as ₹ 297,319,880/- instead of ₹ 181,072,777/- - Held that:- We direct the TPO to correct the error which has crept in while computing deduction u/s 10A and take the profit of software unit at ₹ 181,072,777/-
Market risk adjustment - Held that:- As decided in INTELLINET TECHNOLOGIES INDIA (P.) LTD. VERSUS INCOME-TAX OFFICER, WARD-11(2), BANGALORE [2012 (6) TMI 237 - ITAT BANGALORE] in principle, risk adjustment must be granted, if warranted in the facts of the case, for bringing the comparables on par with the assessee company. Following the above decision and of the co-ordinate bench (supra), we also hold that in principle, the assessee may be granted risk adjustment, if so required in the peculiar facts of the case for bringing the comparable companies on par with the assessee. However, the quantum of risk adjustment to be granted, if any, is remanded back to the file of the TPO. The TPO is directed to examine the details of the quantitative computation of risk adjustment and attendant details submitted by the assessee justifying its claim for risk adjustment and to take into account the same along with all the relevant material before deciding on the percentage of risk adjustment to be allowed.
Depreciation adjustment allowance of depreciation adjustment - Held that:- As relying on 24/7 CUSTOMER. COM (P.) LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 11 (2) , BANGALORE [2013 (1) TMI 45 - ITAT BANGALORE] admit the additional ground raised for grant of depreciation adjustment and remit the matter to the file of the TPO to consider and examine the assessee's claim for adjustment towards depreciation - Appeal is partly allowed for statistical purposes.
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2016 (9) TMI 1482
Income accrued in India - profit of the assessee branch in USA viz. Birla consultancy software Services taxability in India - deduction in respect of taxes on income paid in USA - Held that:- Nothing is available on record to indicate any challenge by the Revenue to the order of the Tribunal for Assessment Years 1996-97 and 1997-98 before any higher forum. It therefore follows that the orders of the Tribunal on the above issue for the Assessment Years 1996-97 and 1997-98, have been accepted by the Revenue. Therefore, the Revenue can have no grievance with the impugned order of the Tribunal as it merely follows its earlier orders which have been accepted. Further, no distinguishing features in the present Assessment Year from that existing in the Assessment Years 1996-97 and 1997-98 have been brought to our notice which would justify our taking a different view on this issue for the subject Assessment Year.
Profit from power generated are eligible for deduction for the purpose of book profit u/s 115JA - Held that:- Revenue has accepted the order of the Tribunal for the Assessment Year 1998-99. The impugned order merely follows its order of Assessment Year 1998-99. Therefore, in the absence of any special circumstances being pointed out by Revenue such as different facts etc. in the subject Assessment Year from those in earlier Assessment Year, i.e. 1998-99 there is no warrant for taking a different view.
Fresh claim of expenditure on account of subway and power lines not claimed in the return of income filed - Held that:- The aforesaid questions do not arise from the impugned order of the Tribunal. These questions were not urged/raised for the first time in appellate proceedings as suggested in the questions framed. In fact the claim of expenditure by M/s. Indian Rayon & Industries Ltd. prior to the date of merger with the Respondent Assessee was a subject of consideration during the Assessment proceeding leading order dated 18 March 2002.
Expenditure on subway and power line though the said expenditure was not incurred by the assessee but by Indian Rayon & Industries Ltd., prior to the date of scheme of merger - Held that:- As the impugned order of the Tribunal has merely followed its order for Assessment Years 199495 and 1998-99 which has been accepted by the Revenue there is no basis for the Revenue being aggrieved by it. This is particularly so as no distinction in facts or law is shown in the subject Assessment Year from those in Assessment Years 199495 and 1998-99. Therefore, the question as proposed does not give rise to any substantial question of law. Therefore, not entertained.
Provision made on account of gratuity and leave salary not to be added to arrive at book profits under Section 115JA - Held that:- The grievance of Revenue before us is that Echjay Forgings Pvt. Ltd. [2001 (2) TMI 56 - BOMBAY HIGH COURT] will not apply as in that case the liability is debited to the profit and loss Account to arrive at the book profits unlike in this case, it is urged by the Revenue is not correct as in this case also the amount has been debited to arrive at the book profits. The distinction between debiting to profit and loss Apportion Account and profit and loss account is of no significance in this case, as the proposed addition on the basis of the Explanation 1 to Section 115JB can only be made if the amounts are debited to profit and loss Account to arrive at the book profits. Therefore, no distinguishing feature which would warrant our taking a view different from one taken in Echjay Forgings (supra) arises.
