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Showing 261 to 280 of 1558 Records
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2017 (2) TMI 1301
SSI exemption - use of brand name - Held that: - mere inscription of two small letters viz. “AT” on various jewellery items cannot make said letters “AT” a brand name unless these two letters “AT” could be covered by the definition of brand name or trade name - the fact that the respondents have a different trade mark/brand name registered in their name, which has not been used for the subject goods viz. articles of jewellery, mere use of minute-sized two letters - “AT” cannot be called the brand name of the respondents - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1300
Extended period of limitation - evasion of duty - clandestine removal - Held that: - the order of the CESTAT does not reflect any findings on the point of extended period as raised by the appellant and also issuance of show cause notice demanding duty by invoking the extended period of limitation under Section 11A(1) of the Act. Without there being a finding or discussion on the said point by CESTAT, it should not be appropriate for this Court to deal with the issue on merits.
Instead of disposing the matter on merits, it would be appropriate for us to direct the CESTAT/1st respondent herein to consider the same on the issue of invocation of extended period of limitation as well as the action being initiated after the extended period, invoking proviso to Section 11A of the Central Excise Act.
Appeal disposed off.
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2017 (2) TMI 1299
Reduction of Penalty u/s 11AC - suppression of facts - Held that: - Ld. Commissioner(Appeals) only on the ground that there was no suppression of facts on the part of the appellant, reduced the penalty from equal amount of duty to ₹ 1 Lakh. However, Ld. Commissioner(Appeals) has not held that penalty is not imposable under Section 11AC - Ld. Commissioner(Appeals) has no power to reduced penalty under Section 11AC of the Customs Act, 1962 - the Commissioner(Appeals) has wrongly reduced the penalty from equal amount of duty to ₹ 1 Lakh - appeal allowed.
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2017 (2) TMI 1298
Revision application - case of applicant is that neither in the statutory notice nor in the complaint or in the chief examination of the complainant before the trial Court, the receipt sums of ₹ 1 lakh on 23.01.2009 and ₹ 5,00,000/- on 05.03.2009 had been informed - Held that: - Courts below erroneously have dealt with the issue by informing that even if the payments of ₹ 6,00,000/- is taken into account, the amounts reflected in the cheque will still be owing from the petitioner. The concern of the Court is whether the complainant has approached it with unclean hands. When the answer is in the affirmative, the complainant would suffer the dismissal of his complaint - revision allowed.
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2017 (2) TMI 1297
Maintainability of appeal - Penalty - Valuation - revised valuation of FOC materials supplied by GMI - loading towards drawing and design supplied by GMI to AVTEC - the decision in the case of Commissioner of Customs, Central Excise and Service Tax, Indore Versus Avtec Limited [2017 (12) TMI 1424 - MADHYA PRADESH HIGH COURT] contested - Held that: - Delay condoned - issue notice.
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2017 (2) TMI 1296
Grant received by Assessee from Government of India - accrual of income - Held that:- In the case in hand grant/subsidy was forwarded by Government of India to help Assessee in its revival by making payment to employees towards VRS. It was a voluntary remittance fund by Government of India to Assessee. Despite our repeated query learned counsel appearing for appellant could not show anything so as to bring 'grant' or 'subsidy' same within any particular clause of Section 2 (24) of Act, 1961.
Sub-clause (xviii) has been inserted in Section 2(24) by Finance Act, 2015 with effect from 01.04.2016 which deals with certain kind of subsidy or grant or cash incentive etc. by Government of India or State Government but that clause has no application in the present case. In view thereof, we answer Questions-(i) and (ii) both in favour of Assessee and against Revenue holding that amount of grant received by Assessee from Government of India could not have been treated as "income" and that being so, addition made by AO of amount of grant and upheld by Commissioner and Tribunal is not in accordance with law. Both these Questions are answered in favour of Assessee.
Payment made to L.I.C. under Gratuity Insurance Scheme by referring to Section 40(A)(vii) - disallowance observing that fund was not recognized by Department - Held that:- A similar question was considered in CIT Vs. Textool Co. Ltd. (2009 (9) TMI 66 - SUPREME COURT) where also payment was made to L.I.C. towards group life assurance scheme and this was held to be an approved Scheme and there was no violation of Section 36(1)(v) of Act, 1961. Court held that a narrow interpretation straining language of Sub-Clause (v) so as to deny deduction to Assessee should not be followed since the objective of fund was achieved. - Decided in favour of assessee.
