|
Advanced Search Options
Case Laws
Showing 261 to 280 of 1410 Records
-
2020 (12) TMI 1153
Bogus purchases - Estimation of income - search and seizure operation u/s. 132 - HELD THAT:- Just because the assessee had made payments through banking channels to the vendors and recorded the diamonds purchased in its stock book does not make the transactions to be genuine with conclusive evidence. Further there is no materials on record to justify that the stock is reconciled with respect to purchases, sales and closing stock item wise.
There is every possibility for the assessee to make payment through banking channel and receive the same back by way of cash and obtain bogus purchase bills. It is also obvious that in the nature of business carried out by the assessee, 0.33% net profit declared by the assessee is too low and cannot be accepted. Further even if 24% of the turnover is estimated as the income of the assessee, the assessee should have earned net income of approx. ₹ 98,00,000/-.
In the case of the assessee it has only declared net profit of ₹ 1,33,921/-. Considering these facts and circumstances of the case and the report of the Investigation Department of the Revenue, we are of the considered view that the addition made by the Ld. AO for ₹ 98,69,702/- is justifiable when there is a corroborative evidence from the records maintained by the vendors of the assessee that the purchases made by the assessee is bogus. - Decided against assessee.
-
2020 (12) TMI 1152
Addition on account of deemed dividend u/s. 2(22)(e) - assessee company has obtained unsecured loan from Gaurav Securities Pvt. Ltd - One main shareholder of the assessee company was also holding substantial shareholder in the Gaurav Securities Pvt. Ltd. from whom the assessee has obtained the loan - HELD THAT:- For the applicability of section 2(22)(e), it is required that the assessee company must be a shareholder in the company from whom the loan or advance has been taken and it does not provide that any shareholder in the assessee company who had taken any loan or advance from another company in which such shareholder is also a shareholder having substantial interest. Since the facts of the case of the assessee are squarely covered by the decisions of Mahavir Inducto Pvt Ltd. [2017 (1) TMI 1159 - GUJARAT HIGH COURT] the impugned addition is deleted. Accordingly, this ground of the assessee is allowed.
Disallowance of office expenses - assessee has shared common business premises with its associate concern M/s. Gaurav Securities Pvt. Ltd. and in the profit and loss account assessee company has debited substantial expenses related to the office building and its maintenance - AO show cause to assessee why 50% of these expenses should not be disallowed because of sharing of common business premises - HELD THAT:- On perusal of the profit and loss account of M/s. Gaurav Securities Pvt. Ltd it is noticed that during the year under consideration it has shown only indirect income in the form of dividend income and interest income which demonstrate that no major activities was carried out during the year under consideration. The Assessing Officer has also failed to controvert the claim of the assessee with specific finding that its associate concern had not carried out any business activity at the premises. The aforesaid facts demonstrates that no major activities has been carried out in the case of M/s. Gaurav Securities Pvt. Ltd. therefore we consider that disallowance of expenses to the extent of ₹ 25% of the amount is reasonable in this case. We restrict the disallowance to the extent of ₹ 25% of the expenses - Decided partly in favour of assessee.
-
2020 (12) TMI 1151
Computation of income from house property - deduction of interest on subsequent loan which was borrowed to repay earlier loan - assessee has claimed deduction under section 24(b) as interest paid on capital borrowed for the purpose of construction of the property- interest paid on the loans borrowed for the purpose of construction of a commercial building - CIT(A) allowed the claim of the assessee for deduction of interest paid to Corporation Bank but did not allow the claim of the assessee for deduction on account of interest paid to Kaveri Bai - HELD THAT:- The CBDT in Circular No. 28 dated 20-8-1969 has explained that when a loan is taken to repay loan taken for construction of a property interest paid on such loan is also deductible in computing under the head income from house property.
