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Showing 341 to 360 of 1666 Records
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2017 (10) TMI 1328
Issues Involved:
1. Deletion of addition of Rs. 55,20,250/- by ITAT.
2. Deletion of addition of Rs. 41,20,000/- on account of profit earned on sale of lands.
3. Deletion of addition of Rs. 2,61,57,380/- made under Section 69B on account of undisclosed investment.
4. Deletion of addition of Rs. 12,71,000/- under Section 69B on account of undisclosed investment.
5. Whether the appeals abate upon the death of the assessee.
Issue-Wise Detailed Analysis:
1. Deletion of Addition of Rs. 55,20,250/- by ITAT:
The first issue pertains to whether the ITAT was correct in law in deleting the addition of Rs. 55,20,250/-. The court noted that the ITAT applied the same reasoning as in the assessment year 2008-09 without specifying how the evidence discussed in the assessment order and in the order of the CIT(A) could not be relied upon. The court upheld the ITAT's decision, finding no reason to interfere with the order of both the authorities.
2. Deletion of Addition of Rs. 41,20,000/- on Account of Profit Earned on Sale of Lands:
The second issue concerns the deletion of Rs. 41,20,000/- made on account of profit earned on the sale of lands at Hanumanpura, Jaipur. The ITAT held that the assessee was just a broker and ignored the admission of the assessee under Section 132(4) and other vital evidence. The court upheld the ITAT's decision, emphasizing that the books of accounts were not rejected, and thus, the provisions of Section 69(B) were wrongly invoked.
3. Deletion of Addition of Rs. 2,61,57,380/- Made Under Section 69B on Account of Undisclosed Investment:
The third issue involves the deletion of Rs. 2,61,57,380/- made under Section 69B. The ITAT justified its decision by holding that the assessee was just a broker and ignored the admission of the assessee and other vital evidence. The court supported the ITAT's decision, noting that the books of accounts were not rejected, and therefore, the provisions of Section 69(B) were wrongly invoked.
4. Deletion of Addition of Rs. 12,71,000/- Under Section 69B on Account of Undisclosed Investment:
The fourth issue relates to the deletion of Rs. 12,71,000/- under Section 69B. The ITAT's decision was based on ignoring the evidence and admission of the assessee. The court upheld the ITAT's decision, reiterating that the books of accounts were not rejected, making the invocation of Section 69(B) incorrect.
5. Whether the Appeals Abate Upon the Death of the Assessee:
Initially, the respondent's counsel argued that the appeals abate based on the decision in Union of India Vs. Ram Charan (Deceased). However, the appellant's counsel cited Commissioner of Income-Tax And Another V/s Smt. V. Rukmini, which clarified that the liability to pay tax does not extinguish upon the death of an assessee, and proceedings can continue against legal representatives. The court agreed with the appellant's counsel, stating that the appeals do not abate and can continue against the legal representatives of the deceased assessee.
Conclusion:
The court concluded that the appeals would not abate and proceeded to hear the counsel for the parties on merits. After considering the observations made by CIT(A) and confirmed by the Tribunal, the court found no reason to interfere with the orders of both authorities. The issues were decided in favor of the assessee and against the department, leading to the dismissal of the appeals.
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2017 (10) TMI 1326
TDS u/s 194H - non-deduction of tax at source for the amount of discount/commission to the advertising agency - Held that:- It is not in dispute that the amount which has been received by the assessee was after deducting the commission, stock brokerage or whatever term is awarded and the same has been shown in the books of accounts
The assessee also furnished that they ought not to have been added in the income of the assessee in spite of making ground under Section 194H or 40(a)(ia) of the IT Act.
In our considered opinion, the Tribunal while considering the matter has rightly come to the conclusion that it is on the basis of principal to principal and does not constitute commission hence, no other view than the one taken by the Tribunal is possible. - Decided in favour of assessee.
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2017 (10) TMI 1325
Penalty u/s 114 AA of the Customs Act, 1962 - The only ground taken by the appellant before the first appellate authority is that since on an identical issue in penalty against on him is contested and is in appeal before the first appellate authority - Held that:- The first appellate authority in the impugned order has come to a conclusion as to how he has appreciated the evidences, which are on records and also the grounds of appeal of the appellant before him. It can be seen from the said findings which are in Paragraph number 6 and 7, reasoning indicate matter was gone into the details to the evidence on record and the role attributable to appellant herein - appeal dismissed - decided against appellant.
