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Showing 241 to 260 of 2364 Records

• 2018 (7) TMI 2128
  

  TP Adjustment - risk adjustment of 1% - Maintainability of appeal against ITAT order - substantial question of law or not? - Whether Tribunal was right in law in directing the assessing authority / transfer pricing officer to allow risk adjustment of 1% to the assessee as per prevailing norms - HELD THAT:- ITAT held that the risk of having a single customer is an anticipated risk which may or may not happen unlike the marketing and technical risks which have to be contemporaneously dealt with by the comparables. The ITAT did not accept that the risk adjustment should be by 5% or at the difference of PLR of the RBI and the banks, and directed the TPO to consider all the contentions and decide the percentage of risk adjustments to be made in accordance with law. Respectfully following the decision of INTELLINET TECHNOLOGIES INDIA (P.) LTD. [2012 (6) TMI 237 - ITAT BANGALORE] as above the TPO is directed to decide the percentage of risk adjustments to be calculated in this case.

  Controversy involved herein is no more res integra in view of the decision of this Court in M/s.Softbrands India Pvt. Ltd. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable.

  A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law. On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law.

  The present appeals filed by the Revenue do not give rise to any substantial question of law

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• 2018 (7) TMI 2127
  

  Unexplained cash - police seized cash from one Selvaraj on the basis of which the police registered Crime - petitioner, who claimed to be the employer of Selvaraj, filed an application under section 451 Cr.P.C. By the impugned order the learned Magistrate dismissed it - HELD THAT:- Department reported to the Magistrate that though notices was issued to Selvaraj from whom the cash was seized, he did not respond to it. This was the reason for the Magistrate's dismissing the application. I think the decision is correct. But the learned counsel submits that the Magistrate may be directed to reconsider the matter on merits after hearing the petitioner and the Income Tax Department and the Directorate of Enforcement. I think the request is reasonable.

  In the result this Crl.M.C is allowed. The impugned order is set aside. The petitioner is directed to implead the Income Tax Department and Directorate of Enforcement in the application filed under section 451 Cr.P.C. Thereafter, the learned Magistrate shall issue a notice to them and after hearing all the parties dispose of the matter in accordance with the law.

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• 2018 (7) TMI 2126
  

  Appointment of Resolution Professional - Whether the Adjudicating Authority can reject the proposal of the Committee of Creditors for appointment of Resolution Professional, on the ground that the name of proposed Resolution Professional is appearing in the panel of one of the member of the Committee of Creditors?

  HELD THAT:- During the Corporate Insolvency Resolution Process, at any time, if the Committee of Creditors ‘is of opinion’ that the Resolution Professional appointed under Section 22 is required to be replaced, it may replace him with another Resolution Professional in the manner provided under said section. In terms of Section 27(2), the Committee of Creditors at a meeting by vote of 75% of voting share (as per un-amended provision) can propose to replace the Resolution Professional appointed under Section 22 with another Resolution Professional - except for pendency of a disciplinary proceeding or ineligibility in terms of provisions of the I&B Code, there is no bar for appointment of a person as Resolution Professional. A Resolution Professional if empaneled as an Advocate or Company Secretary or Chartered Accountant with one or other ‘Financial Creditor’ that cannot be a ground to reject the proposal, if otherwise there is no disciplinary proceeding is pending or it is shown that the person is an interested person being employee or in the payroll of the ‘Financial Creditor.

  In the present case, the Adjudicating Authority has failed to take into consideration the facts and as there is no allegation against Mr. K. G. Somani and no disciplinary proceeding is pending against him and he is not in the payroll of one or other member of the Committee of Creditors, we are of the view that the Adjudicating Authority was required to approve his name.

  Impugned order set aside - petition allowed.

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• 2018 (7) TMI 2125
  

  Exemption u/s 11 - benefit of grant of registration u/s. 12AA - whether insertion of 1st proviso to sub-section (2) of section 12A which was inserted by Finance Act, 2014 w.e.f. 01.10.2014 is retrospective or not, when the fact remains that the assessment order was passed on 28.03.2014? - HELD THAT:- Assessee has also been accorded approval u/s. 10(23)(c)(iv) by order of Ld. CCIT-3, Kolkata dated 09.01.2014. It is well settled that the CIT(A) has co-terminus power as enjoyed by the AO while deciding the appeal against an assessment order.