CIT(A) held that this circular is not applicable because the same was issued when erstwhile Sec. 24(1)(vi) of the Act was in force and that by the Finance Act, 2001 w.e.f. 1.4.2002 Sec. 24 of the Act was reframed is not correct on the part of the CIT(A) to conclude that the aforesaid circular is not applicable as it was issued under the erstwhile provisions of Sec. 24 as it stood prior to 1.4.2002.
The new provisions of Sec. 24 are also on the same lines with regard to the scheme of determination of income under the head income from house property and in particular with regard to allowability as deduction of interest paid on loans borrowed for the purpose of constructing the property. Therefore one of the reason given by the CIT(A) for not allowing the claim of the Assessee is therefore unsustainable.
Denying deduction of interest paid to Mrs. Kaveri bai is by applying the 3rd proviso to Sec. 24(b) - The expression used in Sec. 24(b) is 'property' and not residential or commercial property. Therefore, irrespective of the nature of the property whether it is residential or commercial, deduction has to be allowed under section 24(b) of the Act. As far as the 3rd proviso to section 24(b) of the Act is concerned, all the provisos to Sec. 24(b) of the Act deal with property referred to in section 23(2) of the Act which refers to a residential property. The proviso only carves out an exception to section 24(b) of the Act, in so far as it relates to property used for residential purposes and does not deal with or curtail the right of an assessee to get deduction on interest paid on loans borrowed for the purpose of constructing commercial property. Both the AO and CIT(A), in our view, fail into an error in applying the 3rd proviso to section 24(b) of the Act to the case of the assessee.
None of the reasons assigned by the revenue authorities for denying the claim of the Assessee for deduction of interest paid to Mrs. Kaveri Bai, while computing income under the head income from house property can be sustained. We, therefore, direct that the deduction claimed by the assessee should be allowed.
-
2020 (12) TMI 1150
Disallowance u/s 40(a)(i)/(ia) - assessee has claimed the amount of provision for expenses so reversed as deduction - A.R. submitted that the assessee had voluntarily disallowed a sum in AY 2006-07 u/s. 40(a)(i)/(ia) of the Act for non-deduction of tax at source - HELD THAT:- As per the provisions of the Act, if the assessee has got any benefit from an amount, which was claimed as deduction in an earlier year, then such benefit is taxable.
When the assessee has not claimed the amount as deduction at all in an earlier year, any benefit obtained from it cannot be subjected to tax under the Act.
In the instant case, the assessee has disallowed the provision amount of ₹ 9.71 crores while computing total income for AY 2006-07, meaning thereby, the assessee has not claimed the amount of ₹ 9.71 crores as deduction in AY 2006-07. The assessee has reversed the entire amount of ₹ 9.71 crores in the year relevant to AY 2007-08 by crediting the same to expenditure account/P & L a/c. Out of the amount so reversed, the assessee has incurred expenses to the tune of ₹ 4.17 crores. The assessee has not incurred expenses for the balance amount of ₹ 5.54 crores and hence it has increased the profit/total income of the assessee. Since it was not claimed as deduction in AY 2006-07, the same cannot be subjected to tax during the year under consideration. Accordingly, we are of the view that the Ld CIT(A) was justified in deleting the disallowance - Decided in favour of assessee.
-
2020 (12) TMI 1149
TP Adjustment - comparable selection - HELD THAT:- Acropetal Technologies Limited - There is no objection with regard to this comparable however the DRP suo moto excluded the above company from the list of comparables though it satisfies all the criteria adopted by the TPO. In our opinion, suo moto exclusion of this company by DRP is not proper and there is also no objection from the assessee. Accordingly, we direct the TPO to include this company as comparable in the list of comparables for determining the ALP.
E-Infochips Limited - In the present case, the assessment year involved is 2011-12; as rightly pointed out by the ld.AR, the revenue from software development services is less than 75% and it is having revenue both from software development and software services and also segmental data was not available. In these circumstances, it cannot be included as comparable in the list of comparables. Accordingly, the exclusion by the DRP is justified.
