|
Advanced Search Options
Case Laws
Showing 301 to 320 of 1471 Records
-
2022 (1) TMI 1174
CENVAT Credit - inputs - M.S. Grating - M.S. Stair Case - LED Street Light, etc. - inputs used for generating power, as part of power is supplied to the residential colonies/staff quarters of the appellant - extended period of limitation - HELD THAT:- The Court Below has totally mis-conceived the issue, and there is failure to exercise the jurisdiction vested in them. A point of law or an alternative plea can be taken, at any stage, and the Adjudicating Authority or Appellate Authority is bound to decide the same - considering the admitted facts on this issue that the items in dispute have been used in the factory of production, it is held that the cenvat credit is allowable on these items under dispute as inputs, as defined in Rule 2 (k) of CCR, 2004.
Disallowance of proportionate credit on inputs and input services used in the captive power plant - HELD THAT:- In all the Audit reports, the issue of proportionate disallowance for power supply from captive generation to the staff quarters was not raised. In spite of the fact that in the Audit report dated 4.5.2016 by way of objection no.5, expenses on the security services relating to the residential colony was taken, and the cenvat credit was proposed to be denied.
Extended period of limitation - HELD THAT:- This issue has been raised by way of change of opinion and as such, there being no suppression or malafide on the part of the appellant/assessee, accordingly, the extended period of limitation is not invokable.
Appeal allowed - decided in favor of appellant.
-
2022 (1) TMI 1173
Clandestine removal - bars/ rods - demand on the basis of the loose documents recovered from the premises - corroborative evidences or not - Burden to prove - invocation of extended period of limitation - HELD THAT:- It is observed that the premises of SSSRM were search on 10.09.2005. The documents recovered from the premises, based whereupon the show cause notice was issued, admittedly are in the form of loose parchies and in the form of hand written ledger book that too those which got recovered from the premises of SSSRM. There appears neither corroborative evidence to support those loose & handwritten documents nor any evidence to connect them to the alleged guilt of the appellant or to the alleged guilt of M/s. RIGL where the appellant is director.
The statement of appellant, Smt. Sunita Devi, was recovered in June, 2005. There appears no acknowledgement on her part about she being involved in the alleged collusion with SSSRM for the alleged clandestine removal except for the raw material to have been delivered to SSSRM - the entire burden was that of the Department to prove that the appellant have been clearing the raw material from their premises and were getting the same delivered to M/s.SSSRM without discharging their liability.
It becomes clear that there is no admission by the appellant for the alleged clandestine removal. Hence, the onus was upon the Department to produce the positive evidence from the appellant’s record and premises. But, it is simultaneously clear that no other evidence from the transporter or raw-material provider or the purchaser has been collected by the Department - The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established.
Invocation of extended period of limitation - HELD THAT:- It is held that apparently and admittedly appellant was regularly filing the returns. Hence, the facts were regularly brought to the notice of the Department. But there is nothing produced on record by the Department to show any positive act on part of the appellant which may amount to suppression of relevant facts. Resultantly, the demand for a period of more than one year could not have been made. Department could not have invoked the extended period of limitation. Show cause notice issued invoking the greater period is therefore, held to be barred by time. The adjudication based thereupon cannot sustain.
The order under challenge fails on merits as well as on technical issue of limitation - Appeal allowed - decided in favor of appellant.
-
2022 (1) TMI 1172
Validity of bail granted - siphoning of funds - shell companies - by the impugned judgment and order, the High Court has directed to release Respondent No.2 on bail merely on the ground that the case arises out of a commercial transaction and is based on documents already seized - proper investigations not carried out by High Court - HELD THAT:- While releasing the Respondent No.2 on bail the High Court has not at all adverted to and/or considered the nature of accusation and the material found/collected during the course of investigation and the serious allegations of siphoning off the huge amount through various shell companies. The High Court has not at all dealt with and/or considered any of the allegations and/or material collected during the course of the investigation which were specifically pointed out and mentioned in the status report filed by the I.O. From the status report and even the chargesheet/supplementary chargesheet papers it has been found during the course of the investigation that a sum of ₹ 25 crores was disbursed by the complainant to Respondent No.2 and its company M/s LMJ Logistics Limited. The said amount was disbursed for its own use.