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2017 (2) TMI 1295
Smuggling - import of synthetic fabrics from Nepal - sentence of six months rigorous imprisonment alongwith fine - Held that: - in the present case, the alleged smuggling is of synthetic fabrics only and that too in the year 1986. The revisionist/accused, though found in possession of the aforesaid fabrics, alleged himself to be only a driver of the vehicle in question and this assertion of the accused was not even attempted to be rebutted by the prosecution. Facing trial for such a long period is by itself a sufficient incarceration and besides this, the accused has undergone a reasonable long period in detention in relation to this case - the sentence of six months rigorous imprisonment and confirming the amount of fine imposed by the learned Court below and the period of detention in default of deposit of fine would be proper and would serve the interest of justice.
The Criminal Revision is partly allowed and while the conviction of the accused u/s 135(l)(b) of the CA, 1962 is upheld, the sentence awarded to the accused is modified to the extent that he shall undergo an imprisonment of six months’ rigorous imprisonment with adjustment of the period already undergone in detention by him in the present case - revision partly allowed.
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2017 (2) TMI 1294
Benefit of N/N. 10/97-C.E., dated 1-3-1997 - goods supplied to the specified institution - cancellation of Essentiality Certificate - Held that: - the clearance of the impugned goods was done properly on the basis of compliance of the prescribed conditions on the date of clearance and subsequent withdrawal of facility to issue Essentiality Certificate does not justify the demand raised by the department in the absence of any allegation of fraud or collusion - appeal allowed.
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2017 (2) TMI 1293
Disallowance u/s.14A - Held that:- Since in the instant case the assessee has not received any dividend on the investment made in shares of group companies, therefore, the investment made in the group companies should be excluded from the investments for the purpose of computing disallowance u/s.14A r.w. Rule 8D.
So far as inclusion of share application money is concerned, it is an admitted fact that no shares are allotted as on 31-03-2009. We find merit in the submission of the assessee that the question of earning any exempt income simply does not arise on such share application money pending allotment. We find the Mumbai Bench of the Tribunal in the case of Rainy Investments Pvt. Ltd. (2013 (2) TMI 602 - ITAT MUMBAI) has held that share application money cannot be regarded as an investment in shares or an asset yielding tax free income and neither is it capable of yielding any tax free income. Thus we hold that share application money pending allotment should be excluded from the investments for the purpose of computing disallowance u/s.14A.
Computation of disallowance u/s.14A on account of investment in partnership firms we find the assessee has excluded the same for the purpose of computation of disallowance u/s.14A. We find the Assessing Officer included the investments made in K.K. Erector, Kumar Sons and Kumar Builders on a pro-rata basis which has been upheld by the CIT(A). We find the amounts invested in the above firms is much less than the own capital and free reserves of the assessee company. Since the assessee in the instant case has conclusively proved that its own capital and free reserves are much more than the investment in the partnership firms and since we have already held in the preceding paragraphs that the share application money as well as investment in the group companies on which no dividend has been received has to be excluded from the investments for the purpose of computation of disallowance u/s.14A, therefore, in view of the discussions above no disallowance u/s.14A is called for in the instant case. Accordingly, the grounds raised by the assessee including the additional grounds are allowed.
Addition being interest received on deposits belonging to the society - Held that:- The assessee could not bring any material before us to show that assessee has infact handed over the money to the society. Since there is no evidence on record that any society has been formed and the assessee has transferred the money to the society or has shown any liability in its books and considering the fact that the assessee has claimed tax credit on such interest income, therefore, we find no infirmity in the order of the CIT(A) on this issue. Accordingly, the grounds raised by the assessee on this issue are dismissed.
