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Showing 241 to 260 of 2152 Records

• 2018 (9) TMI 1916
  

  Unable to upload Form TRANS-I form - benefit of transitional input tax credit - transition to GST regime - petitioner points out the urgency and that being if the petitioner is not allowed to upload the Trans-I return, the petitioner would not get credit of ITC - HELD THAT:- The respondents are directed to provisionally allow the petitioner to upload the Trans-I return by opening a window by whatever mode - it is clarified that the return filed, if any, shall be subject to the outcome of the present petition.

  List on 24.10.2018.

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• 2018 (9) TMI 1915
  

  Validity of re-assessment order - exemption from output tax - section 5 of the KVAT Act, 2003 - failure to maintain separate books of accounts - applicability of Rule 131 of the KVAT Rules, 2005.

  Restriction on input tax - HELD THAT:- The AA and FAA have not followed the circular instructions properly. Hence there is no reason to doubt the quantum of NDIT applied by the appellant himself for all the three years under appeal. The re-assessment order passed by the AA adopting the formula in a routine manner without taking into the specific facts of the case and rejecting the calculations of the appellant is totally unjustified and not called for and therefore the order of the FAA in dismissing the appeal without following the law and the circular instructions is not maintainable in the eye of law - the question is answered in negative.

  Levy of tax on sale of used motor vehicles by the appellant - HELD THAT:- The levy of tax on sale of the discarded goods was without authority of law - the levy of tax on the sale of old vehicles cannot be sustained - answered in negative.

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• 2018 (9) TMI 1914
  

  Grant of license - second respondent rejected the application on the reason that the petitioner being an ammonium nitrate trader, import licence cannot be issued to the petitioner under P-5 licence - HELD THAT:- There is no dispute to the fact that the petitioner has raised very many contentions on facts and law while challenging the order of the second respondent. It is also not in dispute that the petitioner was represented through an Advocate before the first respondent and made his submissions. Likewise, it is also seen that the Joint Chief Controller of Explosives made his submissions before the Appellate Authority. The Appellate Authority has, in fact, narrated the facts which has led to filing the appeal, extracted the rival contentions of the parties in detail, which runs to four pages.

  The first respondent has simply reiterated the order passed by the second respondent without giving any independent reason or finding as to how, in the view of the first respondent, the order of the second respondent is sustainable. Needless to say that the first respondent being the appellate authority is also a fact finding authority and thus, he is bound to consider the facts and circumstances and give his own independent reasonings and findings while disposing the appeal - As this Court does not find any such reasoning and finding, it is inclined to set aside the order of the first respondent without expressing any view on the merits of the matter, for reconsidering the appeal once again on merits and in accordance with law, after giving due opportunity of personal hearing to the petitioner.

  The matter is remitted back to the first respondent for considering the appeal filed by the petitioner once again on merits and pass orders in accordance with law, after giving due opportunity of personal hearing to the petitioner - Petition allowed by way of remand.

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• 2018 (9) TMI 1913
  

  CENVAT Credit - by-product - Bagasse, Press-mud and Ash arising during the course of the manufacture of Sugar & Molasses - whether the provisions of Rule 6 of CCR 2004 would be applicable in case of emergence of by-products namely, Bagasse, Press-mud and Ash during the course of the manufacture of Sugar & Molasses?

  HELD THAT:- During the course of manufacture of sugar, the products namely bagasse, press mud and ash are generated. Such by-products emerged during the course of manufacture of sugar cannot be considered as final product in as much as the respondent had never intended to manufacture those byproducts and the same emerges involuntarily during the process of manufacture of the final product.

  Since bagasse and press mud removed from the factory are excisable goods, classified under Chapter 23 of the Tariff Act, the circular dated 25.04.2016 relied upon by revenue cannot sustain the demand in as much as explanation 1 appended to Rule 6 ibid only clarified that the final product defined in clauses (d) and (h) of rule 2 shall include non-excisable goods cleared for consideration from the factory - Since the disputed goods are admittedly excisable, the case of the respondent is not covered under the explanation appended to Rule 6 of the rules.

  There is no infirmity in the impugned order passed by the learned Commissioner (Appeals) - appeal dismissed - decided against Revenue.

