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Showing 261 to 280 of 2170 Records
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2019 (4) TMI 1916
Refund of amount deposited by the applicant alongwith Interest - Section 44(4) of the Kerala General Sales Tax Act, 1963 - HELD THAT:- It is not in dispute that the remanded proceedings have now attained finality and decided in favour of the applicant. As a result of which, the amount deposited by the applicant was required to be returned to the applicant. The Department has provided refund of the principal amount along with interest from 10-8-2017 @ 10% in terms of Section 44(4) of the Kerala General Sales Tax Act, 1963.
On bare reading of the order dated 27-1-2009, the applicant was directed to pay the amount equivalent to tax payable but that was to be treated as “deposit” with the Department and not payment (of tax dues). The expression used ‘will be treated as deposit not payment’; is quite significant. That position is restated in the final order passed by this Court on 28-4-2011 - The stand of the Department that the refund process ought to be governed by the provisions of the KGSTA, in our opinion, is inapposite. The amount deposited by the applicant was not towards tax dues as such, but to be treated as “deposit” in terms of order of the Court. That deposit would continue to remain with the Department until the final decision of the High Court and to abide by such orders as may be passed by this Court regarding its refund alongwith interest or otherwise, in terms of the final judgment of this Court dated 28-4-2011.
Application allowed.
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2019 (4) TMI 1915
CENVAT Credit - common input services used for taxable as well as exempt services - failure to maintain separate records for providing taxable service and exempted service - Section 35G of the Central Excise Act, 1944 read with Section 174(2) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The availment of Cenvat credit by the respondent is absolutely legal and correct and in accordance with Rule 4(7) of the Rules. As at the time of taking credit, there was no existence of any exempted service, therefore, there is no application of Rule 6. That part of the service was exempted only after obtaining completion certificate and thereafter, the respondent was not required to avail the Cenvat credit on the input service, if any, received after obtaining the completion certificate. The respondent did not avail the Cenvat credit in respect of the services received after obtaining the completion certificate in respect of exempted service or avail proportionate credit attributed to the taxable output service. Therefore, Rule 6 has application for the period after obtaining the completion certificate. Rule 11(1), (2) and (3) of the Rules applicable to provision for manufactured goods to hold that in case of service becomes exempted at a later stage, there is no such provision in respect of the service.
Once the respondent are not required to reverse any credit availed by them on valid input services availed during the period 2010 till obtaining of completion certificate, the said amounts reversed by them under protest cannot be retained by the revenue authorities and have to be refunded to the respondent.
Appeal dismissed.
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2019 (4) TMI 1914
Classification of services - Works contract - Composite contract services - activity of civil construction which included supply of material and labour both - C.B.E. & C. Circular No. 98/1/2008-S.T., dated 4-1-2008 - HELD THAT:- This issue stands decided in favour of the appellant-assessee by Hon’ble Supreme Court in Commissioner of Central Excise v. Larsen &Toubro [2015 (8) TMI 749 - SUPREME COURT] where Hon’ble Supreme Court have held that wherever a composite contract includes supply of material the same has necessarily to be classified under the works contract - demand of ₹ 49,70,66,826/- is set aside.
Demand of service tax - construction of complex services - activity of construction of flats for Delhi Development Authority under the LIG category - period 2007-08 to 2008-09 - HELD THAT:- As clarified by Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], this activity also is required to be classified under works contract service. Same view also has been taken in the case of SURESH KUMAR BANSAL & ANUJ GOYAL & ORS. VERSUS UNION OF INDIA & ORS. [2016 (6) TMI 192 - DELHI HIGH COURT] wherein it was held, the activity of construction of flats by a builder for buyer is not taxable under construction of complex service, and is essentially a works contract - the demand raised is not sustainable, as work includes supply of materials being a composite contract - demand set aside.
Revenue demanded service tax on the outstanding receivable by the assessee from their associated enterprise, as on 10-5-2008 - HELD THAT:- The said issue is settled in favour of the appellant by coordinate Bench of this Tribunal in M/S. SIFY TECHNOLOGIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, LTU CHENNAI [2015 (3) TMI 964 - CESTAT CHENNAI] wherein it has been held that any amendment which increases the tax liability of assessee is necessarily prospective in nature and cannot be applied retrospectively unless the amending Act or notification specifically provides so.
Appeal allowed.
