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Showing 301 to 320 of 2049 Records
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2018 (3) TMI 1752
Addition u/s 40A(2)(b) - Addition on account of alleged excessive rent paid on machineries hire for hospital - unreasonable or excessive - CIT(A) observed that the machinery were very old, obsolete and had outlived their use and utility and the payment of rent was only to reduce the liability of the assessee - absence of inquiry by the AO - HELD THAT:- AO observed that the payments were made to the persons covered u/s 40A(2)(b). But that is why section 40A(2)(a) has been invoked. The issue is whether the AO’s opinion that the expenditure was excessive, is correct. As per section 40A(2)(a), such opinion of the AO is to be formed having regard to the fair market value of the goods in which the payment is made. AO has to place on record material showing the fair market value of the goods. In the present case, the AO did not conduct any inquiry or verification into the reasonableness of the expenditure with reference to fair market charges payable under similar conditions.
In ‘CIT vs. Superior Crafts’ [2012 (4) TMI 476 - DELHI HIGH COURT] has approved the action of the Tribunal in deleting the similar addition/disallowance, dismissing the appeal filed by the Department.
In ‘ITO vs. Mayur Agarwal’, [2010 (4) TMI 1061 - ITAT AGRA] it was held that u/s 40A(2)(b), the AO is bound to show as to how the rent paid to a relative is excessive.
In ‘ACIT vs. Bombay Real Estate Development Company (P) Ltd [2011 (6) TMI 796 - ITAT MUMBAI] it was held that since the AO had not brought on record anything to show that the payment made was unreasonable or excessive having regard to the fair market value of the services for which the payment was made or the benefit derived from such services, the conditions of section 40A(2) were not satisfied.
Also see ‘S.K. Engineering vs. JCIT’, [2005 (8) TMI 285 - ITAT BANGALORE-A] held, inter alia, that for invoking the provisions of section 40A(2), the onus lies on the AO that the payment is excessive or unreasonable having regard to the fair market value of the goods; and that the Revenue has to place on record evidence as regards excessiveness or unreasonableness.
In ‘Jagdamba Rollers Flour Mill Ltd. Vs. ACIT’, [2008 (10) TMI 282 - ITAT NAGPUR] held that disallowance u/s 40A(2) can be made only if payment is made to a person specified in section 40A(2)(b) and it is found to be excessive or unreasonable having regard to the market value of the goods, services or facilities for which the payment is made; and that in the absence of inquiry by the AO, as contemplated by the provisions of section 40A(2)(a) , no disallowance can be made. - Decided in favour of assessee.
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2018 (3) TMI 1751
Power to constitute special Bench - administrative decisions of the President, ITAT - request for constitution of Special Bench was declined by the President - learned Single Judge directed day to day basis by Bengaluru Bench - HELD THAT:- The observations occurring in the decisions relied upon by learned counsel for the appellant, INCOME-TAX APPELLATE TRIBUNAL VERSUS DEPUTY COMMISSIONER OF INCOME-TAX (ASSESSMENT) AND OTHERS [1996 (1) TMI 5 - SUPREME COURT]; AJAY GANDHI AND ANOTHER VERSUS B. SINGH AND OTHERS [2004 (1) TMI 6 - SUPREME COURT];PRESIDENT, INCOME-TAX APPELLATE TRIBUNAL VERSUS A. KALYANASUNDARAM AND OTHERS. [2005 (9) TMI 65 - MADRAS HIGH COURT]and the principles available therein are neither of any doubt nor of debate. However, we are unable to agree that the learned Single Judge has at all passed any order overriding the powers of the President.
In the given set of facts and circumstances, we are unable to take any exception against the impugned order dated 22.02.2018 as passed by the learned Single Judge but, of course, deem it appropriate to observe that the said order cannot be construed to mean that the powers of the President to constitute appropriate Bench for hearing and disposal of the appeals has been dealt with by the Court; and obviously, it goes without saying that the President has the powers to constitute appropriate Bench/Benches for consideration of the appeal/s in accordance with law - appeals stand dismissed
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2018 (3) TMI 1750
Appointment of a sole Arbitrator - Section 11 of the Arbitration and Conciliation Act, 1996 - denial of appointment of arbitrator on the ground that the contract is undisputedly unstamped and also on the ground that the Petitioner has not followed the mandatory pre-arbitral agreed procedure prescribed by the arbitration agreement.