  Even though the assessment order has been passed on 28.03.2014, for the ends of justice and fair play and taking into consideration the fact that the assessee is basically a consortium of State Govt., Central Govt and Municipal Corporation which was incorporated as a company u/s. 25 of the Companies Act, 1956 with the purpose to promote the objectives of the nature specified in section 25(1), clause (a) of the State Act and it is pertinent to note that that it will apply its profit if any or other income in promoting its objects and it prohibits the payment of any dividend to its members.

  CIT(A) has rightly noted that the assessee’s activities are for charitable purposes. Therefore, we do not find any infirmity in the order of the CIT(A) in this regard and we dismiss the appeal of the revenue. We find that the CIT(A) has rightly held that the benefit of grant of registration u/s. 12AA of the Act also need to be extended to AY 2011-12 and, therefore, we confirm the order of Ld. CIT(A) on this issue.

  Disallowance of expenditure made on account of amortized lease rent payment and disallowance made on account of depreciation on leasehold land - HELD THAT:- Since we upheld the direction of the Ld. CIT(A) to extent the benefit of grant of registration u/s 12AA of the Act to this AY 2011-12 and, therefore, the assessee is eligible to claim exemption of its income u/s. 11 of the Act. The expenditure incurred by the assessee would be treated as application of income for charitable objects, as the incurrence of expenditure for charitable objects has not been disputed by the revenue. Therefore, we do not find any merit in these grounds of appeal and so stand dismissed. Appeal of revenue is dismissed.

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• 2018 (7) TMI 2124
  

  Admissibility of petition - Section 10 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The petition is admitted - the moratorium is declared under Section 13 & 14 of the Code for prohibiting all of the following:

  (a) The Institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;

  (b)Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets to any legal right or beneficial interest therein;

  (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(54 of 2002);

  (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

  (e) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period.

  (f) The provision of sub-Section (I) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

  (g) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process.

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• 2018 (7) TMI 2123
  

  Principles of Natural Justice - ex-parte order - as the adjudicating authority had fixed the matter for a number of times, declined to give any further time and passed the impugned order ex-parte - HELD THAT:- As the issue in this appeal is similar to the issue in the precedent appeal, in the case of M/S H.L. PASSEY ENGINEERING PVT. LTD. VERSUS CCE & ST, BHOPAL [2018 (5) TMI 2007 - CESTAT NEW DELHI] which have already been disposed of by way of remand, we deem it just and proper to allow this appeal by way of remand to the adjudicating authority. We further direct the appellant - assessee to file the representation in reply to the show cause notice within a period of 60 days from the date of receipt of the copy of this order, and then to appear before the adjudicating authority and seek opportunity of hearing.

  Appeal is allowed by way of remand.

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• 2018 (7) TMI 2122
  

  Income accrued in India - interest income earned from investments in debt securities made in accordance with the SEBI Regulations - India-Mauritius Tax Treaty - whether assessee was indeed the ‘beneficial owner’ of the interest income in question? - whether such Tax Residency Certificate enables an inference that the interest income in question is beneficially owned by the assessee? - HELD THAT:- Ostensibly, as per the clarification issued by the CBDT, wherever a Certificate of Residency is issued by the Mauritian authority, such Certificate will constitute sufficient evidence for accepting the status of residence as well as the beneficial ownership for applying the provisions of the India-Mauritius Tax Treaty. Thus,aforesaid clarification by the CBDT supports the assertion of the assessee that based on the Certificate of Tax Residency issued by the Mauritian authority there is sufficient evidence to accept the position that the ‘beneficial ownership’ of the impugned interest income is with the assessee.

  CBDT Circular no. 789 dated 13.04.2000 is specifically in the context of incomes by way of dividend and capital gain on sale of shares. It would equally apply even in the situation before us where the application of the provisions of the India-Mauritius Tax Treaty is sought to be applied for considering the taxability of interest income as per Article 11(3)(c) of the India-Mauritius Tax Treaty.

