|
Advanced Search Options
Case Laws
Showing 241 to 260 of 2049 Records
-
2018 (3) TMI 1813
Doctrine of separation of powers - scope of judicial review - offences punishable under the Indian Penal Code and Unlawful Activities (Prevention) Act, 1967 - Scheduled offences - Whether a Court can interfere with the Executive's choice of Investigating Agency in Criminal Investigation?
HELD THAT:- We have carefully examined the original file of the Home Ministry, placed for our perusal in sealed covers by the learned Additional Solicitor General. The proceedings recorded therein, clearly indicate that the Home Ministry had received information that, one of the accused was a senior leader of 'Popular Front of India'. The Home Ministry sought information from the State Government. The State Government did not send any report. However, in the meanwhile, the Commissioner of Police, conveyed to the NIA that offences under UA Act were included, after obtaining permission from the Jurisdictional Magistrate. In the circumstances, the Home Ministry have passed the order, directing investigation by the NIA. We may record that, the matter was considered at various levels of the Home Ministry and finally placed for consideration of the Minister of State (Home), as also the Union Home Minister.
A careful and harmonious reading of the Statement of Objections filed by the Central Government in juxtaposition with the file notings, leads to an inference that, though the State Government had not sent any report to the Central Government, the communication sent by the Commissioner of Police, was on the file of the Home Ministry and the same was considered. We may further record that, the Home Ministry's notings clearly refers to the communication sent by the Commissioner of Police. In the circumstances, we find no error in Central Government invoking suo motu power. As a corollary, the view taken by the Hon'ble Single Judge, amounts to substitution of Executive's opinion and therefore, not sustainable.
It is also fairly well-settled that, doctrine of separation of power does not permit transgression of jurisdictions between the Legislature, the Executive and the Judiciary. We may hasten to add that, the Executive's decision may be called in question seeking judicial review. But judicial review is permissible strictly within well-defined parameters.
Thus, the Writ Petitions were filed invoking Article 226 of the Constitution of India and they were adjudicated as such - these Writ Appeals are maintainable - appeal allowed.
-
2018 (3) TMI 1812
Maintainability of application - initiation of CIRP - Suspension of trading on the Applicant Exchange’s platform - existence of debt or not - claim related to sister concern - HELD THAT:- It is distinct and noticeable from the pleadings and evidences from both the sides that the claim is not pertaining to the Corporate Debtor but it is related to a sister concern of the Corporate Debtor viz. P.D. Agro Processors Ltd. Though the whole business conducted by the sister concern is in favour of the Corporate Debtor, as contended by the Applicant, there is no authenticating documentary evidence to prove that the Corporate Debtor is legally liable for the payment of outstanding dues arising out of the business transactions made between P.D. Agro and the Applicant herein.
It is necessary for a claimant to place on record that there was existence of debt due to the said Operational Creditor to be claimed against the Corporate Debtor. There should be a direct nexus between Operational Creditor and the Corporate Debtor. It is to be established by the Operational Creditor through records available or other relevant documents such as contract agreement, service agreement with Corporate Debtor or any invoice or any Court of Order or Financial Accounts. Even Form-B prescribe for lodgement of claim requires details of mutual credit or mutual debts or mutual dealings between the Corporate Debtor and the creditor. A third party is not entitled to lodge its claim even indirectly through a sister concern.
Application dismissed.
-
2018 (3) TMI 1811
Debt Resolution Plan - It is argued by the learned Senior counsel for the petitioner that no such resolution has been made by the Bank - HELD THAT:- This Court finds that an arguable case appears in favour of the petitioner and if notice is not issued and an appropriate order of interim protection is not granted, the petitioners unit will be taken over as per the provisions of Sections 16 and 17 of the Insolvency and Bankruptcy Code, 2016. It is also not disputed that a proceeding has been initiated under Section 10 of the aforesaid Code.