Whether the invocation of the arbitration was premature? - Held that:- There is no substance in the argument on behalf of the Respondent that since there was no negotiation between the parties before invoking the arbitration, the same was premature. From these text messages (sent on Whatsapp), it is quite clear that on several occasions, a request was made for a meeting to which there was no positive response. This being the case, I find that the Petitioner was fully justified in invoking the arbitration clause as contained in Annexure-III to the sub-contract dated 14th June, 2013 (the commercial terms and conditions).
Whether the parties can be referred to arbitration on the basis of what the Respondent alleges is an unstamped document? - Held that:- In the facts of the present case, there is no dispute with reference to the existence of the arbitration agreement. This being the case, I find that Mr. Kamat is not correct in submitting that the dispute cannot be referred to arbitration merely because the sub-contract dated 14th June, 2013 (and in which the arbitration clause is contained), is an unstamped document - It is not as if once the Arbitrator is appointed, the Respondent is precluded from raising the issue of stamping before the Arbitrator. The Arbitrator, if found that the document is insufficiently stamped, can always impound the same and send it to the necessary authorities under the Maharashtra Stamp Act, 1958 for adjudication.
The liability to pay stamp duty was that of the Respondent. If the stamp duty, if any, has not been paid by the Respondent, the Respondent cannot take advantage of its own wrong and frustrate the arbitration agreement between the parties. If I was to do that, it would be only adding premium to dishonesty. Having said this, I must make it clear that these observations are only prima facie and if the arbitrator finds that the document is in fact insufficiently stamped, and directs further action on the same, it will be for the appropriate authorities to adjudicate the stamp duty as well as who is liable to pay the same.
Arbitration Petition is allowed - Mr. Mihir Naniwadekar (Advocate) is appointed as a Sole Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 to adjudicate upon the disputes which have been arisen between the Petitioner and the Respondent herein under or in relation to and/or connected with the sub-contract dated 14th June, 2013.
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2018 (3) TMI 1749
Addition u/s 40 A(3) - cash payments exceeding ₹ 20,000/- - cash payments relatable to Chandigarh Spun Pipe - HELD THAT:- Submissions of the AR on facts cannot be accepted. No attempt has been made to demolish the conclusions drawn on facts. The argument that there was mistake by an Accountant remains un-substantiated and infact is shown to be not supported even in the explanation offered by the assessee in the facts of the present case. The explanation de-hors facts does not inspire any confidence what-so-ever.
Accordingly, finding in agreement with the conclusion drawn by the CIT(A) in para 5 to appeal of the assessee is dismissed. For ready reference, relevant finding Amount paid in contravention of section 40 A(3) and its Entries with voucher numbers in which vouchers no, in the copy of account submitted entries has been split-up in the changed 23.12.2014 of account of Chandigarh Spun Pipe Co. submitted on 20.02.2015 of the CIT(A) upholding addition made in the assessment order upheld in the present proceedings - Decided against assessee.
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2018 (3) TMI 1748
Accrual of income - Interest due on Non Performing Assets - taxabilty as the Co-op Bank was following mercantile system of Accounting except with regard to the interest pertaining to NPAs - CIT-A directed addition to be deleted - HELD THAT:- As decided in assessee's own case [2017 (1) TMI 1255 - ITAT AMRITSAR] the assessee has been following the RBI guidelines in this matter. Its method of accounting is entirely in accordance with the RBI guidelines. The RBI guidelines need to be mandatorily followed by the assessee. Moreover, this method of accounting, adopted by the assessee, is in accordance with the Accounting Standards issued by the Institute of Chartered Accountants of India. Section 45Q of the RBI Act provides, in the non obstante Clause with which it begins, that the provisions of the Chapter under which section 45Q falls, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being inforce.