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• 2018 (9) TMI 1912
  

  Release of seized goods - seized gold ornaments and two I phones - one of main contentions of Learned Advocate for the petitioners is about failure on the part of the respondent-customs authority in not following mandatory provisions of sub-section (2) of Section 110 of the Act, 1962 - release of goods denied on the ground of failure on the part of the Customs authority to issue notice as envisaged under Section 110(2) read with Section 124 and mode of service so provided under Section 153 of the Act.

  HELD THAT:- It is not in dispute that seizure of goods in question was effected on 11-2-2017 in the arrival hall of terminal No. 2 of SVPI Airport, Ahmedabad, in presence of panchas and seizure memo was issued accordingly on the same day. Further, request was made by the petitioners for returning seized ornaments and ‘I-phones’ on 19-8-2017, reminder dated 1-9-2017 wherein reference was made to seizure memo dated 11-2-2017 and various decision of Delhi High Court and also that of Supreme Court which mandated return of seizure goods in case of failure of giving notice within six months from the date of seizure which was over in the facts of the case on 11-8-2017.

  It is categorically stated by the petitioners that they had not received any such notice given by the authority and claim about service of notice by fixation by inserting the same in the residential premises in presence of panchas or fixation of such notice on the notice board of the Customs House etc. were denied and, for which, the petitioners had no knowledge. It was further stated that Mr. Deepak Soni, petitioner No. 1 was admitted to the hospital for heart ailment. They had not attended even their business, however, son of petitioner No. 1 was throughout available at the shop as he was looking after the business when the petitioner no. 1 was unwell. It is further borne out from the record, various summons were issued by Customs authorities to appear and cooperate but had no occasion the petitioners remained present before the authority. That apart, no record is available or produced before this Court that show cause notice was given in terms of Section 110(2) read with Section 124 and service thereof as envisaged under Section 153 of the Act, 1962.

  The action of respondent authorities in not returning the goods seized upon failure to comply with Sections 110(2), 124 and 153 of Customs Act, is illegal - the respondent Nos. 2 and 3 herein are directed to return to the petitioners within 8 weeks from today all gold ornaments/gold items and two apple I-phones seized under panchnama dated 11-2-2017 unconditionally subject to adjudication process to be carried out afresh in accordance with law - petition allowed.

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• 2018 (9) TMI 1911
  

  100% EOU - whether the assessee was eligible to clear the inputs, in respect of which, MODVAT credit had been availed without payment of duty against a CT-3 certificate issued by a 100% export oriented unit (EOU) and as to whether the duty, if payable, was required to be equivalent to the amount of Modvat credit initially availed of?

  HELD THAT:- The matters require reconsideration by the Tribunal. Though it may be true that the decision was not available when the Tribunal decided and passed the impugned common order, nevertheless, when the matter travelled upto the Supreme Court in the case of LAKSHMI AUTOMATIC LOOM WORKS LTD. VERSUS COMMR. OF C. EX., TRICHY [2008 (10) TMI 57 - CESTAT CHENNAI], and the matter was remanded to the High Court of Karnataka for a fresh consideration, we are of the view that the Tribunal should have a fresh look into the matter taking note of the legal position as laid down in the case of THE COMMISSIONER OF CENTRAL EXCISE, BANGALORE-II VERSUS M/S SOLECTRON CENTUM ELECTRONICS LTD. [2014 (10) TMI 596 - KARNATAKA HIGH COURT]

  Division Bench of this Court in the case of THE COMMISSIONER OF GST & CENTRAL EXCISE, THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. VELVETTE INTERNATIONAL PHARMA PRODUCTS LTD., (HERBAL DIVISION) , M/S. HCL INFOSYSTEMS LIMITED, UNIT III [2018 (8) TMI 1506 - MADRAS HIGH COURT], remanded a similar issue for a fresh consideration before the Tribunal.

  The matters are remanded to the Tribunal for a fresh consideration - Appeal allowed by way of remand.

