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Case Laws
Showing 301 to 320 of 1887 Records
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2017 (12) TMI 1591
Carry forward and set off of Depreciation beyond 8 years - unabsorbed depreciation u/s 32(2) - Held that:- keeping in view the purpose of the amendment of section 32(2) of the Act, a purposive and harmonious interpretation has to be taken. The court, accordingly, held that the provisions of section 32(2) of the Act, as amended by the Finance Act, 2001, would allow the unabsorbed depreciation allowance available in assessment years 1997-98, 1999-2000, 2000-01 and 2001-02 to be carried forward to the succeeding years, and if any unabsorbed depreciation or part thereof could not be set off till the assessment year 2002-03, then it would be carried forward till the time it is set off against the profits and gains of subsequent years. - Decided against the revenue.
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2017 (12) TMI 1590
CENVAT Credit - whether the items M.S. Bar, TMT Bar, Channels, H.R. Coil and Angles, Cement etc. used by the appellant for the manufacture of the plant and machinery in their factory would be eligible for the Cenvat Credit?
Held that:- It is not disputed that the items were used in the manufacture of capital goods - the appellant furnished the documents to substantiate the use of these items in question for the manufacture of Capital goods - Apparently, the appellant declared the quantity of the use of the items in their Cenvat Account which was not disputed by the lower authorities. In such a situation, there is no reason to deny the Cenvat Credit on these items.
Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1589
Insolvable proceedings - There is neither any explanation on record as to why after recall of the loan amount in November 2011, no steps were taken by the Financial Creditor to compel the Corporate Debtor either to pay or face the consequences under the various provisions of law, then existing.
The petition is hopelessly incomplete and cannot be entertained. - Dismissed.
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2017 (12) TMI 1588
Refund claim - Section 11B of Central Excise Act, 1944 - Held that:- The appellant has confused the entire order of the Tribunal inasmuch as the Tribunal vide final order dated 19/09/2014 specifically stated that the demands within five years of issuance of show cause notice is liable to be confirmed and are confirmed - There is no mention in the Tribunal’s order as to consequential relief would follow. In the absence of any such direction, the refund claim filed by the appellant seems to be erroneous - appeal dismissed - decided against appellant.
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2017 (12) TMI 1587
Validity of reopening of assessment u/s 147 - reasons to believe - Held that:- The learned counsel appearing for the appellant states that this Appeal will be governed by a separate order passed in Income Tax Appeal [2017 (12) TMI 1586 - GUJARAT HIGH COURT]. Accordingly, for the reasons recorded therein, the Appeal is dismissed.
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2017 (12) TMI 1586
Validity of reopening of assessment u/s 147 - reasons to believe - Held that:- the finding of fact is that the Assessing Officer had an occasion to examine the details.
The finding makes it clear that the Assessing Officer had an occasion to examine the details. In fact, it is mentioned that the details were considered not only by the Assessing Officer but also by CIT (Appeals).
This is purely a finding of fact recorded by the Appellate Tribunal. In fact, in paragraph 22, it is reiterated that the authorities had examined various details and had come to a different conclusion. The findings which we have quoted above are not shown to be perverse. Hence, no substantial question of law arises.
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2017 (12) TMI 1585
Depreciation on intangible assets of business intellectual property rights - assessee engaged in trading activity - Held that:- The company is admittedly using this brand for the past year also and the depreciation for the earlier assessment year has already been allowed to the assessee on similar facts. These facts have not been disputed by the ld. Departmental Representative or by the Assessing Officer. Further, the Ld. CIT (A) has also mentioned that no remedial action has been taken by the Ld. Assessing Officer for assessment year 2009-10, in which the original depreciation was allowed by the Ld. Assessing Officer. The Ld. CIT(A) allowed the claim of the assessee holding that assessee is engaged in the trading activity of such products which have definitely taken place during the year under consideration, as well as in the immediately preceding previous year. The business intellectual property rights were in hand with the appellant for manufacturing the products and also the appellant has used it for the trading purposes under the seal of its own by using the brand name of Monsanto.
No infirmity in the order of the Ld. CIT (A) and none has been pointed out by the Ld. departmental representative. It could not be controverted by the revenue that the assessee has used these brands for the purpose of its trading business. Furthermore, no provision could be shown before us that if the assets have been used for the purpose of the trading business depreciation on intellectual property cannot be allowed. In view of this we uphold the findings of the Ld. First appellate Authority in deleting the depreciation disallowance made by the Ld. Assessing Officer on business intellectual property rights amounting to ₹ 34437935/-. In the result, the solitary ground raised by the revenue is dismissed.