Sales tax exemption claim - Held that:- The issue raised herein was an additional issue raised by the Respondent Assessee before the Tribunal. The impugned order of the Tribunal without considering the merits of the Respondent Assessee's additional claim has restored the issue to the Assessing Officer to examine the claim of the Respondent Assessee as the same was not subjected to any examination earlier. We are unable to understand the grievance of the Revenue. The view of the Tribunal is unexceptionable. This additional ground was raised before the Tribunal for the first time. In that view it was restored to the Assessing Officer to examine and decide on the facts.
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2016 (9) TMI 1481
Revision u/s 263 - appeal has been filed after 2000 days of the period of limitation and as such it is barred by limitation - reason to believe - Held that:- While condoning the delay, the Court has to take into account the conduct of the parties, bonafide reasons for condonation of delay and whether such delay could easily be avoided by the appellant acting with normal care and caution.
In this case during the course of hearing it was inquired from the learned counsel for the assessee as to whether after the death of his father (Shri Brijlal Jhamnani) the assessee has filed the returns of income for the subsequent assessment years i.e. 2006-07, 2007-08 and 2008-09 or not? In reply, the learned counsel for the assessee submitted that the assessee has filed all the returns of income with the department. In view of this fact, after the death of father of the assessee on 18.6.2010, the assessee did not care to look into this appeal. Therefore, in our opinion, conduct of the assessee is not bonafide and there is no reason to condone the delay.
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2016 (9) TMI 1480
Penalty u/s 27[3][c] of TNVAT Act - no wilful intent to evade - disclosure of assessable turnover - Held that:- In the instant case, the assessee accepted the mistake as soon as the show cause notice has been issued and paid the tax. In such circumstances, it cannot be stated that there is a willful non-disclosure of the assessable tax by the petitioner, since the assessment itself has been done only by the impugned order i.e., after the payment of tax by the petitioner - impugned order cannot be upheld - petition allowed.
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2016 (9) TMI 1479
Delay in filling of Miscellaneous application u/s 254(2) - assessee could not attend on the date of hearing because his mother was not well - miscellaneous application is filed after 4 years and 78 days - Held that:- As gone through the record filed along with the miscellaneous application assessee has not filed any medical certificate in support of his claim that his mother was ill. The assessee has not filed any documentary evidence to show that he has made any attempt to file the miscellaneous application before the Tribunal.
As per the Limitation Act, the assessee is obliged to explain each and every day’s delay in filing the miscellaneous application before the Tribunal. So many times that it is the duty of the assessee to explain each and every day’s delay in filing the miscellaneous application. Here in the instant case, there is a delay of more than 4 years and the assessee has utterly failed to explain the same on day to day basis. We are, therefore, of the considered opinion that the Tribunal has no jurisdiction to entertain this application.
We further find that under the guise of this miscellaneous application, the assessee wants the Tribunal to review its order which is not permitted under the law - No merit in this miscellaneous application filed by the assessee and dismiss the same. - Decided against assessee.
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2016 (9) TMI 1478
Determining the ALV of residential house lying vacant during the year u/s 23(1 )(a) r.w.s 23(4)(b) - deemed income under the head Income from "House Property" - Held that:- The fact that the said property has been let out by the assessee in the immediately preceding assessment year for 9 months is a fact. Thus the property has been “let out” in the earlier years is not disputed. The fact that due to a recession in the market it could not be let out is consistently claimed. CBDT Circular No.14 of 2001-252 ITR Statute para 29 unambiguously explains that the said amendment was brought out to rationalize the provisions of the Act so as to simplify determination of ALV.
Considering the facts which have not been disputed and the above provision of law, we find that in the light of the judicial precedent cited namely ACIT, Delhi vs Prabha Sanghi paI [2013 (1) TMI 18 - ITAT DELHI]; Kamal Mishra vs ITO, Ward 31(2) [2007 (8) TMI 484 - ITAT DELHI] and DLF Office Developers v ACIT, Delhi [2008 (4) TMI 530 - ITAT DELHI] and Prem Sudha Exports Pvt. Ltd. vs ACIT [2007 (5) TMI 348 - ITAT MUMBAI] and noting that no contrary view has been cited by the Revenue despite more than ample opportunity, we find that the appeal of the assessee has to be allowed.