Proportionate disallowance made on account of diversion of borrowed funds and enhancement of income - Held that:- Since in the instant case the assessee has conclusively proved that the own capital and free reserves of the assessee company is much more than the interest free advances given to Sinew Developers Pvt. Ltd. and Riverview Properties Pvt. Ltd. therefore, respectfully following the decision of Coordinate Bench of the Tribunal in the case of Trinity India Ltd. (2013 (8) TMI 948 - ITAT PUNE) we hold that the CIT(A) is not justified in enhancing the income of the assessee by directing the Assessing Officer to disallow proportionate disallowance of interest
Interest free advances to two concerns - Held that:- CIT(A) has correctly given a categorical finding that the interest free advances to Pune Technopolis Development Pvt. Ltd. and L.K. Developers Pvt. Ltd. are for business expediency and therefore in view of decision of Hon’ble Supreme Court in the case of S.A. Builders Ltd. (2006 (12) TMI 82 - SUPREME COURT) no disallowance of interest u/s.36(1)(iii) is called for under the facts and circumstances of the case.
Addition on account of society maintenance charges - Held that:- Admittedly, the assessee is a Builder and Developer. It is a normal business practice in construction business that the builder is responsible for the maintenance of the buildings of a society till such time the flat owner’s society or committee is formed and the maintenance of the society is thereafter handed over to the society or committee even though the flats are sold. In the instant case, there is no finding by the Assessing Officer that the assessee has incurred society maintenance charges even after the formation of the committee and the maintenance of the buildings was handed over to such committee. In absence of the same, we find merit in the findings given by the CIT(A) that the society maintenance expenditure incurred by the assessee is a business expenditure incurred in the normal course of business activity since the society has not been formed and the maintenance of the society is not handed over to the society or committee. In this view of the matter and in view of the detailed reasoning given by the CIT(A) we find no infirmity in her order. Accordingly, the same is upheld and the grounds raised by the Revenue on this issue are dismissed.
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2017 (2) TMI 1292
Revocation of CHA License - forfeiture of security deposit - forged certificate not given by CHA - Held that: - it appears that the importer has submitted the forged certificate in the name of the assessee-Respondent - there was no role of the assessee-Respondent, however, there was negligence on their part - forfeiture of security deposit upheld, setting aside the revocation of license - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1291
Oppression and mismanagement - plea as taken by the respondent that pursuant to meeting of Board of Directors held and the Extraordinary General Meeting his shareholding has been brought down from 50% to 0.24% and meeting was held without notice and his knowledge - Held that:- The appellants denied the statement made by the respondent that he along with the 2nd appellant decided to restructure the aforesaid sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) as loan and returned the same to the 4th appellant. There is nothing on record to suggest that the respondent produced any evidence before the Tribunal in support of his claim and he and the 2nd appellant decided to restructure the sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) as the loan or returned the sum to the 4th appellant. In fact, the respondent himself has taken and accepted that the 4th appellant provided a sum of ₹ 2,01,00,000/- (Rupees two cores on lakh only) to start the working of the company.
Tribunal has noticed that no notice was served on the Respondents, and no EGM held to allot shares in favour of the 4th Appellant. The respondent had no knowledge, and in the result the share of Respondent/ Petitioner had reduced.
For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 10th November 2016. However, in the facts and circumstances of the case, we direct the respondent and the other directors and the company to refund the amount of ₹ 2,01,00,000/- (Rs. Two Crore One Lakh only) with 18% per annum simple interest to the 4th appellant within one month. The Registrar of the Companies will ensure such payment.
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2017 (2) TMI 1290
Disallowance u/s 14A - Held that:- CIT(A) has rightly given a finding that the investment in units of UTR was made in the earlier years and all that it had to do for earning the dividend was to deposit the cheque. This does not require the assessee to incur expenditure, the assessee’s contention that Section 14A does not envisage disallowance to any ad-hoc or an estimated expenditure. It is only en expenditure actually incurred for earning an income exempt from tax that would be disallowed u/s 14A. CIT(A) has rightly relied on the order of Hon’ble Delhi High Court in case of CIT Vs. Chemical & Metalogical Design Company Ltd [2008 (7) TMI 1005 - DELHI HIGH COURT] wherein it is held that making a proportionate disallowance of expenses on estimated basis could not be sustained under Section 14A of the act. Thus, the CIT (A) has rightly deleted the said addition.