All these allegations and the material collected during the course of the investigation which are being part of the chargesheet and supplementary chargesheet are not taken note of by the High Court and the High Court has just simply ignored the same and has released Respondent No.2 on bail by simply observing that case arises out of a commercial transaction and the dispute is of a civil nature. Therefore, the High Court has not at all taken into consideration the relevant considerations while grant of bail. Even the High Court has not at all taken note of the reasoning given by the learned Sessions Court while rejecting the bail application of Respondent No.2.
Whether the High Court is at all justified in releasing Respondent No.2 on bail? - HELD THAT:- In the instant case, while dealing with the application of the accused for grant of bail, the High Court completely lost sight of the basic principles enumerated above. The accused, in the present case, is alleged to have committed a heinous crime of killing an old helpless lady by strangulation. He was seen coming out of the victim's house by a neighbour around the time of the alleged occurrence, giving rise to a reasonable belief that he had committed the murder - under the given circumstances, it was not the stage at which bail under Section 439 of the Code should have been granted to the accused, more so, when even charges have not yet been framed - The High Court has also not taken into consideration the status report filed by the I.O. in which in detail it has been pointed out how systematically the accused have committed the offence and misappropriated/siphoned off the huge sum through shell companies. Thus, it appears that the High Court has not adverted to the relevant considerations and has granted the bail mechanically by observing that the case arises out of a commercial transaction.
While releasing Respondent no.2 on bail, the High Court has not at all considered the relevant factors including the nature and gravity of accusation; the modus operandi and the manner in which the offences have been committed through shell companies and creating the false/forged documents and/or misusing the PAN Cards, Aadhar Cards and KYCs of the employees and showing them as Directors of the fake and shell companies - the High Court has not at all considered and taken into consideration the status report and the evidence collected during the course of the investigation. Therefore, the impugned judgment and order passed by the High Court releasing Respondent No.2 on bail is unsustainable as the High Court while releasing Respondent No.2 on bail has not exercised the jurisdiction judiciously and has not considered the relevant factors which are required to be considered while grant of bail.
The impugned judgment and order passed by the High Court releasing Respondent No.2 on bail deserves to be quashed and set aside and is accordingly quashed and set aside - Appeal allowed.
-
2022 (1) TMI 1171
Appointment of a sole arbitrator - Section 11(6) r/w 11(12)(a) of the Arbitration & Conciliation Act, 1996 - arbitration to the Singapore International Arbitration Centre (SIAC) was rejected, stating that the notice of arbitration was defective and was not curable - requirement of sufficient stamping of documents - Hotel Management Agreement (HMA) sufficiently stamped or not - HELD THAT:- This Court’s jurisdiction to adjudicate issues at the preappointment stage has been the subject matter of numerous cases before this Court as well as High Courts. The initial interpretation provided by this Court to examine issues extensively, was recognized as being against the proarbitration stance envisaged by the 1996 Act. Case by case, Courts restricted themselves in occupying the space provided for the arbitrators, in line with party autonomy that has been reiterated by this Court in VIDYA DROLIA AND OTHERS VERSUS DURGA TRADING CORPORATION [2020 (12) TMI 1227 - SUPREME COURT], which clearly expounds that Courts had very limited jurisdiction under Section 11(6) of the Act. Courts are to take a ‘prima facie’ view, as explained therein, on issues relating to existence of the arbitration agreement. Usually, issues of arbitrability/validity are matters to be adjudicated upon by arbitrators. The only narrow exception carved out was that Courts could adjudicate to ‘cut the deadwood’.
In N.N. GLOBAL MERCANTILE PVT. LTD. VERSUS INDO UNIQUE FLAME LTD. AND ORS. [2021 (1) TMI 1121 - SUPREME COURT] this Court was of the opinion that the utility of the doctrine of separability overrides the concern under the respective Stamp Acts. Any concerns of nonstamping or under stamping would not affect the validity of the arbitration agreement.
Although we agree that there is a need to constitute a larger Bench to settle the jurisprudence, we are also cognizant of time sensitivity when dealing with arbitration issues. All these matters are still at a preappointment stage, and we cannot leave them hanging until the larger Bench settles the issue. In view of the same, this Court – until the larger Bench decides on the interplay between Sections 11(6) and 16 – should ensure that arbitrations are carried on, unless the issue before the Court patently indicates existence of deadwood.