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2016 (9) TMI 1477
Bail Application - Saradha Scam - money of investors belonging to the lower strata of society has been utilised by unscrupulous persons for their personal gain - Held that:- There is no doubt that the proviso to Section 437 of the Code of Criminal Procedure which stipulates that certain categories of persons should be released on bail can also be read into the provisions of Section 439 of the Code of Criminal Procedure. However, this is not a case where we would exercise our discretion by granting bail to the petitioner only because she is a woman. The reasons for the same are not far to be seen.
There is no doubt that the petitioner has been able to wield a considerable influence and ensure that she continues to be hospitalized till today. She has been interrogated in hospital on 29th December, 2015 and 20th June, 2016. However she has been successful in avoiding being incarcerated in a correctional home.
The investigations which are in progress could be hampered by the petitioner who, prima facie appears to be manipulative as reflected from certain emails written by her to the prime accused and to a person who was to be the sole arbitrator under the agreement of June, 2010 in the event there was any dispute with regard to the agreement - Under these circumstances, prayer for bail of the petitioner is rejected.
The Magistrate concerned is directed to ensure that the petitioner does not continue in various hospitals endlessly at her own whims and fancies.
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2016 (9) TMI 1476
Smuggling - Heroin - NDPS Act - Held that:- The learned Court took into consideration mainly the evidences of P.W. 1, P.W.2 and P.W. 7 to prove the search, recovery and seizure of 'Heroin' from the possession of the appellant and also took into consideration the chemical analysis report where the expert had opined that the sample sent for analysis to contain 'Heroin' to arrive at the conclusion that prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt.
Considering the entire facts and circumstances, with regard to the non adhering to the procedure relating to search and seizure of the contraband articles, non-compliance of the provisions of Section 50 of the NDPS Act, anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR and the report of the analyst, unexplained inordinate delay in sending the contraband article for chemical examination, complainant himself acting as the investigating officer violating the principles of fair and impartial investigation, lead us to interfere with the impugned judgment. The impugned judgment, order of conviction and sentence are quashed and set aside.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1475
CENVAT Credit - common input service in respect of generation of the electricity - Rule 6(3) of Cenvat Credit Rules - Held that:- In terms of the amended Rule 6 the appellant had debited an amount of ₹ 7,82,780/- from its Cenvat account and also deposited interest on such credit. Since the amount reversed is attributable to the input service used in generation of electricity sold outside, such reversal is in conformity with the provisions of Section 6(3) ibid - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1474
The Supreme Court of India in 2016 (9) TMI 1474 - SC Order, with MR. JUSTICE KURIAN JOSEPH AND MR. JUSTICE ROHINTON FALI NARIMAN presiding, condoned delay, issued notice, and tagged the case with C.A. Nos. 104-109/2015. The Respondent did not appear. Petitioner represented by Mr. P.S. Narasimha, ASG, Mr K. Parameshwar, Adv., Mr. Ajay Sharma, Adv., Mr. H.R. Rao, Adv., Mr
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2016 (9) TMI 1473
Refund of tax paid in excess - prayer to give effect to the Tribunal order in MTA No.719/2000, dated 07.03.2011 - Held that:- This Writ Petition is disposed of with an observation that if the order of the Tribunal in MTA No.719/2000, dated 07.03.2011, is not stayed in any appeal proceedings, such order of the appellate authority shall be given effect to and the excess amount should be refunded with interest in accordance with Section 24(4) read with Rule 23-A of the Tamil Nadu General Sales Tax Act, 1959 - petition allowed.
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2016 (9) TMI 1472
Assessment of holding and subsidiary company - addition of income - Held that:- In the case of the assessee, we note that the income of ₹ 6 crore has already been taxed in the hands of the holding company during last year. Therefore, the same could not be taxed again in the hands of the subsidiary company during this year.
