|
Advanced Search Options
Case Laws
Showing 221 to 240 of 1664 Records
-
2022 (9) TMI 1446
Grant of benefit under the SVLDR scheme by extending the period - HELD THAT:- The request of the petitioners to issue directions to the 1st respondent to grant them the benefit under the SVLDR scheme cannot be granted by extending the period, is no longer res integra in the light of the judgment of the Apex Court in the case of M/S. YASHI CONSTRUCTIONS VERSUS UNION OF INDIA & ORS. [2022 (3) TMI 110 - SC ORDER].
There are no merit in the petitions and the same are hereby dismissed.
-
2022 (9) TMI 1445
Levy of Service Tax - declared service or not - liquidated damages/penalties recovered by the Appellant from its contractors - section 66E (e) of the Finance Act, 1994 - scope of " tolerate an act or a situation" under section 66E(e) of the Act - period July 2012 to March 2015 - extended period of limitation - HELD THAT:- The issue herein is squarely covered in favour of the Appellant-assessee by the precedent order of this Tribunal in M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [2020 (12) TMI 912 - CESTAT NEW DELHI] where it was held that such amounts collected by way of penalty/liquidated damages for non-compliance of contract, cannot be considered as consideration for tolerating an act and hence, not leviable to service tax under section 66E (e) of the Finance Act.
Appeal allowed.
-
2022 (9) TMI 1444
Jurisdiction of this High Court to entertain the appeal - order passed by CIT, Kolkata-1 whereby jurisdiction of the case transfered from ITO, Wd-1(4), Kolkata to ACIT Central Circle-II(3), Chennai under Section 127 - HELD THAT:- A reading of Section 127 of the IT act read with Section 260A of the said Act would make it very clear that the High Court, under whose jurisdiction the assessing officer has passed the order will have the jurisdiction to entertain the appeal.
This Court has no jurisdiction and it is open to the appellant to work out its remedy before the High Court at Calcutta and get the issue redressed.
-
2022 (9) TMI 1443
Revision u/s 263 - cash deposit in the bank account of the assessee during the demonetization period unexplained - as per PCIT, the amount of cash deposits was not verified during the assessment proceedings by the AO - HELD THAT:- We find that the AO during the course of assessment proceedings, made enquiries on this issue and after consideration of written submissions filed by the assessee and documents / evidence placed on record, and then framed the assessment u/s 143(3) accepting the return of income.
CIT initiated proceedings under section 263 of the Act on the ground that the AO has not made enquiries or verification which should have been made in respect of cash deposited during the demonization period. It is not the case of the Pr. CIT that the Ld. AO did not apply his mind to the issue on hand or he had omitted to make enquiries altogether. In the instant set of facts, the AO had made enquiries and after consideration of material placed on record accepted the genuineness of the claim of the assessee.
PCIT has not invoked the explanation 2 of section 263 of the Act in the show cause notice dated 17 January 2022 about the same. Opportunity with respect to the explanation 2 of section 263 of the Act was not afforded to the assessee. Thus, on this count the learned PCIT erred in taking the course of such provisions while deciding the issue against the assessee.
Secondly, PCIT has also not specified the nature and the manner in which the enquiries which should have been conducted by the AO in the assessment proceedings. Thus, in the absence of any specific finding of the learned PCIT with respect to the enquiries which should have been made, we are not convinced by his order passed under section 263 of the Act.
We hold that there is no error in the assessment framed by the AO under section 143(3) causing prejudice to the interest of revenue. Appeal filed by the assessee is allowed.
-
2022 (9) TMI 1442
Challenge to SCN//assessment orders issued by the respondent GST Department raising demand of GST on royalty paid by the writ petitioners to the respondent Mining Department towards their respective mining leases - HELD THAT:- The right of the respective petitioners to file replies and raise objections against the show cause notices issued to them or to file appeal against final assessment orders is a statutory remedy provided under the GST Act and thus are free to avail such remedy irrespective of the fate of the writ petition. However, analogous controversy regarding demand of GST on royalty stands concluded in SUDERSHAN LAL GUPTA CONTRACTOR VERSUS UNION OF INDIA, STATE OF RAJASTHAN, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, DEPUTY COMMISSIONER OF STATE TAX, CIRCLE KARAULI, RAJASTHAN [2022 (10) TMI 43 - RAJASTHAN HIGH COURT].
Petition dismissed.