Whether the issue of insufficient stamping raised by the respondent is deadwood and clearly indicative of an unworkable arbitration agreement, or there are deeper issues which can be resolved at a later stage? - HELD THAT:- Having perused Clause 22.1, it is necessary to note that the respondent is under an obligation to ensure that the agreement would be legally valid in India. If such an obligation was undertaken by the respondent, the extent to which the petitioners can rely on the respondent’s warranty, is clearly a debatable issue. Further, it is also a matter of adjudication whether the respondent could have raised the issue of validity of the arbitration agreement/substantive contract in view of the warranty. This aspect clearly mandates that the aforesaid issue is not deadwood. The issues whether the respondent is estopped from raising the contention of unenforceability of the HMA or the issue whether the HMA is insufficiently or incorrectly stamped, can be finally decided at a later stage.
Moreover, the petitioners have reiterated that without prejudice, they have paid the required stamp duty, including the penalty that may be accruable and sought appointment of a sole arbitrator in light of the same. On the contrary, the respondent, in rebuttal to the payment of stamp duty, has challenged the same, contending that payment of stamp duty has been wrongly classified and stamp duty has been paid against Article 5(j) under the schedule of the Karnataka Stamp Act, 1957, which is erroneous. Therefore, the respondent contends that the HMA has not been properly stamped.
It is deemed appropriate for this matter to be referred to arbitration, in terms of Clause 18.2 of the arbitration agreement - arbitration petition is allowed.
-
2022 (1) TMI 1170
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - failure of producing documentary evidence - HELD THAT:- It is apparent that in case of failure of producing documentary evidence, it cannot be considered in respect of proprietor that he is the sole proprietor of Firm and on that basis, the complaint under Section 138 of the NI Act is not maintainable. No documentary evidence in respect of being a sole proprietor of the Firm on behalf of complainant-appellant has been produced before the Court and from the record, it reveals that the cheque in question has been issued in the name of complainant- Firm and the only bill Ex.P6 whose authenticity has been denied by the accused- respondent because it does not either bear the signature of complainant or accused. On that basis, no presumption can be drawn against the accused. As per the provisions of Section 138(b) of the NI Act, it is the statutory duty of the complainant that after dishonour of cheque, information regarding dishonour/return of cheque should be furnished by giving a written notice to the accused within a period of thirty days.
In the present matter, although a notice was issued by the complainant but it has been reflected from the impugned judgment that consideration amount of ₹ 50,000/- has been shown as due against the respondent- accused which is under suspicion and no evidence in this regard has been produced before the Court on the behalf of the complainant to establish his case beyond reasonable doubt. Therefore, the learned JMFC has rightly acquitted the respondent-accused of offence under Section 138 of the NI Act.
Appeal dismissed.
-
2022 (1) TMI 1169
Levy of service tax - ocean freight paid for imported goods - HELD THAT:- On the identical issue this Tribunal in the case of COROMANDEL INTERNATIONAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VADODARA [2021 (10) TMI 1289 - CESTAT AHMEDABAD] where it was held that The judgment of Gujarat High Court in the case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT] only after the proceedings concluded by the lower authority i.e. sanctioning authority. This judgment was challenged before the Hon’ble Supreme Court by the Revenue but no stay was granted, since the judgment was not delivered before passing the adjudication order and by the Commissioner (Appeals).
In the present case also being identical issue involved, following the aforesaid decision, the appeal is allowed by way of remand to the adjudicating authority to pass a fresh order - appeal allowed by way of remand.
-
2022 (1) TMI 1168
Seeking direction to the respondent(s) to transfer the investigation pertaining to Summons pending at Delhi to the Directorate General of GST Intelligence, Surat Zonal Unit, Gujarat - another case against the petitioner is being investigated by the Surat Zonal Unit - HELD THAT:- The respondents have filed a detailed reply affidavit and have asserted that two investigations pertain to different causes of action. If so, it is for the investigating Agency to decide whether it would like to have a joint investigation pertaining to the petitioner. No writ of mandamus need be issued in that behalf in light of the factual assertion in the counter affidavit.
This writ petition is disposed of.