  Drawing strength from the judgment of Universal International Music B.V [2013 (4) TMI 641 - BOMBAY HIGH COURT] as relating to the taxability of Royalty income in the context of India-Netherlands Double Taxation Avoidance Agreement. In the said decision also, CBDT Circular no. 789 dated 13.04.2000 (supra) was held applicable in the context of Royalty income - even in the context of the impugned interest income, Circular no. 789 dated 13.04.2000 of the CBDT is applicable while applying the provisions of Article 11(3)(c) of the India-Mauritius Tax Treaty - we uphold the plea of the assessee that assessee is the ‘beneficial owner’ of the impugned interest income on the strength of the Tax Residency Certificate issued by the Mauritian authorities.

  Element of interest income earned by the assessee from Hyundai Motor India Ltd., the Chennai Bench of the Tribunal in its decision in the case of Hyundai Motor India Ltd. [2017 (4) TMI 1193 - ITAT CHENNAI] has already observed that the recipient therein (i.e. the assessee before us), was the ‘beneficial owner’ of the interest income qua the provisions of Article 11 of the India-Mauritius Tax Treaty. Be that as it may, in view of our aforesaid discussion, we uphold the stand of the assessee that it is the ‘beneficial owner’ of the interest income qua the provisions of Article 11(3)(c) of the India-Mauritius Tax Treaty and thus, such income is not taxable in India. - Decided in favour of assessee.

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• 2018 (7) TMI 2121
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- No documents in support of disbursement of the alleged loan has been placed on record by the Financial Creditor and he should be ordered to produce the same. However, the Financial Creditor has rebutted the same stating that the documents already placed on record at pages 8, 9, 10, 11, 12 and the copy of the complaint fully substantiate the claim and there is nothing to place on record except the said documents - no plausible explanation has been given by the Counsel for the Corporate Debtor pertaining the documents placed at pages 8, 9, 10, 11 and 12 of the typed set filed with the Application, which are evidencing the advancing of the loan by the Financial Creditor to the Corporate Debtor, and are sufficient in nature to establish the existence of default on the part of the Corporate Debtor in repaying the loan.

  The Application of the Financial Creditor is complete in all respect - Application admitted - moratorium declared.

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• 2018 (7) TMI 2120
  

  Addition on enhanced land compensation received by the assessee - not allowing deduction under section 10(37) - Interest received on enhanced compensation - AO noted that the agricultural land of the assessee was acquired by HUDA and the assessee has received compensation as well as interest thereon but same was not shown as income - HELD THAT:- The Hon'ble Supreme Court in CIT Vs. Ghanshyam Dass (HUF) [2009 (7) TMI 12 - SUPREME COURT] has held that interest received by the assessee u/s 28 of the Land Acquisition Act is a part of enhanced value of land and therefore, is part of land compensation only. Therfore it emerges that Interest received by the assessee u/s 28 of the Land Acquisition Act is part of the compensation and is not in the nature of the interest. Therefore it is chargeable to tax under the head capital gain u/s 45 (4) of the act. Further interest received u/s 34 of the land Acquisition Act is in the nature of the interest and is chargeable to tax as interest Income under the head Income from Other sources in accordance with the method of accounting regularly followed by the assessee.

  AO in the impugned case has categorically held that compensation received by the assessee is u/s 28 of the Land Acquisition Act. Such fact is also reiterated and communicated to the assessee vide letter dated 26.07.2011 of the ld AO. This fact has also been further proved by the assessee by the letter dated 22.03.2018 of the Land Acquisition Officer, Faridabad obtained under Right to Information Act, 2005. Therefore, there is no dispute that interest received by the assessee is u/s 28 of the land Acquisition Act. The ld CIT(A) has proceeded on the basis that interest received by the assessee is u/s 34 of the Land Acquisition Act. Such finding is devoid of any evidence. Therefore, the order of the ld CIT(A) cannot be upheld.

  As the assessee has received the compensation u/s 28 of the Land Acquisition Act same is part of the compensation received by the assessee which is chargeable to tax under the head capital gain u/s 45(5) of the Act.

  Section 10(37) of the Act provides that if any sum is chargeable to tax under the head capital gain arising from the transfer of agricultural land in case of assessee in pursuance of compulsory acquisition, then same is exempt subject to certain conditions.