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2019 (4) TMI 1913
Condonation of delay - delay of 125 days in filing the appeal before the ld. CIT(A) - Penalty u/s. 271(1)(b) - HELD THAT:- Assessee is suffering from various diseases and therefore neither could attend the assessment proceedings nor could appoint the advocate or C.A to represent the case. His son Shri Surendra Saini had attended the proceedings, who was not fully aware of the affairs of the business and had little knowledge about the income Tax provisions.
Assessee’s son attended office in response to notice which was delivered to him and remaining notices as mentioned in the order were never served to the assessee. The AO has completed the assessment u/s. 144/147 on dated 14/03/2016 on total income without serving notices and without allowing sufficient opportunity. As the notices could not be served on the appellant hence the appellant could not appear before the ld AO during assessment proceedings.
On dated 02/02/2017, the assessee applied for true copies of notices and assessment orders and filed the appeal before the ld. CIT(A). Further, therefore, proper compliance of various notices could not be made. In this connection medical papers regarding various ailments of the assessee are enclosed, which have been verified by me. Therefore, in the substantial interest of justice, condone the delay ( of 125 days) in filing the appeal before the ld. CIT(A). Appeals of assessee are allowed for statistical purpose.
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2019 (4) TMI 1912
Disallowance of interest expenditure - computation of long term capital gain and short term capital - whether interest expenditure incurred by an assessee for acquiring the capital assets deserves to be capitalized and on its sale, required to be considered as cost of acquisition for the purpose of computation of capital gain? - HELD THAT:- If a capital asset is being purchased by way of borrowed funds, the interest expenditure are to be capitalized and on transfer of the capital assets, it is to be treated as part of cost of acquisition. A perusal of the order of the ld.CIT(A) would indicate that the ld.CIT(A) also did not dispute with regard to this proposition and has not rejected the claim of the assessee on legal aspect rather confirmed the disallowance on the ground that the assessee failed to establish nexus between borrowed funds vis-àvis investment.
Revenue authorities have failed to appreciate the facts and circumstances in right perspective while holding that nexus has not been proved. The assessee has demonstrated that interest free funds were used for acquiring assets and interest expenditures were capitalized. Unsecured loans were remained outstanding at the end of every accounting year.
It cannot be construed that nexus has not been demonstrated. We have noticed the order of the AO, which is absolutely silent on any of the aspects though the ld.CIT(A) has made reference to the details in order to demonstrate that the assessee failed to prove the nexus, but on re-appreciation of these very details we are of the view that the ld.CIT(A) has not appreciated the facts in right perspective, and considered them half-heartedly. Therefore, we allow the appeal of the assessee and delete the disallowance. - Decided in favour of assessee.
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2019 (4) TMI 1911
Bail application - Validity of dying declarations - suicide - whether we can convict the Accused only on the basis of these dying declarations? - HELD THAT:- In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.
No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the Accused only on the basis of a dying declaration.
In the present case, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case - The two Accused filed separate written statements Under Section 313 of Code of Criminal Procedure. The defence was that the deceased was not willing to go to the village to look after her in-laws and, therefore, she committed suicide. The defence cannot be brushed aside.
There are two factors which cast a grave doubt with regard to the prosecution story. As pointed out above, the prosecution story is that the Appellants-brother and sister, poured kerosene on the victim and set her on fire. It is the admitted case that the house in which the victim was residing with her husband consists of one room with a kitchen. It stands proved that the fire took place in the kitchen and not in the bedroom -
Presumably, the second Appellant or any other person in the house had also gone with the victim. In the first room there was a cot, mattress, mosquito net, etc.. There was a kitchen in the adjoining area which had a separate privy and bathroom. There was a plastic container containing kerosene oil. There was smell of kerosene in the kitchen and there was water on the floor of the kitchen. A match box and some burnt cloth were also found in the kitchen. This proves that the occurrence took place in the kitchen and not in the bedroom.
The second important factor which comes out from the statement of the panch witnesses is that in the first room in which there was a cot, there were two pillows on the cot and below a pillow there were some ornaments and other things. The panchanama report indicates that the ornaments were one yellow and black mangalsutra, a nathni (nose ring), some glass bangles and peinjan (an ornament worn on the foot). It is also recorded that, according to the accused, these ornaments belong to his wife. Mangalsutra, peinjan and even glass bangles are such ornaments which an Indian married woman would normally not remove. In Indian society these are normally worn by the ladies all the times. Therefore, the defence version that the deceased took off all these ornaments and then went to the kitchen and committed suicide cannot be totally ruled out.
