|
Advanced Search Options
Case Laws
Showing 241 to 260 of 2184 Records
-
2018 (5) TMI 1950
Maintainability of appeal - initiation of CIRP - ‘Provisional Liquidator’ has been appointed - HELD THAT:- Where the ‘Provisional Liquidator’ has been appointed, the question of initiation of ‘Corporate Insolvency Resolution Process’ under Section 9 of the Insolvency and Bankruptcy Code, 2016, against the same ‘Corporate Debtor’ does not arise.
Appeal dismissed.
-
2018 (5) TMI 1949
Payment of interest on PDCs - Part relief given by the ld. CIT(A) on account of interest and PDCs - HELD THAT:- We find the ld. CIT(A) following his decision in the case of M/s Business Park Promoters Pvt. Ltd. [2015 (5) TMI 507 - ITAT DELHI] for assessment year 2006-07 directed the Assessing Officer to compute the interest on the PDCs after a period of six months from the sale deed, as a result of which only an amount of ₹ 2,92,851/- was sustained and the balance amount was deleted.
We further find the Tribunal in the case of M/s IAG Promoters and Developers Pvt. Ltd. [2014 (12) TMI 216 - ITAT DELHI] for assessment year 2008-09 and in the case of M/s Countrywide Promoters Pvt. Ltd. [2017 (11) TMI 1132 - ITAT DELHI] has taken similar view and the appeal filed by the Revenue on this issue has been dismissed. Therefore, respectfully following the decisions of the Coordinate Benches of the Tribunal in the case of sister concern, we do not find any infirmity in the order of the ld. CIT(A). Accordingly, the ground raised by the Revenue is dismissed
Addition u/s 40A(3) - assessee company has made payment of ₹ 1,00,000/- in cash to various farmers from whom land has been purchased - HELD THAT:- It may be stated that terms of collaboration agreement has not be overridden by A. O.. He has only analyzed the terms of the agreement, and by analyzing the term of agreement, he has given the finding that appellant is in the business of acquiring land and its development through CWPPL and therefore, payment made to farmer/seller of land is an expenditure in applicant's hand. Accordingly Section 40A (3) is applicable.
After considering entire facts and circumstances of the case, uphold the addition made by Assessing Officer
-
2018 (5) TMI 1948
Disallowance of Depreciation on premises owned by it and used for the residence of the Director - Board's letter F. No. 9/26/IT/60, dated the 21st March, 1960 - HELD THAT:- The said flat was owned by the company. It was used by the directors for residence. The case has also been made out that the assessee company is engaged into share trading and the said premises was also used by directors for official works of the company.
The issue is squarely covered in favour of the assessee by the decision of the full bench of Hon’ble Delhi High Court in the case of CIT vs. Modi Industries Ltd. [1994 (4) TMI 61 - DELHI HIGH COURT] and the CBDT Circular where it was held that the quarters built by the employers for the accommodation of their employees must be regarded as buildings used for the purpose of the business and depreciation allowed thereon, where the occupation by the employee of the property owned by the employer is subservient to and necessary for the purpose of their duties. It is considered that what applies to buildings applies also to the fans, air-conditioners and refrigerators fitted to those buildings, as those are amenities which virtually part of such buildings.
The issue is decided in favour of the assessee.
-
2018 (5) TMI 1947
Implementation of the Indo Sri Lanka Free Trade Agreement for import of 1423 nos. of ‘visicoolers/ refrigerated display cabinets’ - Benefit of N/N. 19/2000-Cus (NT) dated 1st March 2000, read with notification no. 26/2000-Cus dated 1st March 2000 - primary allegation is that the said goods, after import by appellant, had been shipped to M/s Haikawa Industries P Ltd, Sri Lanka for reimport thereafter to circumvent the condition in notification to avail exemption.