Long term capital loss on sale of 1140 units of VECAUS-II 1990 - Held that:- CIT(A)’s finding is correct that the Assessing Officer fail to take into account the indexed cost of acquisition for Assessment Year 1990-91 and also the fact that the same pertaining to 1140 units. This is supported by the notes attached to the return of income and computation of capital gains for the year under appeal.
Addition on account of change in method of valuation of closing stock applying provisions of Section 145A - Held that:- the assessee has adopted method of valuation of closing stock which is most suitable to the GNF Unit also method has been changed to weighted average cost method in line with other units so that the principle of consistency could be followed among all the units. In-fact, the Assessing Officer’s addition on account of change in method of valuation of closing stock applying provisions of Section 145A does not come in consistence with the proper change of method of accounting, without this fact it could not have been possible to implement the ARP Software for accounting, the said reason is not disputed by the Assessing Officer either in the order or in the remand report. The CIT(A) (A) has rightly deleted this addition.
Addition of interest paid by the assessee being 10% of the sum advanced by the assessee to its subsidiary company in an earlier year - Held that:- This amount was paid by the assessee to its subsidiary company Kelbex International Ltd, which was no longer an operating company being under liquidation, to meet its statutory expenses such as filing fee and audit fee, etc. The assessee had enough funds of its own to advance this money in the year when it was paid. The A.O nowhere suggested that the assessee used any interest bearing loan funds to make this payment. Thus, the CIT(A) rightly agreed with the assessee’s contentions and followed the decision of the Delhi High Court in the case of CIT vs. Tin Box Co. [2002 (11) TMI 75 - DELHI High Court] by directing deletion of disallowance
disallowance of contribution to PF as paid belated - Held that:- Though the contribution to PF & ESIC were paid during the previous year, the presented amounts paid beyond the relevant due dates of the respective months. In view of the amendment of the first provision of Section 43 (B) deletion of the second proviso by Finance Act, 2003 any payment on account of PF etc if made before the due date for filing return would not be hit by Section 43(B). The reliance on the judgment of Delhi ITAT in case of ACIT Vs. M/s Vestas RRB India Ltd. [2004 (5) TMI 245 - ITAT DELHI-C ] is rightly taken into account by CIT(A). This ground is dismissed.
Disallowance of provision for Warranty and Optional Service Contract (OSC) - Held that:- Assessing Officer observation that the provision on the basis of acturual valuation certificate could not be allowed due to over statement of book loss on account of change in the method of accounting for the year under consideration. The decisions cited provides the proposition that provision for warranty was for a definite and ascertain liability and the same could not be disallowed as contingent liability. In-fact in the immediate preceding year i.e. Assessment Year 2000-01 similar disallowance made by the Assessing Officer was deleted in appeal by the CIT(A) and in A.Y. 1993-94 by the ITAT. There is no interference required in the order of the CIT(A) as related to this ground.
Disallowance of lease rentals - Held that:- A.O did not take into account the accounting of the sale proceeds in the year ended 31/3/2000 and also the interest factor for the period of 51 months. Lease financing through sale cum lease back transactions have been in practice for quite some time and if it is only when the existence of assets itself is in doubt or when an asset subject matter of transfer actually from a physical part of another larger asset or such sham transaction takes place that the revenue can rightly object to the arrangements. in the present case, there was no doubt about existence of the assets, the sale proceeds and consequent short term capital gains were duly assessed in Assessment Year 2000-01, and the transaction entitled the assessee to the use of the sale proceeds at a cost lower than borrowing through debentures. The CIT(A) has rightly deleted the same. This ground is dismissed.
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2017 (2) TMI 1289
Mobile phone subscriber verification scheme - It is the prayer of the petitioner, that the identity of each subscriber, as also, his/her address should be verified, so that no fake or unverified phone subscriber, can misuse a mobile phone - Held that: - the prayers made in the writ petition have been substantially dealt with, and an effective process has been evolved to ensure identity verification, as well as, the addresses of all mobile phone subscribers for new subscribers - In the near future, and more particularly, within one year from today, a similar verification will be completed, in the case of existing subscribers - petition allowed.