L & T Infotech Limited - This company is not functionally comparable to the assessee's case as the company L&T Infotech Limited is predominantly engaged in onsite software development - Accordingly, the exclusion of this company from the comparison list by DRP is justified.
R S Software Limited - when the assessee as well as the TPO excluded it as comparable without any objection by the assessee, it cannot be excluded by the DRP. Accordingly, this company is to be included as a comparable. The exclusion of this company as comparable suo moto by the DRP cannot be approved. We direct the TPO to include this company in the list of comparables.
Acropetal Technologies Limited - We direct the TPO to exclude this company from the list of comparables.
Jeevan Scientific Technologies Ltd. and I-Gate Global Solutions Limited - No serious argument was put forth by the ld. DR. Accordingly the exclusion of these two comparables by the DRP is justified. We direct the TPO to exclude these two companies as comparables from the list of comparables.
Net profit margin realized by the tax payer in the international transactions - foreign exchange transactions to be considered as operating in nature - HELD THAT:- This issue was considered by this Tribunal in Cisco Systems Services BE [2014 (10) TMI 852 - ITAT BANGALORE] wherein it was held that the foreign exchange fluctuation gain arising to the assessee on realization of trade debtor, payment to creditor, etc. were nothing but operational income. On the same analogy, we are of the opinion that the foreign exchange gain or loss relating to the trading transaction of the assessee should be considered as operating income/expenses. Being so, we are upholding the finding of the DRP on this issue. The ground of appeal taken by the Revenue is rejected.
-
2020 (12) TMI 1148
Reopening of assessment u/s 147 - exemption under section 11 and 12 denied - AO has noticed that since 85% of the income for the year under consideration was not applied by the assessee for charitable purpose, therefore, the assessee was not entitled to exemption u/s. 11 - HELD THAT:- We are not convinced with the arguments of the assessee that the assessee has fully and truly disclosed all material facts necessary for his assessment. It is apparent from the assessment order dated 13.2.2014 that the assessee did not disclose fully and truly the very material fact that the assessee had not applied 85% of the income/receipts of the year for charitable purposes which was a pre-condition for grant of exemption u/s. 11. Had the assessee disclosed this material fact to the AO, the Assessing Officer would not have accepted the return of the income of the assessee. In view of this, we do not find any merit in ground No. 1 of the appeal and the same is, therefore, dismissed.
Deduction u/s. 11 - alternative claim u/s. 10(23C)(iiiad) was also made before the Assessing Officer and the Assessing Officer was supposed to consider the same - HELD THAT:- We find force in the above contention of the assessee. If the assessee otherwise is eligible for deduction under the provisions of section 10(23C)(iiiad) of the Act, the said claim of the assessee, in our view, is required to be examined by the AO. The issue is, therefore, restored to the file of the AO with a direction to consider the alternative claim of the assessee of its eligibility to claim exemption from taxation under the provisions of section 10(23C)(iiiad) of the Act if the assessee otherwise qualify for the same irrespective of the fact whether or not the assessee had made a specific claim in the original return of income in this respect. This issue is accordingly restored to the file of the Assessing Officer.
As contested the denial of claim of exemption under the provisions of section 11 of the Act. Admittedly, the assessee did not apply 85% of the income/receipt on charitable purposes as required under the provisions of section 11 of the Act. Therefore, there is no merit in this ground of appeal, and the same is accordingly dismissed.
-
2020 (12) TMI 1147
Penalty levied u/s 271(1)(c) - addition made u/s 68 - HELD THAT:- Admittedly the question of penalty u/s.271(1)(c) arises with respect to the addition made during the assessment proceeding.
In the case on hand the quantum addition made u/s 68 of the Act for ₹ 70 lacs had been deleted by us in the quantum order as discussed above. Accordingly we are of the view that the penalty u/s.271(1)(c) is not sustainable. Thus the penalty levied by the AO is hereby deleted. Hence the ground of appeal of the assessee is allowed.