Issue notice to the opposite parties by Speed Post, making it returnable within a period of three weeks, indicating that the matter shall be disposed of at the stage of admission - List this matter on 12.4.2018.
-
2018 (3) TMI 1810
VCES Application - time limitation - whether delay in issuing SCN by the authorities beyond 30 days from the date of filing the VCES application pursuant to Finance Act, 2013 could be rejected as time bar? - Circular dated 08.08.2013.
HELD THAT:- A harmonious reading of the Finance Act, 2013 and the Circular makes it clear that the Board has issued the clarification to expedite the process of VCES application making it necessary to issue notice within 30 days, if it is proposed/ intended to reject the same. However, the said Circular cannot disturb the upper limit of one year fixed by the legislation as prescribed under Section 111 of the Finance Act, 2013.
Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] observed that in a case there is a conflict between the Circular and the Rule, the Rule should prevail.
The appeal is remanded to the Ld. Commissioner (Appeals) to decide the case on merit afresh - appeal allowed by way of remand.
-
2018 (3) TMI 1809
Addition on account of “donation and subscription” - HELD THAT:- In the present case in hand, the assessee has filed details of donation covered u/s.80G of the Act, which are relied by the Assessing Officer in assessment order and the Assessing has granted relief available under 80G being 50%, which is not disputed and made disallowance of balance claim and other claims and we consider the facts and restrict the disallowance to the extent of ₹ 3.69 lakhs and partly allowed the ground of appeal of the assessee.
Disallowance of CMPDIL expenses - eligible for deduction u/s.37(1) - CIT(A) confirmed the action of the Assessing Officer with a rider that the said expenditure is to be allowed as per provisions of section 35E - HELD THAT:- CIT(A) observed that the expenditure is not incurred on existing revenue yielding mine but such expenditure is in connection with a new capital asset. Therefore, this expenditure is in the nature of preliminary and prospecting expenditure covered u/s.35E of the Act and directed the Assessing Officer accordingly.
CIT(A) gave his findings that the claims of the assessee has to be allowed u/s.35E and not under section 37 of the Act, as the expenses being preliminary and prospecting expenditure. We also find that the Tribunal for the assessment year 2008-09 [2018 (1) TMI 326 - ITAT CUTTACK] on similar issue has held that the assessee shall approach the respective assessing authorities to consider the claim of the assessee. Following the same, we direct the Assessing Officer to allow the claim of the assessee u/s.35E of the Act. This ground of appeal of the assessee is allowed for statistical purposes.
Addition under the head “deterioration of stock ‘ - HELD THAT:- As the net realizable price is less than notified price and deterioration occurs due to degradation of coal for losing its Useful Heat Value, such provision is to be made to give a true and fair valuation of the stock of coal. Hence, to take care of all such contingency it was found that a provision of 10% is sufficient and accordingly the stock is valued. Ld A.R. submitted that the disallowance made by the Assessing officer is reduced by ₹ 361.20 Lakhs in the order u/s. 154 dated 28/03/2012 pertaining to amount of provision on account of deterioration in opening stock. Hence the net disallowance on this account remains at ₹ 537.87 Lakhs’. It was submitted that as per accounting policy consistently followed by the assessee company (clause 10.2 of Schedule - 'O' , Provision @ 10% on the value of closing stock of coal is made to take care of deterioration of stock due to fire and longer period of stocking etc. where the stock is valued at Net Realizable Value. No such provision is made where the stock is valued at cost.'