  In the case of the assessee the ld AO himself has stated that the assessee is entitled to deduction u/s 10(37) of the Act and sum of the compensation received by it as the land acquired is an agricultural land on production of copy of Girdawari of the land -there is no dispute by the ld AO himself about the nature of the land. In view of this we are of the opinion that the assessee is eligible for deduction u/s 10(37) of the Act. Further, the certificate of Patwari dated 19.12.2011 also shows that the land of the assessee is an agricultural land and the assessee has produced wheat, jwar etc on that land. In view of this the ground No. 2 of the appeal of the assessee is allowed and the ld AO is directed to treat the interest of compensation received by the assessee as compensation of land as sum was awarded u/s 28 of the Land Acquisition Act and further to grant exemption u/s 10(37) - Appeal of the assessee is allowed.

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• 2018 (7) TMI 2119
  

  Reassessment Order - rate of tax - instrument cooling fan - case of the petitioner is that the instrument which is called “instrument cooling fan” is only used for the purposes of coolant in telecommunication equipments - Change of Opinion - HELD THAT:- An order for reassessment was passed by the Additional Commissioner on 07.02.2017 for re-opening the assessment which was probably not been served upon the petitioner. In any case, when the petitioner had this information, he gave a detail reply on 27.02.2017 explaining as to why the reassessment being initiated is not proper etc., and stressed that he was liable to be assessed at the rate of 4.5% as the equipment which is being manufactured by the petitioner is a necessary component of telecommunication equipment, for which duty of 4.5% and not of 13.5% has to be given, which is in any case aresiduary clause - It appears that the reply given by the petitioner assigning reasons as to why the reassessment is not proper and it is merely a change of opinion has not been considered by the revenue authorities.

  The writ petition stands disposed with a direction that in case the petitioner moves a representation in this regard within a period of three weeks from the date of production of a certified copy of this order, the same shall be considered by the authority concerned by passing a speaking order therein in accordance with law after considering the reply of the petitioner.

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• 2018 (7) TMI 2118
  

  Maintainability of application of Creditors - HELD THAT:- The Tribunal, in its order dated 14.05.2018, has given directions to the RP to give an objective report as to why the application of the Creditor, Shri Bharath Kumar Dugar has been rejected for issuing necessary orders in this regard. The counsel is directed to approach the RP for necessary action.

  Application disposed off.

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• 2018 (7) TMI 2117
  

  Disallowance of employee’s contribution to PF and employee’s contribution to ESI u/s.36(1)(va) - contribution not deposited within the prescribed due date under the respective Act - HELD THAT:- Amount claimed on payment of PF and ESI having been deposited on or before due date of filing of returns, same could not be disallowed under section 43B or under section 36(1)(va) - See M/S RAJASTHAN STATE BEVERAGES CORPN. LTD [2017 (7) TMI 1087 - SC ORDER]. - Decided in favour of assessee.

  TDS u/s 194I - addition of rent paid without deduction of TDS u/s.40(a)(ia) - HELD THAT:- If the recipient of the amount Smt. Sunanda Nayak has disclosed has disclosed the amount received from the assessee in her return of income and paid due tax thereon, in view of the decision of CIT vs. Ansal Land Mark Township (P) Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] then, no disallowance in the hands of the assessee is called for - set aside the orders of lower authorities and restore this issue back to the file of the AO to verify whether the recipient Smt. Sunanda Nayak has disclosed the amount received from the assessee in her return of income or not. - Decided in favour of assessee for statistical purpose.

  Differential amount of receipts as per 26AS and as per profit and loss - HELD THAT:- CIT(A) confirmed the action of the Assessing Officer on the ground that 26AS statement clearly revealed that the assessee has failed to disclose receipts from certain parties and has also failed to reconcile the discrepancies found in this respect in the 26AS statement.

  Before us, ld A.R. of the assessee has also failed to reconcile the discrepancies found in 26AS statement. No reason to interfere with the order of the CIT(A) on this ground - Decided against assessee

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• 2018 (7) TMI 2116
  

  Issuance of non-bailable warrant - offence punishable under Sections 120B, 420, 467 and 468 of the IPC - HELD THAT:- Bearing in mind the statutory provision contained in sub-section (2) of Section 319 of the CrPC and judged by the principles of law laid down by Their Lordships of the Supreme Court in STATE OF U.P. VERSUS POOSU AND ANOTHER [1976 (4) TMI 223 - SUPREME COURT], it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable warrant of arrest should be issued to secure the presence of the accused person.