-
2020 (12) TMI 1146
Long term capital gain arising on the sale of land u/s. 50C - CIT(A) has dismissed the appeal of the assessee stating that there was no categorical request made by the assessee before the Assessing Officer that the valuation may be referred to the departmental valuation officer - HELD THAT:- We consider that the assessee has categorically brought to the notice of the Assessing Officer that the value adopted by the stamp valuation authority in his case exceed the fair market value of the property as on the date of transfer because the circumstances cited as supra in this order. Therefore, we consider that to verify the facts reported by the assessee, the Assessing Officer could have referred the issue for valuation of the sold capital asset to a Departmental Valuation Officer under the provision of section 50C(2)
We restore this case to the file of the Assessing Officer for deciding the issue of long term capital gain earned on sale of the impugned land afresh after referring the matter to the departmental valuation officer. Therefore, this appeal of the assessee is allowed for statistical purposes.
-
2020 (12) TMI 1145
Accrual of income - Revenue recognition - sale proceeds from declared and undeclared stock - case was selected for scrutiny and notice under section 143(2) on the basis of revised return filed - HELD THAT:- Recognition of sale proceeds from declared stock received by assessee - Accrual of income must be judged, depending facts and circumstances of each case.
Sale proceeds from disclosed stock accrued to assessee during the year under consideration and has to be considered for determining income under the head ‘profits and gains from business for year under consideration.
We have already noted that assessee has offered the above sale consideration on subsequent assessment years, and income tax act does not permit to assess same income twice. Hence in our view assessee may move appropriate petition before the authorities below for exclusion of above sale proceeds from declared stock in the relevant assessment year.
Addition of sale proceeds of undeclared stock - what could be considered under section 37, are probable expenditure for purposes of earning income? - On perusal of decision in case of Prakash Cotton . [1993 (4) TMI 3 - SUPREME COURT]. Hon’ble Court was considering determination of real income in case of ‘finance lease’ that forms part of ‘lease Rentals’. Hon’ble Karnataka High Court following decision of Hon’ble Delhi High Court in case of CIT Vs. Virtual Soft Systems Ltd[2012 (2) TMI 120 - DELHI HIGH COURT] held that, only financing charges represents real income, and not capital receipt, though both have been accrued and received.
In present facts there is no doubt that sale proceeds from undeclared stock assume character of income in the hands of assessee. Merely because sale proceeds were not parted to assessee, it cannot be considered as probable expenditure u/s 37(1).
Whether to be treated as diversion of income by overriding title or Trading Loss? - There is no doubt that, sale proceeds arises out of dump considered by assessee to be not saleable that was generated in course of its regular business. Therefore, such undeclared stock, in principle belongs to assessee and sale proceeds of such undeclared stock assume character of income in the hands of assessee when sale proceeds are recovered by assessee. Hence in principle, such income should be considered as accrued to assessee on the date of sale by MC - even if the receipt is considered as taxable on accrual basis, the same is deductable as trading loss.
Addition under the head SPV charges - Whether part of Corporate Social Responsibility (CSR) activity - addition on account of Category A-10% of confiscated sale proceeds utilised towards SPV and addition on account of Category B-15% of confiscated sale proceeds, utilised towards SPV - HELD THAT:- We note that 10%/15% of sale proceeds was payable to SPV account, after it accrued to assessee, and the fact that, assessee was obliged to part with such portion of income, by virtue of directions of Hon’ble Supreme Court in case of Samaj Parivartana Samudaya & Ors. Vs. State of Karanataka & Ors. [2011 (8) TMI 1339 - SUPREME COURT] as a precondition to resume mining operations under Category ‘A and ‘B’. At this juncture we also emphasise that, but for the intervention by Hon’ble Supreme Court, assessee would not have contributed 10%/15% to SPV account for implementation of reclamation and rehabilitation scheme on its own, as there was no statutory requirement to do so under relevant statutes that regulate mining activities.