-
2022 (1) TMI 1167
Refund claim - rejection of refund in view of Rule 92(3) of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- A Perusal of the impugned Order indicates that the Respondent No.3 has rejected the application for refund without recording any reasons, though the same is mandatory under Rule 92(3) of the Central Goods and Services Tax Rules, 2017. The Order passed by the Respondent No.3 is in breach of the said provisions and deserves to be granted and set aside.
Impugned Order passed by the Respondent No.3 is quashed and set-aside - Application for refund made by the Petitioner for the period July 2017 to March 2018 for the sum of ₹ 4,33,03,066/- is restored to file before the Respondent No.3 - Application allowed.
-
2022 (1) TMI 1166
Unblocking of Electronic Credit Ledger - period of one year as prescribed under sub-rule 3 of Rule 86A of the CGST/GGST Rules has elapsed from the date of order of blocking of the Electronic Credit Ledger - HELD THAT:- The rule itself has provided that the Electronic Credit Ledger can be blocked for a period of one year. On expiry of a period of one year, it would automatically get unblocked. In fact, it was the duty of the authority concerned to permit the assessee, i.e. the writ-applicant, to avail the input credit available in his ledger. Once the statutory period comes to an end, the authority has no further discretion in the matter, unless a fresh order is passed - In the case on hand, it is very unfortunate to note that despite the fact that the period of one year elapsed, the authority did not permit the writ-applicant to avail the credit available in his ledger.
The authority did not permit the writ-applicant to avail the input credit available in his ledger for about more than two and a half months after the statutory life of the order came to an end
We make it clear that next time if we come across such a case, then the concerned authority would be held personally liable for the loss which the assessee might have suffered during the interregnum period. - this writ-application is disposed of.
-
2022 (1) TMI 1165
Income earned on account of the interest as liable to tax under the Interest Tax Act, 1974 - Reopening of assessment beyond the period of four years as per section 10 of the Interest Tax Act, 1974 - Whether the Appellate Tribunal was right in law in concluding that the interest income as chargeable interest under section 2(7) read with section 2(5B) V-A of the Interest Tax Act, 1974 without considering the Memorandum of the Appellant Company, which does not contain the finance business? - HELD THAT:- We find that the expression “financial company” as defined under section 2(5B) of the Interest Tax Act, 1974, means “a company” carrying on activities as enumerated in sub-clauses (iv) to (v) thereon. Both the appellate authorities have not set out the sub-clause to the definition of “financial company” which covers the appellant company. The said aspect relating to identifying the “taxable person” is an essential criterion for the charge to get attracted. However, the appellate authorities failed to mention the sub-clause to Section 2(5B) of the Interest Tax Act, 1974, under which the appellant would fall. On this score alone, we are inclined to set aside the order of the Tribunal and remand the matter to the Tribunal for fresh consideration.
It is apt to refer to the decision of the supreme court in CWT v. Ellis Bridge Gymkhana [1997 (10) TMI 2 - SUPREME COURT] in which, it was held that “the rule of construction of a charging section is that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section and no one can be taxed by implication”.
Thus we set aside the order impugned herein and remand the matter to the Tribunal for fresh consideration. The Tribunal shall examine the facts as regards the activity of the appellant, and set out under which sub clause to the definition of “financial company” under section 2(5B), the appellant company would fall, so as to attract charge under the Interest Tax Act, 1974 and thereafter, pass appropriate orders. Such an exercise shall be completed within a period of twelve (12) weeks from the date of receipt of a copy of this judgment.
-
2022 (1) TMI 1164
Release the seized amount along with the interest - present proceedings was as to where the seized amount was lying i.e. in Delhi or Ahmedabad? - HELD THAT:- The respondents admits that the seized amount is lying in Delhi in PD Account Pr.CIT-10.
Since the PAN of the assessee is based in Ahmedabad, the Pr.CIT-10 is directed to transfer the seized amount of ₹ 12,00,000/- to the petitioner’s Assessing Officer in accordance with law within two weeks. It shall be open to the petitioner to apply to his Assessing Officer for refund of the seized amount in accordance with the assessment order dated 2nd November, 2010.