HELD THAT:- A disposition of the issue on merit against the applicant without touching upon the issue of jurisdiction which, if ultimately decided against Revenue, would saddle them with a detriment that should never have been. On the other hand, postponement of decision on merit is not to the detriment of Revenue. Owing to this distinction of consequences, the Tribunal has been deferring the determination of such disputes, on merit, by remanding the matter back to the original authority for awaiting a finality on jurisdiction. This would best serve the ends of justice.
Appeal disposed off by way of remand.
-
2018 (5) TMI 1946
Disallowance u/s 14A - absence of exempt income - HELD THAT:- Now it is settled proposition of law that the provisions of Section 14A cannot be invoked in the absence of exempt income. Reliance in this regard can be placed on the decision of Special Bench of ITAT, Hyderabad in the case of ACIT Vs. Progressive Constructions Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD] . The decision of the learned CIT (Appeals) is in consonance with the ratio laid down in the Special Bench (supra). Therefore, we do not find any reason to interfere with the impugned order of the learned CIT (Appeals). Hence the grounds raised by the revenue are dismissed.
-
2018 (5) TMI 1945
Transfer Pricing Adjustment - As argued assessee as well as its AE have incurred losses and hence no Arm’s Length Price adjustment can be made in respect of the international transactions with its AE - HELD THAT:- We find that in the case of Apollo Health Stree [2014 (12) TMI 515 - ITAT HYDERABAD] the Tribunal was considering the case of an assessee, who is the parent company of the group, and all the profits were flowing back to India and the DRP had given a finding that the TP adjustment could not be higher than the consolidated profits of the group. On appeal by the assessee against the order of the A.O not giving effect to the direction of the DRP, the Tribunal had held that the directions of the DRP have to be given effect to by the A.O. There is no finding of the Bench as to whether the global profits have to be considered for reference to the TPO for the determination of the Arm’s Length Price. Therefore, said decision is not applicable to the facts of the case before us.
There was no decision as to correctness of the order of the DRP, and therefore it cannot be said to have been be decided on merits of the issue. In view of the same, the assessee’s ground of appeal No. 4(l) is rejected.
MAM - method adopted by the TPO - assessee has adopted CPM method, whereas the TPO has adopted TNMM as the most appropriate method - HELD THAT:- At the time of hearing, the Ld. Counsel for the Assessee submitted that the assessee has no objection to the adoption of TNMM as the most appropriate method but submitted that only the segmental results of the comparable companies should be considered. He sought for such a direction to the TPO.
In view of the agreement of the both parties, we remit the issue to the file of the TPO with a direction to consider only the segmental results of the assessee as well as the comparables, for determining at the Arm’s Length Price of the international transaction.. In the result, the ground of appeal No. 4 is partly allowed.
Corporate guarantee as an international transaction - HELD THAT:- In the case of Dr. Reddy’s Laboratories Vs. ACIT [2017 (5) TMI 529 - ITAT HYDERABAD] wherein it has been held that before the amendment of Sec. 92B of the IT Act w.e.f A.Y 2013-14 , thus corporate guarantee cannot be considered as an international transaction Corporate guarantee is not an international transaction for the A.Y 2012-13 and the ground of appeal No. 5 is accordingly allowed.
Advances to subsidiary companies - HELD THAT:- In the case before us, the nature of advances and the purpose of advances are not mentioned. Respectfully following the decision of the Coordinate Bench of this Tribunal in the case of GSS Infotech Ltd. Vs ACIT [2016 (7) TMI 243 - ITAT HYDERABAD] we remit the matter back to the A.O for consideration of the purpose of the advances and if it is a trade advance, thus no interest shall be leviable, but if it is treated as a loan, then the rate of interest would be at LIBOR plus percentage as directed by the Tribunal in the case of GSS infotech Ltd. Vs ACIT. Thus, the ground of appeal No. 6 is treated as partly allowed for statistical purposes.