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2017 (10) TMI 1324
Sums received upon encashment of bank guarantees - ITAT held that such additions were unjustified because the income could not be approved as the dispute is pending litigation and final adjudication before the Court - Held that:- This Court is of the opinion that the reasoning of the ITAT is in accord with sound principles and previous judgments. No question of law arises on this score.
Depreciation of claim in respect of assets not registered in the name of the assessee - ITAT factually found that the assessee had paid all amounts to the transferor and had obtained possession. The assessee was also using the premises for its business purposes. The determination of this question is, therefore, essentially factual. No question of law arises.
Exemption under Section 80IA - exemption claimed for the Inland Container Depot (ICD), Container Freight Station (CFS) and rolling stock - Held that:- Here again the Revenue’s contentions were rejected for previous years in Container Corporation of India Ltd. v. ACIT [2012 (5) TMI 260 - DELHI HIGH COURT]. So far as the rolling stock is concerned, ITAT has relied upon its previous ruling.
Amortized depreciation - Held that:- ITAT correctly, in our opinion, applied Section 32 of the Income Tax Act, 1978. No question of law, therefore, arises.
Depreciation of land - ITAT was of the opinion that the lower authority had not considered the applicability of Section 32(1)(ii) and, therefore, remitted the matter for fresh consideration. Accordingly, no ground to interfere with the remit order arises.
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2017 (10) TMI 1323
Denial of natural justice - absence of any show cause to appellant - Held that:- It is stated that notice has been given to learned Advocates-on-Record for the respondents on 20th September, 2017.
There is a typographical error in the order dated 18.09.2017.
I.A. filed by the respondent is dismissed and not the special leave petitions.
Accordingly, last two paragraphs of the order dated 18.09.2017 should read as follows:
I.A. No.53586 of 2017 filed by the respondent is dismissed. Liberty is granted to the petitioner(s) to raise all issues before the NCLT. This is of course subject to all objections.
Needless to say that the special leave petitions are restored to their original numbers. HC Ref case - 2012 (2) TMI 653 - GUJARAT HIGH COURT
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2017 (10) TMI 1322
CENVAT Credit - Bagasse emerging as a waste - Revenue is of the view that as respondent is manufacturing bagasse which is an exempted goods and the respondent has not reversed cenvat credit attributable to input service used in bagasse in terms of Rule 6(3) of the CCR 2004, the respondent is required to pay 5%/10% of the value of bagasse - Held that:- The issue has been settled by the Hon'ble Apex Court in the case of DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT] wherein the Hon'ble Apex Court has held that as a bagasse is emerging during the course of manufacturing of sugar and molasses, is not a manufactured goods. Therefore, provisions of Rule 6 of CCR 2004 are not applicable.
The respondents are not required to reverse cenvat credit on inputs/input service attributable to bagasse. Consequently, is not required to pay 5%/10% of the value of bagasse.
Appeal dismissed - decided against Revenue.
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2017 (10) TMI 1321
Penalty u/s 271D - acceptance of loan or deposit in contravention of section 269SS - money given by the wife to husband assessee - Held that:- In the instant case, the wife gave money to husband for construction of a house which was naturally a joint venture for the property of the family only. This transaction was not for commercial use. The amount directly received by the husband. i.e the assessee, was to the extent of ₹ 17.000 only and the balance amount of ₹ 26.000 was given by payment directly to the supplier of the material required for the construction of the house. Though the expenditure was apparently incurred by the husband being the karta/head of the family, it could not be said that the wife could not have any interest of her own in this house being constructed. The transaction was neither loan nor any gift as no 'interest' element was involved and there was no promise to return the amount with or without interest.
By taking the liberal view and applying the golden rule of interpretation, the assessee had a reasonable cause within the meaning of section 273B. Therefore, the penalty should be deleted.- decided in favour of assessee.