  In the instant case, the fact remains that summon and bailable warrant issued to the applicant remained unserved and thereafter, straightway, non-bailable warrant could not have been issued to the applicant in light of the principles of law enunciated by the Supreme Court in the aforesaid decisions - it is a fit case in which the applicant should be granted anticipatory bail.

  Bail application allowed.

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• 2018 (7) TMI 2115
  

  Expenditure under the heading ‘Contractors’ Benevolent Fund’ (CBF) - Expenditure is not allowable u/s.37 - HELD THAT:- Contractor is under an obligation to deduct tax by notification issued by the Government of Karnataka, dt.18.1.2007 to make the payment of CBF which is equivalent to 1% of the estimated cost of the contract and therefore this is an expenditure which is wholly and solely related to the business of the assessee. In our view, whether actually this amount is spent by the assessee for the purposes of business is required to be verified by the A O with reference to the bills / running bills submitted by the assessee. We remand the matter back to the file of the AO with a direction to verify whether the assessee had made the contribution to CBF in pursuance to the notification dt.18.1.2007 or the corrigendum issued. If the payment of CBF is made in accordance with the said notification then the same shall be allowed after verification.

  Disallowance of the interest paid to NBFC u/s.40(a)(ia) - HELD THAT:- Since the assessee has filed the confirmation letter in proof of paying the interest against loans given by NBFC and therefore in the fitness of things, it is required that the facts are required to be verified by the AO after affording opportunity of being heard to the assessee. In the light of the above, we remand this issue also to the file of the AO to verify whether the assessee had paid interest to NBFC or not and whether the NBFC had shown the interest as income in its books of account and return of income. If it has been done then the AO shall allow the amount.

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• 2018 (7) TMI 2114
  

  Arbitral Award - existence of arbitration clause - tripartite agreement - contention is that no agreement having been signed by M/s IPROSUGAR Engineering Pvt. Ltd., with M/s Spray Engineering Devices Limited, to that effect, there is no arbitration clause existing - HELD THAT:- Though undoubtedly a tripartite agreement is also shown to be in existence (copy Annexure P-4 referred to herein above), between three parties, including M/s IPROSUGAR Engineering Private Limited, that is an agreement with regard to the amount required to be paid by M/s Spray Engineering Devices Limited to M/s IPROSUGAR Engineering Private Limited, which does not override the agreement dated June 14, 2006 - once the agreement dated 14.06.2006 itself is the basis for the claim made in the suits filed by M/s IPROSUGAR Engineering Private Limited, it cannot approbate and reprobate to get out of the arbitration clause in the said agreement as regards any dispute arising with even the subsequently created joint venture company, i.e. M/s IPROSUGAR Engineering Private Limited, which is admittedly a company incorporated pursuant to the said agreement.

  As regards Section 7 of the Arbitration and Conciliation Act, 1996, obviously there is no dispute with what is stipulated therein, but in the opinion of this Court, in view of what has been observed herein above, M/s IPROSUGAR Engineering Private Limited would still be bound by the agreement as an agreement between the parties, once the reliance by the said company, in respect of the relief claimed by it in the civil suits filed by it, is in terms of that very agreement dated 14.06.2006.

  Petition dismissed.

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• 2018 (7) TMI 2113
  

  Extension of CIRP period - the period of CIRP i.e.,180 days is expiring today and prayer for extension of the same for a further period of 90 days under Section 12 of the I&B Code, 2016 is made - HELD THAT:- In the Application and the Resolution passed by the COCs under Para '9' of the Minutes placed at Page No.32 of the Type Set filed by the Applicant, this Authority is satisfied that the time period of CIRP needs to be extended. Therefore, the time period of the CIRP is hereby extended for further period of 90 days with effect from 07.07.2018.

  Application disposed off.

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• 2018 (7) TMI 2112
  

  Appointment of a sole Arbitrator - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Admittedly Arbitration was invoked by the Applicant by their letter dated 12^th December, 2017. Though the parties have agreed in Clause IX of the Agreement dated 20th February, 2014 that if any dispute or differences arising between them, the same shall be referred to arbitration by three Arbitrators, parties have agreed before this Court and have submitted that the dispute be referred to a sole Arbitrator - Mr. Arif Doctor, Advocate is appointed as the sole Arbitrator to decide the disputes between the parties arising out of the Agreement dated 20th February, 2014.

