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Showing 261 to 280 of 2049 Records
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2018 (3) TMI 1793
Deduction u/s 80P(2)(a)(i) - assessee would be eligible for relief only if it falls within two categories of co-operative banks i.e., 'primary agricultural cooperative society' and 'primary co- operative aqricultural and rural development bank' - AO examined the books of accounts and found that the society had advanced loans to non-voting/non-profit sharing members and earned profit from them, however, the profit was shared only with the voting members/shareholding members and hence, principles of mutuality did not exist among all the classes of members - HELD THAT:- When the profits of the assessees are not shared with Associate Members as is done with the Members, it is clear that these assessees cases fail on the principles of mutuality.
In THE CITIZEN CO-OPERATIVE SOCIETY LIMITED, THROUGH ITS MANAGING DIRECTOR, HYDERABAD [2017 (8) TMI 536 - SUPREME COURT] Hon’ble Supreme Court rejected the above assessees claim holding that the principles of mutuality was missing in that case. Although, both the Members to the transactions of these assessees are the contributors towards surplus, however, the Associate Members are not entitled to the benefits of surplus of these assessees and hence, the principles of mutuality is missing in these cases. These assessee’s cannot be treated as a Co-operative Society meant only for its Members and providing credit facility to its Members and hence they are not entitled to the benefit of section 80P(2)(a)(i) - Decided in favour of revenue
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2018 (3) TMI 1792
Valuation of imported goods - rejection of declared value on the ground that the bills of entry that were relied upon in the impugned order related to imports of subsequent months - enhancement of value - HELD THAT:- It is observed from the records that notice under Rule 10A of Customs Valuation Rules, 1988 for rejection of value had been issued to the importer on 7th November, 2007 and in the absence of any response, the re-determination was proceeded with. This is not controverted by Learned Consultant. The proper officer cannot be faulted for rejection of the declared value arising from failures despite the notice proposing such rejection.
For re-determination of assessable value, the original authority resorted to Rule 8 of Customs Valuation (Determination of Value of Imported Goods) Rules, 1988 after ascertaining that the rules preceding are not applicable. The grounds of appeal do not evidence any material to controvert recourse to Rule 8 and merely contested the rejection of declared value.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 1791
Deduction u/s.54F - CIT(A) restricting the claim of deduction by excluding the portion of the residential building which was used for business purpose - HELD THAT:- On the plain reading of the provisions of Section 54F of the Act, we do not find any bar on the assessee as how he has to put to use the new residential property constructed / purchased by him for claiming the benefit of deduction U/s.54F of the Act. Section 54F of the Act only stipulates that the assessee should have constructed / purchased a residential house within the stipulated time in order to claim the benefit of deduction. This proposition is fortified by the decision of various Judicial forum enumerated herein below.
The Delhi Bench of the Tribunal in the case Mahavir Prasad Gupta Vs. JCIT [2005 (10) TMI 231 - ITAT DELHI-G] has held that the use of the property is not a relevant criteria to consider the eligibility for claiming benefit U/s.54F of the Act. The only criterion is whether the assessee has constructed / purchased a residential house with in the stipulated period mentioned in the Act. Also see SHRI SHYAMLAL TANDON VERSUS INCOME TAX OFFICER, WARD 7(4), HYDERABAD [2014 (4) TMI 867 - ITAT HYDERABAD]
Thus we hereby direct the Ld.AO to grant the benefit of deduction U/s. 54 of the Act to the assessee for the entire value of the building constructed without looking into as to how the Residential property was utilized by the assessee. - Decided against revenue.
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2018 (3) TMI 1790
Disallowance for the late payment of Employees Contribution to PF/ESI - HELD THAT:- Issue is squarely covered against the assessee by Hon’ble jurisdictional High Court’s judgment in the case of CIT vs. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it is categorically held that in the case of delayed deposit of employees contribution to PF, the same will not be deductable in computing income under section 28 of the Act. The law so laid down by the Hon’ble jurisdictional High Court is binding on us. The mere fact that an appeal against the said decision is pending before the Hon’ble Supreme Court does not dilute binding nature of this judicial precedent.
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2018 (3) TMI 1789
Auction - case of respondents is that no orders should be passed on the report of auction as there was a person available with him ready to offer better price - HELD THAT:- The highest bid was offered by the M/s ECR Buildtech Pvt. Ltd., New Delhi for an amount of ₹ 1 crore 81 Lakhs at the time of bidding. The earnest money deposited (EMD) of all the unsuccessful bidders were returned on the same date and the EMD amount of the highest bidder has been deposited by the Official Liquidator with Punjab National Bank, Jaipur on 22.02.2018. Prayer has been made to accept the highest bid offered by ECR Buildtech Ltd., New Delhi by the Official Liquidator.
