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Showing 321 to 340 of 1750 Records
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2018 (1) TMI 1433
Penalty u/s 271(1)(b) - non comply with the notices issued u/s 142(1) - Held that:- We find that assessee during the assessment proceedings did not comply with the notices issued u/s 142(1) on various dates which learned CIT(A) and Assessing Officer have noted in their order and therefore, the authorities below have imposed penalty u/s 271(1)(b) of the Act.
However, we find that finally the assessee did appear before the assessment proceedings and assessment was completed u/s 143(3) and thereafter, the matter travelled upto Tribunal, which allowed the appeal of the assessee for statistical purposes. Therefore, we do not see any reason to uphold the order of CIT(A). We reverse the same and allow the appeal filed by the assessee.
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2018 (1) TMI 1432
Entitlement to deduction u/s 80P(2)(a)(i) - income of the society on account of interest from banks other than Co-operative Banks - Held that:- The said issue is squarely covered by the order of the Tribunal in ITO Vs. Niphad Nagari Sahakari Patsanstha Ltd. [2015 (1) TMI 1004 - ITAT PUNE] wherein the Tribunal had held that the assessee is entitled to claim deduction under section 80P(2)(a)(i) of the Act on the interest income received by it on bank fixed deposits.
As decided in Tumkur Merchants Souhards Credit Cooperative Ltd. Vs. ITO [2015 (2) TMI 995 - KARNATAKA HIGH COURT] interest earned from short term deposits with the bank was entitled to deduction under section 80P(2)(a)(i) of the Act - Decided in favour of assessee.
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2018 (1) TMI 1431
Interest on share capital paid to the members of the bank - appropriation of profit and added to the total income - Held that:- AO called upon the assessee to show cause as to why the said interest amount should not be treated as appropriation of profit and added to the total income. The assessee has submitted before the AO that the said interest was paid annually to all the members as, it is bound to pay such interest as per the A.P. Mutually Aided Co-operative Societies Act 1995. AO after considering the explanation of the assessee has observed that the interest on capital paid to its members amounts to appropriation of profits and such interest is paid out of the surplus of profits and cannot be a charge on income and hence cannot be allowed as deduction. The Assessing Officer further observed that the ITAT, Visakhapatnam Bench has decided this issue in favour of the assessee for the Assessment Year 2007-08, however, principle of res-judicata has no application and each year is separate and distinct and accordingly disallowed the claim of the assessee.
Interest on share capital paid to the members of the assessee is allowable deduction - Held that:- In assessee’s own case, the facts are mutatis mutandis similar and therefore ld. CIT(A) by following the same, directed the Assessing Officer to delete the addition. Therefore, we find no infirmity in the order passed by the ld. CIT(A). Thus, these grounds of appeal raised by the revenue are dismissed.
Disallowance of interest paid to the members of the bank under section 40(a)(ia) - Held that:- As decided in favour of assessee clarification given in the CBDT circular No.9/2002, it is held that the assessee is not required to effect TDS on the interest payment made to its members even if it exceeds ₹ 10,000/-. The impugned disallowance made in the assessment is not in accordance with the clarification given in the CBDT Circular No.9/2002 and accordingly the AO is directed to delete the impugned disallowance made.
Amortization of premium on government securities - Held that:- Where the tribunal set aside the issue to the file of the Assessing Officer to decide the issue in accordance with law. In the present case, ld. CIT(A) by following the decision of the coordinate bench of the tribunal in the above referred to appeals in assessee’s own case, directed the Assessing Officer to examine the issue and accordingly relied may be granted.
Loss on account of merger of Ongole Cooperative Urban Bank and Ramachandrapuram Cooperative Urban Bank - Held that:- As decided in assessee's own case the assessee has not paid any amount to amalgamating company. The assessee has only taken losses of amalgamating company i.e. Bobbili Co-operative bank. Therefore, the assessee has not acquired any goodwill. CIT(A) by considering the entire facts of the case has passed a detailed order by considering the provisions of law. Case laws relied by the Ld. Counsel for the assessee also decided in a different facts and circumstances and therefore, we find no application to the facts of the present case. We find no reason to interfere with the order passed by the Ld. CIT(A). This ground of appeal raised by the assessee is dismissed
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2018 (1) TMI 1430
Levy of Service Tax - amount of security deposit, by the builder-appellant, who has constructed residential flats - Held that:- The amount in dispute, is not towards providing of any service provided or to be provided. Further, for the said amount is received by a builder as a pure agent and/or trustee of the flat holders and/or owners, is not liable to service tax - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1429
Addition treating Long Term Capital Gain as income from undisclosed sources - exemption u/s.10(38) - Held that:- No specific mistake in the order of CIT(A) could be pointed out by the DR. It is a settled position of law that suspicion alone cannot be the basis for making an addition in an assessment. Suspicion cannot take place of proof. In the instant case, we find no material could be brought on record by the Revenue to impeach the related transactions. In view of the facts of the instant case and the decisions discussed hereinabove, we do not find any infirmity in the order of CIT(A). Therefore, the appeal of the Revenue is dismissed.