In our view contributing 10%/15% to SPV account on account of Category ‘A’/ ‘B’ respectively, would be application of income, and therefore should be considered as expenditure incurred for carrying out its business activity.
Provisions of Explanation 1 to sec.37 will not apply to these payments. We also note that Hon’ble Supreme Court at page 171 observed that, these payments are necessary to be made by the mining lease holders. Hence there is merit in the submission of Ld.Counsel that, without making these payments, assessee could not have resumed the mining operations. Hence, these expenses are incidental to carrying on the business and hence allowable u/s 37(1) of the Act.
Based on above discussions and analysis, we are of opinion that contribution to SPV being 10%/15% of sale proceeds, under category A/B, is to be allowable as expenditure for year under consideration.
Disallowing the expenditure paid to the department of Mining and Geology on the premise that the said payment is in the nature of penalty for breach of law under Explanation 1 to section 37 - Assessee contested that, expenditure was incurred as compensatory/compounding fee, and paid as commercial expediency to regularise pending issues and by doing so, assessee was allowed to commence its business operations - Assessee claimed it as expenditure in the original return of income and excluded the same from Sales revenue in the revised return of income contending that the same is diversion by overriding title.- HELD THAT:- As relying on NMDC Ltd vs ACIT [2018 (10) TMI 1120 - ITAT AHMEDABAD] Payment made is compensatory in nature only as these funds are meant to be used for public purposes and the assessee could not have commenced its operations without paying the same, the same is allowable as revenue expenditure. We are therefore of the view that payment made as compensation is not hit by Explanation 1 to Section 37(1) and is an allowable expenditure.
Disallowance of probable expenditure for R&R retained/deducted by monitoring committee under Category ‘B’ - assessee has not submitted any details with regard to R&R expenditure and its nature and for what purpose the amount was spent - HELD THAT:- Assessee was directed to make such payments in order to resume the mining activity. It is also clear that payment intimations may be issued as and when found necessary by the Department of Mining. Assessee cannot ignore such intimations for its smooth functioning of business. We therefore are of the opinion that these are expenditure incurred by assessee in lieu of business. We therefore reject the argument of revenue that such payment is hit by Explanation to section 1 to Section 37.
Assessee submitted that in lieu of above directions, assessee was refunded ₹ 1,21,94,000/- out of Rs,1,48,97,000/-, during the financial year relevant to the assessment year 2019-20, which has been offered to tax. This fact supports the submission of assessee that, it did not have any control over the amount so deducted. Accordingly, demand raised by the Department of Mining in its letter would create a liability on assessee. Assessee was therefore justified in creating provision for this expenditure. Since the provision for expenses so made is related to the business activities of assessee, the same is allowable as deduction. Accordingly, we Ld.AO to delete the disallowance of ₹ 1,48,97,000/-.
Disallowance expended towards Corporate Social responsibility - AO disallowed the said sum by holding that it was not incurred for purposes of business - Assessee’s claim of above said expenses were disallowed on the ground that it was not incurred in the course of business but for philanthropic purposes - HELD THAT:- Assessee has contributed funds at the specific request of local administration, which is meant to be used for the benefit of public. As observed in the above said case, the assessee would also be required to approach the appropriate Government and its authorities for grant of permits, licenses. Hence it is a prudent decision of the assessee to oblige to the appeal made by the local administration and incurred the expenses for public purposes. Hence the assessee has incurred expenses not only on account of social responsibility, but also keeping in mind the goodwill and benefit it would yield in the long run in earning profit. Hence this expenditure would be in the realm of “business expenditure”. Accordingly, we hold this expenditure is allowable as deduction. Accordingly, we set aside the order passed by Ld.CIT(A) on this issue and direct the AO to delete this disallowance.