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2017 (10) TMI 1320
Interest on Differential Duty demanded - whether Interest is payable when differential duty is paid before passing final assessment? - Held that:- The issue is no more res integra inasmuch as this Tribunal in the appellant's own case CCE (ST) LTU, CHENNAI VERSUS M/S. TUBE PRODUCTS OF INDIA [2016 (3) TMI 133 - CESTAT CHENNAI] has held that From the reading of the Rule 7 (4) of CENTRAL EXCISE RULES, 2002 it is seen that interest is payable only when any amount is payable consequent to the order for final assessment. When no amount is to be paid consequent to the order of final assessment, sub-rule 4 is not attracted at all - the appellants are not liable to pay interest - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1319
Preference of appeal within 90 days before the National Company Law Appellate Tribunal (NCLAT) - Held that:- Counsel for the appellant is allowed a week’s time to file rejoinder.
It is informed that the Union of India has also filed reply, copy of which had also been served on the parties. Office is directed to keep the same on record.
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2017 (10) TMI 1318
Exemption under section 80P - assessee is a primary agricultural credit society - reason for denying the claim of deduction was that the assessee was doing the business of banking - whether interest received on investments with subtreasury is liable to be assessed under the head ‘income from other sources’ or ‘income from business’? - Held that:- A primary agricultural credit society or a primary cooperative agricultural and rural development bank who do not have license from Reserve Bank of India to carry on the business of banking, is not a cooperative bank, hit by the provisions of section 80P(4)
Following the judgement in case of THE CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. VERSUS THE COMMISSIONER OF INCOME TAX [2016 (4) TMI 826 - KERALA HIGH COURT] we hold that hold that the assessee is entitled to deduction u/s 80P(2) of the Act for the interest received as investment with sub-treasury - Decided in favor of assessee.
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2017 (10) TMI 1317
Computing the perquisite value of the accommodation provided by the assessee - Held that:- It is not a fresh issue raised by the assessee but it is only a plea in respect of the same subject matter and issue of deduction of TDS in respect of the accommodation provided to the employees. See IISC Vs. DCIT [2015 (2) TMI 1272 - ITAT BANGALORE].
Therefore in the facts and circumstances and in view of the decisions of the Tribunal, we set aside this issue to the record of the Assessing Officer to examine the matter in the light of the decisions as relied upon by the assessee as well as by the department.
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2017 (10) TMI 1316
Penalty levied u/s. 271C - assessee in default - deduction of tds u/s 194J or 194C on services provided - bonafide belief - Held that:- Assessee in fact deducted tax at 2% under the provisions of Section 194C on the reason that the agreements entered were ‘contractual in nature’ and not for providing technical services. By virtue of the amendment brought to Section 201(1) by insertion of proviso w.e.f. 01-07-2012, demands u/s. 201(1) cannot be raised, if the deductee has satisfied that it has included the income and remitted the taxes. Therefore, whether it is deduction u/s. 194C or 194-J since the deductee has admitted the incomes and paid taxes thereon, the question of short deduction or non-remittance of tax does not arise in this case. In fact there were no demands u/s. 201(1) so as to levy penalty u/s. 271C.
The provisions of Section 273B are applicable as assessee has a reasonable cause for non-deduction of tax at 10% as against 2% it has deducted. In fact, the opinion of the AO has not yet become final as the issue of levy of interest u/s. 201(1A) itself is being restored to the file of AO for fresh examination in appeals (2017 (11) TMI 191 - ITAT HYDERABAD). Considering all we can only say that the CIT(A) did not err in deleting the penalties. - Decided in favour of assessee
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2017 (10) TMI 1315
Reversal of MODVAT credit - Fulfillment of Export Obligation - Whether in facts of the case since there is a reversal of Modvat credit, there is no violation of Condition No. VI of N/N. 204/92? - Whether in the facts of the case that as per the Licensing Authority (DGFT) has fulfilled the Export obligation and therefore, there is no violation of Condition No. VII of N/N. 204/92?
Held that:- The aforesaid two questions require clear fact finding and draw conclusion on that basis - Therefore learned Commissioner is requested to issue notice to appellant for production of evidence before him on the date he shall fix to examine the above two issues and outcome of examination reported by 18.12.2017 to Tribunal for conclusion of appeals.
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2017 (10) TMI 1314
Disallowance of deduction u/s 80IA(4) - company has entered into an agreement with GSRDC - transfer the project in agreement with the constitutional body i.e. an agency as defined under section 2(e) of the Gujarat Infrastructure Development Act - Held that:- All kinds of infrastructure facilities referred in section 80IA(4)(i) of the Act, like Railways, ports, dams, bridges, roads, etc. are always owned by the Government and cannot be owned by private owners. So however, for an efficient execution and handling of such infrastructure facilities, the governments form a Special Purpose Vehicle (SPV) in the form of separate entity registered under the Companies Act, 1956.