Before us, both the parties agreed that the issue requires reconsideration for the assessment year 2004-05 to 2007-08 in absence of any technical report In support of the claim and as there is any evidence in support of the claim, the learned CIT(A) is not justified in allowing the claim of the assessee which has been quantified on a percentage basis i.e., 10% that too without any material basis. At the same time, it is not improbable that there might be certain deterioration of stock due to fire and longer period of stocking etc., but a basis has to be based on the books of accounts itself and not in a whimsical manner. These facts, in our view, require reconsideration
Addition towards provision for obsolete and non-moving stores - HELD THAT:- As decided in own case authorities below have disallowed the claim of the assessee mainly on the ground that no details thereof could be furnished by the assessee. The assessee vehemently contended that the details thereof were produced before the ld CIT(A) including the area-wise details of amount charged against non-moving stores and spares. He also submitted a copy of such details, which is found placed at page 165 of the paper book. If that is so, in our considered view, without examining such details furnished before him the ld CIT(A) is not justified in upholding the disallowance as made by the Assessing Officer. Therefore, for the ends of justice, we set aside the impugned order of the CIT(A) and restore this issue to the file of the AO for consideration afresh
Addition of charge on lease hold land - HELD THAT:- As decided in own case [2018 (1) TMI 326 - ITAT CUTTACK] hold that the lease hold rights are not eligible for depreciation u/s.32(1)(ii) of the Act considering it as intangible asset and, hence, dismiss this ground of appeal of the assessee.
Short credit of TDS - HELD THAT:- As decided in own case [2018 (1) TMI 326 - ITAT CUTTACK] Tribunal has observed that the credit of TDS should have been allowed to the assessee on the basis of original TDS certificates submitted by the assessee. Since the facts being identical for the present assessment year under consideration, we confirm the order of the CIT(A) and dismiss the ground of appeal of the assessee.
Allowability of HEMM rehabilitation expenses - revenue or capital expenditure - HELD THAT:- revenue has not challenged the order of the CIT(A) in assessment year 2003-04 but it was stated in the ground of appeal that the CIT(A) has not considered the issue on merit. But the CIT(A) has observed that the revenue having accepted the claim of the assessee in the earlier assessment year, has not filed second appeal. The findings of the CIT(A) are supported by the decision of Hon’ble Supreme Court in the case of Saravana Spg. Mills Pvt. Ltd [ 2007 (8) TMI 16 - SUPREME COURT] . Even before us, the revenue could not point out any specific error in the order of the CIT(A) except relying on the order of the Assessing Officer and no new facts have been brought on record to substantiate that the expenditure claimed by the assessee is of capital in nature. Hence, we uphold the findings of the CIT(A) and dismiss this ground of appeal of the revenue.
-
2018 (3) TMI 1808
Stay for recovery of outstanding amount - transfer pricing adjustment made by the Assessing Officer - HELD THAT:- Dispute arises for consideration is relating to transaction of engineering design services and information technology support services. The assessee has purchased raw material and finished goods from the Associated Enterprise.
This Tribunal is of the considered opinion that out of total demand of ₹ 9,55,56,640/-, the assessee has already paid ₹ 6,75,61,964/- and what remains is only ₹ 2,79,94,680/-. Now the assessee is willing to pay ₹ 60,00,000/-. Therefore, there is a prima facie case for grant of stay. Accordingly, the recovery of outstanding amount of ₹ 2,79,94,680/- is hereby stayed for a period of six months from today on the condition that the assessee shall deposit ₹ 60,00,000/- on or before 31-03-2018. If the assessee fails to deposit ₹ 60,00,000/- on or before 31-03-2018, the stay shall stand automatically vacated. The Registry is directed to post the appeal of the assessee for final disposal on 09-05-2018
-
2018 (3) TMI 1807
Eligibility for deduction u/s. 80P(2)(a)(i) - principles of mutuality - DR submitted that an assessee would be eligible for relief only if it falls within two categories of co-operative banks i.e., 'primary agricultural cooperative society' and 'primary co- operative agricultural and rural development bank' - HELD THAT:- AO examined the books of accounts and found that the society had advanced loans to non-voting/non-profit sharing members and earned profit from them. However, the profit was shared only with the voting members/shareholding members and hence, principles of mutuality did not exist among all the classes of members and accordingly held that the assessee is not eligible for deduction u/s. 80P(2)(a)(i) and completed the assessment. These findings have not been disputed. Thus, when the profits of the assessee are not shared with Associate Members as is done with the Members, it is clear that these assessee’s case fail on the principles of mutuality.