Addition of unaccounted receipts being the difference between books of accounts and Form No.26AS - HELD THAT:- There is no estoppel against law. Hence, if the assessee proves that any transaction does not belong to it, then no addition is called for. Hence acceptance of any addition, which is against law, will not bar the assessee from contesting the same. However, it is the responsibility of the assessee to substantiate its claim. It is also quite possible that some of the companies might have rectified their Statement of TDS in order to correct mistakes, if any. Hence the position available in Form 26AS as on today may depict different picture. Accordingly, we are of the view that the assessee may be provided with an opportunity to reconcile the differences in respect of two companies cited above and also to prove that it did not have transactions with other companies. Accordingly, we set aside the order passed by Ld.CIT(A) on this issue and restore the same to the file of the AO for examining it afresh.
-
2020 (12) TMI 1144
TDS u/s 194C - transportation charges paid during the year - Addition u/s. 40(a)(ia) of the Act for non-deduction of tax at source - immunity from obligations of TDS by filing of PAN of payee transporters - HELD THAT:- Present year under consideration before us AE’s assessment year 2013-14 and therefore unamended provision of clause 6 is to be considered. On perusal of unamended clause 6, it is clear that, if the sub contractor’s have supplied their PAN to assessee in respect of hiring/leasing/of vehicles during the course of its business, then assessee shall not deduct any TDS. Thus, as per Clause 6, as it stood prior to amendment, applicable for the year under consideration, in order to get immunity from obligations of TDS, filing of PAN of payee transporter is sufficient, and no confirmation letter as required by Ld.AO is needed.
The need to furnish declaration from the contractor’s being owners of less than 10 vehicles has been inserted by way of amendment which is effective from 01/06/2015.
AR in the paper book, filed Explanatory notes to the Provisions of Finance Act 2015 at page 75, wherein, applicability of amendment to section 194C(6) has been said to take effect from 01/06/2015. Therefore, amended provision of clause 6 to section 194 cannot be applied retrospectively. Thus the intention of legislature was very clear to apply the amended clause 6 prospectively.
The objection raised by Ld.CIT(A)/AO in this regard therefore does not hold any waters in eyes of law. Categorically assessee had provided PAN of 5/7 transporters, before Ld.AO. We therefore do not find any reason to uphold disallowance in respect of payments made to 5 transporters whose PAN were submitted by assessee.
Accordingly we delete the disallowance made in respect of transporters whose PAN was submitted by assessee.
Payments to M/s.Precicse Carrier and M/s.KPR Transport - As submitted assessee was not required to deduct TDS as the same was within the limit prescribed under section 194C(5) - We direct Ld.CIT(A) to verify whether any TDS is to be deducted on payments made by assessee to M/s.Precicse Carrier amounting to ₹ 34,650/- and M/s. KPR Transport, amounting to ₹ 7,230/-. In the event submissions by assessee are found to be correct, no disallowance shall be made.
-
2020 (12) TMI 1143
Disallowance of prior period expenses - HELD THAT:- It is clear from the Assessment Order that this issue has not been properly examined. Therefore, we deem it fit to remit this issue to the AO for a fresh examination. The assessee shall lay relevant evidence/material in support of its contention and comply with the requirements of the AO in accordance with law. The AO on due examination and after affording due opportunity to the assessee, shall decide the issue on merits
Disallowance of employee's contribution to the PF - assessee paid belatedly u/s. 36(1)(va) but before the due date of filing the return of income - HELD THAT:- We allow the claim of the assessee for deduction towards employees contribution to PF which was deposited late beyond due date as prescribed under relevant statute governing PF, but the same stood deposited to the credit of employees with relevant fund before the due date for filing of return of income as prescribed u/s. 139(1).