Interest on outstanding receivable - HELD THAT:- In the case before us the amount was received within a period of one year from the date of advance. Therefore, respectfully following the decision of the GSS INFOTECH LIMITED [2016 (7) TMI 243 - ITAT HYDERABAD], BARTRONICS INDIA LTD. VERSUS DY. COMMISSIONER OF INCOME TAX, CIRCLE – 1 (2) , HYDERABAD. [2017 (9) TMI 1649 - ITAT HYDERABAD] we hold that no interest is chargeable on the receivables. The ground of appeal No. 7 is accordingly treated as allowed.
-
2018 (5) TMI 1944
Disallowance u/s 14A - no exempt income was earned - HELD THAT:- There is no dispute with regard to the fact that the assessee-company did not earn any exempt income during the years under consideration. In fact, in the grounds, duly authorised by the CIT, the Revenue has not objected to the claim of the assessee that no exempt income was earned during the years under consideration.
Identical issue had come for adjudication before the ITAT Hyderabad in number of cases wherein the Bench observed that section 14A refers to disallowance of expenditure “in relation to income” which pre-supposes existence of income in the form of dividend as otherwise section 14A cannot be pressed into service. - Decided against revenue.
-
2018 (5) TMI 1943
Disallowance of commission payment - HELD THAT:- Assessee has submitted enough evidence in support of utilizing the services of agents in the business and also revenue authorities have not brought any cogent material to show that the payments were come back to assessee and these payments cannot be categorized as gratuitous payments. Therefore, we delete the addition made by the AO. Hence, grounds raised by the assessee are allowed.
Reopening of assessment u/s 147 - HELD THAT:- AO came to conclusion that the payments of commission claimed by assessee are not genuine in AY 2011-12 and he came to conclusion on the same breath that the payments were made in the earlier years are also not genuine even though these assessments were completed u/s 143(3). The findings of AO are mere presumptions and not reached the logical conclusion and not put to test before any adjudicating authorities. If it is allowed to these actions, there cannot be any completed assessments. The legislature/courts have taken enough precautions to avoid such type of reopening of assessment by mere change of opinion. By relying on the above judicial precedents, in our view, AO has reopened the assessment merely based on presumption and change of opinion. Therefore, the reopening of assessment in AY 2009-10 & 2010-11 are bad in law. Accordingly, ground raised by the assessee is allowed in both the years under consideration.
-
2018 (5) TMI 1942
Disallowance u/s 14A r.w. Rule 8D2(ii) - availability of own funds - HELD THAT:- We noticed that the appellant has own fund more than investment. The capital and reserves fund was to the tune of ₹ 26,433.77 lacs. The investment was to the tune of ₹ 9,453.07/- lacs. In view of law settled in Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] investment portion was not liable to be considered in computing the disallowance u/s 14A r.w. Rule 8D - The matter of controversy has rightly been adjudicated by the CIT(A) . Facts are not distinguishable at this stage also. No distinguishable material has been produced before us. In view of the said circumstances, we are of the view that the CIT(A) has rightly adjudicated the matter of controversy on this issue, therefore, we found no ground to be interfere with in this issue.
Restriction of disallowance made u/s 14A r.w. Rule 8D of the Rules to the extent of dividend income from non-trade investment - HELD THAT:- We noticed that the CIT(A) has restricted the AO to re compute the administrative expenses to the extent of ₹ 118.17 lacs which was the investment to earn the dividend income. In this regard, the matter of controversy has been adjudicated in the case of ACIT, Circle 17(1) New Delhi Vs. Vireet Investment P. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] in which it specifically held that only those investment are liable to be considered for computing average value of investment which yielded exempt income during the year. In view of the said circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and incorrectly which is not liable to be interfere with at this stage. Accordingly, this issue is being decided in favour of the assessee against the revenue.
-
2018 (5) TMI 1941
TP Adjustment - comparable selection - working capital adjustment - HELD THAT:- Hon’ble Bombay High Court in CIT Vs. PTC Software (I) Pvt. Ltd. [ 2016 (9) TMI 1282 - BOMBAY HIGH COURT] has held that the data for the same period is to be applied in order to hold the concerns selected, as comparable. We find that where the assessee is following financial years for compiling its data i.e. 01.04.2010 to 31.03.2011, the two concerns selected i.e. R System International Ltd. and Coral Hub Ltd. do not fulfill the said filter.