  Arbitration Application is disposed off.

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• 2018 (7) TMI 2111
  

  Depreciation on website development cost - @25% or 60% - HELD THAT:- Assessee is entitled to claim of depreciation @ 60% as relying on own case [2012 (3) TMI 330 - ITAT DELHI]

  TP Adjustment - benchmarking adopted by the assessee and the approach followed by the CIT (A) for the international transactions of the assessee at arm’s length - assessee has chosen Transactional Net Margin Method [TNMM) being the most appropriate method with profit level indicator of Net Cost Plus (NCP) i,e: Net Profit/Total Expenses i.e. comparison has been done at net level - HELD THAT:- We are of the opinion that the selection of most appropriate method by the TPO of resale price method is incorrect as resale price method is inapplicable to the facts of the assessee. Apart therefrom, while determining the arm's length price, the TPO has benchmarked the margin of profit earned in subagent segment with the margin of profit earned by the assessee from its direct customers.

  In doing so, TPO has failed to appreciate that AE of the assessee is not the customer of the assessee, and it is assessee who is the acting as subagent of the AE and in respect of such transactions, assessee has also been remunerated. Since the direct customer segment and subagent segment are materially different as such, the margin of profit earned by the assessee in respect of transactions entered with its AE is not comparable with the margin of profit earned by the assessee with its direct customers. Further, if the approach of the TPO is to be applied then the effect of the comparison would be that assessee will receive 15,90 percent of the total gross profit earned by the AE, and in such circumstances proper adjustment would be to allocate the proportionate operating expenses incurred by the AE, and in such circumstances, the effect would be that there would be downward adjustment to the book value of international transactions of the assessee, which itself contravenes the section 92(3) of Income Tax Act. In summary, appeal of the revenue in relation to the benchmarking adopted by the assessee and the approach followed by the CIT (A) for the international transactions of the assessee is arm’s length and the grounds raised by the Revenue are dismissed

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• 2018 (7) TMI 2110
  

  Revision u/s 263 - assessment orders framed u/s 153C - HELD THAT:- It is a settled law that provisions of Sec.263 cannot be invoked to each and every type of mistake or error committed by the AO. Where two views are possible and AO has taken one view with which CIT does not agree, then the order passed by the AO cannot be treated as erroneous and prejudicial to the interest of Revenue unless the view taken by the AO is unsustainable.

  In the present case, we find that no addition has been made in the case of M/s. Vijay Constructions and Shri Pavan Vijay Jadav in the assessment orders framed u/s 153C - order of Ld.CIT directing to make addition in the hands of the assessee is uncalled for. No material has been placed by the Revenue to demonstrate that the view taken by the AO while passing the order u/s 143(3) r.w.s. 147 was unsustainable in law. In the present case, Ld.CIT was not justified in invoking the provisions of Sec.263 - set aside the order of Ld.CIT, whereby he has set aside the assessment order passed by the AO u/s 143(3) r.w.s. 147 - Thus, the grounds of the assessee are allowed.

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• 2018 (7) TMI 2109
  

  Penalty u/s 271AAA - Disclosures of earning of the surrendered income - HELD THAT:- DR has pointed out that the manner of earning of the surrendered income has not been disclosed by the assessee whereas the assessee by letter dated 21.01.2010 has disclosed the manner of earning the said income by way of trading in commodities and real estate and also stated this fact is substantiated from the seized material.

  This factual position is not denied by the AO and this is not the basis for imposing the penalty. In that view of the matter and in view of such facts and circumstances of the case, the CIT(A) is not justified in confirming the action of the AO and accordingly, we direct the AO to delete the penalty imposed under section 271AAA. Accordingly, the appeal of the assessee is allowed - See SHRI ASHWANI KUMAR ARORA [2017 (11) TMI 456 - ITAT DELHI] AND ASHOK KUMAR ARORA VERSUS ACIT [2017 (11) TMI 513 - ITAT DELHI] - Decided in favour of assessee.

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