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2017 (2) TMI 1288
Non-payment of processing fee - The emphatic stand of the Petitioner is that on 01.12.2015 he was present before the trial Court and since NBW was pending against the Respondent, on 30.12.2015, C.C.No.77 of 2007 was dismissed by the trial Court mainly on the ground that on behalf of the Petitioner/Appellant/Complainant, a process fee was not paid and also there was no representation on his side and also that, the Petitioner/Complainant had not appeared before the trial Court continuously and there was also no representation etc.
Held that: - It is to be borne in mind that the High Court has requisite power to review at large the whole gamut of materials available on record in a given trial Court's case and while so doing, it will take into consideration the views of the trial Judge. Also that, in the present case, the trial Court had dismissed the main case, because of the reason that on behalf of the Petitioner/Appellant/ Complainant, there was no representation in the main case in C.C.No.77 of 2007 and also that, no process fee was paid in regard to the execution of NBW.
In fact, a crime is essentially a wrong against the Society and the State. As such, any compromise between the Complainant and an Accused ought not to absolve the Accused from Criminal responsibility, if the offences are of private nature and not serious ones. It can be compounded, if it is punishable offences and in respect of others compoundable can be effected with the permission of the Court.
Maintainability of Complaint - Held that: - In a Complaint under Section 138 of the Negotiable Instruments Act, the Complainant is having a very vital stake in the matter. Therefore, the Complaint ought not to be dismissed in a mechanical, routine or in a cavalier fashion.
This Court is of the considered view that the order of dismissing the complaint in C.C.No.77 of 2007 passed by the trial Court on 30.12.2015 needs to be examined by this Court in a threadbare fashion with a view to find out whether there are prima facie sufficiency of cause/materials on the side of the Petitioner/Complainant.
Matter on remand.
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2017 (2) TMI 1287
Prayer of quashing the enitre proceedings of case no. 866/05 under Section 138 Negotiable Instruments Act, pending before Special Judicial Magistrate (Pollution) Lucknow along with a prayer to quash the order dated 10.5.2007 - Admittedly, a complaint under Section 138 Negotiable Instruments Act was filed by the opposite party no.2 wherein the learned Magistrate has taken cognizance and summoned the petitioners along with other co-accused. An application was moved by the petitioners under Section 245 (2) CrPC which was rejected by the learned Magistrate. This order of rejection is also under challenge
Held that: - the admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provisions casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.
In the present case the opposite party no.2 has not complied the provisions of Section 141 of Negotiable Instruments Act. An essential requirement of Section 141 of the Negotiable Instruments Act has not been made wherein it was necessary to specifically aver in the complaint that at the time the offence was committed the present accused was incharge of, and responsible for the conduct of business of the company. The requirement of Section 141 is that the person sought to be made liable should be incharge of and responsible for the conduct of the business of the company at the relevant time. Necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A clear case should be spelled out in the complaint against the person sought to be made liable. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. Merely being described as a Director in a company is not to satisfy the requirement of Section 141 of Negotiable Instruments Act. Since no compliance of Section 141 of Negotiable Instruments Act has been made by the opposite party no.2, hence, the complaint itself is not maintainable under the law.
The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below.
Compliance of the provisions of Section 141 Negotiable Instruments Act has not been made by the opposite party no.2 which can and should be seen by this Court in a petition under Section 482 CrPC, hence, I do not find any force in the argument of the learned counsel for the opposite party.
Petition allowed - decided in favor of petitioner.
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2017 (2) TMI 1286
TPA - idle capacity adjustment - Held that:- The assessee company has requested for idle capacity adjustment as per Rule 10B(1)(e)(iii),10B(2) and 10B(3) but company is not a new company or startup company. The company along with Greaves manufacturing the tractors prior to 2002.The ld A.R has not furnished the details of installed capacity and utilized capacity from the beginning of its operations. Since the company is reasonably old from the profile, justifiable reasons have to be explained for non-utilization of the capacity and the fixed costs incurred from the year of inception, the installed capacity, utilized capacity and capacity of breakeven point.
Under-utilization of production capacity is a vital factor, as per the information available, this is more than five years old company and did not explain the reasons leading to underutilization of installed capacity. Whether it was on account of non-availability of material, electricity, infrastructures, lack of working capital, etc. In the absence of the details, the case laws relied upon by the assessee are of no help to make adjustment of idle capacity. Therefore we are unable accept the assessee’s request for idle capacity adjustment and the same is rejected. Accordingly grounds raised on this issue are dismissed.