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2018 (1) TMI 1428
Valuation - 100% subsidiary - applicability of cost construction method - goods manufactured on loan licensee basis - whether the respondent herein, 100% subsidiary, of holding company Biological E Ltd., during the period 1-4-2003 to 7-1-2005, as undervalued the goods manufactured on loan licensee basis by declaring the assessee value based upon cost construction method is correct and otherwise?
Held that:- The adjudicating authority, in this case, has recorded factual findings after deliberating on all the allegations made in the Show Cause Notice and on the evidence produced by the respondent before him - it was held by him that as a 100% holding company BE is certainly interested in the business of BMPL but all the same time, I hold that based on evidence placed by the Department it cannot be concluded that both have mutuality of interest.
Revenue has not controverted these factual findings with any evidence which may have been unearthed during the investigation or in show cause notice, we find that the Ld. Counsel of Respondent was correct in putting forth a proposition that the job workers/loan licensee are to held as manufacturer - In the absense of any contrary decision that suppliers of raw materials should be considered as manufacturers during the period in question, we find no merits in the appeal of revenue.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 1427
Supply of Cement made to construction companies - benefit of Clause 1C of Notification No. 4/2006 and 4/2007 (as amended) - It is the case of the Revenue that clearances effected by the appellant from their factory is not made directly to the construction companies but cleared to the depot on stock transfer memo and stock transfer memo being not a sale, so benefit cannot be allowed - demand of differential duty - Held that:- It is undisputed that clearances effected from the factory premises of the appellant to the depot, was subsequently cleared to construction companies wherever they had claimed the benefit of Clause 1C of Notification No. 4/2006 and 4/2007 (as amended).
Identical issue decided in the case of Madras Cements Ltd v. CCE, Guntur [2014 (3) TMI 307 - CESTAT BANGALORE], where it was held that It cannot be said that the depot of the manufacturer is a different entity and therefore the appellant is not eligible for the benefit of Sl. No. 1C of the notification ibid.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1426
Disallowance of the claim of earning agricultural income - AO decided the issue against the assessee on the primary reason that possession of agricultural land was not at all handed over to assessee on entering into agreement of sale on 17.01.2013 - Held that:- In the present case, the assessee produces the agreement to sell wherein there is a clause of handing over possession of landed property to the assessee and this was confirmed by the seller that he has handed over the landed property on entering into sale agreement. There is evidence produced by the assessee before the AO in the form of estate books of account like expense bills, indent copies.The lower authorities opted not to comment on these documents and went on to hold that possession of property was not at all handed over to assessee vide agreement of sale dated 17.01.2013. \
In opinion thereof, the evidence brought on record by the revenue authorities was not sufficient to establish their stand that the assessee has not taken possession of land and cultivated the same and sale agreement is only paper transaction or bogus. The entire evidence has to be appreciated in a wholesome manner and even where there is documentary evidence, the same can be overlooked if there are surrounding circumstances to show that the claim of the assessee is opposed to normal course of human thinking and conduct or human probabilities.
Even applying this principle to the instant case, there was some difficulty in rejecting the assessee’s plea as opposed to the normal course of human conduct. The surrounding circumstances of the case were also not strong enough to justify the rejection of assessee’s plea as outrageous or fabricated one. Taking possession of land vide sale agreement and also carrying out of agricultural activities in the said land has to be accepted. However, the quantum of agricultural income declared in the impugned land is very much on the higher side which cannot be accepted to that extent.
AO considered the entire amount of ₹ 29,32,653 declared by the assessee as non-agricultural income. This view of the AO is very unreasonable and vindictive in nature. As already stated, the declaration of ₹ 29,32,653 as agricultural income out of the area of land measuring 26 acres 9 guntas is on the very higher side which cannot be reasonable. Hence make a reasonable estimate of 50% of ₹ 29,32,653 i.e., ₹ 14,66,327 as agricultural income and the balance amount as income from other sources at ₹ 14,66,326. Thus, assessee gets relief of ₹ 1,46,66,327. It is accordingly directed. - Decided partly in favour of assessee.