Addition being the compensation received on account of “store deposit” under the Transfer Agreement as business income - Held that:- The amount of ₹ 42,75,600/- was paid by the holding company directly to the landlord, i.e., M/s Regency Park Property Management Services Pvt. Ltd on behalf of the assessee. Since the payment was made directly by the holding company and not through the assessee, the entry did not find place in the accounts of the assessee.
In the books of the account of the holding company, it is reflected as security deposit. Subsequently, it was transferred from the security deposit to the assessee's account in the next year. Therefore, the amount being advance given by the holding company directly to the landlord on behalf of the assessee, was transferred to the assessee's account subsequently. We also note that no profit element is involved in this transaction which is in fact an advance given to the assessee through the security deposit route and deserve to be deleted. Accordingly, we delete the addition - Decided in favour of assessee
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2016 (9) TMI 1471
Liability for payment of compensation to the module supplier has arisen out of agreement entered into between the assessee and module supplier - Held that:- The observation made by the Commissioner of Income Tax (Appeals) in the present case are generic and out of context. There is nothing on record to show that there was any dispute between the assessee and module supplier. The liability was ascertained and had to be discharged in view of the agreement between the assessee and the module supplier. The Hon'ble Supreme Court of India in the case of Bharat Earth Movers Vs. Commissioner of Income Tax [2000 (8) TMI 4 - SUPREME COURT] has held that if a business liability has definitely arisen in the accounting year, deduction should be allowed even if the liability may not have been quantified and is discharged at a future date. What should be certain is, the incurring of the liability. Actual quantification of liability can be done at a later date.
TPA qua payment of royalty - MAM - CIT-A rejecting CUP as the most appropriate method for determining Arm’s Length Price of international transaction in respect of payment of royalty - Held that:- AR contended that the issue can be remitted back to the file of Assessing Officer to re-examine the facts in the light of the decision of Tribunal. The ld. AR has fairly accepted the proposal made on behalf of the Department. Thus, in view of the statement made by the representatives of rival sides we deem it appropriate to remit this issue back to the file of Assessing Officer to reexamine the issue in the light of decision of the Tribunal in assessee’s own case in assessment year 2002-03.
Characterization of royalty payment - whether revenue or capital in nature? - Held that:- We observe that the facts leading to payment of Project Technical Assistance Fees are identical in assessment years under appeal. The Assessing Officer has not disputed the payment of charges. The only dispute is with regard to the nature of expenditure. The Co-ordinate Bench of the Tribunal has held expenditure as revenue in nature. The ld. DR has not been able to controvert the findings of Tribunal. Thus, we do not find any merit in the ground raised by the Department. By applying the aforementioned decision of Coordinate Bench in assessee’s own case, we dismiss ground No. 4 raised in the appeal by the Revenue.
Addition made on account of homologation expenses - Held that:- Commissioner of Income Tax (Appeals) has observed that there was no basis for making ad hoc disallowance without giving any opportunity of hearing to the assessee to furnish further details and deleted the addition. We are of the considered view that this issue needs a revisit to the file of Assessing Officer for re-consideration and appreciation of the relevant material relating to homologation charges. The Assessing Officer after considering the material furnished and affording sufficient opportunity of hearing to the assessee shall decide this issue afresh in accordance with law. Accordingly, ground No. 5 raised by the Revenue in appeal is allowed for statistical purpose.
Claim of expenditure on capitalized cars - Held that:- After considering the submissions of rival sides and perusing the impugned order, we find no error in the findings of CIT(A) in remitting the matter back to AO. We are of the considered view that the AO should reexamine the issue denovo. Here, we would like to point out that the AO shall not substitute his judgement over that of the assessee to determine the need and quantum of expenditure.
Claim of deduction u/s 80IB - Held that:- It is an admitted fact that reassessment proceedings initiated against the assessee in assessment year 2003-04 to disallow the benefit of deduction u/s. 80IB of the Act has already been set aside by the Tribunal in the appeal filed by the assessee. Thus, the Commissioner of Income Tax (Appeals) ignorant of the order of Tribunal has erred in holding that in reassessment proceedings the deduction granted u/s. 80IB has been disallowed. Without commenting on merits, we are remitting this issue back to the file of Commissioner of Income Tax (Appeals) for denovo adjudication, in the light of the fact that reassessment proceedings have already been quashed by the Tribunal and the position as of now is that the order passed by the Assessing Officer in rectification proceedings is live.