The prosecution had failed to prove its case beyond reasonable doubt. This finding of the trial court could not be said to be perverse. It was based on a proper appreciation of evidence. The trial court, after discussing the entire evidence in detail, had come to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt. The High Court came to a different conclusion. On perusal of the entire evidence and the law on the subject, the trial court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt.
Appellant No. 1 is stated to be in jail. He shall be released forthwith, if not required in any other case. Appellant No. 2 is on bail. Her bail bonds, if any, stand discharged - Appeal allowed.
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2019 (4) TMI 1910
Estimation of NP - assessee has filed return u/s 44AD - HELD THAT:- Enhanced sales as upheld by the ld. CIT(A), a further credit of ₹ 10.00 lacs is required to be given and on the balance, the Assessing Officer is to estimate the profit. Looking to the nature of the assessee trade, estimation of net profit @ 6% as against N.P. disclosed by the assessee @ 4.43% will be reasonable without given any reason the Assessing Officer has applied NP rate of 8.33% which was offered by the assessee on the sales in the year ending on 31/3/2014.
During the year under consideration the turnover of assessee has increased substantially which is possible at a sacrifice of some margin profit rate. There is no justification for applying the NP rate at 8.33% of earlier year wherein the assessee has filed return u/s 44AD. Accordingly the Assessing Officer is directed to recompute the addition by applying 6% NP rate on the turnover suggested by me hereinabove.
Addition u/s 69 with respect to stock in trade and cash balance - HELD THAT:- Assessee has not filed any details of such stock and cash in hand in its return of earlier year. By the impugned order, the ld. CIT(A) had given credit of ₹ 13,57,810/- by observing that the assessee had shown closing stock with the VAT return and the VAT department has accepted the return filed by the assessee wherein closing stock was shown at ₹ 13,57,810/-. There is no reason to give any further relief to the assessee in respect of closing stock. As found that the ld. CIT(A) has also accepted the cash balance. Accordingly, ground No. 2 raised by the assessee is dismissed.
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2019 (4) TMI 1909
Permission for withdrawal of application - the terms of settlement reached finality and implemented on 20th February, 2019 - HELD THAT:- The present case is covered by the decision of Honble Supreme Court in Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors. [2019 (1) TMI 1508 - SUPREME COURT] and the Adjudicating Authority should have exercised its inherent power and closed the application under Section 7.
Mr. Arvind Sinha, Advocate wants to file an intervention application on behalf of one of the Financial Creditor. However, in view of the settlement reached such prayer is not allowed. If any Financial Creditor wants to file claim against the Corporate Debtor, he may move before the appropriate forum for appropriate relief.
The impugned order dated 13th March, 2019 is set aside and the prayer made on behalf of the Financial Creditor Oriental Bank of Commerce is accepted and Financial Creditor is allowed to withdraw its application under Section 7, which stands disposed of as withdrawn.
Application dismissed as withdrawn.
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2019 (4) TMI 1908
Addition on-money receipts - Whether addition are on the basis of evidence of reliable nature - in the course of search proceedings initiated u/s 132 assessee group made a voluntary and suo moto disclosure made in statement of key persons recorded u/s 132(4) wherein inter alia the disclosure of ₹ 2 Crores was made attributable to assessee firm - HELD THAT:- In the absence of any corroborating evidence and in the absence of cross examination offered, the statement of third party cannot be taken cognizance of, as it will apparently lead to miscarriage of justice.
Total justification in the action of the CIT(A) in directing the AO to delete the estimated additions towards unaccounted receipt in respect of flats sold on the basis of some unverified and bald statement. Once such statements of the purchasers are taken out of reckoning, the edifice of estimated additions towards sale of residential flats would crumble down.
Estimated cash receipts on-money of sale of all flats merely on the basis of statement of two purchasers without any tangible corroboration clearly falls in the realm of conjunctures and surmises. It is obvious that driven by misplaced suspicion, the AO has presumed the presence of on-money in respect of each of the residential flat sold. The action of the AO is a mere ipse dixit which is not objectively justifiable by some inculpatory evidence. It is only elementary to say that estimation of unaccounted money cannot be made only on the basis of contemplation. The order of the AO in making additions of ₹ 3.28 Crores is thus clearly arbitrary and unsustainable in law.