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2018 (1) TMI 1425
Levy of penalty u/s 271(1)(b) - assessee failed to comply with notice under section 142(1) of the Act on six occasions except partial compliance of notice dated 2.3.2016 - Held that:- we are of the view that there is no plausible reason which prevented the assessee from compliance of the notice issued by the AO, therefore, penalty under section 271(1)(b) of the Act has rightly been imposed. - decided against assessee.
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2018 (1) TMI 1424
Directions for Police protection - RP has submitted that certain workers' union of the Tea Garden may aggrieve in taking over the management, so he needs police help - Held that:- Superintendent of Police is directed to provide Police protection so that RP may discharge his duties and take over the management. It is also expected from the corporate debtor to fully cooperate the RP, failing which action will be initiated against the corporate debtor u/s. 70 of Insolvency and Bankruptcy Code, 2016.
List it on 14/02/2018 for further order.
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2018 (1) TMI 1423
Penalty u/s 271(1)(c) - unverifiable purchases - Held that:- The addition in quantum proceedings attained the finality it is not based on the finding that the assessee has inflated the purchases and suppressed the income or claim of the assessee was absolutely bogus. AO has only doubted the purchases from certain parties and made the addition only to the extent of 25% of purchases made from such parties instead of disallowing entire purchases from those parties. When the AO has not given any finding of bogus purchases then the disallowance made by the AO is only based on estimation which was restricted by this Tribunal as reasonable estimated. The issue of levy of penalty u/s 271(1)(c) of such addition is now covered by the decision of Hon’ble Jurisdiction High Court in case of CIT vs. Mahendra Singh Khedla [2012 (3) TMI 568 - RAJASTHAN HIGH COURT] - Decided in favour of assessee.
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2018 (1) TMI 1422
Penalty levied u/s 271(1)(c) - addition @25% of unverifiable purchases while completing the assessment u/s 143(3) - Held that:- There is no definite finding by the AO that the assessee has inflated the purchase to the extent of 25% but it was only estimation of the AO to make addition which was subsequently restricted by this Tribunal to 15% of unverifiable purchase. Thus even the addition in quantum proceedings attained the finality it is not based on the finding that the assessee has inflated the purchases and suppressed the income or claim of the assessee was absolutely bogus.
AO has only doubted the purchases from certain parties and made the addition only to the extent of 25% of purchases made from such parties instead of disallowing entire purchases from those parties. When the AO has not given any finding of bogus purchases then the disallowance made by the AO is only based on estimation which was restricted by this Tribunal as reasonable estimated. Accordingly, the issue of levy of penalty u/s 271(1)(c) of such addition is now covered by case of CIT vs. Mahendra Singh Khedla [2012 (3) TMI 568 - RAJASTHAN HIGH COURT]. - Decided in favour of assessee.
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2018 (1) TMI 1421
Disallowance u/s 14A - whether the explanation of the assessee and the amount offered to tax under Section 14A could not have been rejected by the AO in the manner that he did? - Held that:- Besides the fact that the findings are concurrent, the Court is of the opinion that the facts of this case are such that no interference is called for. As against the exempt income of ₹ 48,447/-, the assessee had itself offered ₹ 2,58,620/- as disallowance. AO however, disallowed the astronomically high figure of ₹ 3,57,82,473/-. The concurrent view of the lower appellate authorities based upon the settled principle enunciated in previous authorities cannot be faulted. The appeal is accordingly dismissed.
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2018 (1) TMI 1420
Revision u/s 263 - Claim of deduction u/s 54F denied - date of investment towards new residential property was on 18.11.2009 which was not one year prior to the date of transfer i.e., 09.05.2011 and hence not eligible for deduction - Held that:- We find that on identical issue the Co-ordinate Bench of the Tribunal in the case of ITO Vs. Narshivha Amrutrao (2015 (3) TMI 1014 - ITAT PUNE) after relying on the decision of Beena K. Jain (1993 (11) TMI 7 - BOMBAY HIGH COURT) has decided the issue in favour of assessee stating the date to be considered is the date on which the assessee had occupied the said property and not the date on which it had entered into an agreement to purchase the property. - decided in favour of assessee.