Referring to case of THE CITIZEN CO-OPERATIVE SOCIETY LIMITED, THROUGH ITS MANAGING DIRECTOR, HYDERABAD VERSUS ASSISTANT COMMISSIONER OF INCOME TAX [2017 (8) TMI 536 - SUPREME COURT] it is clear that the Hon’ble Supreme Court rejected the above assessee’s claim holding that the principles of mutuality was missing in that case. Although, both the Members to the transactions of this assessee are the contributors towards surplus, however, the Associate Members are not entitled to the benefits of surplus of the assessee and hence, the principles of mutuality is missing in this case. The assessee cannot be treated as a Co-operative Society meant only for its Members and providing credit facility to its Members and hence they are not entitled to the benefit of section 80P(2)(a)(i) of the Act. The Revenue’s above appeal is allowed.
-
2018 (3) TMI 1806
Levy of penalty u/s. 271(1)(c) - deposit of cash found in bank accounts - HELD THAT:- Assessee had made specific request for making further enquiries/investigation but no further enquiry was made by the A.O. If Utsav Corporation did not respond to the notice u/s. 133(6) A.O. should not have drawn any adverse inference without making any further enquiry. It appears that the entire additions have been made only on the basis of suspicion, conjunctures and surmises. In our considered opinion, the same cannot be the foundation for the levy of penalty u/s. 271(1)(c) of the Act.
Assessee had given a very logical and reasonable explanation in respect of cash found to be deposited in the bank accounts. It is equally true that the said explanation did not find any favour with the A.O. But the fact remains that a very logical and reasonable explanation was given by the assessee. In our understanding of the facts, we do not find any this to be a fit case for the levy of penalty u/s. 271(1)(c) - Decided in favour of assessee.
-
2018 (3) TMI 1805
Condonation of Delay Scheme -2018 - Restoration of name of from the Register of Companies - applicability of decision in the case of Sandeep Singh & Anr. v. Registrar of Companies & Ors [2018 (3) TMI 560 - DELHI HIGH COURT] where it was held that It is clarified that if the petitioners do not avail of the CODS-2018 or file the necessary documents as required for dissolution for the Company under Section 248(2) as stated above; in addition to other consequences, the petitioners would also be liable to be prosecuted for contempt of Court.
HELD THAT:- This petition can be disposed of with the direction that respondents will follow the directives contained in Sandeep Singh. It is made clear that the directives contained therein will apply to the petitioner mutatis mutandis.
The petitioners will, however, take steps both in consonance with the provisions of Section 248 (2) of the Companies Act, 2013 and under the Condonation of Delay Scheme, 2018 within a period of ten days from today.
-
2018 (3) TMI 1804
Addition made on account of cash payments in violation of section 40A(3) - Before the CIT(A) it was contended by the assessee that the cash payments were made to IFB Agro Industries Ltd, Panagarh Bazar, Budbud as per the compliances to be made with West Bengal Excise (supply of country spirit on payment of Duty) Rules, 2005 and it is a credit to the agent of the State Government and as such payments are covered by the exceptions contained in Rule 6DD (b) of Income Tax Rules, 1962 - HELD THAT:- In the case of Amrai Pachwai & C.S.Shop vs DCIT [2014 (2) TMI 979 - ITAT KOLKATA] held that Rule 6DD(b) is applicable that if the payments made to the Government agent in legal tender under the rules framed by it and considering the same and taking into consideration the facts and circumstances of the case that the assessee purchased country liquor and country spirit from the territorial licensee bottling plant IFB Agro Industries Ltd and payments in cash made thereto is protected by the exemption in terms of Rule 6DD(b) of Income Tax Rules, 1962 as per the notification issued by the Government. In view of the same, we find no infirmity in the order of CIT(A) as the grounds 1 to 5 raised in the appeal by the revenue are dismissed.