Revenue could not demonstrate any material except unsupported statements of two persons. Such unverified statements without any proof towards its assertions are not a good evidence and do not raise any estoppel against the assessee. Therefore, the addition made by the AO is in the realm of speculation without any basis whatsoever. Hence, we decline to interfere with the order of the CIT(A) in so far as appeal of the Revenue is concerned.
Maintainability of addition confirmed by the CIT(A) on the basis of statement of two purchasers - Statement of two persons cannot be recognized to the prejudice of assessee in the absence of corroboration and/or cross examination thereof. The addition sustained on the basis of a bald admission of third party against the assessee has no probative value and thus unsustainable in law. We find potency in the plea of the assessee that despite search, no reference to any incriminating material recovered from assessee is found in the assessment order and the basis of addition is some post search enquiry from purchasers alone subsequent to search.
Assessee has repeatedly pointed out the absence of contemporaneous material before the lower authorities. Such assertions on behalf of the assessee remain unrebutted. The onus was always on the Revenue to support the statement recorded behind the back of the assessee in some realistic manner particularly when the cross examination was deprived despite having been specifically demanded. The onus is clearly not discharged by Revenue. The additions towards unaccounted cash receipt cannot be hypothetically attributed. Hence the addition sustained by the CIT(A) solely on the basis of oral evidence of third party without its vindication is clearly without any legal foundation. Therefore, the action of the CIT(A) in sustaining part addition requires to struck down.
Penalty u/s.271AAA - Assessee had failed to substantiate the manner in which undisclosed income - HELD THAT:- In the absence of any reference to tangible material, mere act of acquiescence of ad hoc income under section 132(4) of the Act cannot automatically be covered within the sweep of ‘undisclosed income’ for the purposes of imposition of penalty under section 271AAA of the Act. Therefore, the plea of the assessee that in the absence of reference to any incriminating material imposition of penalty under s. 271AAB of the Act to be without any legal foundation gets categorical support.
In the absence of any reference made in the penalty order or the assessment order towards presence of any incriminating document or any income found by way of money, bullion, jewellery etc. to cover the declaration within the sphere of ‘undisclosed income’, the imposition of penalty under s. 271AAA of the Act does not meet the requirement of law.
We thus find force in the plea of the assessee for affirming the conclusion of the CIT(A) towards deletion of penalty on this score.
Considerable force in the second plea raised on behalf of the assessee that once the taxes have been paid on the amount disclosed, the penalty cannot be imposed under s.271AAA of the Act in the absence of any specific query raised to probe manner/substantiation thereof with respect to disclosure towards undisclosed income. The CIT(A) has rightly appreciated the facts and the circumstances of the case in perspective and deleted the penalty on the disclosure so in the absence of such query made having regard to the plethora of judicial precedent available on this premise. The conclusion drawn by the CIT(A) on this score thus resonates with the judicial view available in this regard and cannot be faulted.
Grievance of the Revenue for deletion of penalty by CIT(A) on income offered by way of oral evidence under s.132(4) of the Act is bereft of any merit on variety of reasons noted above
Purchasers have given statement on oath in the proceedings under s.131 against the assessee and confessed that they have given on-money - The quantum addition so made was not discovered or found per se in course of search under s.132 of the Act. The additions were made on the basis of post search inquiry. Such addition cannot be subject matter of Section 271AAA of the Act having regard to the narrower scope of definition of undisclosed income as provided therein. Therefore, we find merit in the plea of the assessee for deletion of penalty under s.271AAA of the Act. - Decided in favour of assessee.
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2019 (4) TMI 1907
Disallowance u/s 40A(3) - cash payments made for purchasing film rights for exhibiting in their theatres - whether the assessee had brought in sufficient evidence to show that there was indeed an exceptional circumstance warranting the payments in cash? - HELD THAT:- The answer is a firm No. It might be true that exceptions mentioned in Rule 6DD are not exhaustive and there could be other extraordinary circumstances where business expediency required payments in cash. However, in my opinion, once an assessee say that its case fall within the proviso, it needs to prove it by strict evidence and not on the basis of preponderance of probability. Assessees were not able to bring out any records to prove the existence of any extraordinary circumstance requiring them to effect payments in cash - lower authorities were justified in making the disallowance u/s.40A(3) - Decided against assessee.