-
2020 (12) TMI 1142
Disallowance u/s 14A r.w.r. 8D(2)(ii) - HELD THAT:- On perusal of the financials of the assessee, which is enclosed in the paper book filed by the assessee, it is clear that the interest free funds in possession of the assessee far exceeded the investments made during the current year and even in the immediately preceding assessment year. For the year ending 31.03.2016, the assessee’s share capital, reserves and surplus together is ₹ 33,70,22,076, whereas, the current year’s investment is only ₹ 11,07,43,921. The only justification of the CIT(A) was that the investments are from a common pool, and therefore, a portion of the interest disallowance is warranted.
Hon’ble jurisdictional High Court in the case of CIT v. Microlabs Ltd [2016 (4) TMI 219 - KARNATAKA HIGH COURT] had held that even in a situation where investments are from common pool, if non-interest bearing funds are more than the investments in tax free securities, no disallowance can be made u/s 14A of the I.T.Act r.w.r. 8D(2)(ii) - we delete the disallowance made by the A.O. u/s. 14A of the I.T.Act r.w.r 8D(2)(ii) - we delete the disallowance made by the A.O. u/s. 14A of the I.T.Act r.w.r 8D(2)(ii) of the I.T.Rules - Decided in favour of assessee.
-
2020 (12) TMI 1141
Unexplained cash deposits in his bank account - HELD THAT:- The affidavits so filed in absence of necessary corroboration therefore don’t support the creditworthiness of these persons. Further, it has been stated that the cash advance has been given towards purchase of flat, however, there is no mention about the locality, area, etc of such flat for which such amount has been given. The assessee in his return of income has also not disclosed any transaction towards sale of flats.
The affidavits so filed therefore don’t represent a clear picture of the actual transaction which is claimed by the assessee in absence of necessary corroboration. The assessee was asked to produce these persons for necessary verification and having failed to produce these persons, it cannot be assumed that the AO has accepted the affidavits so filed.
Assessee has failed to discharge the initial onus cast on him in terms of satisfying the test of creditworthiness and genuineness of the transactions so claimed by him and unless the initial onus cast on the assessee is discharged, the burden doesn’t shift on to Revenue to prove otherwise and mere non-issuance of summons doesn’t support the case of the assessee - There is no infirmity in the findings of the ld CIT(A) where the cash deposit has been found not satisfactorily explained and brought to tax in the hands of the assessee as his unexplained income. Appeal of the assessee is dismissed.
-
2020 (12) TMI 1140
Reopening of assessment u/s 147 - Due to non-service of notices assessment has been passed ex-parte - additions have been made under Section 69 and 68 which were on account of unexplained cash Credit in the bank account and undisclosed amount invested in the purchase of land - HELD THAT:- Initiation of proceedings under Section 147/148 of the Act and the assessment order has been passed without service of statutory notices and without giving any opportunity to the assessee there is gross violation of natural justice. Even before the first appellate authority the matter has been decided ex-parte, without any opportunity to represent as notices could not be served. Therefore, in the interest of substantial justice the matter is restored back to the file of Assessing Officer to be decided afresh in accordance with law on all the issues raised before us including the legal issues are kept open and the assessee is directed comply with the notices and substantiate her case before the Assessing Officer.
-
2020 (12) TMI 1139
Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution.
There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter.
Petition dismissed.
-
2020 (12) TMI 1138
Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution.
There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - this Court is not inclined to delve into the merits of the controversy involved in this case, touching upon disputed questions of fact for effectual and complete adjudication of the matter.
Petition dismissed.
-
2020 (12) TMI 1137
Seeking directions for reactivation of their Director Identification Numbers (DIN) and Digital Signature Certificates (DSC) - non-compliance and non-filing of balance sheets and returns of the Company for several years - disqualification from acting as Directors, under Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- In the present cases, the first period of disqualification has already ended. The second period of disqualification of five years as per notice dated 15th September 2017 ends on 31st October 2021. A substantial period of the disqualification has already been undergone by the Petitioners. Re-appointment of new directors, seeking approval for the same and then filing documents of the Company under the Scheme, would be an impractical solution. Thus, while leaving the questions of law open, in the facts and circumstances of these two cases, in order to enable the Petitioners/Directors to avail of the Scheme, this Court directs that the DINs and DSC of the Petitioners be reactivated within 24 hours.