-
2018 (3) TMI 1803
Refund of education/ higher education cess - area based exemption under N/N. 56/2002-C.E., dated 14-11-2002 availed - Revenue entertained a view that such cess is not refundable as no exemption is provided for the same - HELD THAT:-The issue stands covered by the decision of Hon’ble Supreme Court in SRD Nutrients Pvt. Ltd. v. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT]. As such, following the ratio of the Hon’ble Supreme Court who held that the assessee is eligible for such refund which is paid along with the excise duty once the excise duty itself was exempted.
Valuation - inclusion of freight component in the transaction value - N/N. 56/2002-C.E., dated 14-11-2002 - HELD THAT:- In the present case the appellant/assessee is claiming that the goods were sold on FOR basis and as such the place of removal is the delivery point to the buyer. The freight element incurred by the appellant/assessee should form part of the assessable value in such FOR sale.
Hon’ble Supreme Court in CCE, Nagpur v. Ispat Industries Ltd. [2015 (10) TMI 613 - SUPREME COURT]. In the said decision the Apex Court held “under no circumstances can the buyer’s premises, therefore, be the place of removal for the purpose of Section 4 on the facts of the present case.
Following the ratio of the Apex Court in Ispat Industries Ltd., it is held that there is no justification for the appellant/assessee to consider the assessable value with Inclusion of freight element after the goods were sold/removed from the factory. As such, the question of paying duty on such value addition to be covered by the exemption under N/N. 56/2002-C.E. does not arise.
The appeals filed by the assessee-appellants contesting the eligibility for refund of education cess are allowed and the appeals regarding assessable value with inclusion of freight element are dismissed - Appeal allowed in part.
-
2018 (3) TMI 1802
Unexplained investment u/s 69 - statement u/s 131 was recorded from the assessee (appellant) Vijay Jain, Director of the Company, wherein it was admitted that he has purchased shares of ₹ 35,000/- of M/s. Kunjika Construction Private Limited and also invested in share application money at ₹ 44,28,000/- - HELD THAT:- Statement is to be believed as a whole and not in piecemeal as one part suits to the assessee and other part does not suits to the assessee. Shri Santosh Kumar Lalwani in reply to Question No.14 of his statement has clearly stated that he has entered into this agreement for purchase on 15.08.2005 and paid an amount of ₹ 8,00,000/- as advance (Bayana), after seeing the executors of said agreement for purchase of 1/3rd land had an agreement with original owner of the land in which it was clearly mentioned that they have right to sell the said property and they have paid ₹ 20 lakhs towards Bayana for the purchase of said land.
We are of the view that the Tribunal rightly upheld addition of ₹ 20,00,000/- (rupees twenty lakhs) as unexplained investment under Section 69 - findings recorded by the learned authorities are the findings of fact based on the agreement of purchase of land dated 15.08.2005 and the same was admitted by Shri Santosh Kumar Lalwani in reply to Question No.14 of his statement and thus, we cannot accept the contention of the learned counsel for the appellant that the learned authorities have committed an error in relying on the statement of Shri Santosh Kumar Lalwani. - Decided against assessee.
-
2018 (3) TMI 1801
Disallowance of deprecation on tenancy rights - tenancy rights were a form of license - HELD THAT:- As regards the assessee’s appeal we find the issue of deprecation of tenancy rights has been decided against the assessee by following the ITAT order in assessee’s own case [2015 (11) TMI 997 - ITAT MUMBAI] . Hence, we do not find any infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Hence, we uphold the same. Hence, the appeal by the assessee stands dismissed.
Payment to retired partners - HELD THAT:- No case has been made out that this has been reversed by the Hon’ble High Court. As regards the issue of payment to legal heirs of deceased partners, the same was also considered by the ITAT in assessee’s own case [2015 (11) TMI 997 - ITAT MUMBAI].The tribunal has elaborately considered the issue in by referring extensively to partnership deed on various case laws and thereafter held the issue in favour of the assessee and against the Revenue. Since the above has not been reversed by the Hon’ble High Court, we follow the same and uphold the order of the ld. Commissioner of Income Tax (Appeals).