The accounting periods of said two concerns are at variance to the accounting period followed by the assessee and consequently, the margins of said concerns could not be applied to benchmark the arm's length price of international transactions undertaken by the assessee. Accordingly, we hold so. Thus, we direct the Assessing Officer / TPO to exclude the margins of said two concerns i.e. R System International Ltd. and Coral Hub Ltd. The learned Authorized Representative for the assessee has filed the details of margins of the concerns selected as comparables after working capital adjustment and the mean margins of the concerns finally selected worked out to 15.82%. The assessee’s PLI worked out to 14.46%.
Where the margins shown by the assessee and the mean margins of comparables are within +/-5%, then no transfer pricing adjustment is to be made in the hands of assessee. It may be pointed out herein itself that the Assessing Officer had also deleted proposed addition made by the TPO after giving effect to the directions of the DRP. Consequently, we allow the grounds of appeal raised by the Revenue, though tax effect in the said appeal would be nil.
-
2018 (5) TMI 1940
Assessment u/s.153A - absence of any incriminating found during the course of search - HELD THAT:- On the date of search, i.e., 15.11.2007, the assessment for the Assessment Year 2005-06 was not pending and hence it cannot be reckoned as abated assessment in terms of 2nd proviso to Section 153A. It is now a well settled law by the Hon'ble Jurisdictional High Court that in case of unabated assessment, if no incriminating material has been found or seized during the course of search, then no addition can be made merely based on information already available on record, i.e., in the return of income filed originally/original assessment.
AO himself in the impugned assessment order has not referred to any seized documents or incriminating material found during the course of search albeit has proceeded on the perusal of the computation of income filed in the original return of income. The Hon'ble Jurisdictional High Court in the case of CIT vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] after considering catena of decision has held that if in relation to any Assessment Year, no incriminating material is found then no addition or disallowance can be made in relation to that Assessment Year in exercise of power u/s.153A.
This principle has been reiterated in the case of Pr.CIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] and again in the case of Pr.CIT vs. Best Infrastructure (India) Pvt. Ltd. [2017 (8) TMI 250 - DELHI HIGH COURT] . In view of the binding judicial precedent of the Hon'ble Jurisdictional High Court, we hold that no addition can be roped in the assessment made u/s.153A in absence of any incriminating found during the course of search, especially in the case of unabated assessment. Appeal of the Revenue is dismissed.
-
2018 (5) TMI 1939
Condonation of delay of 65 of days in filing - Time limitation - grant of Arbitral award - Section 5 of the Limitation Act - HELD THAT:- A careful reading of the application would show that the application is highly casual in nature, it lacks material particulars and does not disclose sufficient cause for condoning the delay.
While considering the application seeking condonation of delay, the period of delay is not the criteria. A short delay may not be condoned in the absence of an acceptable explanation while a large delay may be condoned if the explanation is satisfactory. Courts cannot lose track of the fact that normally after the expiry of the period, the right to sue extinguishes and the other side acquires a right which should not be usually disturbed as it would cause injustice to the opposite party.
In this case, the application seeking condonation of delay is completely silent as to when the certified copy of the impugned judgment was received and the causes for the delay in filing the present appeal. Reading of the application would show that delay was caused on account of times spent in seeking opinion from some counsel - This in our view cannot be treated as sufficient grounds as no details have been provided and only a bald statement has been made. In the absence of any satisfactory explanation, it cannot be said that the delay was caused due to bonafide reasons and not on account of negligence or inaction. The Court cannot lose track of the fact that the appellant is not an illiterate litigant but a company which admittedly has its own legal department which is evident from reading para 2 of the application.
Application dismissed.