Taking into consideration the reserve price and noting the aforesaid proceedings, it is deemed appropriate to accept the highest bid offered by ECR Buildtech Pvt. Ltd. for a sum of ₹ 1 crore 81 lakhs subject to abiding by the terms and conditions laid down by the Official Liquidator in his notice inviting tenders.
The Official Liquidator is directed to proceed further.
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2018 (3) TMI 1788
Late payment of Employees Contribution to PF/ESI - HELD THAT:- We find that issue in question is squarely covered against the assessee by Hon’ble jurisdictional High Court’s judgment in the case of CIT vs. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it is categorically held that in the case of delayed deposit of employees contribution to PF, the same will not be deductable in computing income under section 28 of the Act.
The law so laid down by the Hon’ble jurisdictional High Court is binding on us. The mere fact that an appeal against the said decision is pending before the Hon’ble Supreme Court does not dilute binding nature of this judicial precedent. - Decided against assessee.
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2018 (3) TMI 1786
Taxability - scrap arising out of wear/tear or outcome of repair process within the factory premises - HELD THAT:- The appellants used certain MS items for repair, re-structuring and certain items emerged due to general wear and tear. Those items are identifiable and distinguishable from the manufactured scrap - in the absence of evidence to support that all scrap were arising during manufactured, we find force in the submission of the appellant - duty liability on such normally resultant scrap due to wear and tear or repair etc. cannot be sustained - demand set aside.
Reversal of CENVAT Credit - certain goods cleared in terms of Rule 3 (5A) of the Cenvat Credit Rules - HELD THAT:- The appellants have reversed the credit wherever the capital goods were identified and cleared as such - these scrap are generated scrap due to disintegration and general maintenance work, not out of capital goods. Since, no capital goods were identified in demand proceedings to comply with Rule 3 (5A), there is no justification to uphold the demand - demand set aside.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1785
Maintainability of appeal - non-prosecution - HELD THAT:- On perusal of the record it is found that on the last occasion petitioner was found absent and even today no steps are taken by the Petitioner to pursue the present matter - the instant application is liable to be dismissed for non-prosecution.
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2018 (3) TMI 1784
Stay of demand - assessee willingness to pay 20% of the total demand in consonance with the requirement of the recent CBDT Circular dated 29-02-2016 - TP Adjustment - AMP expenses - DR vehemently relied on the decision of Sony Ericcson Mobile Communication India (P.) Ltd. v. CIT [2015 (3) TMI 580 - DELHI HIGH COURT] arguing that AMP expenditure is an international transaction - HELD THAT: - We are inclined to accept the arguments of the ld. AR to the extent that the appeal filed before us would have to be construed as first appeal and accordingly, the assessee is directed to pay a sum of ₹ 1.20 crores on or before 27-03-2018 and produce the evidence of payment of the same to the Registry on the very same date.
The assessee is also directed not to alienate his immovable properties, if any, without the prior consent of the Administrative CIT having jurisdiction over this case in order to protect the interest of the revenue till the arrears are discharged for assessment year 2013-14.
AR stated that the appeal for the assessment year 2012-13 i.e. immediately preceding year, is listed for hearing on 02-05-2018 wherein similar issue is involved. Accordingly, we direct the Registry to list this case also along with appeal for assessment year 2012-13 on 02-05-2018. In view of the aforesaid findings, we are inclined to keep the demand in abeyance for a period of six months from today or till the disposal off the appeal whichever is earlier, subject to fulfillment of aforesaid conditions.
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2018 (3) TMI 1783
Approval of the scheme of arrangement - HELD THAT:- In the present instance, disputes have arisen between the Petitioner Companies on the one hand and DOT on the other which are pending adjudication before various courts and it is for these courts to give directions, including any interim ordeRs. However the same cannot be a factor to deny the merger of the companies with each other as contemplated under the Scheme of Amalgamation for which sanction is sought for. However, in relation to Spectrum License and the like for which the Licensor is DOT, it is for the Licensing Authority to see whether both the companies abide by the guidelines including the guidelines prescribed for merger of two companies holding licenses granted by DOT and this Tribunal cannot enter into the same it being in exclusive domain Of the Licensing Authority. In case of any denial of merger of the licenses consequent upon the sanction of the Scheme it is for the Petitioner to seek appropriate remedy available to it under law against DOT.
The approval of this Tribunal is conditional upon the requisite sanction and approval in accordance with the prescribed guidelines for transfer/ merger of various categories Of Telecommunication service Licenses/ authorization under Unified License (UL) on compromise/ arrangement and amalgamation of Companies by DOT which goes without saying and both the parties (i.e) the Companies or DOT will not be prevented from exercising their rights under due process of law and remedies as may be available to them in case of any grievance before the appropriate Tribunal or forum meant for the same in relation to the acts of each other.