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2019 (4) TMI 1906
Assessment u/s 153A - Addition u/s 68 - commission charged @0 .5% on (such share application money of ₹ 50 lakhs), transaction at ₹ 25,000/- u/s.69C - whether no proceedings were pending before the assessing officer on the date of search and no incrementing material was found/unearthed by the search team? - HELD THAT:- Undisputedly, the assessment year under question i.e. Assessment Year 2010-11 which was not pending before the Assessing Officer on the date of search on 29.05.2012 (first search), it was also not pending on the date of second search on 02.03.2016 therefore, the assessment which is not pending before the Assessing Officer is an unabated proceeding and the Assessing Officer is empowered to make any addition only based on incriminating materials found/unearthed during search. This is a settled position of law and is no longer res integra. Therefore, we delete the addition made by AO to the tune of ₹ 50 lakhs.
Commission charged @ .5% on such genuine (share application money of ₹ 50 lakhs) transaction at ₹ 25,000/- u/s.69C also deleted as consequential in nature. - Decided in favour of assessee.
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2019 (4) TMI 1905
Reopening of assessment u/s 147 - Bogus Client Code Modification - validity of reasons to believe - HELD THAT:- No material which has been brought out in the recorded reasons to show that Client Code Modification in the instant case was malafide or the assessee received in cash in lieu of the said Client Code Modification. Thus, the above recording at best is a reason to suspect only.
It is an established position of law that the validity of reopening is to be decided on the basis of recording made u/s 148(2) of the Act alone and nothing can be added thereto. The recording should be self contained to withstand the validity of the reopening made.
Respectfully following the decision in the case of Coronation Agro Industries Ltd. Vs DCIT [2017 (1) TMI 904 - BOMBAY HIGH COURT] in our considered opinion, the reasons recorded in the instant case does not satisfy the requirement of law and the same does not constitute the reason to believe for escapement of any income from tax. Therefore, the reason is not valid. The consequential order of reassessment passed in pursuance thereto cannot be sustained. We, therefore, set aside the impugned order of reassessment passed u/s 147 of the Act and allow this ground of appeal of the assessee.
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2019 (4) TMI 1904
Exemption u/s 11 - benefit of Section 2(15) - assessee is nationally designated entity entitled to allocate domain names to its applicants who seek it in India - HELD THAT:- As decided in own case [2018 (1) TMI 898 - DELHI HIGH COURT] Both the appellate authorities have concluded that the assessee‟s objects are charitable; it provides basic services by way of domain name registration, for which, it charges subscription fee on annual basis and also collects connectivity charges. In addition, we notice that the assessee is the only nationally designated entity entitled to allocate domain names to its applicants who seek it in India.
Apparently, it is also an affiliate national body of the ICAMM and authorized to assign “.in” registration and domain names in terms of Central Government‟s letter dated 20.11.2004. In that sense, the assessee (though not a statutory body) is carrying on regulatory work. It‟s case would therefore be a fortiori on a different footing than Chamber of Commerce, and other such trade bodies, set up not for profit basis but should have been held to be charitable organizations such as Bureau of Indian Standards, ICAI Accounting Research Foundation, etc.[See Bureau of Indian Standards v. Director General of Income Tax (Exemption) (2012 (11) TMI 891 - DELHI HIGH COURT); ICAI Accounting Research Foundation v. Director General of Income Tax (Exemption) 2009 (8) TMI 61 - HIGH COURT OF DELHI]. No question of law arises
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2019 (4) TMI 1903
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default under the Subscription Agreement of 2016 - existence of debt and dispute or not - Whether the Appellant is a 'Financial Creditor' of the 'Corporate Debtor'? - Whether the debt of the Appellant stands paid as held by the Adjudicating Authority?
HELD THAT:- In the present case, there has been a disbursal of ₹ 102 Crores in favour of the 'Corporate Debtor' by way of 'OCDs'. In terms of Section 5(8)(c), any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument, comes within the meaning of 'financial debt'. Therefore, from the aforesaid fact, we find that there is a disbursal of ₹ 102 Crores in favour of the 'Corporate Debtor' and the 'OCDs' originally met is against time value of money and per se, constitute 'financial debt' in the light of Section 5(8)(c) of the 'I&B Code'.