-
2018 (5) TMI 1937
Direction that the transaction entered into by the promoters and Directors of the Corporate Debtor creating mortgage of 858 acres of immovable properly owned and in possession of the Corporate Debtor, to secure the debt of related party - fraudulent and wrongful transactions within the meaning of Section 66 of I&B Code - Whether Interim Resolution Professional has authority to file this application? - HELD THAT:- Sub-section (1) of sec. 25, casts a duty upon the Resolution Professional to preserve and protect the assets of the Corporate Debtor, including the continued business operations of the Corporate Debtor. For this purpose, clause (J) of sub-section (2) of sec. 25 casts a duty upon the resolution professional to apply for the avoidance of any such transaction before the Adjudicating Authority by chapter III of the code. Thus, in view of the provisions of the Code and the orders passed by the Hon'ble Supreme Court, the applicant has a duty to file an application for avoidance of any such transaction before the Adjudicating Authority in accordance with chapter III of the code and therefore, contention of the applicant that the RP has no locus standi to file the present application, is without any basis.
The contentions raised by the respondent number 15 that the applicant does not have jurisdiction to Act as Resolution Professional deserves to be rejected - the issue decided in negative in favour of the applicant Resolution Professional.
Whether impugned transactions have been carried out with intent to defraud creditors of the corporate debtor or for any fraudulent purpose and is covered under section 66 of the Code? - Whether impugned transactions are preferential transactions covered u/s 43(2)(a) of the code or undervalued transaction covered under section 45 of the Insolvency in Bankruptcy Code 2016? - Whether look-hack period available for the impugned transactions as per provision of section 46(1)(i) is one year or two years? - HELD THAT:- The statutory requirement under sub-section (1) of section 43 of IBC requires that RP has to form an opinion and this opinion can only be formed by perusing the records available with him. Under the Code, the Resolution Professional is not required to give a judgment for initiating action under section 43. In case, if the resolution Professional has formed an opinion that the corporate debtor has at the relevant time given a preference in such transactions and such manner as laid down in sub-section (2) to any persons as referred in sub-section (4) then he shall apply to the Adjudicating Authority for avoidance of preferential transactions referred to in section 44 of the code. Thus statutory requirement to take the decision is on the Adjudicating Authority not on the Resolution Professional. The opinion formed by the Resolution Professional can be based on the records available with him.
The subsidiary and its holding company is defined as the related party given the provision of section 5(24) of Insolvency and Bankruptcy Code. Admittedly corporate debtor Jaypee Infratech Ltd. JAL is a subsidiary of Jaiprakash Associates Ltd. (JAL.) - It is clear that for transactions of a related party look back period is two years preceding the insolvency commencement date. Admittedly, in this case, the insolvency commencement dale is 9th August, 2017. Therefore the two years look back period as provided in the code commences from 10th August, 2015.
It appears that approval of JLF was not taken for the impugned transactions. It is important to point out that the corporate debtor was facing financial crunch and its account was declared as NPA, Joint Lenders Forum, a core committee of lenders was constituted under the directions of RBI and meeting of JLF was also held during 2015-2017. In the circumstances, why approval of JLF was not taken for the impugned transactions whereby unencumbered land of the corporate debtor was mortgaged to create security for the debt of JAL, i.e. a holding company of the corporate debtor.
The subject of transfer must be property or an interest in such property of the corporate debtor. The expression "of the corporate debtor" may be interpreted so as to refer to assets that qualify to be included in the liquidation estate under section 36. What forms part of the liquidation estate, in terms of section 36, is to be distributed in terms of section 53. Therefore, if any action on the part of the corporate debtor has the effect of affecting the availability, marketability or value of the any of (he ingredients of liquidation estate, must be covered by the section.
Whether creation of security interest or collateral may come within the purview of 'preferential transaction is to be observed'? - HELD THAT:- It is an undisputed fact, that a secured creditor is better placed than an unsecured creditor in insolvency/liquidation proceedings. Therefore, when a security is being offered to a creditor, he is being placed in a better position than other creditors. However, that does not necessarily result in preference. Grant of security interest, per se. is not preference, but may be proved to be a preference on fulfilment of conditions.