-
2022 (9) TMI 1441
Income allegedly escaped from returns - additions which are based on third-party statement - reliance on oral statement of one Manager (Operations) of Apollo Hospital - HELD THAT:- Assessee is a Doctor is an ENT specialist working as a consultant Doctor in Apollo Hospital. Based on search findings on Hospital, the consultation fee of the Doctor has been estimated and differential fee has been added to his professional income.
The whole basis of the addition is statement of Manager (Operations) merely act as data collector and has no idea about the exact fee charged by the Doctor from each of the patient. Further, she is not authorized to collect fees for non-employee Doctors. The fee is directly collected by the assessee’s staff and such fee is not accounted for in the Hospital’s books of account. Such category of doctors has discretion to fix their own fees and they merely pay monthly rent to the Hospital. The fees so collected by them are not booked in the books of Apollo Hospital. The range of fees being charged is only an estimated one and there is no physical evidence available before her. It could also be seen that apart from this statement, there is no corroborative evidence on record to support the working of Ld. AO. The estimate has been made merely on abstract figures.
As per the submission of the assessee all out patients were not charged. The certain category of patients and review patients would not be charged if they visit within 15 days of first consultation. The fee prescribed by Apollo Hospitals for Master Health Check-up patients is Rs.150/- only. This being the case, the assessee Doctor cannot be expected to charge substantially higher amount as considered by Ld. AO and therefore, the estimation as made by Ld. AO could not be upheld.
Whole basis of addition is the statement of Ms. Subhadra G.[manager operations] who does not possess any concrete data except abstract figures of number of patients. There is no corroborative evidence to support that so much of fees has been collected by the assessee from the patients. The assessee has also placed on record the certificate issued by Senior Vice-President (Finance) which clearly states that "the out-patient list maintained by the Information Technology Department of Apollo Hospitals includes several types of non-billed or non-charged patients also". The same supports the submissions of the assessee.
Thus it could not be accepted that the assessee would attempt to conceal income as estimated by Ld. AO. The Hon’ble Supreme Court in the case of CIT vs Odeon Builders (P) Ltd [2019 (8) TMI 1072 - SUPREME COURT] has held that no addition can be made on the basis of third-party information gathered by the Investigation Wing of the Department. Decided in favour of assesse.
-
2022 (9) TMI 1440
Addition of on money receipt for computation of long term capital gain - reliance on rough loose paper of diary containing scattered jotting of expenses, seized from the premises of the appellant, during the course of search u/s 132(4) - presumption u/s 292C - HELD THAT:- As rough noting/jotting in the diary, appears to be pertains to some petty expenses, under the head ‘434 Ex’ which stands for ‘Expense’ being incurred on renovation of house no.434, New Jawahar Nagar, by the assessee during the month of October 2009 and these do not pertain to the year under consideration.
Actual transaction relating to the said property have duly been reflected by the appellant in the ITR’s along with consequent ‘Capital Gains’ arising there from, being duly been offered for taxes.
Nothing has been brought on record, either by the AO or the CIT(A) to establish that purchaser has made any payment over and above the disclosed amount by way of corroborative documentary evidence either from the witnesses end or purchaser end that assessee has received any on money. In our view, such an addition being made purely on the basis of inferences drawn from diary rough noting without any nexus or support of the authentic documentary evidences such as registered deed/ or agreement to sale were being brought on record to prove that assessee has received ‘On money’, cannot be sustained.
Thus without substantiating the content of the noting in the diary, the value adopted by way of decoding by the authorities below based on assumption, presumption and guess work is illegal and against the law. Since, the diary jottings have not been corroborated from any relevant material documentary evidence and hence, the jottings in the diary by no stretch of imagination can be accepted as an evidence or conclusive proof of ‘on money’ transaction by the assessee for the purpose of presumption u/s 292C of the Act against the assessee.
Addition was being made on the basis of uncorroborated rough noting of paper/diary. CIT(A) has deciphered the figures on the paper by decoding in the form of Indian style and international style at his whim and caprice based on presumption and conjectures without bringing any corroborative material evidence in support for such assumption of the decoded figures is not justified. Accordingly, the addition on account of on money receipt for computation of long term capital gain is deleted. Decided in favour of assessee.
Disallowance on account of the cost of improvement expense claimed by the assessee - Respectfully following Coordinate Amritsar Bench decision on the identical facts in the case of “Krishna Kumar Mittal [2019 (3) TMI 1757 - ITAT AMRITSAR] we hold that in the absence of incriminating material, disallowance made on account of the cost of improvement expense is deleted.