Whether the debt amount payable by 'M/s. Ind- Barath Energy (Utkal) Limited' is deemed to have been repaid in view of invocation of pledge shares and the conversion of 'CCDs' into equity shares? - HELD THAT:- The Promoters confused the Adjudicating Authority by co-relating the two independent agreements i.e. one Subscription Agreement dated 23rd December, 2016 and the separate agreement which the Appellant and its sister entity, 'MAIF-II' has entered into for subscription to certain 'NCD' and 'CCD' in the holding company of the 'Corporate Debtor' which are unrelated to the agreement dated 23rd December, 2016 - The Adjudicating Authority failed to consider the same and thereby, wrongly held that the debt has been paid and there was no default on conversion of the 'CCD'. It also failed to consider that the interest to which the Appellant was entitled for different debt for which notice was given and, as discussed above, had not been paid by the 'Corporate Debtor' and there was a default of more than ₹ 1 Lakh on the part of the 'Corporate Debtor'.
The Appellant- 'MAIF Investments India Pte. Ltd.' is a 'Financial Creditor' of 'M/s. Ind-Barath Energy (Utkal) Limited'- ('Corporate Debtor'). Further, we hold that by the invocation of the pledge of shares pursuant to the Subscription Agreement, no presumption can be drawn that the disbursement of ₹ 102 Crores so made was towards the 'OCD' and stands paid.
Impugned Order set aside - 'Resolution Professional' are directed to treat the Appellant as a 'Financial Creditor' for the purpose of constitution of the 'Committee of Creditors' and allow the Appellant- 'MAIF Investments India Pte. Ltd.' to take part as a member of the 'Committee of Creditors' with voting share to the extent of the amount disbursed and claimed by it.
Appeal allowed.
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2019 (4) TMI 1902
Theatre services - Disallowing the petitioner-theater to run as per rates mentioned in its application - HELD THAT:- On similar circumstances, this Court disposed of petition in SRI SAI RAM A/C VERSUS STATE OF TELANGANA [2018 (6) TMI 1718 - TELANGANA HIGH COURT]. The same is not disputed by learned Government Pleader for Home.
Petition disposed off.
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2019 (4) TMI 1901
Maintainability of appeal - low tax effect - Miscellaneous Application of Revenue that there is an accepted audit objection and therefore, the appeal is to be decided on merit as per clause 8(c) of the CBDT Circular No.21/2015 dated 10/12/2015 - HELD THAT:- We are of the view that undisputedly the tax effect involved in the appeal filed by the Revenue is less than ₹ 10 lakhs and the appeal of the Revenue was dismissed following the instruction of the CBDT vide Circular No.21/2015 dated 10/12/2015.
As relying on CONCORD PHARMACEUTICALS [2008 (8) TMI 344 - GUJARAT HIGH COURT] if the appeal filed by the Revenue is on low tax effect and the Revenue has not raised the objections before the Tribunal either in the appeal memo or at the time of hearing of appeal, raising a specific contention that the particular appeal is covered by an exception, such appeal is liable to be dismissed on low tax effect. In the appeal under consideration, the Revenue has not raised any objection before the Tribunal either in the appeal memo, or at the time of hearing of appeal, raising a specific contention that this appeal is covered by an exception. Therefore, we find no apparent mistake in the order of the Tribunal dated 21/4/2017. Thus, finding no merit in the Miscellaneous Application filed by the Revenue, the same is dismissed.
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2019 (4) TMI 1900
Disallowance of interest u/s 14A - CIT- A deleted addition - HELD THAT:- Though AO has accepted the methodology of calculation of disallowance of interest but he has considered the net worth of investment as deductible amount from the total investment. It is a settled proposition of law that if the assessee has interest free funds available with it, then, it can be safely presumed that investments have been made out of interest free funds available
No merit in the computation of disallowance of interest made by the AO - approach of adopting net worth cannot be accepted as interest free available funds available with the assessee should be given set off against the investments and then only the proportionate interest needs to be disallowed as per the computation of disallowance made by the assessee mentioned elsewhere. Secondly, as mentioned elsewhere, Rule 8D of the Rules is not applicable for the year under consideration and, therefore, no weightage can be given to the methodology given u/r 8D of the Rules for the year under consideration.