In “M/s Vasisth Chay Vyapar Ltd.” (2010 (11) TMI 88 - Delhi High Court ), it has been held that when an NBFC classifies an asset as a Non-performing Asset in accordance with the directions issued the Reserve Bank of India, it is legitimate to infer that the interest income thereon is not accrued, even though the NBFC is following the mercantile system of accounting. Interalia, “M/s Southern Technologies Ltd.” (2010 (1) TMI 5 - SUPREME COURT OF INDIA) has been distinguished “in M/s Vasisth Chay Vyapar Ltd.” (supra).
Apropos the applicability of section 43D of the I.T. Act, it is on record that during the proceedings before the ld. CIT(A), the assessee, by way of submission dated 17.09.2015, the assessee had stated that the assessee had been confirmed by the Headquarter of the Punjab State Co-operative Bank , to be a scheduled bank. This position has not been disputed. - Decided against revenue
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2018 (3) TMI 1747
Condonation of delay of 4 days in payment of the dues - whether the Applicant had complied with the condition of making the payment of dues ordered in the Final Order No. 5/2017-S.T., dated 23-2-2017 within 30 days of the receipt of order? - Held that:- Considering the fact that the Applicant had discharged the balance Service Tax of ₹ 37,08,819/- and penalty of ₹ 5,00,000/-, which were specified and quantified, on the 14th of March, 2017, and had also sworn by an Affidavit that the computation of interest liability was finally confirmed by the Investigating Agency only on 3-4-2017, which was not refuted by the department, observes that the submissions made by the Applicant has force and period between 14-3-2017 to 3-4-2017 needed to be excluded for the purpose of computing the time limit of 30 days given for payment of the dues.
As the interest liability could not be specified in the subject Final Order, inasmuch as a portion of the additional Service Tax liability settled, remained unpaid on the date of order, the Applicant was directed to work out the interest liability to the satisfaction of the jurisdictional Commissioner and pay the same within 30 days of receipt of the order - The Applicant could not be expected to discharge the interest liability, unless the same is confirmed by the department, as per the orders of the Bench.
The Bench feels that the Applicant has a strong case in the matter and accordingly holds, in the facts and circumstances of the case, that the 30 days period insofar as the payment of interest is concerned, is to be taken from the date of communication confirming the quantification of interest by the Departmental officer.
Upon reconsideration of the Miscellaneous Application dated 11-10-2017 filed by the Applicant, the same is allowed.
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2018 (3) TMI 1746
Restoration of appeal - rejection on the ground that the Appellants delayed in complying with the directions of the Hon’ble High Court - Held that:- It is an admitted fact that the appellant company paid ₹ 37,08,462/- towards 50% of the Service Tax component only on 9-4-2014, i.e., two days after the dismissal of the appeal by the Appellate Tribunal for non-compliance. The bond required to be furnished in terms of the order dated 5-12-2013 passed in CEA No. 39 of 2013 was submitted only on 10-6-2014 - The aforestated undisputed facts clearly demonstrate that the appellant company was utterly negligent in complying with the orders passed by the Appellate Tribunal and thereafter, by this Court, notwithstanding the specific time stipulations mentioned therein. Further, the appellant company was well aware that the Appellate Tribunal had made it clear that in the event it failed to deposit 50% of the assessed tax liability plus proportionate interest within eight weeks from the date of the order, the stay would stand dissolved.
Having failed to safeguard its own interest by complying with the conditional stay orders passed by the Appellate Tribunal and thereafter, by this Court, the appellant company cannot seek further indulgence. There is no explanation forthcoming as to why the appellant company did not at least deposit 50% of the Service Tax component immediately after receiving the order dated 5-12-2013.
This Court finds no grounds whatsoever to interfere in the matter - application for Restoration of Appeal dismissed.