-
2018 (3) TMI 1800
Disqualification as directors - non filing of financial statements and annual returns by the respective companies of which they are directors for the consecutive period of three years - Section 164 (2) of the Companies Act, 2013 - entitlement for availing the benefit of CODS 2018 - HELD THAT:- Though several contentions have been raised challenging the impugned order of disqualification as a director but during the course of the arguments learned Counsel appearing for the petitioners have prayed that they will be satisfied in case this Court is willing to accept their contention about their entitlement for availing the benefit of CODS2018. In this view of the matter we are not going into the matter of disqualification. All contentions thereto are kept open.
Learned ASG has pointed out that the appeals against the order passed by the learned Single Judge of the Delhi High Court are pending. It is, however, pointed out that the operation of the order passed by the Delhi High Court has not been stayed. It is stated across the bar that in fact the order passed by the Delhi High Court is already implemented in several cases.
The petitioners to take immediate steps in consonance with the provisions under Section 248(2) of the said Act, 2013 and under the CODS2018, in any case within a period of seven days from today.
-
2018 (3) TMI 1799
Penalty levied u/s. 271D - violation of provisions of Section 269SS - whether transfer by way of book entries was bonafide and was not to evade taxes specifically when accordingly to section 269SS deposit/loan of money cannot be accepted otherwise then by an account payee cheque/draft? - ITAT deleted penalty - HELD THAT:- Delay condoned. Leave granted.
-
2018 (3) TMI 1798
Restoration of name in the register of Registrar of Companies - name was struck off on the ground that the assessee has not filed the return of its income for the year 2010-11 even though the assessee Company has received the amount and that Ld. Assessing Officer has reasons to believe that income has escaped assessment - HELD THAT:- It is seen in the instant case that the Income Tax Department is yet to quantify the tax demand in relation to the Company whose name has been struck off and dissolved based upon the instigation of the persons in the management of the company, namely the 2nd and 3 rd respondent, as evident from the individual affidavits filed by these respondents declaring that the Company (i.e. Nexus Marketing Private Limited) does not have any dues towards Income Tax or any other Central or State Government Department/Authorities or any Local Authorities.
Income Tax Department can fall at best under the category of Creditor, provided tax or any other demand or sum is due under the Act from the Company which had been struck off.
In the absence of any demand having been raised or even the estimate of tax that may be due having also not been disclosed any where in the appeal, we are unable to appreciate, merely based upon mere reasons to believe on the part of the Income Tax Authority that income has escaped assessment, the department can prefer this appeal seeking for restoration of the name of the Company which has been struck off.
Appeal dismissed.
-
2018 (3) TMI 1797
Levy of penalty u/s. 271(1)(c) - LTCG claimed exempt in original return of income - defective notice - recording of satisfaction - HELD THAT:- The manner in which satisfaction has been recorded without specifying the charge and the perusal of order levying penalty clearly reveal that there was ambiguity in the mind of AO at the time of recording satisfaction, as well as, at the time of passing of the order levying penalty. No limb of section 271(1)(c) i.e. whether the penalty is being initiated for “concealment of particulars of income” or “furnishing inaccurate particulars of income” has been mentioned while recording satisfaction. Whereas, at the time of passing of the order levying penalty the AO has used both the expressions.
The charge for levy of penalty u/s. 271(1)(c) has to be specifically conveyed to the assessee at the time of recording satisfaction otherwise, the principles of natural justice are offended. The assessee should know the charge which he has to meet while defending his case for levy of penalty.
Thus, we are of considered view that the penalty proceedings suffer from element of vagueness at the time of satisfaction, and also at the time of passing of the order levying penalty u/s. 271(1)(c). Hence, the penalty proceedings are liable to be set aside.