-
2022 (9) TMI 1439
Appeal dismissed ex-parte - Miscellaneous Application recalling order [2017 (7) TMI 1447 - ITAT DELHI] of ITAT and for restoration of the assessee’s appeal - assessee’s appeal was dismissed ex-parte, qua the appellant - HELD THAT:- At the time of hearing, assessee relied on the MA and the aforesaid affidavit. Revenue left it to the discretion of the Bench to decide whether the aforesaid order of ITAT is to be recalled; and whether the assessee’s appeal is to be restored for hearing on merits.
On perusal of the MA and the accompanying affidavits, which have been discussed in foregoing paragraphs (B), (B.1) and (B.1.1) of this order, we are satisfied within the meaning of Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963, that this is a fit case for setting aside aforesaid order of ITAT, and for restoration of the assessee’s appeal. Accordingly, we set aside the aforesaid ordeof ITAT and restore the assessee’s appeal vide for hearing on merits.
-
2022 (9) TMI 1438
TP Adjustment - ALP adjustment pertaining to its receipts of corporate support services - HELD THAT:- The same admittedly appears a recurring issue between the parties therefore. This tribunal’s learned co-ordinate benches have been reversing the department’s view questioning the impugned corporate support services received from the overseas associate enterprises “AE” namely M/s. Eaton (China) Investments Co. Ltd. at cost + mark up of 9% and from Eaton Hydraulics LLC on cost to cost basis ; respectively. The Revenue could not pin-point any distinction on facts or law in all these assessment years; as the case may be.
-
2022 (9) TMI 1437
Seeking defreezing of Bank Accounts - HELD THAT:- Bearing in mind the interim directions which were passed on the writ petition as well as the orders passed on the writ petitions preferred by other dealers of VIVO MOBILE INDIA PVT. LTD, M/S GRAND PROSPECT INTERNATIONAL COMMUNICATION PVT LTD VERSUS DIRECTORATE OF ENFORCEMENT [2022 (9) TMI 1435 - DELHI HIGH COURT], the Court provides in the interim that while the petitioner shall be permitted to operate the bank accounts which stand freezed pursuant to the impugned orders, it shall ensure that a credit balance of Rs. 10,45,94,868.9/- is maintained at all times.
Additionally, the petitioner shall furnish statement of accounts of all the bank accounts forming subject matter of the freezing order every 48 hours to the Enforcement Directorate. The Court further restrains the petitioner from repatriating any proceeds which may come to be credited to the subject bank accounts outside the country till the next date of listing.
-
2022 (9) TMI 1436
Unexplained cash credit u/s 68 - filing of documentary evidence by assessee to prove the cash credits - HELD THAT:- Assessee neither co-operated nor explained genuineness of the impugned cash credits even in remand proceedings.
We thus quote PCIT V/s NRA Iron and steel (P) Ltd.[2019 (3) TMI 323 - SUPREME COURT], Sumati Dayal [1995 (3) TMI 3 - SUPREME COURT] and CIT V/s Durga Prasad More [1971 (8) TMI 17 - SUPREME COURT] that mere filing of documentary evidence does not absolve the assessee from discharging its onus of proving genuineness/ creditworthiness of the sums credited which has to be considered in the light of human probabilities by removing all blinkers, respectively. We thus conclude that the learned lower authorities have rightly made the impugned addition. Decided against assessee.
-
2022 (9) TMI 1435
Seeking defreezing of Bank Accounts of petitioner - HELD THAT:- In view of the matter the Court leaves it open to the petitioner to bring the aforesaid facts to the attention of the concerned Financial Institution. The Financial Institution shall proceed further in terms of the order of 01 September 2022. The Court further reserves liberty to the petitioner to approach in case further directions are warranted.
List on 02.11.2022.
-
2022 (9) TMI 1434
Nature of expenses - re-characterizing the business expenses as capital expenditure on the ground that it is a brand building exercise and is capital in nature - assessee is engaged in brand building and does not presented any revenue model before the learned AO and the learned CIT(A) - as argued Income Tax law does not provide for any type of self-generated brand as asset u/s 32 - HELD THAT:- As relying on case FLIPKART INDIA PRIVATE LIMITED [2018 (5) TMI 337 - ITAT BANGALORE], CORE HEALTHCARE LTD. [2008 (10) TMI 74 - GUJARAT HIGH COURT], POLYGEL INDUSTRIES PVT. LTD. [2015 (9) TMI 4 - ITAT MUMBAI], ADIDAS INDIA MARKETING (P.) LTD. [2009 (9) TMI 918 - DELHI HIGH COURT], BERGER PAINTS (INDIA) LTD. (NO. 2). [2002 (2) TMI 97 - CALCUTTA HIGH COURT] assessee cannot be disallowed the expenditure on the ground that it is a brand building exercise and is capital in nature. Accordingly, we set aside the orders of the authorities below and decide the issue in favour of the assessee.