In this case, it is undisputed that after the release of earlier mortgage deeds, fresh deed has been executed in favour of the creditors of JAL, which happens lo be holding company of the corporate debtor. Holding company and subsidiary company are separate legal entities. After the release of earlier mortgage and creation of fresh mortgage cannot be treated as a continuation of the earlier mortgage - it is clear that the said act appears to have been committed to defraud the creditors of the Corporate Debtor which are certainly preferential transactions covered u/s. 43(2)(a) of the Code. Therefore, this issue is also decided in positive in favour of Resolution Professional.
The impugned transaction are preferential transactions as defined in the sub-section (2)(a) of Section 43 of insolvency and bankruptcy code 2016. We have found that corporate debtor Jaypee Infratech Ltd. (JIL) has by way of mortgage of unencumbered land created security interest in favour of lenders of the Jaiprakash Associates Ltd. (JAL), which happens to be the holding company of JIL, without any consideration - The said mortgage of immovable properties, i.e. of the unencumbered land of the incorporate debtor has been made without any consideration to the corporate debtor. Therefore the said transaction is covered under the umbrella of Sec. 45(1) of the Code and will be treated as an undervalued transaction as defined under section 45 of the Code.
The impugned mortgage of unencumbered land parcels of the Corporate Debtor in favour of lenders of the JAL to create a security interest are transactions between the Corporate Debtor, lenders of JAL and JAL, who happens to be an Operational Creditor of the Corporate Debtor - It is true that the collateral security is common practice in loan transactions. It is tin record that in this case, the Corporate Debtor was under liquidity crunch and its accounts were declared NPA by LIC and other creditors. The Joint Lender Forum was formed to deal with the situation. But the Corporate Debtor entered into the transaction even without taking prior approval of Joint Lender Forum and mortgaged its unencumbered land in favour of the lenders of the JAL.
It is clear that the impugned preferential transactions are also undervalued transactions and covered under section 45(1) of the Code. It is also clear that these transactions are undertaken during the relevant period of 2 years from the date of initiation of Corporate Insolvency Process as provided under section 46(1)(ii) of the Code. Therefore, this issue is also decided in positive, in favour of applicant Resolution Professional and against the Corporate -Debtor - it is clear that the mortgage of land of JIL in favour of tenders of JAL, amounts to transfer of interest in property of JIL for the benefit of its creditor i.e. JAL and putting it in a beneficial position vis-a-vis other creditors is a preferential transactions U/s 43(2)(a) & (b).
The transactions were executed within the look back period of two years before the commencement of Insolvency proceeding and is therefore covered U/s 43(4)(a). Further, transaction cannot be treated is in ordinary course of business or financial affairs of Corporate Debtor and is not excluded U/s 43(3) - the company application filed by the Resolution Applicant deserves to be allowed.
Application allowed.
-
2018 (5) TMI 1936
Rectification u/s 254 - order pronounced by tribunal beyond the period of 90 days from the conclusion of the hearing - HELD THAT:- Respectfully following the aforesaid decision(s) of G. Shoe Exports v. ACIT [2016 (12) TMI 1140 - ITAT MUMBAI] which has elaborately discussed this issue w.r.t. pronouncement of the orders by tribunal and other decisions of Hon’ble Court(s) cited by the learned counsel for the assessee, we allow this MA filed by the assessee on this short ground of pronouncing of the order beyond a period of 90 days, keeping in view Rule 34(5) of Income Tax (Appellate Tribunal) Rule, 1963 r.w.s 254(2) of the Act
-
2018 (5) TMI 1935