Since, the assessee has succeeded on the legal issue and the penalty has been set aside, deliberating on the merits of appeal by Department would be merely an academic exercise. Accordingly, the appeal of Revenue is dismissed.
-
2018 (3) TMI 1796
Condonation of delay - delay of 554 delay - cause shown by the appellant as "sufficient cause" within the meaning of Section 5 of the Limitation Act - assessee's prolonged illness during the period in question - HELD THAT:- It is not in dispute that the appellant is an old man and in his late sixties. It is also not in dispute that he did suffer heart disease during the relevant period and later he was down with dengue fever. It is also not in dispute that he was hospitalized to get medical treatment for these two ailments for a long time during that period. It is also not in dispute that he was mentally disturbed due to disputes going on in his family and was not able to attend to his day-to-day duties due to his old age and prolonged ailments.
High Court did not dispute the genuineness of these facts and nor disputed the genuineness of the documents filed by the appellant in support of the cause pleaded. On the other hand, the High Court found as a fact that the appellant did suffer these ailments.
In our opinion, the High Court should have taken liberal view in the matter and held the cause shown by the appellant as "sufficient cause" within the meaning of Section 5 of the Limitation Act and accordingly should have condoned the delay in filing the appeal.
One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law.
Having regard to the totality of the facts and circumstances of the case and the cause shown by the appellant, which is duly proved by the documents, we are inclined to hold that the cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for condonation of delay of 554 days in filing the appeal deserves to be condoned.
-
2018 (3) TMI 1795
Reopening of assessment u/s 147 - borrowed investigation - whether AO has not supplied any document / material to substantiate his (AO’s) satisfaction, ownership / operation of the said bank account to prove the alleged receipt of US $ 62,000? - HELD THAT:- The opening and maintenance of these accounts have been confirmed by the Jordan National Bank. On 5.3.2001, an amount of US $ 62,000 was credited to the account no.123459 of Sh. Andaleeb Sehgal and out of this, a sum of US $ 60,000 was subsequently transferred perhaps as bribe to account no.5003202 of the Iraqi Regime in Jordan National Bank, Jordan. Thus, it becomes clear from these documents and statements obtained and recorded by the Enforcement Directorate that Sh. Andaleeb Sehgal received a sum of US $ 62,000 on 5.3.2001 on account of commission for sale of Iraqi oil to Masefield AG.” However, no such documents have seen the light of the day. Those documents might be perused by the AO/CIT (A) but neither those documents were referred in the impugned order nor given to the assessee nor brought before the Bench to substantiate the findings returned by AO as well as CIT (A).
If any such documents have been perused by Enforcement Directorate, it was the duty of the AO to collect those documents during his own investigation or the ld. CIT (A) should have brought on record the set of those documents during appellate proceedings but both have proceeded merely on the basis of reference sent by Enforcement Directorate and based their findings merely on assumptions.
The next contention raised byassessee that the adjudication proceedings before Enforcement Directorate are still pending and AO has not conducted independent enquiry but based his findings on the material collected by the Enforcement Directorate only. When no such document has been placed before the Bench, it is proved that the AO has not made any independent enquiry by collecting necessary documents but merely based his findings on the basis of letter received from Enforcement Directorate.
AO on the basis of surmises even stated that, “it is understandable because the facts suggest that in the instant case, only the name of Hamdaan Exports was used by Sh. Andleeb Sehgal but the money was actually pocketed by him. Further more, it is seen that Sh. Andaleeb Sehgal paid a sum of US $ 60,000 from his account to the Iraqi Regime.” These findings go to prove that without an iota of evidence, addition has been made by the AO and confirmed by ld. CIT (A).
Hon’ble High Court of Delhi in case cited as Pr. CIT-6 vs. Meenakshi Overseas Pvt. Ltd. [2017 (5) TMI 1428 - DELHI HIGH COURT] held that when reopening of the assessment is merely on the basis of information received from DIT (Inv.) and AO has jumped to the conclusion that the said tabulated instrument are in the nature of accommodation entry, it means that AO being quasi judicial has not applied his mind.