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2017 (12) TMI 1584
Recovery attempted as against the security bond executed by the petitioners/appellants - contention raised by the petitioners before the learned Single Judge was that security bond was executed on 22.10.2013. The recovery now proposed was relating to the default made between the period May and September, 2013 - Held that:- When a security bond is executed in form No.6, there is no stipulation either in the Rule or in the form that the bond would apply only to the default occasioned in future. The liability though was prior to the execution of the bond by the petitioners, remained due even after the bond was executed. In such circumstances, there can be no fault found in the recovery attempted from the petitioners.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1583
Penalty of the stoppage of four increments with cumulative effect - it was alleged that the petitioner claimed to have passed the departmental test in Local Audit Fund, with a bogus certificate - Held that:- It can hardly be said that the enquiry report and the final order are vitiated by perversity.
The challenge of the petitioner in the year 2012, to the order of penalty dated 10-12-2009, was also barred by limitation.
Petition dismissed - decided against petitioner.
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2017 (12) TMI 1582
Rejection of Stay application - The petitioner claimed that it had already made pre-deposit of 25% of the disputed tax before the Tribunal. If during the pendency of the said appeal, the balance disputed tax is recovered in its entirety, the petitioner may suffer serious prejudice - Held that:- In order to balance the interests of both the parties, the respondents are restrained from recovering the balance disputed tax subject to the petitioner paying 50% of the disputed tax within a period of four weeks from today, pending Tax Appeal - While calculating 50% of the disputed tax, the pre-deposit, if any, made by the petitioner shall be given credit to - petition disposed off.
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2017 (12) TMI 1581
Difference between the market price and the employees stock option plan - revenue expenditure allowable under Section 37(1) - Held that:- The Tribunal relied upon the decision of the Hon'ble Division Bench of this Court, to which, one of us (KRCBJ) was a party, in the case of CIT Vs. PVP Ventures Ltd. [2012 (7) TMI 696 - MADRAS HIGH COURT] and dismissed the appeal filed by the Revenue. The special leave petition filed by the Revenue against the said decision was also dismissed by the Hon'ble Supreme Court [2014 (3) TMI 1127 - SUPREME COURT]
It is seen that the Hon'ble Supreme Court had given reasons and rightly dismissed the special leave petition. Therefore, we do not agree with the submission that the dismissal of the special leave petition was a dismissal simplicitor. The questions of law, having already been answered against the Revenue and in favour of the assessee in the case of PVP Ventures Ltd., we are bound to follow the same, which was rightly taken note of by the Tribunal. - Decided in favour of assessee
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2017 (12) TMI 1580
Legality and constitutional validity of certain provisions of the Real Estate (Regulation and Development) Act, 2016 - declaration is sought that the first proviso to Section 3 (1), Section 3 (2)(a) & (c), Explanation to Section 3, Sections 4(2)(c) & 4(2) (d) (e) (f) (g) (k), Sections 4 (2) (l) (C) and 4 (2) (l) (D), Sections 5(1)(b), 5 (3) and the first proviso to Section 6 of the RERA are unconstitutional, illegal, ultra vires, without jurisdiction and without authority of law.
Held that:- The provisions of RERA are prospective in nature. The penalty under Sections 18, 38, 59, 60, 61, 63 and 64 is to be levied on account of contravention of provisions of RERA, prospectively and not retrospectively. These provisions, therefore, cannot be said to be violative of Articles 14, 19(1)(g), 20(1) and 300-A of the Constitution of India
Challenge to constitutional validity of first proviso to Section 3(1), Section 3(2)(a), explanation to Section 3, Section 4(2)(l)(C), Section 4(2)(l)(D), Section 5(3) and the first proviso to Section 6, Sections 7, 8, 18, 22, 38, 40, 59, 60, 61, 63, 64 of the Real Estate (Regulation and Development) Act, 2016 fails. These provisions are held to be constitutional, valid and legal.
One of the qualifications for appointment of a Judicial Member prescribed in Section 46(1)(b) as, "or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post," is severed and struck down - In the constitution of the Tribunal, majority of the members shall always be judicial members.
Prayer dismissed.
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2017 (12) TMI 1579
Refusing to grant registration u/s.12AA and approval u/s.80G to the assessee trust - CIT(E) has refused to grant registration u/s.12AA on the ground that amendment clause does not provide for prior approval of the CIT(E) before carrying out the amendment in the trust deed - Held that:- We find that there is no such provision in the Act for refusal to grant registration to the assessee trust. Thus, the refusal to grant registration on this ground is an irrelevant ground and, hence, not sustainable.
With regard to objection regarding investment clause stating that there was no intention on the part of the assessee trust to invest the funds in the modes specified under the provisions of section 13(1)(d) r.w.s. 11(5) and that no investment clause was incorporated in the trust deed, we are of the considered view that the Income Tax Act prohibits investment in violation of Section 13(1)(d) & 11(5) of the Act and the trust deed prohibits such an investment by the assessee trust and, therefore, refusal to grant registration to the assessee trust on this count also is an irrelevant ground. Hence, we set aside the order of CIT(E) on this ground also. We therefore, direct the CIT(E) to grant registration u/s.12AA of the Act to the assessee trust.