Disallowance towards payment of royalty - nature of expenses - revenue or capital - HELD THAT:- A similar royalty paid by the assessee was considered by this Tribunal for assessment year 2012-13 in [2016 (8) TMI 1204 - ITAT CHENNAI] and found that the payment was made for the right to use the Logo, hence it has to be allowed as revenue expenditure. In view of the order of this Tribunal for assessment year 2012-13 in the assessee's own case, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Disallowance u/s 14A - HELD THAT:- The Madras High Court in the case of Redington (India) Ltd. v. Addl. CIT [2017 (1) TMI 318 - MADRAS HIGH COURT] observed that tax cannot be levied in vacuum. In case no income was earned, there cannot be any disallowance under Section 14A of the Act. Therefore, the CIT(Appeals) restricted the disallowance to the income earned by the assessee. In view of the judgment of Madras High Court in Redington (India) Ltd. (sura), this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Disallowance of Reserve Fund under Section 45-IC of the Reserve Bank of India Act - HELD THAT:- This Tribunal by placing reliance on [2016 (8) TMI 1204 - ITAT CHENNAI] found that transfer of funds as required under Section 45-IC of the Reserve Bank of India Act is only application of income, therefore, it is liable for taxation. In view of the above, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Levy of interest under Section 234D - HELD THAT:- Interest was charged on the excess amount refunded by the assessee while processing return under Section 143(1) of the Act. While proceeding under Section 143(1) of the Act, the amount refunded to the assessee was considered as non-payment of tax and interest was charged for the period for which the assessee was holding the amount. Therefore, this Tribunal confirmed similar order of the CIT(Appeals). Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Computation of income under Section 115JB - HELD THAT:- This Tribunal is of the considered opinion that the transfer of funds to the Reserve under Section 45-IC of the Reserve Bank of India Act is only application of income, therefore, it is a profit of the assessee. Hence, the same was rightly taken as income while computing book profit under Section 115JB of the Act. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
-
2018 (5) TMI 1934
Conversion of the case from Limited Scrutiny to Complete Scrutiny - no additions have been made regarding the ‘Limited Scrutiny’ through CASS - HELD THAT:- As taken into consideration the written submission of the assessee but we did not find it controverting the decision of ld. CIT(A) on the issue of converting the case of the assessee from ‘’limited scrutiny’’ to ‘’complete scrutiny’’. It is noted that the ld. CIT(A) has explicitly dealt with the issue in his order which does not require any interference. Hence, the Ground No. 1 of the assessee is dismissed.
Disallowance of provision for Bad and Doubtful debts - HELD THAT:- Provision for bad doubtful debts made are as per RBI guidelines which includes standard assets. The deduction claimed is in conformity with the CBDT Instruction No. 17/2008 dated 26-11-2008 (supra). Issue of disallowance for standard asset is restored to the file of the AO to verify as to whether the provision for standard assets has been made as per guidelines of the RBI. If the assessee has complied with the provision as per RBI Guidelines, the relief may be given to the assessee by providing adequate opportunity of being heard to the assessee. Thus Ground No. 2 (I) of the assessee is allowed for Statistical purposes.
Disallowance of insurance premium paid to LIC and others towards leave encashment liability - HELD THAT:- Assessee drew our attention to the decision of ITAT Jaipur Bench in the case Jhalawar Kendriya Sahakari Bank Ltd vs ACIT [2014 (8) TMI 1127 - ITAT JAIPUR] wherein the Bench has allowed the benefit of Group leave encashment Scheme to the Bank - AR of the assessee further submitted that the assessee has discharged its liability towards leave encashment scheme, the same is therefore, allowable as expenditure u/s 37(1) of the Act. Taking into consideration the above facts and circumstances of the case and the decisions relied upon by the ld.AR of the assessee, it will be in the interest of equity and justice to restore the issue to the file of the AO for afresh adjudication. The assessee is directed to submit the written submission alongwith relevant details before the AO. Thus Ground No. 2(ii) of the assessee is allowed for Statistical purposes.
-
2018 (5) TMI 1933
Addition u/s 69C - assessee failed to discharge the primary onus to establish the genuineness of purchases from these concerns - HELD THAT:- AO asked the assessee to produce the these parties alongwith the books of accounts in order to prove the genuineness and verification of the transactions made. The assessee failed to do so. The notices sent by the AO to these concerns M/s. Ankit Exports, Mumbai and M/s. Natasha Enterprises, Mumbai were returned back unserved. The assessee could not prove the genuineness of the purchases made from M/s. Ankit Exports, Mumbai and M/s. Natasha Enterprises, Mumbai.