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2018 (3) TMI 1782
Revision u/s 263 - unexplained cash credit - whether a case of lack of enquiry or a lack of adequate and proper enquiry on the part of the Assessing officer? - HELD THAT:- We find that it is clearly a case whether the AO has failed to examine the basic and fundamental requirements to determine the identity, creditworthiness and genuineness of these transactions. If the AO has carried out the verifications of the documents as has been done by the ld PCIT, it would have surely put him on guard and prompted him to carry out further independent examination of these investor companies and there would not have been an occasion for the latter to invoke his revisionary jurisdiction.
AO has failed to adhere to the basic standard operating procedures of examining such transactions especially in light of glaring concerns so noticed and the assessment so completed is therefore clearly without due application of mind. Here, we refer to a recent communication issued by the CBDT dated 10.1.2018 wherein the CBDT has reiterated the standard operating procedure for examining the transactions in the context of section 68.
To our mind, the said communication doesn't lay down any new standard operating procedure rather it emphasise and basically bring out a well down procedure for examination of transactions in context of section 68 of the Act and which should be followed by the Assessing officers and duly monitored and supervised by the Higher authorities.
In the instant case, the AO has clearly not appreciated the issue at hand and thus has not applied his mind and carried out the necessary examination and investigation which any officer with a reasonable intellect faced with a similar situation would have carried out. In our view, it is not a case of inadequate enquiry rather it is a case of no enquiry.
Where the AO shuts his eyes and the ld PCIT discovers the glaring discrepancies leading to non-satisfaction of cardinal test of identity, creditworthiness and genuineness of the transactions during the course of his examination of records, we donot think there is any infirmity or illegality in him exercising his revisionary jurisdiction u/s 263 of the Act. It is not a case where the Pr. CIT has set-aside the assessment rather he has examined these transactions and has carried out broad analysis of the documentation so submitted by the assessee company and has come to a conclusion, that the AO has failed to carry out adequate enquiries which he should have conducted especially in light of glaring discrepancies in the documentation so submitted by the assessee company which raises a question mark on the genuineness of the whole transactions and also in light of information received from Directorate of Income Tax (Investigation), Mumbai that the assessee company has taken accommodation entries from Praveen Jain, an entry operator - upheld the order passed by the ld Pr CIT u/s 263 of the Act setting aside the assessment order passed by the Assessing officer being erroneous and prejudicial to the interests of the Revenue - Decided against assessee.
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2018 (3) TMI 1781
Registration u/s 12A (1)(a) - whether Greater Noida Industrial Development Authority ("GNIDA"); Yamuna Expressway Industrial Development Authority ("YEIDA"); and New Okhla Industrial Development authority ("NOIDA") are eligible for registration u/s 12A (1) (a)? - HELD THAT:- Delay condoned. Leave granted.
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2018 (3) TMI 1780
CENVAT Credit - inputs - export of goods - HELD THAT:- It appears that appellant has manufactured only two items and two items were bought from the open market and by putting all the four items in a box (gift box) the same was exported. When export has been made and rebate has been claimed, in this situation the appellant is not entitled for double benefit as per section 2(k) of the Cenvat Credit Rules, 2004 - appeal dismissed - decided against appellant.
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2018 (3) TMI 1779
Valuation of imported goods - silk fabrics - suppression of facts - HELD THAT:- The adjudicating authority has observed that mere non-declaration of grammage in the bills of entry will not amount to willful mis-statement. On being questioned Learned Authorised Representative has not be able to show us any provision of law reflecting upon any obligation on the part of the importer to declare the grammage of the silk fabrics.
In the absence of any legal obligation, we fully agree with the adjudicating authority that mere non-declaration will not amount to suppression or misstatement. It has to be kept in mind that it is not a case whether the importer misdeclared the wrong grammage of the silk fabrics, so as to attribute any mala fide to him. As such, we fully agree with the above findings of the Commissioner and find no infirmity in the same - Revenue’s appeal is rejected.
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2018 (3) TMI 1778
Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - corporate debtor - default in repayment of huge outstanding amount - main contention of the respondent is that the Applicant is guilty of suppression of material facts documents and information and that there is no amount due and payable by responded company to applicant bank because a serious fraud has been committed by the applicant bank - HELD THAT:- Section 7 application filed under the Code is an independent proceeding, which has nothing to do with the pendency of criminal or civil proceedings. Misappropriation of funds by CFO of the respondent company and by employees of bank, if any, has to be dealt with separately. Pendency of investigation and civil suit, in the absence of specific stay order, cannot be construed as a valid defense against triggering of Corporate Insolvency Resolution Process under the provisions of the Code. Insolvency and Bankruptcy Code, 2016 is a special law having an overriding effect on any other law as mandated under Section 238 of the Code. The statutory rights of the applicant bank satisfying the requirements of Section 7 of the Code to trigger Corporate Insolvency Resolution Process cannot be defeated on the ground of pendency of adjudication pertaining to misappropriation of funds.