Hon’ble Supreme Court in the case of Som Prakash Rekhi (1980 (11) TMI 113 - SUPREME COURT OF INDIA) and Pradeep Kumar Biswas & Ors. (2002 (4) TMI 890 - SUPREME COURT) are fulfilled and SSNNL is liable to be considered as a ‘statutory body’ falling within the meaning of section 80IA(4)(i(b) of the Act.
Similarly in this case, the entire project was clearly not only executed in agreement with GSRDC but the Gujarat Government directly was involved in the agreements for the project.
Assessee has developed, operated and was to transfer the project in agreement with the constitutional body i.e. an agency as defined under section 2(e) of the Gujarat Infrastructure Development Act, 1999 under the Gujarat Government Act and also in direct and explicit agreement and approval of Gujarat government which has given land and allowed to collect toll fee. Assessee company fulfills the conditions as required under section 80IA(4) including Section 80IA(4)(i)(b) and has developed, operated and was to transfer the infrastructure facility and therefore, is eligible for the deduction claimed under the section.
GSRDC is an extended arms of the Gujarat State and is entitle to eligible for deduction. - decided in favour of assessee.
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2017 (10) TMI 1313
Reopening of assessment - non following mandatory conditions u/s 147 to 151 - no reasons recorded by the approving authority, i.e. JCIT giving approval for reopening - Held that:- JCIT has not applied his mind independently in giving approval for reopening the impugned case and it is settled law that assessment reopened without valid approval is nullity under law. See CIT Vs. S. Goyanka Lime & Chemical Ltd [2015 (12) TMI 1334 - SUPREME COURT OF INDIA].
Assessing Officer has not applied his mind independently while issuing notice u/s 148 of the Act - Decided in favour of assessee.
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2017 (10) TMI 1312
The Allahabad High Court dismissed the writ petition as the challenged order had been recalled on 23.10.2017.
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2017 (10) TMI 1311
CENVAT credit - Air Travel Agent’s service relating to Foreign Travel - Held that: - the eligibility of credit of service tax paid on ‘Air Travel Agent service’ is covered by the judgement of the Hon’ble Gujrat High Court in Essar Oil Ltd’s case [2015 (12) TMI 1062 - GUJARAT HIGH COURT], where it was held that service in question was 'input service' and the service tax paid thereon would be available to the assessee by way of Cenvat Credit - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1310
Depreciation on the assets not actually in the possession of the assessee - ITAT allowed the claim - Whether the order of the Tribunal ignores and does not deal with the factual findings recorded by the assessing officer and is, therefore, perverse ? - Held that:- This Court is of the considered opinion that both the question Nos. 1 and 2 raised in this appeal are thus not question of law, but they are purely questions of facts which have been decided by the Tribunal as the last authority on facts by analyzing the relevant documents and facts and the first appellate authority has also decided the issue in favour of the assessee. Thus, there are concurrent findings of fact by both the appellate authorities. - Decided against revenue
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2017 (10) TMI 1309
Addition of 12.5% in respect of bogus purchase - Held that:- We found that Tribunal have confirmed the addition of 12.5% in respect of bogus purchase after observing that there was failure on the part of the assessee to produce such bogus parties for examination to the AO.
CIT(A) in his order has categorically noted that the said three vendors not only appeared before the AO during the remand proceedings but also confirmed that they indeed entered into the transaction with the assessee. This finding of CIT(A) is recorded at page 4 of the CIT(A) order dated 23/04/2014. In view of this finding of CIT(A), the observation made by the Tribunal and confirming the addition of 12.5% of bogus purchase amounts to mistake apparent from record.
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2017 (10) TMI 1308
Penalty u/s 11 AC of Central Excise Act, 1944 readwith Rules made thereunder - Held that: - the appellant needs to be visited with penalty in this case under the provisions of Section 11 AC of the said Act as there is no appeal against the finding on merits in the first round of litigation - Appeal to the extent of the excess penalty imposed, more than the duty confirmed, is set-aside - appeal allowed in part.
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