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• 2018 (9) TMI 1910
  

  Levy of cost recovery charges - Regulation 5(2) read with Regulation 6(1)(o) of the HCCAR, 2009 - Jurisdiction to raise demand - demand of cost recovery charges raised by the Ld. Commissioner of Income Tax pursuant to the 6th Pay Commission - alleged non-compliance with the provisions of the Act and the rules, regulation made thereunder - suspension of the approval granted to the Appellant as custodian in respect of ICD-Bhiwadi - principles of natural justice.

  HELD THAT:- Appointment of the appellant in the present cases as custodian of the ICD has been made in terms of Section 45(1) of the Act according to which all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transshipped. Sub-section (2) of Section 45 of the Act provides that the person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. HCCAR, 2009 have been framed in terms of Sections 157 and 158 of the Act.

  The respondent was fully justified in computing such charges @ 1.85 times of the salary of the Customs officers which may also include benefit of revised pay scales consequent upon acceptance of recommendations of VI and VII Pay Commissions, as the case may be. There is, therefore, nothing illegal on the part of the respondent for insisting on recovery of differential charges of the salary upon implementation of revised pay scale rules.

  Circular of the Board No. 128/95-Cus., dated 14-12-1995 prescribed the procedure for appointment of custodian of ICDs and also stipulated that the custodian was required to pay the cost recovery charges. The Ministry of Finance upon appointment of custodian, specifically created posts of custom staff for manning the ICDs. Letter dated 24-7-1996 has been placed on record, in para 3 of which, the sanction of the President for creation of posts for ICDs was conveyed. Therein it was specifically stipulated that 1.85 times of the monthly average cost of the posts plus DA, CCA, HRA and interim relief may be obtained from the party, who is running the ICD as the posts have been created for ICDs - There is, therefore, nothing illegal in demand of the cost recovery charges together with interest and penalty - In the facts of the present case, it cannot be said that levy of cost recovery charges by the respondent was without due notice and prior adjudication by the Government authority.

  The respondent was nowhere privy to the agreement between the appellant and M/s. Hasti Petro Chemical and Shipping Limited. Even if the contract between the appellant and M/s. Hasti Petro Chemical and Shipping Limited was not finalized for quite some time, it would not absolve the appellant from its liability to run the ICD in terms of its appointment as custodian under Section 45 of the Act. In fact, the dispute arose between the appellant and M/s. Hasti Petro Chemical and Shipping Limited, who approached this Court by filing writ petition and the process of handling and transportation has to be abandoned by the appellant. But the fact remains that the respondent had specifically created certain posts for posting of staff of customs department and they continued to remain posted there all throughout. The appellant, therefore, cannot escape the liability to pay the cost recovery charges.

  There are no infirmity in the view taken by the Tribunal in its judgment and the adjudication order - appeal dismissed.

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• 2018 (9) TMI 1909
  

  Upward adjustment towards Arm’s Length interest on loan given to associated enterprises - CIT(A) while determining the ALP of interest on loan given to AE, held that (Comparable Uncontrolled Price) CUP is the Most Appropriate Method (MAM) - HELD THAT:- The matter is well covered by the general consensus among the Hon'ble ITAT Benches that international transactions involving cross- border country loans to AE can be bench marked against LlBOR, as also supported by the RBI's circular that a spread ranging from 1 % - 2% over LIBOR is reasonable {or advancing loans. Therefore, in deciding the matter, it is held that an interest rate of LIBOR plus 2% can be held to be Arm's length rate of interest, and as for the case at hand, the interest charged by the assessee from its AE is higher than LIBOR plus 2%, the adjustment made by the ld. TPO in the case is held to be unjustified and not sustainable. Ground No. 1 of the revenue is dismissed.

  Determination of ALP on corporate guarantee on loans availed by AE - International transaction - HELD THAT:- CIT(A) held that the TP Provisions do not apply to the transactions of providing corporate guarantee prior to the amendment brought in by way of an explanation to Section 92B of the Act, by Finance Act, 2012. Further at page 45 he held that the methodology applied by the TPO in computing the ALP of the transactions was without reasonable and justifiable basis. We find that the findings of the Ld. CIT(A), are in line with the decision of the Kolkata ‘C’ Bench of the Tribunal in the case of M/s. EIH Ltd. vs. DCIT [2018 (1) TMI 1372 - ITAT KOLKATA] - Ground No. 2 of the revenue is dismissed.