Since the ld. counsel for the Registrar of Companies (ROC) are appearing before this court today, the ROC need not wait for a copy of this order in order to reactivate the DINs/ DSCs - Petition disposed off.
-
2020 (12) TMI 1136
Required expenditure for CSR not made - Wilful Default or not - reason for not spending the CSR amount have not been disclosed in Board Report of Financial Year 2014-15 - violation of section 134 (3) (o) r/w Section 135 (5) of the Companies Act, 2013 - HELD THAT:- It is noticed that the Company had made the default good by opening a Foundation in the name of Anil Arjun Foundation and has also transferred an amount of ₹ 30, 43,162/- to the Bank Account of the Trust - It is also noticed that the Trust Anil Salgaocar Foundation has donated a sum of ₹ 75,000/- to Dadapir G. Chauri Trust for Handicapped. The Trust has also donated a sum of ₹ 25, 00,000/- to Bahujan Hitay for Construction of Girls Hostel in Mapusa, Goa. The said receipts of proof are on record.
After considering the submissions made, a Compounding Fee of ₹ 50,000/- by the Company and ₹ 50,000/- by the 2 Directors herein i.e. ₹ 1,50,000/- in total shall be sufficient as a deterrent for not repeating the impugned default in future. The imposed remittance shall be paid by way of Demand Draft drawn in favour of “RoC Mumbai” within 30 days from the receipt of this order - Compounding application disposed off.
-
2020 (12) TMI 1135
Restoration of name of the Petitioner Company on the Register of Companies maintained by the Registrar of Companies - section 252 of the Companies Act, 2013 - HELD THAT:- Though, the impugned order striking off the Company was in accordance with law, the Tribunal has to take into consideration the bonafide contentions of Petitioner seeking to restore the name of Company, by taking a lenient view of the issue in the interest of justice and ease of doing business, instead of rigidly interpreting the law on the issue. It is also not in dispute that the instant Company Petition is filed in accordance with law; there are no investigations pending against the Company; the Respondent has not opposed the Petition and has left the issue to the Tribunal to consider the case subject to certain terms and conditions.
It has been submitted that the Company is a going concern and it had a turnover of ₹ 47,61,996/- for the YE 31.03.2011. Striking of its name would affect the Petitioner as well as its shareholders and suffer hardship and irreparable loss. No prejudice would be caused to any party if the Company's name is restored, as prayed. The Members of the Company have undertaken that post restoration of the name of the Company in the Register of the Registrar of Companies, Bangalore, the Company will complete the Annual filings due for the past years and carry on the business in its ordinary course.
The interest of justice would be met if the name of Company is restored as prayed for - application allowed.
-
2020 (12) TMI 1134
Seeking restoration of the name of the struck off company in the Register of Companies maintained by the ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It is noted that company has failed to file returns from 2010-11 to 2015-16 which prompted ROC, Gwalior, Madhya Pradesh to strike off the name of such company from its Register of Companies. Although, Financial Statements do not enable us to conclusive hold that the company is having operations/trading activities. From the perusal of the Financial Statements however, it could be said some activities exist. Further, the representative of the Applicant has categorically stated that intend to increase the volume of operations in future - Considering this, it is just and proper to restore the name of the company in the Register of Companies maintained by ROC, from the date of its striking off subject to payment of suitable cost for noncompliance of filing requirements without any reasonable explanation.
The Registrar of Companies, Gwalior, Madhya Pradesh the respondent herein, is ordered to restore the original status of the Applicant Company as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of Company from 'struck off to Active - Application allowed.
............
|
9911796707