-
2022 (9) TMI 1433
Locus of the petitioner-ED in a closure report filed by the State of Maharashtra before the Magistrate, in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. - HELD THAT:- There are no reason to interfere with the same. However, question of law, if any raised, is kept open.
Petition disposed off.
-
2022 (9) TMI 1432
Levying penalty u/s.271B - belated filing of audit report in terms of Section 44 AB without assigning proper reasons and justifications - HELD THAT:- It is an admitted fact that although the assessee has filed Tax Audit Report in Form 3CB as required u/s.44AB of the Act, beyond due date specified u/s.139(1) but such Tax Audit Report was made available to the AO before completion of assessment proceedings u/s.143(3) on 22.11.2017. It is evident from the fact that the assessee has obtained Tax Audit Report from an Accountant on 28.03.2016 and furnished before the AO during the course of assessment proceedings.
Therefore, we are of the considered view that when the Tax Audit Report was made available to the AO before completion of assessment proceedings, then for venial technical breach without any mala fide intention, penalty cannot be levied u/s.271B of the Act. A similar issue has been considered in the case of M/s.T P D 101 Uthangarai Milk Producers Co-operative Society Ltd [2022 (6) TMI 1365 - ITAT CHENNAI] where on identical set of facts, penalty levied u/s.271B of the Act, has been deleted - we direct the AO to delete penalty levied u/s.271B. Appeal filed by the assessee is allowed.
-
2022 (9) TMI 1431
Export of broken Rice - applicability of notification bearing No.31/2015-2020 dated 08.09.2022, banning/prohibiting the export of the broken rice under HS code 1006 40.00, with effect from 09.09.2022 - HELD THAT:- In similar circumstances, the Hon’ble High Court of Calcutta by Judgment dated 11.08.2006 in W.P.No.966 of 2006 had directed that despite a similar prohibitory order of the Government, the petitioner therein be allowed to export red lentil to Bangladesh on the ground that the petitioner had undertaken execution of the contract for export of red lentil by purchasing the said goods in public auction and the prohibition issued under the impugned notification, before the Hon’ble High Court of Calcutta, would affect the interest of the petitioner therein.
In the present case, the petitioners have now produced bills showing that they have commenced the purchase of broken rice from various dealers, for the purposes of executing the sale agreement they have entered into with M/s. Capezzana Commodities Geneva.
The petitioners shall be permitted to export the broken rice in pursuance of the sale agreement with M/s. Capezzana Commodities Geneva only - Post on 11.10.2022.
-
2022 (9) TMI 1430
Foreign Tax Credit (FTC) - FTC denied in case of delay in filing Form No.6 - denial of FTC available to the Assessee merely because there was a delay in filling Form 67 i.e. it was filed after the due date for filing original return of income prescribed u/s 139(1) - HELD THAT:- The said issue under consideration is no longer res integra. We note that on identical issue, the Co-ordinate Bench of ITAT, Bangalore in the case of Brinda Rama Krishna [2022 (2) TMI 752 - ITAT BANGALORE] held that (i) Rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No.67; (ii) filing of Form No.67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. Therefore, non-furnishing of Form No.67 before the due date u/s 139(1) is not fatal to the claim for FTC.
The aforesaid decision has also been followed in the case of Sanjay Patil [2022 (5) TMI 953 - ITAT SURAT] - Following the view expressed in the aforesaid decision, we hold that the Assessee is entitled to FTC and the AO is directed to allow the claim.
-
2022 (9) TMI 1429
Seeking grant of Anticipatory Bail - Money Laundering - scheduled offence - HELD THAT:- It is directed that in the event of her arrest in connection with proceedings initiated under the provisions of Prevention of Money Laundering Act, 2002 in ECIR Case No.2/2020, the arresting officer shall release the appellant on bail on furnishing cash security in the sum of Rupee one lakh with like sureties.
The appellant shall remain present in person or through an Advocate on every single date before the trial court - the appeal is allowed.