  Disallowance made u/s 14A r.w.r. 8D - excess of own funds - HELD THAT:- CIT(A) considered the disallowance u/s 14A r.w.r. 8D(ii) and came to a factual conclusion that the assessee has adequate interest free funds totalling to ₹ 49,367.68 Lakhs to justify the investment of ₹ 40.02 Lakhs. He applied the decision of CIT vs. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] and other decisions and held that no disallowance can be made u/s 14A r.w.r. 8D(ii). Ground No. 3 of the revenue is dismissed.

  Accrual of income - accrued interest - real income theory application - HELD THAT:- The amounts given to three parties, namely, Smt. Sadhna Bhagwat, Ranglal Modi & Sons and Durga Prasad Agarwal, have become non-realisable. Once these loans have become Non-Performing-Assets and when the realization of the principal itself is uncertain, the question of recognizing interest does not arise. CIT(A), in our view, rightly applied the ‘real income theory’ and deleted the addition. We find no infirmity in this action of the ld. CIT(A) and uphold the same. Accordingly, Ground No. 4 of the revenue is dismissed.

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• 2018 (9) TMI 1908
  

  Power to recall an order - Maintainability of application - initiation of CIRP - Section 9 of the Insolvency and Bankruptcy Code, 2010 - HELD THAT:- It is admitted that there is no provision in IBC for review of the order admitting a petition filed under Section 9 of the IBC. It is also not disputed in law that the power to review can not be exercised unless there is specific provision for the same.

  As far as power to recall an order is concerned, it is nothing but a procedural review which can be availed only if there is any procedural defect in passing the order or the order has been obtained by playing fraud in any manner. There is hardly any procedural defect pointed out in admitting the petition filed under Section 9 of IBC. The said order of admission is self explanatory and conforms to all the requirements necessary for admitting a petition filed under Section 9 of the IBC - Merely for the reason that it was not contested by respondent no. 3, it can not be said that it was a collusive petition or that the order of admission was obtained by collusion between respondents no. 2 and 3.

  Prima-facie the order of admission of the petition filed under Section 9 IBC does not appear to be collusive which may warrant recall of the order in exercise of procedural review - Section 65 of IBC deals with the fraudulent and malicious initiation of proceedings and provide that if any person initiates the Insolvency Resolution Process or liquidation proceeding fraudulently or with malicious intent, the adjudicating authority ie. NCLT may impose upon such person a penalty which shall not be less than 1 lakh and may extend to one crore rupees.

  If the petitioner feels that the petition under Section 9 of IBC for Corporate Insolvency Resolution Process has been initiated by respondent no. 2 fraudulently in collusion with respondent no. 3, it may take recourse to proceedings under Section 65 of IBC - Petition dismissed.

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• 2018 (9) TMI 1907
  

  Power of attorney along with photo copy of the resolution of the Board of Directors of the respondent-corporate debtor - Petitioner submits that the original of the resolution of the Board of Directors shall be filed along with reply to the petition - HELD THAT:- List the matter for arguments on 15.11.2018.

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• 2018 (9) TMI 1906
  

  Admissibility of petition - service of SCN - HELD THAT:- The petitioner is directed to collect the notice from the Registry and send the same by Speed Post immediately to the respondent-corporate debtor at its registered office address attaching therewith copy of the petition and the entire paper book and also at the e-mail address available on the master data of the respondent-company.

  The petitioner shall file affidavit of service supported by postal receipt, tracking report and copy of e-mail at least a week before the date fixed.

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• 2018 (9) TMI 1905
  

  Deduction u/s 80IB(10) - project where plot was divided into two parts due to 30 meters reservation on DP road and 30 meters reservation for HCMTR - CIT-A allowed the claim - HELD THAT:- As decided in own case the total area of plot was 6900 sq.mtrs. and after reducing 300 sq.mtrs. for project road, remaining area was 6600 sq.mtrs. The first approval of PMC authorities was given on 28.04.2005 and in the said approval, area of land was shown at 6600 sq.mtrs.