Once there is a debt and default, the Adjudicating Authority has no option but to admit the application filed under Section 7 of the Code, when it is complete. It is also settled law that facts which are not required to be disclosed as per the prescribed format, cannot be treated as suppression of facts.
Application is admitted - moratorium in terms of Section 14 of the Code declared.
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2018 (3) TMI 1777
Addition of broken period interest expenditure - allowable revenue expenditure u/s 37 - HELD THAT:- The Hon’ble Bombay High Court in CIT Vs. HDFC Bank Ltd [2014 (8) TMI 119 - BOMBAY HIGH COURT] while relying on the ratio laid down in its earlier decision in American Express International Banking Corporation Vs. CIT [2002 (9) TMI 96 - BOMBAY HIGH COURT] which in turn, had distinguished the ratio laid down by the Hon’ble Supreme Court in Vijaya Bank Vs. CIT [1990 (9) TMI 5 - SUPREME COURT] and CIT Vs. Bank of Rajasthan Ltd [2008 (3) TMI 325 - RAJASTHAN HIGH COURT] and had held that broken period interest is allowable as deduction. Following the same parity of reasoning, we hold that the assessee is entitled to the claim of broken period interest.
As in case of CIT vs. Citi Bank [2008 (8) TMI 766 - SUPREME COURT] held that broken period interest expenses are allowable expenses. We have noted that the order passed by ld. CIT(A) is based on the decision of Hon’ble Bombay High Court in American Express International Banking Corporation (supra) and the decision of Hon’ble Supreme Court in Citi Bank (supra). The decision relied by ld. DR was distinguished by Hon’ble Apex Court in Citi Bank (supra). No other contrary decision is brought to our notice. Thus, no infirmity in the order passed by ld. CIT(A) in deleting the disallowance of broken period expenses. In the result, grounds of appeal raised by Revenue are dismissed.
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2018 (3) TMI 1776
Recovery notice - demand of service tax with interest and penalty - HELD THAT:- Since the respondent has not considered the objections filed by the petitioner as early as on 15.10.2015, the impugned order dated 30.01.2018 and the notice dated 06.03.2018 are liable to be set aside. Accordingly, the impugned order dated 30.01.2018 and the notice dated 06.03.2018 are set aside and the matter is remanded back to the respondent for fresh consideration.
Petition allowed by way of remand.
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2018 (3) TMI 1775
Addition u/s 36(1)(va) r.w.s. 2(24)(x) - late payment of Employees Contribution to PF/ESI - HELD THAT:- The issue in question is squarely covered against the assessee by in the case of CIT vs. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it is categorically held that in the case of delayed deposit of employees contribution to PF, the same will not be deductable in computing income under section 28 of the Act. The law so laid down by the Hon’ble jurisdictional High Court is binding on us. The mere fact that an appeal against the said decision is pending before the Hon’ble Supreme Court does not dilute binding nature of this judicial precedent.
As regard dismissal of SLP in the case of Rajasthan State Beverages Corporation Ltd (supra), it is only elementary that when a SLP is dismissed by a non- speaking order, it does not constitute a law declared by Hon’ble Supreme court, and as such, it is not binding under Article 141 of the Constitution of India. We, therefore, see no legally sustainable merit in the case of the assessee - Decided against assessee.
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2018 (3) TMI 1774
Broadcasting Service - Advertising Space or Time Service - Consulting Engineer Service - Service tax with interest and penalty paid on being pointed out - cum-tax benefit not passed - imposition of penalties - HELD THAT:- Since the appellant concedes that it had already deposited the Serviced Tax alongwith interest for providing the taxable services, we are not considering the merits of the case as to whether service tax is payable by the appellant or not. However, we find that the Cum-tax benefit has not been extended to the appellant in this case, to which it is legally entitled to.
The matter should go back to the original authority for a limited purpose of re-quantification of the service tax liability.
Penalty u/s 77 and 78 of FA - HELD THAT:- Since there is reasonable cause for non-payment of Service Tax within the stipulated time frame, the provisions of Section 80 of the Act can be invoked for non-imposition of penalties under Section 77 & 78 of the Act - Penalty set aside.
Appeal allowed by way of remand.
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2018 (3) TMI 1773
CENVAT Credit - input - MS Flat /Bar, MS Angle, MS Channel etc. - HELD THAT:- When on final product duty was paid and accepted by the Departmetn then appellant is entitled for cenvat credit on input as per the ratio laid down in the decision of the Tribunal in JAI RAJ ISPAT LTD. VERSUS COMMISSIONER OF C. EX., HYDERABAD-IV [2006 (7) TMI 210 - SUPREME COURT] - the appellant is entitled to avail cenvat credit in accordance with the Cenvat Credit Rules - Appeal allowed - decided in favor of appellant.
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