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2018 (3) TMI 1745
Reopening of assessment u/s 147 when assessment has already been taken up u/s.153C - validity of notice issued u/s. 148 - AO already issued notice u/s. 153C to the appellant prior to the date of issue of notice u/s. 148 - HELD THAT:- Section 153C provides that persons relating to whom some material is found in search of some other person should be assessed under sec. 153C. The provisions of section 153C are non-obstantive provisions and specially exclude the operation of sec. 147, therefore, the Assessing Officer in the present case has erred in invoking the provisions of sec. 147. If action u/s 147 is permitted on the basis of material found in the course of' search, then the provisions of sec. 153 would be redundant. The provisions of sec.153C were applicable which excludes the application of sections 147 and 148 of the Act and hence the notice issued under sec. 148 and proceedings under sec. 147 are void ab initio.
Consequences to search at the premises of director, proceedings u/s.153C has been initiated in the hands of assessee company, the AO was not justified in not complying with the provisions of 153C and proceeding with the provisions of Section 147. Thus, assessment order framed u/s.143(3) r.w.s. 147 is without any jurisdiction. - Decided in favour of assessee.
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2018 (3) TMI 1744
Condonation of delay - 852 days - bonafide opinion that the directions of ld. CIT was appealable before the CIT(A) - lack of knowledge on the appeal proceedings - HELD THAT:- Considering the decision of COLLECTOR, LAND ACQUISITION VERSUS MST. KATIJI AND OTHERS [1987 (2) TMI 61 - SUPREME COURT] and reasons for delay in filing the appeal, we condone the delay in filing the appeal before us on the ground that the assessee was prevented by reasonable cause in filing the appeal belatedly.
Revision u/s 263 - difference in sales recorded in financial statements and VAT returns - difference in sales and claim of excise duty - issue not elaborately discussed in the order passed u/s 143(3) - HELD THAT:- We find that during the course of assessment proceedings, AO has asked for the information relating to sales and accordingly, assessee has filed the reasons for difference in sales recorded in financial statements and VAT returns. The same was verified and accepted by the AO, even though, he has not discussed elaborately in the order passed u/s 143(3)
We find that the Hon’ble Bombay High Court and Delhi High Court, respectively, came to the conclusion that CIT cannot direct the AO to conduct further enquiry to verify without examining the aspect himself. See DG HOUSING PROJECTS LTD [2012 (3) TMI 227 - DELHI HIGH COURT]and DEVELOPMENT CREDIT BANK LIMITED [2010 (2) TMI 161 - BOMBAY HIGH COURT] - Decided in favour of assessee
AO disallowed the difference in sales and claim of excise duty, with regard to difference in sales, assessee has already explained before the AO and also submitted reconciliation statement before us which we found to be in order. With regard to excise duty, it is the method of accounting adopted by the assessee regularly as per the guidance note issued by ICAI with regard to valuation of excisable finished goods. We find that even on merits, both the disallowances are not sustainable. Therefore, the appeal filed by the assessee is allowed.
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2018 (3) TMI 1743
Reopening of assessment u/s 148 - entitled to the benefit of deduction u/s 54EC - HELD THAT:- Admittedly, the assessee did not offer the amount for taxation in the return of income for the assessment year 2008-09. Whereas as per the agreement, the assessee had transferred his shareholding in the company. AO got the knowledge of the receipt of additional amount on the basis of the audit objections raised by the audit party for assessment year 2010-11.
Therefore, the factum of the said receipt of the additional consideration in relation to the transfer of shares came for the first time into the knowledge of the AO pursuant to the said audit object ions. Since, as per the Assessing officer, the transfer had taken place in the financial year 2007-08 relevant to assessment year 2008-09 and he was of the view that the said amount was liable for taxation in the year 2008-09, hence, he was of the genuine and reasonable belief that the income of the assessee for assessment year 2008-09 had escaped assessment.