Selection of comparable - Held that:- Assessee is engaged into manufacture of tractors, thus companies functionally dissimilar with that of assessee need to be deselected from final-list.
Working capital adjustment - Held that:- While arguing the case before us, the assessee has not furnished the pricing policy and the interest clauses to make necessary working capital adjustment. This is one of the important factors to make the necessary working capital adjustment. Further, though the TPO has determined the margin adopting M/s.VST Tillers as comparable, we have directed the TPO to include M/s.HMT Ltd., as additional comparable. The TPO should take both the comparables and re-work the margins and make necessary adjustments for working capital in the light of above discussion. This ground of appeal is allowed for statistical purposes.
Rationale for the use of multiple year data - Held that:- As per the discussion made by the TPO and as per the Rule 10B(4) of IT Rules, it is binding of the assessee company to adopt the relevant FY data only in the year in which the international transaction has been entered into. Therefore, the AO has rightly rejected the multiple year data and we do not find any inconformity in the order of the Ld.CIT(A) and TPO. This ground of the appeal is dismissed.
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2017 (2) TMI 1285
CENVAT credit - cement, steel and steel structural items - Held that: - the issue has come up before the Tribunal in the case of Singhal Enterprises Pvt. Ltd. Vs. CC&CE, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the ‘User Test’ to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of 'Capital Goods' as contemplated u/r 2(a) of the CCR, hence will be entitled to the Cenvat credit - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1284
Treatment to unexplained money as the Stridhan - Held that:- The proposition of law enunciated in Pratibha Rani’s Vs. Suraj Kumar and another, (1985 (3) TMI 60 - SUPREME Court) relied upon by the learned counsel for the appellant is unexceptionable. It was held by the Apex Court that a Hindu married woman is the absolute owner of her Stridhan property and can deal with it in any manner she likes. She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in terms of extreme distress as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband. The property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. However, in the present case, the appellant was unable to substantiate that the amount which was treated to be unexplained money was the Stridhan of the appellant’s wife.
In view of the above, once the additions have been held to be sustained, no substantial question of law arises.
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2017 (2) TMI 1283
Application for registration under section 12AA and approval under section 80G(5)(iv) rejected - failure to furnish the relevant documents/information - order was passed by the Deputy Director (Systems) and not by the CIT himself. Thus, no proper opportunity of being heard was given to the appellant - competent authority - Held that:- Tribunal after examining the matter held correctly held that law does not permit Deputy Director (Systems) to hear any matter under Sections 12AA and 80G(5)(iv) of the Act. It is for the CIT(Exemptions) to hear and conduct the proceedings himself after giving opportunity of being heard. Thus, the impugned order in the present case was held to be violative of the provisions of the Act and the matter was sent to the CIT(Exemptions) to re-decide the issue afresh in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. No substantial question of law arises
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2017 (2) TMI 1282
Determination of actual consideration paid - whether the sale consideration to be adopted is the ‘apparent’ consideration as reflected in the registered deed of sale or the ‘actual’ consideration said to have been paid by the assessee and reflected in the agreement of sale? - section 50 applicability - Held that:- Tribunal, while rightly holding that the deeming provisions of section 50C are not applicable to a situation like the present one, erred in not taking into account various factors relevant to arrive at a proper determination of the actual consideration paid. This is on account of the fact that the assessee did not appear for the hearing and the matter was heard by the Tribunal exparte, qua the assessee.
We have noticed that the assessee has nowhere explained why the sale deed was registered when, according to him, the consideration contained therein was not the actual sale consideration agreed upon, nor why an Addendum was not executed by the parties correcting the mistake in sale consideration, once the error was noticed. This, and all other relevant facts relating to the matter, require thorough examination to arrive at the actual consideration paid. In order to ensure that the matter is considered in the proper perspective and all relevant details are taken into account, we deem it fit to remit the issue to the file of the Assessing Officer to be considered and adjudicated upon de novo. The assessing officer shall afford adequate opportunity to the assessee to furnish all particulars as may be necessary to arrive at the real and actual price paid by the assessee for acquisition of the property.
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9911796707