With regard to not granting approval u/s.80G we find that the reason given by the CIT(E) that he has refused to grant registration u/s.12AA of the Act, therefore, consequently he had not granted approval u/s.80G of the Act to the assessee trust. As we have granted registration u/s.12AA of the Act to the assessee trust, we set aside the order of CIT(E) on his count and also direct the CIT(E) to grant approval u/s.80G of the Act to the assessee trust and allow the appeal of the assessee.
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2017 (12) TMI 1578
Validity of assessment under Section 153A/143 - Held that:- CIT (A) after considering the materials on record concluded that the so called incriminating materials, which were sought to be the basis for bringing the amounts to tax, were not really so. He accepted the arguments of the assessee on the merits. The Revenue’s appeal and the assessee’s cross appeal were dealt with by the impugned common order. The ITAT allowed the assessee’s cross appeal and dismissed the Revenue’s appeal based upon the decision of this Court in CIT v. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] - No substantial question of law.
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2017 (12) TMI 1577
Penalty imposed u/s. 271(1)(c) - non specification of charge - defective notice - Held that:- The show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. The plea of the ld. Counsel for the assessee which is based on the decisions referred to in the earlier part of this order has to be accepted. We therefore hold that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. - decided in favour of assessee
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2017 (12) TMI 1576
We permit the petitioners to move the High Court, whereby the High Court can take note of the order passed by this Court and pass appropriate orders to protect the interests of the home buyers - If the petitioners are grieved by the High Court order, liberty is granted to challenge the same - petition disposed off.
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2017 (12) TMI 1575
Eligibility to deduction u/s 10B - deduction only for period of 10 consecutive assessment years beginning with the Assessment year relevant to the previous in which the undertaking commences its manufacturing - Held that:- On plain reading of Section 10B(1), two things which emerge are that the benefit will start from the date of manufacturing and admittedly in this case, manufacturing activity started on 12.3.2001, in that view of the matter, the benefit will follow for the year 2001-02 and not for the year 2010-11.
Admittedly, 10 years is taken to be consecutive and if the exemption or benefit of Sub-section (8) as claimed by the assessee, he has made declaration prior to filing of return letter in 2013 and mentioning in return will not help the assessee. In our considered opinion, declaration is not there and so called declaration in the return is not permissible because Section 8 envisaged that declaration is to be made prior to filing of the return which has not been done, therefore, in that view of the matter, the issue is answered in favour of the department and against the assessee.
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2017 (12) TMI 1574
Addition made towards share capital u/s 68 - statements recorded by the DDIT(Inv.) from the directors of the share subscribing companies - Held that:- We hold that the allegation of the AO that the assessee had introduced its own funds in the garb of share capital and premium is totally baseless and is only on surmises and conjectures.
No evidence or documents were brought on record by the AO to even remotely suggest that the assessee has introduced its own funds in the garb of share capital. Hence we have no hesitation in directing the AO to delete the addition made u/s 68 of the Act towards share capital and share premium in the facts and circumstances of the case. Accordingly, the grounds raised by the assessee are allowed.
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2017 (12) TMI 1573
Exemption u/s 11 & 12 denied - holding funds in non-specified modes - ITAT restoring back the matter to the file of CIT(E) for giving further time and opportunity to the assessee to convert the shares into specified assets within a specified period - whether the Ld. CIT(E) was justified in withdrawing the notification and benefit u/s 10(23C) (vi) of the Act, on the basis that the assessee has not made investment in the specified assets? - Held that:- There is no dispute with regard to the fact that the assessee kept this investment as it is without converting into the same in the mode specified under the Act despite elapse of several years, the proviso of Section 10(23C)(vi) empowers the prescribed authority under the Act to withdraw the approval granted u/s 10(23C) (vi).
As borne out of records that the Revenue chose not to rescind the approval in earlier years. The Ld. Counsel for the assessee urged that withdrawal of exemption is very harsh step as the assessee has been enjoying the benefit of exemption, for several years - restore this issue to the file of the CIT(E) to reconsider the submissions of the assessee, and give last opportunity to convert the shares into specified assets within a specified period, and meantime withdraw exemption u/s 11 & 12 in respect of income earned from the investment made in non-specified assets. This ground of assessee's appeal is allowed for statistical purpose. Appeal dismissed.
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2017 (12) TMI 1572
Principles of VIAILATIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT - Held that:- Neither anybody appeared on behalf of the appellant nor any adjournment application is filed - It may be mentioned that as per maxim, VIAILATIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT, law helps those who are vigilant and not those who go to sleep - the appeal is dismissed for default.
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