  30 mtrs. wide DP road as well as 30 mtrs for HCMTR reservation was there in between the plot and because of which the plot was divided into two parts i.e. Plot No.I and Plot No.II in the area statement. The Tribunal held that the issue regarding two plots had arisen because of the mistake of Architect where the plot was only one, but only for the sake of convenience, numbering was shown as plot No.I and plot No.II by the Architect - reservation on account of DP road as well as HCMTR would not alter the fact that the said plot was one plot and mere division on account of reservation would not change the character of existing plot. The conditions stipulated in section 80IB(10) of the Act, of the project being one acre of plot, was held to be fulfilled and hence, the assessee was held entitled to claim of deduction under section 80IB(10) of the Act. Following the same parity of reasoning, we hold that the assessee for the year under consideration is also entitled to claim the aforesaid deduction under section 80IB(10) of the Act.

  Project had commenced on 28.04.2005 as per first approved plan and the said project has been completed within stipulated time allowed under section 80IB(10) of the Act i.e. by 31.03.2011, for which necessary evidence has been filed on record. Consequently, the assessee is entitled to claim the deduction under section 80IB(10) of the Act. Thus, grounds of appeal raised by the Revenue are dismissed.

  Prorata deduction u/s 80IB - Violation to the provisions of section 80IB(10)(f) of the Act had made multiple allotments of the flats to family members - HELD THAT:- CIT(A) was of the view that two units allotted to spouses of individual being A8-302 and A2-103 had violated the conditions of section 80IB(10)(f) of the Act. He relied on the ratio laid down by the Hon’ble High Court of Madras in CIT Vs. Arun Excello Foundation Pvt. Ltd. (2012 (12) TMI 415 - MADRAS HIGH COURT ) and Vishwas Promoters Pvt. Ltd. Vs. ACIT [2012 (11) TMI 1117 - MADRAS HIGH COURT] and was of the view that the assessee was entitled to claim prorata deduction on the profits of balance project excluding two flats which were allotted to spouses of individuals. We are in conformity with the findings of CIT(A), where the violation of clause (f) of section 80IB(10) of the Act has been made by the assessee, then in respect of profits on flats allotted to spouses of individuals is to be excluded and is not entitled to the claim of deduction under section 80IB(10) of the Act. The CIT(A) has already directed the Assessing Officer to verify the correctness of profits worked out by the assessee on sale of above said flats and consequently, upholding the said directions, we dismiss the grounds of appeal raised by the Revenue.

  Claim of deduction u/s 80IB(10) though on prorata basis - completion certificate had not been received from the State Authorities - HELD THAT:- In the present case, no completion certificate has been received by the applicant till date. The learned Authorized Representative for the assessee pointed out that certificate of Architect that construction of Club house was completed on 29.03.2011, was filed before the CIT(A). Merely because the completion certificate had not been received from the State Authorities would not disentitle the assessee to the aforesaid claim of deduction under section 80IB(10) of the Act though on prorata basis. We find merit in the plea of assessee, wherein it had completed the construction of Club house within stipulated period and had also applied for completion certificate on the basis of certificate issued by the Architect that construction of Club house was completed on 29.03.2011. It is not case of the Department that assessee had not applied for completion certificate. However, merely because the completion certificate has not been issued by the State Authorities would not disentitle the assessee to its claim of deduction under section 80IB(10) of the Act on prorata basis. Accordingly, we hold so and direct the Assessing Officer to allow the said claim in the hands of assessee.

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• 2018 (9) TMI 1904
  

  Power of Commissioner to arrest the offender - Section 69 of The Central Goods and Services Tax Act, 2017 - offence under Sections 132(1)(b),(c), (d), (f), (I) and (1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Petitioner and her co-accused in connivance with each other had made 35 fake firms and after making fake entries had issued invoices involving tax amount of more than Rupees Ten Crores. In her statement recorded on 02.08.2018, petitioner has admitted that she had prepared fake firms after accepting fee from her coaccused on the basis of fake ID’s and documents. The firms were misused for evading GST by Sandeep Goyal and Rajesh Arora. Case is still under investigation.

  Keeping in view the seriousness of allegations levelled against the petitioner, no ground for grant of bail to her is made out - Petition dismissed.