This issue needs revisit to the file of Commissioner of Income Tax (Appeals) to examine agreement between the assessee and module supplier and determine the veracity of payments made. In so far as nature of liability is concerned, we have already held that if it is arising from the agreement the same is ascertained. Accordingly, ground No. 1 raised in the appeal by the assessee is allowed for statistical purpose.
Amount representing provision towards octroi has been deducted twice - Held that:-n view of submissions made by rival sides, we are of considered view that this issue needs a revisit to the file of Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) shall decide the issue de novo after verification and proper appreciation of facts and records.
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2016 (9) TMI 1470
Assessment u/s 153C - Commission income from the business of providing accommodation entry - income by way of commission from the business of accommodation entries being carried out by Mukesh Choksi group - Held that:- Since it was a common point between the parties that the appellant company before us is also a part of the entities controlled by Mr. Mukesh Choksi, in our view, we, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to recompute the commission income from the business of providing accommodation entry in conformity with the aforesaid precedents.
Before parting we may also state that while recomputing the total income, the Assessing Officer shall also give effect to the directions of the Tribunal in the precedents regarding the allowability of expenditure claimed.
We, therefore, set-aside the order of the CIT(A) and restore the matter back to the file of Assessing Officer to redetermine the total income as per aforesaid directions. Needless to mention, the Assessing Officer shall allow the assessee a reasonable opportunity of being heard before recomputing the income as per law.
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2016 (9) TMI 1469
Maintainability of appeal - Held that:- Appeal filed by the assessee Balvinder Singh is pending before the Commissioner of IncomeTax (Appeals). He is not sure whether any such appeal has been presented by other assessee viz., M/s. Sutlej Transport Company. However, he adds that as per his memory, perhaps Appeal already preferred in that case has been allowed and disposed of in favour of the assessee. He seeks time to verify these facts.
The petitioner – assessee – Balvinder Singh can seek expeditious disposal of appeal before the CIT(A) and proceed further in the matter in accordance with law.
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2016 (9) TMI 1468
CENVAT Credit - input services - testing, handling and commission services - mobile phone services - machine and maintenance services - management consultant services - courier service - banking and finance [distributed by their head office] services - services received directly by insurance of plant and machinery consultancy for fly ash project - R&D services - mobile phone services - municipal solid waste management services etc.
Services used at the depot/C&F agent premises - Held that:- Credit has been taken as distributed by the ISD and pertains to various activities intimately connected with the manufacture and sale of cement through depots, C&F agents etc. Such services have been allowed as input services and are squarely covered by several decisions - reliance placed in the case of M/S. HCL TECHNOLOGIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND VICE-VERSA [2014 (1) TMI 1730 - CESTAT NEW DELHI] - credit allowed.
Insurance Services - credit sought to be disallowed on service tax paid for insuring the plant and machinery, mining equipments, store material and company vehicles - Held that:- The credit cannot be denied on the ground that these services are not used in or in relation to the manufacture of cement since insuring the plant and machinery, building etc. would form part of the normal business activity to make sure that they get compensation in the unfortunate event of fire, theft etc. - These services have also been held to be permissible as input services in the case of Hindustan Zinc vs. CCE, Jaipur [2014 (7) TMI 485 - CESTAT NEW DELHI] - credit allowed.
R&D Services - credit denied on the ground that it has been incurred towards development of re-active belaite cement which is not the product of the appellant - Held that:- This has been shown to be an R&D activity undertaken by the respondent in pursuance of introduction of new varieties of their final product and hence cannot be denied - similar issue has been examined by the Tribunal in the case of Cadila Healthcare Ltd. vs. CCE, Ahmedabad [2009 (8) TMI 172 - CESTAT, AHMEDABAD] where it was held that the service will be allowable on the ground that all products taken up by the company for R&D may not reach the customer as a commercial product - credit allowed.
Service tax paid on consultancy for fly ash or coal handling - Held that:- The same are relatable to the appellant’s main activity in their claim - credit allowed.
Mobile phone services - appellants clarified that the services are availed and the bills are borne by the appellants - Held that:- Reference can be made to the decision of Hon’ble Gujarat High Court in CCE vs. Excel Crop Care Ltd. [2008 (7) TMI 160 - HIGH COURT GUJARAT], where it was held that credit not deniable on ground that phones were not installed in the factory premises - credit allowed.