Whether the said amount had actually accrued to the assessee or not was a matter of evidence / discussion and deliberation which could have been done during the assessment proceedings. In view of the above, we do not find any infirmity in the action of the Assessing officer so far as the reopening of the assessment is concerned. Ground No.1 & 2 of the assessee’s appeals are, therefore, dismissed
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2018 (3) TMI 1742
Rebate claim - appellant filed the required declaration under Para 3.1 of the said notification belatedly at the time of processing of their rebate claim - Rule 5 of Export of Services Rules, 2005 read with Notification No 12/2005-ST dated 19/04/2005 - Held that:- The issue herein is squarely covered in favour of the appellant by the ruling of Division Bench of this Tribunal in the case of Commissioner of Service Tax, Delhi Versus Convergys India Pvt. Ltd. [2009 (5) TMI 50 - CESTAT, NEW DELHI], where it was held that non-fulfilment of the procedure cannot lead to denial of the benefit under the beneficial legislation providing for export benefits - rebate allowed - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1741
Clearance of goods to institutional/industrial consumers - benefit in terms of SI. No. 1C of N/N. 04/2006 dated 01/03/2006 and Entry 52 of the N/N. 12/2012-CE dated 17/03/2012 - Held that:- The builder and construction companies qualify as institutional/industrial consumers, hence the benefit of the said Notifications would be available to the assessee - Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1740
Restoration of appeal - order passed ex-parte - principles of natural justice - Circular dated 18-11-2013 - imposition of penalty u/s 112 of the Customs Act, 1962 - Held that:- The circular is pertaining to all matters regarding Clearing agents and CHAs and shall be heard by a Division Bench. In the present case, the appellant filed the appeal against imposition of penalty of ₹ 1 lakh u/s 112 of the Customs Act, 1962. Hence, it is not a case of CHA under the Customs Brokers Licensing Regulations, 2013.
The main noticee has already acted upon the notice and in such circumstances the plea of the appellant herein who is a co-noticee has no substance - there is no reason to recall the final order - restoration application dismissed.
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2018 (3) TMI 1739
Penalty u/s 271(1)(c) - assessee had carried out activities of “advancement of other general public utility” provided under section 2(15) - According to the AO, it was not charitable activity and the assessee is not entitled for exemption under section 11(1)(a) - CIT-A deleted the penalty - HELD THAT:- Sub-clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable him, which shall not be less than, but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income.
The quantification of the penalty is depended upon the addition made to the income of the assessee. Since basis for visiting the assessee with penalty has been extinguished by the decision of the Hon’ble Gujarat High Court in the assessee’s case [2017 (5) TMI 1468 - GUJARAT HIGH COURT] wherein it has held that assessee is entitled for benefits under sections 11 and 12 of the Act, the impugned penalty has no limb to stand, accordingly we are of the view that the ld.CIT(A) has rightly deleted the penalty and there is no merit in this appeal of Revenue.
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2018 (3) TMI 1738
Deduction u/s 80IC - difference in billing and payments made and as such the income derived is from industrial undertaking - diverting more profits towards non exempt units, the assessee had diverted profits towards exempt units and had not examined the issue while coming to conclusion - A.O. calculated the income of exempted unit by calculating total turnover of all the units of assessee-firm and total profit declared by all the units and reduced the deduction under section 80IC
HELD THAT:- As decided in DEPUTY COMMISSIONER OF INCOME TAX, ROHTAK CIRCLE, ROHTAK, HARYANA VERSUS M/S MICRO TURNERS HISAR ROAD, ROHTAK [2016 (9) TMI 752 - ITAT DELHI] the assessee has produced all the books of accounts and vouchers before the AO during the assessment proceedings. No show cause query was issued by the AO on this account during the assessment proceedings.
AO has not considered the fact that the units in exempted zones are mainly engaged in manufacturing on job work basis where there is either negligible or no input cost of raw material involved. It was noted that if the sales were made using their own raw material, there would be substantial difference in the GP rate insofar as, if the cost of raw material was excluded, the GP rate in all the units would remain the same.