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2018 (1) TMI 1419
Treatment to purchase/ sale of shares completed within 30 days - business income or capital gain - Held that:- Revenue has accepted the activity of investment in the shares in earlier years as well as subsequent years which was also not disturbed by the Revenue. Therefore, the principles of consistency need to be followed without any deviation when there is no change in the facts and circumstances of the case from the earlier years.
We hold that the frequency, magnitude of the transaction in a systematic manner cannot be the criteria to hold that the assessee is engaged in a business activity of shares. Therefore, we are inclined to set aside the order of the Ld. CIT(A) and direct the AO to treat the income from investment activity under the head capital gain. Hence, the ground of appeal of the assessee is allowed.
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2018 (1) TMI 1418
Validity of re-opening assessment - additions of unexplained cash credits u/s 68 - Held that:- Assessing Officer’s remand report has nowhere been able to prove the relevant entry of ₹ 1.25 lac alleged to have been availed from Shri Surendra Kumar Jain. AO has rather shifted negative burden on the assessee that it could not be proved that it had not taken any accommodation entry in this regard. As find that the same sufficiently tilts the case in assessee’s favour as the Assessing Officer’s reopening reasons itself does not survive in these facts and circumstances. Therefore hold that the Assessing Officer had not correctly assumed the re-opening jurisdiction in absence of any such entry between assessee and the said entry operator. The sole reopening reason is not sustainable in the eyes of law therefore. - Decided in favour of assessee.
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2018 (1) TMI 1417
Prayer for police protection - taking over of management - Held that:- The RP concerned superintendent of Police is directed to provide Police protection so that RP that RP may discharge his duties and take over the management. It is also expected from the corporate debtor to fully cooperate the RP, failing which action will be initiated against the corporate debtor u/s. 70 of insolvency and Bankruptcy Code, 2016 - List on 14/02/2018 for further order.
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2018 (1) TMI 1416
Stay on the Corporate Insolvency Resolution Proceedings - removal of RP and taking disciplinary action against RP - Held that:- Before passing any order we would like to see the report of the RP on this application. RP may file his report, in the form of a supplementary affidavit, against this application within 15 days - List it on 12/02/2018 for further order.
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2018 (1) TMI 1415
Charitable activity - exemption u/s 11 - application of proviso to Section 2(15) - predominant activity of the assessee - Held that:- It is not disputed that apart from the two Kalyanamandapams, assessee was having properties from which a school, a health centre and a library were run. It might be true that the school was run by another trust. However, rental received by the assessee for running the school called Avichi school was nominal. We find great strength in the argument of the AR, that property from which the School was run, if given out on market rates, would fetch tens of crores in income, and forgoing such income for educational purpose, was nothing but charity in the nature of education. Especially so, since the school was run by a trust which was undisputedly having registration u/s.12A of the Act. Apart from this assessee had earned little revenue from its diabetic centre. It had also given out a premises to the Government for a library. All the activities of the assessee were either in the field of education or in field of medical care.
No doubt, ld. Commissioner of Income Tax (Appeals) has observed that assessee could not produce evidence for the charity done by it. However, it is not disputed that assessee had maintained books of accounts and produced the books and records before ld. Assessing Officer. Such books were subject to audits and assessee had filed Audit reports in form 10A of the Act. In such circumstances, we find no reason to uphold the finding of the lower authorities that predominant activity of the assessee was not charity.
Coming to the application of proviso to Section 2(15) of the Act assessee’s charitable activities were directly or indirectly in the nature of relief to the poor or education or medical relief. It was not an organization which was pursuing an activity of general public utility, different from education, medical relief or relief to the poor. First proviso to Section 2(15) is attracted only where an assessee carries on activities which was of general public utility other than those mentioned specifically in the definition of charitable purpose given in Section 2(15). In the circumstances, we are of the opinion that assessee was eligible for the exemption claimed by it u/s.11(1) of the Act for the impugned assessment years. Orders of the lower authorities are set aside and the ld. Assessing Officer is directed to give assessee the exemption claimed by it u/s.11(1) - Decided in favour of assessee.
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2018 (1) TMI 1414
Stay petitions - Held that:- I reckon the petitioner has exercised on time its statutory remedy of filing second appeals. True, before the Tribunal, stay petitions are pending. Procedural fairness demands that the authorities wait, before taking further steps, until the appellate authority decides on the stay petitions.
Therefore, I dispose of the writ petition, directing the respondent authority to defer coercive steps until the fourth respondent considers the stay petitions.
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