Services provided on Municipal Solid Waste, Jaipur - Held that:- The services used for procurement of input is specifically included in the input service and hence credit is admissible on the same - credit allowed.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1467
Principles of Natural justice - Validity of order of assessment - Tamil Nadu General Sales Tax Act, 1959 - case of petitioner is that the Assessing Officer did not permit cross examination of witnesses, and therefore, the revised notice, dated 30. 11. 2004, has to be set aside.
Whether the petitioner had a fair opportunity to cross examine the witnesses before the impugned assessment order was passed, in the light of the earlier direction issued by this Court, in W. P. No. 38521 of 2004, as it would bind the Assessing Officer?
Held that:- Apart from the statements gathered by the Assessment Circle Officer, the copy of which, has already been furnished to the petitioner, the petitioner has sought for other details, viz. , i) xerox copy of the application and other details when they applied for registration certificate, ii) the name of the Officer, who issued the certificate, iii) xerox copy of the ration card, iv) name of the Officer, who collected the renewal fee. , etc. - these documents are absolutely not germane to complete the assessment. That part, these are documents filed by other dealers and are kept on the file of the respondent, and he holds the same in fiduciary capacity. Therefore, the details thereunder, which are personal to the concerned dealer, cannot be compelled to be furnished to the petitioner, even as per the provisions of the Right to Information Act.
The direction issued by this Court, in W. P. No. 38521 of 2004, dated 07. 01. 2005, insofar it relates to furnishing of documents is concerned, the same has been complied with by the respondent, and the petitioner is not entitled for any more documents.
With regard to giving an opportunity to the petitioner to cross examine the witnesses who are examined by the respondents. This, of course, has not been complied with. Therefore, to that extent, the petitioner is entitled to the grant of relief.
The matter is remanded to the respondent for fresh consideration - appeal allowed by way of remand.
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2016 (9) TMI 1466
Settlement commission order - order of said commission in exercise of writ jurisdiction keeping in view the scope of judicial review - additional incomes offered by the applicants were not disclosed before the Assessing Officer - Power to grant any waiver or reduction of interest chargeable under Sections 234A and 234C - Held that:- Having heard learned counsel appearing for the respective parties and having perused the orders passed by the learned Commission and having gone through the report submitted before the Settlement Commission, we found that the findings arrived at by the Commission is just and proper and the respondents have disclosed additional income in the spirit of settlement during the course of proceedings and therefore, in the absence of any nondisclosure deliberately on part of the respondent the Commission has exercised due discretion vested in law and therefore, such finding of fact does not deserve to be disturbed or substituted.
From the record we found that the application submitted by the respondents have been dealtwith were within the schedule prescribed by the provision of law. A detailed procedure has been observed while exercising power under section 244D so much so that a report has also been examined thoroughly by the said Commission. During the course of hearing proper opportunity was also given to the respective parties and therefore, amount which have been determined by the said Commission are just and proper. The issue before the Court in the background of this fact is whether during the course of hearing even the amount which has been increased by way of additional disclosure whether can be entertained or considered by the Commission or not? Recently, if we recall that this very issue has been dealt with in detail and taking note of the decision delivered by this Court, in a group of petition which has considered the said issue in a decision delivered on 12.07.2016 it was found by the Court that if during the course of proceedings if the revised offers are being generated then in the nature of spirit of Settlement the same is permitted to be considered by the Commission. We are of the opinion that the order passed by the said Commission does not call for any interference
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2016 (9) TMI 1465
Provision for staff gratuity - Held that:- This amount is debited to profit & loss account but the same is accumulated under the head “reserve for gratuity fund” which shows that the actual payment was not made by the assessee. CIT(A) by following the case of District Cooperative Central Bank, Eluru, after considering the details filed by the assessee, he gave a categorical finding that payment made by the assessee towards unproved gratuity fund is not an allowable expenditure. As the assessee has submitted before us that even provision is made for the staff gratuity it is an allowable expenditure. There is no merit in the argument for the assessee for the reason that simply making a provision will not leads to allowable expenditure, unless payment is made. Thus, this ground of appeal raised by the assessee is dismissed.