-
2022 (9) TMI 1428
Seeking grant of bail - Money Laundering - predicate offence - independent investigation has been conducted by the E.D. or not - presence of corroborative evidences or not - HELD THAT:- Notably, the present applicant has properly cooperated with the investigation being conducted by the CBI and has never flouted the process of law. Thereafter, on the basis of aforesaid investigation of the CBI, E.D. started recording statement of some persons including the present applicant as no independent investigation has been conducted by the E.D. and the present applicant has been summoned to record his statement under Section 50 of the PMLA, 2002 on various dates i.e. 25.05.2018, 07.06.2018, 26.06.2018, 23.07.2018 and 19.06.2019. It is not a case of the E.D. that the present applicant has ever flouted the process of the law or he did not appear to record his statement on the aforesaid dates. The present applicant has been implicated on the basis of statement of one Sri Amit Yadav, the Contractor, which was recorded by the E.D. on 29.01.2019 and 05.02.2019 wherein he has stated that he had withdrawn a sum of Rs. 15 lakh cash from the Bank through his "self cheque" and paid this amount to the present applicant but there is no eye witness/witness/document of any kind whatsoever to suggest that the aforesaid sum of Rs. 15 lakh has been given to the present applicant.
Since no material has been filed with the counter affidavit of the opposite party to suggest that the allegation so levelled against the present applicant by Sri Amit Yadav, the Contractor, has been verified or corroborated and during the course of the arguments, Sri Kuldeep Srivastava, learned counsel for the opposite party has been asked to demonstrate the Court that the E.D. is having any corroborative material or any piece of material suggesting the involvement of the present applicant in accepting a sum of Rs. 15 lakh, except the bald allegation of Sri Amit Yadav through his statement, Sri Kuldeep Srivastava could not demonstrate anything suggesting, prima facie, involvement of the present applicant. However, trial proceedings are going on and the allegations may be proved or disproved before the learned trial court by adducing the evidences from both the sides, therefore, I am not giving any finding on this point inasmuch as this is the domain of the learned trial court to conduct and conclude the trial independently strictly in accordance with law and without being influenced from any observation of this order.
The twin requirements of Section 45 of PMLA, 2002 are satisfied inasmuch as the Public Prosecutor has been given ample opportunity to establish his case as the counter affidavit so filed and his arguments so advanced have been considered. Further, since thorough investigation has been conducted by the CBI pursuant to one FIR wherein the present applicant was accused and when nothing incriminating has been found against the present applicant, he has not been charge sheeted. The E.D. has not conducted its independent investigation and has reiterated the investigation of the CBI, therefore, prima facie, it appears that the present applicant is not guilty of such offence and being an old aged retired employee, his liberty may be protected.
It is directed that in the event of arrest, applicant- Siddh Narain Sharma shall be released on anticipatory bail in the aforesaid complaint case number till conclusion of trial on his furnishing a personal bond of Rs. 2,00,000/- with two sureties of Rs. 1,00,000/- each before the court concerned with the conditions imposed - bail application allowed.
-
2022 (9) TMI 1427
Seeking grant of bail - money laundering - proceeds of crime - applicability of legal maxim sublato fundamento cadit opus (foundation being removed, structure/work falls) - maintainability of petition challenged for the reason that they are highly premature, because, as per Section 50 of the Prevention of Money-laundering Act, the petitioners cannot be said to be aggrieved persons by mere issuance of summons.
Effect of stay orders - HELD THAT:- The effect of an order of stay means that the operation of the impugned order is stayed or stands stalled as if the impugned order does not exist. Therefore, to bring the parties to the proceedings from taking further action in relation to the subject matter pending the final adjudication, stay order is granted in the interest of both parties. During the currency of stay order, if any proceedings are permitted to go on and in the meanwhile, if any damage has been caused to the reputation or the goodwill of the parties, the same cannot be compensated. Whereas if the Department waits for the final outcome of the proceedings, no prejudice would be caused to them - since the ECIR itself was only on the basis of the said three First Information Reports, when the proceedings pursuant to the said First Information Reports have been stayed by the High Court, whether the ECIR, which is also pursuant to the First Information Reports, can be proceeded with, is a question that stares at open. The considered answer is in the negative.
Generally, the summons are issued for appearance of a party on a particular date. If a party does not appear on the given date, fresh summons demanding the appearance of the person have to be issued. In the present cases, in view of the reasonings and the findings as stated, the last of the summons issued to the petitioners for their appearance on 09.05.2022 have elapsed.
Petition allowed.
............
|
9911796707