Similar methodology has been accepted by the revenue in earlier A.Ys and following the Rule of Consistency, as enunciated in the case of Radha Soami Satsang [1991 (11) TMI 2 - SUPREME COURT]the Assessing Officer ought to have followed the findings in the earlier A.Ys. No error or infirmity in the findings of the CIT(A).
Suo moto disallowance in respect of administrative expenses - CIT-A confirmed disallowance - HELD THAT:- AO has computed the disallowance as per Rule 8D of the Rules, which we have already held to be not applicable for the year under consideration. All that has to be considered is whether the disallowance made by the assessee is reasonable qua the facts of the case. In our considered opinion and after considering the computation as mentioned elsewhere, the suo moto disallowance @ 10% is reasonable and cannot be faulted with. We, accordingly, set aside the findings of the CIT(A) and direct the Assessing Officer to accept the suo moto disallowance.
Assessee appeal allowed.
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2019 (4) TMI 1899
CENVAT Credit - supplementary invoices - suppression of facts or not - extended period of limitation - HELD THAT:- The matter no longer res integra as the issue involved in this appeal has already been decided by this Tribunal in the case of M/S. JAYPEE BELA PLANT VERSUS COMMISSIONER OF GST, CC & CE, JABALPUR [2018 (9) TMI 906 - CESTAT NEW DELHI] where it was held that the issue of wrong availment on part of M/s SECL is still a debatable issue. In such circumstances, the ascertainment on part of the appellant as is required under Rule 9 (1) (b) of Cenvat Credit Rules cannot be held to have been an act of suppression.
Appeal allowed - decided in favor of appellant.
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2019 (4) TMI 1898
TP Adjustment - comparable selection - HELD THAT:- As relying on case of B.C. MANAGEMENT SERVICES PVT. LTD. [2017 (12) TMI 255 - DELHI HIGH COURT] exclude TCS E-Serve Ltd. from the final list of comparables.
TP adjustment to the book profit as per section 115JB - HELD THAT:- As decided in the case of Owens Corning [India] Ltd [2016 (5) TMI 1098 - ITAT MUMBAI] as perusal of the assessment order that the AO has simply made addition to the amount of net profit as per profit and loss account for the purpose of computation of income u/s 115JB without even mentioning that under what provisions this addition was being made. Such an approach is highly unfair and brings undue and avoidable hardship to the tax payers and we recommend that such a casual approach should be avoided by the revenue officers, as it may tarnish image of the income tax department, which may in turn discourage voluntarily compliance by the taxpayers. Thus, we delete the addition made by the AO. - Decided in favour of assessee.
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2019 (4) TMI 1897
Disallowance u/s 14A - Interest expenditure disallowance - disallowing proportionate interest in respect of investment in shares - HELD THAT:- The facts of the present case are similar to the facts of the case of Sudhir MehtaI [2017 (12) TMI 1668 - ITAT MUMBAI] and the issues involved in both the cases are identical. Since, the coordinate Bench of the Tribunal has dealt with the identical issue in the aforesaid case and directed the AO to allow deduction in respect of interest accrued and calculate @ 12% per annum after disallowing proportionate interest in respect of investment in shares after verifying calculation of the interest quantification, we respectfully following the decision of the coordinate Bench, set aside the findings of the Ld. CIT(A) allow this ground of appeal. Since the assessee had not earned any exempt income during the year relevant to the assessment year under consideration, we direct the AO to allow the deduction in respect of interest accrued and calculate @ 12% per annum in terms of the order passed.
Interest charged u/s 234A, 234B and 234C - HELD THAT:- Set aside the said issue to the file of AO for re-computation after reducing the amount of tax deductible at source on the income earned and since there is no material change in the facts of the case, there is no reason to take a different view other than the view already taken in the similar matter.
Non granting capitalization of interest expenses attributable to share and securities as not allowable u/s 57 (ii & iii) - HELD THAT:- As decided in case of Sudhir MehtaI [2017 (12) TMI 1668 - ITAT MUMBAI] Tribunal has granted capitalization of interest expenses disallowed in the hands of the assessee and directed the Assessing Officer to add the same to the cost of shares and securities - we respectfully following the decision of the coordinate Bench allow this ground of appeal of the assessee and direct the AO to at the same to the cost of shares and securities.
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9911796707