-
2022 (1) TMI 1163
Adjustment of refund against the outstanding tax demand - HELD THAT:- As refunds have been adjusted against outstanding tax demand by the Authority without mentioning that the case of the assessee falls in the category mentioned in paragraph 4(B) of the Office Memorandum dated 29th February, 2016 and/or without passing any order under Section 245 of the Act, this Court is of the opinion that the petitioner is entitled to refund of adjustments made in excess of 20% of the disputed tax demands.
This Court is also of the view that the restrictive stay order dated 11th February, 2019 issued by the Respondents granting stay to the Petitioner only till 31st December, 2019 is in violation of the directions of the CBDT as well as previous orders of this Court wherein it has been held that the assessing officer must grant stay till the disposal of the first appeal.
This Court directs the respondents to verify the facts stated in the writ petition and if it finds them to be true and correct, then refund the amount adjusted in excess of 20% of the disputed tax demands for the Assessment Year 2016-17 to the petitioner within four weeks.
-
2022 (1) TMI 1162
Reopening of assessment u/s 147 - Notice after four years - reopening based on audit objections - HELD THAT:- Admittedly, this is a case where the notice under Section 148 of the Act has been issued after the expiry of 4 years from the end of the relevant assessment year and assessment u/s 143(3) of the Act has also been completed. Hence, proviso to Section 147 shall apply. Respondents have to show that there was failure on the part of petitioner to truly and fully disclose material facts relevant for the assessment. We have considered the reasons recorded for reopening the assessment and we have no doubt in concluding that respondents have failed in discharging its onus to show that petitioner has failed to disclose truly and fully all material facts. From the reasons itself as well as the documents annexed to the petition, it is quiet clear that there has been full disclosure by petitioner. Jurisdictional Assessment Officer (JAO) has raised 4 heads, under which he feels that income chargeable to tax has escaped assessment.
We are in agreement with the explanation offered by petitioner. Moreover, this point has been raised because of audit objections. The Assessing Officer cannot be stated to be satisfied that he had reasons to believe that this item has escaped assessment. The Income Tax Officer must determine for himself what is the effect and consequence of the law mentioned in the audit note and whether in consequence of the law which has come to his notice he can reasonably believe that income had escaped assessment. The basis of his belief must be the law of which he has now become aware. The opinion rendered by the audit party in regard to the law cannot, for the purpose of such belief, add to or colour the significance of such law. The true evaluation of the law in its bearing on the assessment must be made directly and solely by the Income Tax Officer. ( See Indian and Eastern Newspaper Society V/s. Commissioner of Income Tax, New Delhi 1 [1979 (8) TMI 1 - SUPREME COURT]
Further there is nothing under this head to indicate that there was failure on the part of petitioner to truly and fully disclose any fact. JAO has relied on the documents already filed before the Assessing Officer.
Petitioner is therefore, directed to pay the amount of ₹ 30,54,398/- as mentioned in the revenue audit objections. Respondents are directed to raise the demand on petitioner for this amount and petitioner shall pay the amount within time prescribed in the demand. We are making it clear that as noted earlier, the entire 148 notice is quashed and set aside and we have held that assessment could not have been reopened at all by respondents. We have only included this portion in this order in view of the without prejudice offer made by Mr. Thakkar and that cannot be construed as an admission of any liability by petitioner. We also clarify that in view of our observation as above, no penalty proceedings can be initiated by respondents under this head.
-
2022 (1) TMI 1161
Validity of assessment order - Assessee unable to provide the information/documents as sought for by the respondent No.1 - due to technical glitches and constraints, certain information was not getting uploaded onto the portal/website of the department - grievance of the petitioner that since the information/documents could not be uploaded/furnished by the petitioner to respondent No.1 by uploading the same on the portal/website of the department, respondent No.1 has proceeded to pass the impugned order on the premise that necessary documents for the purpose of establishing the claim of the petitioner had not been made available by the petitioner and consequently, his claim could not be considered - HELD THAT:- Though several contentions have been urged by both the sides in support of their respective claim, a perusal of the aforesaid representation dated 27.08.2021 at Annexure-E2 as well as the impugned assessment order dated 24.09.2021 will indicate that respondent No.1 has proceeded on the premise that the petitioner had not furnished/uploaded the relevant information/documents prior to passing of the impugned order. Under these circumstances, in view of the specific assertion on the part of the petitioner that he could not upload/furnish the relevant information/documents prior to passing the impugned order on account of the technical glitches/constraints in the website/portal coupled with the undertaking given by the petitioner before this Court that he would furnish/upload the relevant information/documents if one more opportunity is granted to him, in the interest of justice wedeem it just and appropriate to set aside the impugned order and remit the matter back to respondent No.1 for reconsideration afresh after providing an opportunity in favour of the petitioner to provide/furnish the relevant information/documents.