The assessee failed to discharge the primary onus to establish the genuineness of purchases from these concerns. The assessee could not prove the genuineness of the purchases. AO made the addition of ₹ 52,36,462/- (i.e. 25% of the total purchases of ₹ 2,09,45,850/-).
CIT(A) has restricted the disallowance to the extent of 15% in view of the decision of ITAT Jaipur bench in the case of Shri Anuj Kumar Varshney vs ITO and others [2015 (4) TMI 533 - ITAT JAIPUR].Since the ITAT, Jaipur Bench has already taken the decision of confirming the addition of 15% on unverifiable purchases in the similar line of cases, therefore, we concur with the findings of the ld. CIT(A). Thus the Ground No. 1 & 2 of the assessee are dismissed.
Bogus purchases - AO initiated the proceedings u/s 147/148 - HELD THAT:- Assessee is engaged in the business of gold and diamond jewellery. The AO had information in his possession that the assessee had taken accommodation entries from Shri Praveen Kumar Jain group who himself admitted in his statement recorded u/s 132(4) of the Act that he is providing accommodation entries for commission. He was issuing bogus invoices to the needy parties on commission basis. The assessee had made purchases from two concerns namely M/s. Ankit Exports, Mumbai and M/s. Natasha Enterprises, Mumbai, controlled and managed by Shri Jain.
AO had sufficient reason to believe that the income had escaped assessment as the assessee had not disclosed all the material facts fully and truly necessary for assessment. The earlier the assessment was made u/s 143(3) however, the fact about the bogus purchases from the concerns controlled by Shri Jain was not disclosed by the assessee during assessment proceeding. The fresh information was received by the AO and the AO initiated the proceedings u/s 147/148. Thus, it is not the case of change of opinion as the assessment was reopened on the basis of fresh information received with regard to bogus purchases. Assessee has not disclosed truly and fully all materials facts which were necessary for determining the true and correct income of the assessee. During the course of hearing, it is also noted that the assessee could not controvert the findings of the CIT(A). - Decided in favour of assessee.
-
2018 (5) TMI 1932
Reopening of assessment u/s 147 - Reason to believe that income chargeable to tax has escaped Assessment on the basis of the Assessment Order relating to Assessment Year 2005-06, when he issued the re-opening notice dated 9th March, 2009 - HELD THAT:- SLP dismissed.
-
2018 (5) TMI 1931
Clearance of consignments - HELD THAT:- On a copy of the application so made being produced, the Respondents will allow the consignment to be cleared and which clearance will also be without prejudice to their rights and contentions in this affidavit-in-reply.
It is fit and proper to admit this Petition so as to consider the larger controversy - Place the Writ Petition for interim relief on 25 June 2018.
-
2018 (5) TMI 1930
Unexplained cash amount paid for purchase of office/ flat based on material found during the search on Hiranandani group of cases - Genesis of the conclusion of AO was that the assessee has paid on money for purchase of property under consideration was based on contents of pen drive which was seized from the residence of an ex e-employee of the Hiranandani group of cases - HELD THAT:- As decided in SHRI. ANIL JAGGI case [2018 (2) TMI 51 - ITAT MUMBAI] material relied upon by the lower authorities does not corroborate the adverse inferences drawn as regards the investment made by the assessee, therefore, the same cannot conclusively form a basis for concluding that the assessee had made payment of "on money" for purchase of the property under consideration. We thus in the backdrop of our aforesaid observations are of the considered view that the adverse inferences drawn by the A.O as regards payment of "on money" by the assessee for purchase of Flat are based on of premature observations of the A.O, which in the absence of any clinching evidence cannot be sustained. We thus are unable to subscribe to the view of the lower authorities and set aside the order of the CIT (A) sustaining the addition in the hands of the assessee - Decided in favour of assessee.
............
|
9911796707