We are of the considered view that the entire case is based upon borrowed investigation stated to have been conducted by Enforcement Directorate and no evidence has been brought on record to connect assessee with the amount of US $ 62,000, rather it is a case of zero investigation. - Decided in favour of assessee.
-
2018 (3) TMI 1794
Deduction on account of provision for warranty - HELD THAT:- As decided in own case [2017 (8) TMI 1565 - ITAT PUNE] the claim of the assessee on account of warranty provision is allowed by the Tribunal in assessee’s own case in the A.Y. 2003-04. Ld. Departmental Representative has not brought anything on record to controvert the above finding of the Tribunal. Therefore, we find that the order of CIT(A) is in tune with the decision of the Tribunal. Therefore, the decision of the CIT(A) given is fair and reasonable and it does not call for any interference. Accordingly, Ground raised by the Revenue is dismissed.
Disallowance of claim of bad debts written - HELD THAT:- No distinguishable facts have been brought to our notice by Revenue in assessment year under appeal as compared earlier year 2010-11 . It is not the case of Revenue that the assessee has not written off bad debts in the books of account. Thus, in view of the law laid down by the Hon’ble Apex Court in the case of TRF Ltd. Vs. Commissioner of Income Tax [2010 (2) TMI 211 - SUPREME COURT] and the facts of case, ground No. 2 raised in the appeal by assessee is allowed.
Disallowance u/s. 40(a)(i) - contention of assessee is that the provisions of section 40(a)(i) have been invoked in the assessment year under appeal on the basis of amendment introduced by the Finance Act 2012 to section 9(1)(vi) by insertion of Explanations 5 and 6 to the section with retrospective effect from 01-06-1976 - HELD THAT:- No such disallowance can be made when at the relevant point of time the provisions were not in existence. AR has further submitted that the appeal of assessee arising out of proceeding u/s. 201 is pending before Commissioner of Income Tax (Appeals). The directions may be given to Assessing Officer to follow the order of Commissioner of Income Tax (Appeals) in aforesaid proceedings while making disallowance u/s. 40(a)(i) of the Act. In view of the prayer made by ld. AR, the ground No. 3 raised in appeal is remitted back to the Assessing Officer with a direction to recompute disallowance u/s. 40(a)(i) in line with outcome of appeal of assessee pending before the Commissioner of Income Tax (Appeals) in proceedings u/s. 201 of the Act. Accordingly, ground No. 3 raised in appeal by assessee is allowed for statistical purpose.
Aggregation approach accepted by CIT (Appeals) - HELD THAT:- Taking into consideration the facts of the case, US transfer price regulations, guideline notes issued by ICAI and OECD transfer pricing guidelines passed a detailed order upholding the order of Commissioner of Income Tax (Appeals) and dismissed the grounds raised by Revenue in own case [2017 (9) TMI 1836 - ITAT PUNE]
Accepting TNMM adopted by assessee for benchmarking its international transactions in Export packaging material segment - HELD THAT:- TPO accepted TNMM applied by assessee for benchmarking majority of international transactions with its AE. Only on small segment of packaging solutions the TPO disputed TNMM and applied CUP for benchmarking international transactions. Further, the TPO granted ad hoc adjustment of 5% for marketing functions and another ad hoc adjustment of 5% for royalty component without specifying the basis for granting such adjustments. Once, the TPO has accepted TNMM as the most appropriate method for benchmarking substantial section of international transactions, the TPO cannot dispute application of the most appropriate method in respect of marginal segment of same transaction.
The Co-ordinate Bench of Tribunal in the case of Intervet India (P.) Ltd. Vs. Deputy Commissioner of Income Tax [2016 (7) TMI 20 - ITAT PUNE] rejected such approach of TPO in applying CUP for determining ALP on small segment of transaction.
............
|
9911796707