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• 2018 (9) TMI 1903
  

  Whether the provisions of Sections 154 to 157 and 173(2) of the Code of Criminal Procedure would apply in respect of the proceedings under the Customs Act, in view of Section 4(2) of the Cr.P.C.?

  HELD THAT:- List on Wednesday, the 26th September, 2018 for further arguments.

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• 2018 (9) TMI 1902
  

  Unexplained cash sales - HELD THAT:- As regard the request of the Ld. DR for verification of the purchases corresponding to sale of ₹ 45.50 Lacs is concerned, we find that before the CIT(A) the assessee has already submitted that no purchases were made corresponding to claim of sale of ₹ 44.50 lakhs and it was explained as received in excess in another purchase transaction. The assessee has not controverted this finding before us, thus, in view of the factual finding, we do not feel any requirement of restoring the matter to the lower authorities for verification of purchases.

  On the issue of double addition we find that when the explanation of the cash sales of the assessee is rejected and the cash seized of ₹ 44.50 Lacs is held as an unexplained, the said cash sales cannot be retained as part of the sales of the assessee during the year under consideration. Accordingly, we direct the Assessing Officer to exclude the cash sales of ₹ 44.50 credited in books of account on 30/03/2011 out of the total sales declared by the assessee, for the purpose of return of income filed. The ground no. 1 of the appeal is accordingly dismissed.

  Asst Commissioner powers to enhancement - HELD THAT:- In the case of CIT Vs Shapoorji Palloonji [1962 (2) TMI 12 - SUPREME COURT] held that although the appellant Asst Commissioner has powers to enhance the assessment, but he has no power to travel beyond the record to enhance assessment of any year by discovering new source of income either in the return made by the assessee or the assessment order passed by the Income-tax Officer.

  Since the issue of adjustment of losses from futures and options against the business income is arising from the return of income filed by the assessee, in our opinion, it is well within the powers of the Ld. CIT(A) to make additions in view of the finding of the Hon’ble Supreme Court in the case of CIT Vs Shapoorji Palloonji Mistry [1962 (2) TMI 12 - SUPREME COURT] . Accordingly, the ground 2.1 of the appeal is dismissed.

  Whether the Explanation in section 73 has an overriding effect on section 43(4) - claim of the assessee is that the activity of trading in futures and options is not a speculative activity in view of the provisions of section 43(4) of the Act, and, thus, the loss on account of said activity of trading in future and option is eligible for setoff against other losses from non-speculative business? - HELD THAT:- Contention of the Ld. counsel not to invoke Explanation below section 73(4) in case of futures and options transaction of the assessee, is also rejected. In view of the binding decision of the Hon’ble Delhi High Court DLF COMMERCIAL DEVELOPERS LIMITED [2013 (7) TMI 334 - DELHI HIGH COURT] followed by the Ld. CIT(A), we are not examining the decisions cited by the Ld. counsel as to whether same are applicable in the facts of the instant case.

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• 2018 (9) TMI 1901
  

  SSI Exemption - use of brand name of others - Department was of the view that the appellant will not be entitled to the benefit of SSI Exemption in respect of the printed diaries, since they were cleared bearing the brand name of LIC - N/N. 08/2018-CE dated 01/03/2003 - period from 2006 to 2007 - CBEC vide Circular No. 71/71/94-CX, dt. 27/10/1994 - HELD THAT:- The business of LIC is Life Insurance. They are neither manufacturers nor traders of diaries. Consequently, in the light of the clarification above, the mischief of provisions relating to brand will not be attracted in the present case.

  The appellant will be entitled to the benefit of SSI Exemption in respect of the diaries cleared to LIC - Appeal allowed - decided in favor of appellant.

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• 2018 (9) TMI 1900
  

  Disallowance u/s 14A - HELD THAT:- No disallowance u/r 8D(2)(ii) has been made by the lower authorities. It is further noted that Hon’ble Supreme Court in a recent judgment, in group of cases titled as Maxopp Investment Ltd. Vs CIT [2018 (3) TMI 805 - SUPREME COURT] has decided vital issues concerning disallowance u/s 14A, the benefit of which was not available to the lower authorities at the time of adjudicating this issue.