The fact that the exempted unit at Haridwar has shown a loss has not been referred to by the AO. Therefore, it is clear that no profit has been diverted to this unit. As further noted that there has been no investigation or specific exercise to show that the amount claimed as deduction u/s 80-IC was wrong. We find considerable cogency in the finding of the CIT(A) that there is no ground for disallowing claim for job work expenses for the eligibility u/s 80IC - Decided against revenue.
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2018 (3) TMI 1737
Refund/self-credit of duty paid in cash - time limitation - area based exemption availed - case of Revenue is that the appellant have not taken the refund/self-credit or duty paid in cash in the seven days of the next month and they have taken the same later on, therefore, they are not entitled to self-credit on the same.
Whether as per Notification No. 56/2002-C.E., dated 14-11-2002 is there any bar or is there any condition on the appellant to take refund/ self credit of duty paid in cash of seven days of next month or not? - Held that:- The appellant themselves of their own option can take self-credit or duty paid in cash. As per the said condition there is not bar on the appellant to take the refund/ self-credit by seven days of next month, therefore, understanding of the Revenue that they have to take self-credit/refund by seven days of next month is erroneous - the appellant have correctly availed Cenvat credit later on - decided in favor of appellant.
Whether the appellant is entitled to claim refund of education cess/higher education cess in terms of Notification No. 56/2002-C.E., dated 14-11-2002 or not? - Held that:- The issue of refund of education cess/higher education cess has been dealt with by the Hon'ble Apex Court in the case of SRD Nutrients Pvt. Ltd. v. CCE, Guwahati, [2017 (11) TMI 655 - SUPREME COURT OF INDIA], wherein the Hon'ble Apex Court held that the education cess/higher education cess arises on account of payment of duty, therefore, the refund claim is admissible of education cess/higher education cess in terms of Notification No. 56/2002-C.E., dated 14-11-2002 - decided in favor of appellant.
Appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1735
Violation of import conditions - Import of two machinery, Echo Cardiograph with colour mapping with standard accessories and computerized stress system with treadmill, for specified purpose - petitioners did not treat 40% of its outdoor patients free and 10% of its indoor poor patients free - Customs Duty Exemption Certificate (C.D.E.C.) issued under N/N. 64/88 has been withdrawn - independent application of mind not done - principles of natural justice - Held that:- It is not in dispute before us that the petitioner was not given copy of report submitted by the team sent for inspection on deputation of Rosha Committee. Similarly, report of C.D.E.C. Committee drawn extensively in Paragraph No. 14 of the impugned order, is also never made available to them.
For total indoor patients of 2762, during above period, free indoor patients are shown at 213, which is little less than 10%. The total free patients admitted during this period are 3480, while total free patients admitted are shown to be 931, in chart at Page No. 215 (marked as Annexure-L) with the petition. Again this proportion is little above 25%. In last chart at Page No. 216 (marked as Annexure-M) with the petition, this percentage is also reflected.
Impugned order does not comment upon correctness of or relevance of position appearing in these charts. In absence of report of Rosha Committee or C.D.E.C. Committee, it is not very clear why these assertions of treatment of outdoor patients, indoor poor patients by petitioners have not been considered or relied upon by Respondent No. 1 in the impugned order - when there were two sets of contention before Respondent No. 1, Respondent No. 1 ought to have verified original records and thereafter recorded a finding on correctness or otherwise of assertions of the petitioners. This exercise also has not been undertaken. We find that Respondent No. 1 has mechanically acted upon the report of team deputed by the Rosha Committee and the findings of C.D.E.C. Committee. We therefore, find that there is no independent application of mind by Respondent No. 1 to the controversy.
Petitioners gave specific figures of percentage and then, also claimed benefit of persons/patients who visited their camps. The question, Whether there was any diagnostic treatment during those camps is a disputed question, which cannot be answered without recording proper finding on facts. Petitioners have supported their assertions by producing necessary documents maintained under Income-tax Rules. Those documents have been discarded without assigning any reason - In any case, there was no report and there is no finding by Respondent No. 1 or any authority that free treatment was denied by petitioners to any body or in any deserving case. Is free treatment extendable even to patients with capacity to pay and forced upon them or then the deficit in number of OPD or poor indoor patients can be carried forward and attended to in future.