Provision for standard assets - Held that:- A.O. disallowed by observing that the nature of contingent liability do not constitute an expenditure. Assessee carried matter in appeal before the CIT(A). CIT(A) confirmed the order of the A.O. by observing that the assessee is provided only provision for standard assets, but it is not the case of the assessee that any of these assets have become bad or non-recoverable. It is also not the case that any of these loans/assets are written off and the provision claimed by the assessee is not allowable deduction as per the of the Income Tax Act, 1961. Before us, the assessee has submitted that the claim of the assessee has to be allowed. We find no merit in the argument of the Ld. Counsel for the assessee for the simple reason that the assessee has made a provision for standard assets not on the non-performing assets. It is a mere provision. We find no reason to interfere with the order passed by the Ld. CIT(A). This ground of appeal raised by the assessee is dismissed.
Loss on account of Bobbili branch merger - Held that:- The same cannot be allowed in the hands of the assessee’s case. CIT(A) correctly by considering the provisions of the Act disallowed the claim made by the assessee. So far as RBI guidelines with regard to the amortization of losses is concerned, in view of the specific provision provided by section 72AB of the Act, in our opinion, RBI guidelines cannot prevail over the Income Tax Act. As observed that business losses and unabsorbed depreciation of amalgamating co-operative bank i.e. Bobbili Co-operative bank can be set off against the income of successor co-operative bank i.e. amalgamated co-operative bank (assessee) if the amalgamation is within the meaning of section 72AB. In the present case, the amalgamating company i.e. Bobbili Co-operative bank not filed return of income as required u/s 72AB of the Act. Therefore, the claim of the assessee cannot be allowed. We find that the Ld. CIT(A) has correctly decided the issue and disallowed the claim of the assessee.
In this case, the assessee has not paid any amount to amalgamating company. The assessee has only taken losses of amalgamating company i.e. Bobbili Co-operative bank. Therefore, the assessee has not acquired any goodwill. CIT(A) by considering the entire facts of the case has passed a detailed order by considering the provisions of law. In so far as case laws relied upon by the Ld. Counsel for the assessee particularly in the case of Cosmos Co-operative Bank Limited (2014 (1) TMI 1696 - ITAT PUNE) is entirely different facts and circumstances, therefore, we find no application to the facts of the present case. In so far as other case laws relied for the assessee also decided in a different facts and circumstances and therefore, we find no application to the facts of the present case. We find no reason to interfere with the order passed by the CIT(A). This ground of appeal raised by the assessee is dismissed.
Amortization of premium on Government securities - Held that:- It is only a provision i.e. contingent liability was made which may become payable at future date, therefore, the provisions are not allowable u/s 36 & 37 of the Act, the same is disallowed. On appeal, the Ld. CIT(A) confirmed the order of the A.O. On appeal, the assessee has submitted that this is an ascertained liability under the provision and the amount is already paid. We find this needs verification, therefore, we set aside the order passed by the CIT(A) and remit the matter back to the A.O.
Provision for staff gratuity - Held that:- A.O. has observed that the assessee has claimed ₹ 60 lakhs as a provision for staff gratuity debited the same in the profit & loss account. The A.O. has asked the assessee to furnish the details. The A.O. after considering the details submitted by the assessee, he has observed that as per the information available on record, it is not clear whether the assessee is contributing to the recognised gratuity fund or not, accordingly, the claim of the assessee of ₹ 60 lakhs was disallowed. On appeal, the CIT(A) by following the assessee’s own case for 2008-09, the order of the A.O. is confirmed and directed the A.O. to allow the deduction of the actual amount of gratuity paid during the year.
TDS u/s 194A - Disallowance u/s 40(a)(ia) - TDS on the interest payment exceeding ₹ 10,000/-, in view of the specific provision contained in section 194A(3)(i)(b) - Held that:- When the assessee filed a rectification petition u/s 154 of the Act dated 4.12.2013, CIT(A) has corrected the order by considering the assessment year 2007-08 and relief was granted. Therefore, we find that this ground of appeal raised by the assessee has no merit and the same is dismissed.
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2016 (9) TMI 1464
Proper officer - Jurisdiction to issue Show Cause Notice - Constitutional validity and effect of Section 28(11) of the Customs Act, 1962 - Held that:- There shall be a stay of operation of the impugned judgment and order passed by the High Court.
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