  Therefore, respectfully following the judgment of co-ordinate bench of this Tribunal in earlier years and in the light of recent judgment by Hon’ble Supreme Court, the matter stand remitted back to the file of Ld. AO on similar lines with similar conclusion. Needless to add that adequate opportunity of being heard shall be provided to the assessee, who, in turn, is directed to substantiate his claim, in this regard, with documentary evidences / suitable explanations etc.

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• 2018 (9) TMI 1899
  

  Disallowance of provision of leave encashment u/s 43B(f) for want of actual payment - HELD THAT:- Both parties inform us during the course of hearing that hon'ble jurisdictional high court’s decision in Exide Industries Ltd. vs. Union of India [2007 (6) TMI 175 - CALCUTTA HIGH COURT] quashing the statutory provision itself to be ultra vires. Hon'ble apex court [2009 (5) TMI 894 - SC ORDER] has stayed operation thereof vide order dated 08.05.2009. It further emerges that this tribunal’s order in assessee’s case itself in preceding assessment year [2018 (4) TMI 1757 - ITAT KOLKATA] has restored the very issue back to the Assessing Officer to be decided afresh after awaiting final order of hon'ble apex court. We adopt the same course of action in the impugned assessment year as well. The assessee’s instant former substantive ground is restored back to the Assessing Officer to be decided afresh after the final outcome in Revenue’s appeal in Exide Industries Ltd.

  Exclusion of sales tax incentive and state capital investment subsidy availed during the year being capital in nature in computing book profits section 115JB - HELD THAT:- The undisputed fact is that the incentive received by assessee is not in the nature of income earned during the course of business. Therefore, in our considered view, same cannot be regarded as “income” for the purpose of MAT u/s 115JB of the Act. Thus, the amount of incentive received by assessee should be excluded from the determination of book profit under the provision of Section 115JB of the Act. Thus, we reverse the order of Ld. CIT(A). and direct the AO to delete the same. This ground of assessee’s appeal is allowed.

  Section 14A r.w. 8D disallowance of administrative expenditure - HELD THAT:- CIT(A) has followed this tribunal’s decision in REI Agro Ltd. vs. DCIT [2013 (9) TMI 156 - ITAT KOLKATA] holding that only dividend yielding investments are to be considered for computing administrative expenditure disallowance as upheld in hon'ble jurisdictional high court. The CIT(A) has admittedly directed the Assessing Officer to adopt the same formula in impugned assessment year. DR fails to pin-point any irregularity or illegality therein during the course of hearing.

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• 2018 (9) TMI 1897
  

  Validity of revised assessment order - time limitation - section 27 of TNVAT Act - HELD THAT:- The revision proceedings have been belatedly initiated only on 24. 11. 2017 ie. , beyond the period of five years and therefore, all the impugned orders are liable to be set aside as barred by limitation.

  Impugned order set aside - petition allowed - decided in favor of petitioner.

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• 2018 (9) TMI 1896
  

  Disallowance u/s 14A r.w. Rule 8D - HELD THAT:- The issue is squarely covered by the Hon’ble jurisdictional High Court’s judgment in the case of CIT Vs Corrtech Energy Pvt Ltd . [2014 (3) TMI 856 - GUJARAT HIGH COURT] inasmuch as the disallowance u/s 14A cannot exceed the exempt income. This is precisely what the CIT(A) has held. In view of the matter and in view of the decision of the learned CIT(A) which is clearly in accordance with the law laid down by the Hon’ble jurisdictional High Court (supra), we see no reasons to interfere in the matter.

  Disallowance of deduction u/s 80-IB(10) - assessee has received towards charges collected from the customers for AEC, AUDA, legal charges etc.- AO was of the view that these receipts are not eligible for being included in the profits eligible for deduction u/s 80-IB(10) - HELD THAT:- Whatever details have been given by the assessee with regard to AUDA charges, electricity connection charges and legal charges etc., nowhere these facts have been verified by the lower authorities and the computation of Asmakam project has not been elaborately discussed by the lower authorities. Therefore, we are of the considered view that this matter needs further examination; therefore, we remit this issue back to the file of the Assessing Officer for examination afresh and call for all details pertaining to Asmakam project and thereafter will decide the matter on merits.

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