The petitioners have declined to pay necessary amount for seeking release of the confiscated/seized machineries, and had requested the Authorities to take the same back - we quash and set aside the order dated 1-3-2004. However, we direct Respondent No. 1 to proceed further in the matter as per law, if at this stage, such a measure is still necessary - petition allowed in part.
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2018 (3) TMI 1734
Addition u/s 68 - unsecured loan from the person engaged in providing accommodation entry - HELD THAT:- Assessee duly paid the interest on the loan amount and deducted. Copy of Form no.16A was also filed and the AO has not brought on record any evidence / reason to disbelieve the evidence filed by the assessee.
As satisfied with the reasoning of the CIT(A) that the addition was merely made on the basis of presumption that all the five concerns from whom loan was taken were managed and controlled by Shri Bhawarlal Jain. The statement was also recorded wherein there is no mention that any accommodation entry was obtained. The case of the assessee is fortified by the reply to question no.40 and 41 wherein it has been tendered that the loan was advanced and interest @ 9% p.a. was charged. The name of the assessee is nowhere mentioned in the list of suspicious dealer / person. Thus, find no infirmity in the conclusion of the CIT(A), resulting into dismissal of the impugned ground raised by the Revenue.
Addition of interest expenditure on alleged bogus loans - HELD THAT:- On a perusal of record and the assertions made by the respective Counsels. There is a finding in the impugned order that the assessee duly produced the bank statement from where interests were paid also copies of form no.16A evidencing the TDS made and deposited into the Government account with respect to payment of interest. Since in earlier paras of this order since have upheld the order of the learned CIT(A), therefore, the issue of interest is consequential in nature, therefore, the conclusion drawn in the impugned order is upheld. - Decided against revenue.
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2018 (3) TMI 1733
Disallowance of deduction u/s 80IB(10) - basic condition for availing the deduction were not fulfilled by the assessee - assessee is not a Developer but only a land owner and the Project was not completed within the stipulated time period - CIT- A allowed claim - HELD THAT:- As decided in assessee's own case [2015 (12) TMI 564 - ITAT JAIPUR] no error or illegality in the impugned order of ld. CIT (A) in allowing the claim of the assessee under section 80IB (10) as held if the development plans and other approvals are in the name of assessee, its claim for deduction u/s 80(IB) cannot be denied on the basis that some other agency was involved in construction. This is quite understandable as for all practical purposes, the assessee retains the status of a developer of housing project in the record of JDA, other concerned regulatory laws and agencies of govt. related to housing and urban development and IT department takes a view which is at variance with concerned govt. departments.
Before parting with, we may clarify that a clarification was also sought from the parties regarding the capital gain under section 45(2) on account of conversion of the land in question to stock-in-trade and the assessee has filed the details showing the capital gain offered to tax. Accordingly in view of the above facts and circumstances of the case, the appeal of the revenue has no merit - Decided in favour of assessee.
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2018 (3) TMI 1732
Refund of duty - rejection on the ground that the activity undertaken by the appellant does not amount to manufacture, consequently their registration certificate was cancelled - Held that:- It is a fact on record that if activity undertaken by the appellants does not amount to manufacture and cancelled their registration certificate. Later on, revenue undertaken the view that the activity undertaken by the appellants amount to manufacture and the appellant is entitled benefit of exemption Notification No. 56/2002-C.E., dated 14-11-2002. In that circumstances whatever duty is paid by the appellant in cash by exhausting Cenvat credit is entitled to the refund to the appellants. In that circumstances, no duty is payable by the appellant in practical.
The question of demanding interest does not arise - Moreover as the revenue was of the view that initially, the activity undertaken by the appellant does not amount to manufacture. Therefore, no penalty can be imposed on the appellants by changing the view by the revenue - the question of paying interest and penalty on the appellants during the impugned periods does not arise.
Appeal allowed - decided in favor of appellant.
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9911796707