-
2022 (1) TMI 1160
Validity of assessment u/s 144C - Non considering objections to the draft assessment order - non adherence to mandatory provisions of Section 144C - Order passed without awaiting directions from the DRP, before whom the matter was pending - HELD THAT:- Undisputed material on record clearly indicates that in response to the draft Assessment Order issued to the petitioner, petitioner submitted objections before the DRP within the prescribed period and intimated the same to the Assessing Officer pursuant to clarification sought for by the Assessing Officer the explanation offered by the petitioner as regards his inability and omission to file objections with the Assessing Officer earlier in addition to the DRP merits acceptance, particularly in view of the Government Orders, circulars etc. as well as the orders of the Apex Courts extending the period of limitation coupled with the intimation provided by the petitioner to the Assessing Officer as sought for by him prior to passing the Assessment Order. At any rate, the petitioner had chosen to exercise the option of filing objections to the draft Assessment Order warranting the DRP to proceed further before the Assessing Officer takes further steps as provided under sub-sections 5 to 13 to Section 144C..
The impugned Assessment Order passed by respondent No.1- Assessing Officer without awaiting directions from the DRP, before whom the matter was pending pursuant to the petitioner filing his objections within the prescribed period is clearly arbitrary, illegal and without jurisdiction or authority of law and the same deserves to be quashed and necessary directions are to be issued to the DRP as well as the Assessing Officer in this regard.
-
2022 (1) TMI 1159
Levy penalty u/s 271(1)(C) - defective notice u/s 274 - assessee has argued that the penalty notice nowhere speaks about specific limb to levy the penalty because the particular charge was not tick off in the notice, therefore, in the said circumstances, the penalty is not liable to be sustainable in the eyes of law - HELD THAT:- It is not in dispute that the penalty u/s 271(c) of the Act is leviable on account of the concealment of particular of income and on account of furnishing the inaccurate particulars of income. Both have different connotations. In this regard, the Hon’ble Supreme Court has appreciated the distinction between both the limb in the case Dilip N. Shroff [2007 (5) TMI 198 - SUPREME COURT] - As per the record, the assessment order speaks about levying the penalty on account of taken the action in view of provisions u/s 274 r.w.s. 271 (1)(c) of the Act but the notice nowhere specify any limb to levy the penalty. The notice is not justifiable in view of the law settled by the Bombay High Court in the case of CIT-11 Vs. Samson Perinchery.[2017 (1) TMI 1292 - BOMBAY HIGH COURT]
Notice issued by the Assessing Officer u/s 274 r.w.s. 271(1)(c) of the Act is untenable as it suffers from the vice of non-application of mind - Decided in favour of assessee.
-
2022 (1) TMI 1158
Deduction u/s.80P(2)(a)(i) - deduction u/s.80P(2)(a)(i) and 80P(2)(d) in respect of interest earned on deposits made with banks - AO refused deduction u/s.80P on such interest income, which came to be allowed in the first appeal. Aggrieved thereby, the Revenue has approached the Tribunal - HELD THAT:- Pune Benches of the Tribunal in Sureshdada Jain Nagari Sahakari Patsanstha Maryadit [2019 (4) TMI 682 - ITAT PUNE] decided the question of availability of deduction u/s 80P on interest income by noticing that the Pune ITAT in an earlier case of Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit [2015 (8) TMI 1085 - ITAT PUNE] had allowed the deduction in similar circumstances.
Reliance of the ld. DR in the case of Pr. CIT and Another Vs. Totagars Cooperative Sales Society [2017 (7) TMI 1049 - KARNATAKA HIGH COURT] is not relevant. The issue in that case was the eligibility of deduction u/s.80P(2)(d) of the Act on interest earned by the assessee co-operative society on investments made in co-operative banks. In that case, the assessee was engaged in the activity of marketing agricultural produce by its members; accepting deposits from its members and providing credit facility to its members; running stores, rice mills, live stocks, van section, medical shops, lodging, plying and hiring of goods and carriage etc. It was in that background of the facts that the Hon’ble High Court held that the assessee could not claim deduction u/s.80P(2)(d) of the Act. When we consider the effect of this decision, it turns out that the same is not germane to case under consideration in view of the position that the primary claim of the extant assessee is directly about the eligibility of deduction u/s.80P(2)(a)(i) of the Act. In view of the foregoing discussion, we uphold the conclusion drawn by the ld CIT(A) in the impugned order by allowing deduction u/s.80P(2)(a)(i) of the Act. - Decided against revenue.
-
2022 (1) TMI 1157
Proportionate deduction u/s.80IB(10) - AO disallowed the entire deduction on the ground that the assessee contravened the provisions of section 80IB(10)(f) by selling two units to one person - HELD THAT:- If there was violation of the relevant provision, only the deduction pertaining to such violation ought to have been disallowed. The ld. CIT(A), in our opinion, was fully justified in allowing the deduction on the amount claimed because the assessee had suo motu claimed deduction u/s.80IB(10) on reduced amount. The view taken by the ld. CIT(A) accords with the judgment of the Hon’ble jurisdictional High Court in M/s. Kamat Constructions Pvt. Ltd. [2020 (12) TMI 90 - BOMBAY HIGH COURT] in which identical facts were involved and the Hon’ble High Court approved the granting of deduction on proportionate basis. We, therefore, accord our imprimatur to the view taken by the ld. CIT(A).
-
2022 (1) TMI 1156
Set-off of net operations loss against income from house property and ‘other’ sources - set off of loss incurred from the activities coming under the purview of principle of mutuality against the income which is not coming under the purview of mutuality and brought to tax i.e., interest income received from member banks and rental income received from member tenants which was actually assessed under the regular provisions of the Act under the head Other Sources and House Property, respectively - HELD THAT:- As decided is own case [2021 (10) TMI 1290 - ITAT HYDERABAD] the legislative expression “head” of income must be taken as any of the five heads of income provided u/s. 14 of the Act i.e. salary, income from house property, profits and gains of business or profession, capital gains and income from other sources; respectively. We thus are of the opinion that once the assessee's impugned deficit arising from mutuality account is neither covered in any of the said heads as well nor u/s. 2(24)(vii) defining “income” in the very account, section 71 of the Act would not apply in isolation.
Order of CIT(A) sustained wherein it was observed that:
"it is well settled legal position that operational loss computed by the assessee coming under the purview of principle of mutuality cannot enter the computation of total income as envisaged u/s.2(45) of the Act. Accordingly, the ground of appeal raised by the assessee on treating such loss arising out of transactions covered under principle of mutuality as income / loss within the meaning of Sec. 28(iii) of the Act is dismissed. As a corollary, such loss cannot be set off against other taxable sources I heads of income of the assessee such as interest income from bank falling under Income from Other Sources, Income from House Property etc. as envisaged u/s.71 of the Act. Similarly, the provisions of Sec.72 of the Act are also not applicable with regard to carry forward and set-off of such losses in the subsequent AYs. Accordingly, all the grounds of appeal raised by the assessee are hereby dismissed”
Decided against assessee.
-
2022 (1) TMI 1155
Validity of proceedings u/s 153A - Whether no incriminating material was found as a result of search conducted on the appellant? - As per CIT no incriminating material was found as a result of search conducted on the appellant - HELD THAT:- It is an admitted fact that no incriminating material was found from the search which could form the basis of the addition as made in the assessment order. AO had made routine disallowance of expenses based on information already disclosed along with the return of income. It is now well-settled law that in the case of unabated assessment, where the assessments have become final before the date of search, no addition can be made without any incriminating material or documents found during the course of search. This has been held so by the Hon’ble jurisdictional High Court in the case of CIT Vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Pr. CIT Vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT]
This fact has also not been challenged by the ld. CIT (Appeals) and that the addition cannot be based on the material found during the course of search. Accordingly, the additions made by the Assessing Officer are beyond the scope of assessment proceedings under Section 153A - Decided in favour of assessee.
............
|
9911796707
