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Showing 341 to 360 of 1887 Records
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2017 (12) TMI 1551
Disallowance u/s. 14A r.w. Rule 8D(2)(iii)- Held that:- As relying on ACIT v. Vireet Investments Private Limited [2017 (6) TMI 1124 - ITAT DELHI] only those investments are to be considered for computing average value of investments which yielded exempt income during the year. Therefore, respectfully following the said decision, we direct the Assessing Officer to compute the disallowance under Rule 8D(2)(iii) by considering only those investments which yielded exempt income during the year and recompute the income accordingly.- Appeals of the assessee are partly allowed.
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2017 (12) TMI 1550
Valuation - Inclusion of value of airport taxes/ passenger service fee - Transportation of Passengers embarking in India for International journey by Air Service - Held that: - it is a settled position of law that passenger service fee and airport taxes should not be included in the taxable value - reliance placed in the case of M/s. American Airlines Versus C.S.T., Delhi [2016 (7) TMI 92 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1549
Let notice be issued on Respondent- M/s. ANG Auto Tech Pvt. Ltd. through 'Interim Resolution Professional' as to why the 'Corporate Debtor' be not directed to pay the current dues of Appellant, which the Appellant is entitled from the date of moratorium. Requisite along with process fee, if not filed, be filed by 5th December, 2017. If the Appellant provides the e-mail address of Respondent, let notice be also issued through e-mail.
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2017 (12) TMI 1548
Deemed profit of the assessee under section 44BB - Service tax element be included in the gross receipts for the purpose of computing the profit - assessee has not offered to tax the reimbursement of service tax receipts which is part of gross receipt from ONGC - Held that:- It is pertinent to note that statutory charges cannot form part of the amount considered for the purpose of deemed profit under Section 44BB of the Income Tax Act, 1961. Thus, in light of decisions in assessee’s own cases for earlier Assessment Years [2015 (6) TMI 493 - ITAT DELHI], the issue is squarely covered in favour of the Assessee.
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2017 (12) TMI 1547
Revision u/s 263 - Unexplained cash credit addition by invoking the provisions of sec. 68 - Held that:- As assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO.
Hon'ble Supreme Court in three judges bench in the case of Tin Box, (2001 (2) TMI 13 - SUPREME Court), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessment needs to be done afresh - Appeal of assessee is allowed for statistical purposes
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2017 (12) TMI 1546
Refusal for registration u/s 12AA - proof of charitable activities - charitable object - section 13 applicability - Held that:- Sections 13 comes into play at the time of granting exemption under Section 11 of the Act and not at the time of granting registration under Section 12A of the Act. The only two requirements as stated hereinabove while granting registration under Section 12A of the Act, are with respect to the charitable nature of the objects of the assessee and genuineness of the activities. Since we observe that no adverse remarks have been made by the Commissioner of Income Tax (Exemptions) with regard to the objects contained in Memorandum and as stated hereinabove that the observations of the Commissioner of Income Tax (Exemptions) do not lead to the conclusion that the activities of the assessee are not genuine, we hereby direct the Commissioner of Income Tax (Exemptions) to grant registration under Section 12A of the Act to the assessee - Decided in favour of assessee.
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2017 (12) TMI 1545
Maintainability of petition - Jurisdiction - case of petitioner is that the respondent is not empowered to invoke Section 27 of the TNVAT Act for making reassessment on the alleged escaped turnover without following the procedure under the said provision - Held that: - the petitioner has raised various factual issues and disputed the observations and findings recorded by the Assessing Officer. Therefore, without analyzing the factual matrix, it cannot be considered as to whether the respondent was justified in invoking Section 27 of the TNVAT Act.
The petitioner has to necessarily avail the appellate remedy available under the TNVAT Act which is not only efficacious but also effective. Merely because the statute mandates a pre-deposit is no ground to bypass the appellate remedy.
The writ petition is held to be not maintainable and accordingly, dismissed.
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2017 (12) TMI 1544
Relevancy of Initiation of proceedings under the SARFAESI Act to reject an application under Section 10 of the Insolvency and Bankruptcy Code - Held that:- In the present case, it has not been pleaded that the appellant-Corporate Debtor is ineligible in terms of Section 11 of the I & B Code. The Adjudicating Authority has noticed unrelated facts which are not required to be disclosed in terms of Section 10 or Form 6 and as the case also relates to third party suit or proceeding, and not the Corporate Debtor. In the circumstances, the Adjudicating Authority was not correct in rejecting the application on the ground of suppression of relevant facts.
The Adjudicating Authority, having held that otherwise the application under Section 10 is complete and in absence of any ineligibility of appellant, it was incumbent on the part of the Adjudicating Authority to admit the appeal, having no jurisdiction to notice unrelated facts beyond the requirement under the I & B Code and the Forms prescribed under the Adjudicating Authority Rules.
Case is remitted back to the Adjudicating Authority, Mumbai Bench to admit the application under Section 10 after notice to the parties if there is no defect.
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2017 (12) TMI 1543
Reopening of assessment u/s 148 - Held that:- Petitioner's objection to the reasons recorded while issuing of the reopening notice were disposed of on 20th November, 2017. The period of four weeks from that date expires on 20th December 2017.
Revenue seeks time to take instructions and file an affidavit in reply, if necessary.In the above view, at the request of the Revenue the Petition is adjourned to 12th January, 2018.
Till the next date, there shall be ad-interim stay restraining the Revenue from acting further upon the Notice dated 31st March, 2017.
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2017 (12) TMI 1542
Principles of natural justice - In spite of notice, neither anybody appeared for the Appellants nor there is any adjournment application on record - Held that: - It may be mentioned that Anti-Dumping Bench is a not a regular Bench, but it is a especially constituted Bench to decide the case. From the record, it appears that the notice was served in the month of November. Hence, it appears that the assessee-Appellants are not interested to pursue the matter.
As per the maxim VIAILATIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT, law helps those who are vigilant and not those who go to sleep.
Appeal dismissed for default.
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2017 (12) TMI 1541
Revision u/s 263 - materials before the Commissioner to justify his finding that the assessment order for the A.Y. 87-88 was erroneous insofar as it was prejudicial to the interests of the Revenue - improper and incomplete examination of the transactions between the assessee and the Trusts - Held that:- No findings have been rendered by the CIT that the AO has made an incorrect assessment of facts or incorrect application of law to satisfy the requirements of the order being erroneous and prejudicial to the interests of the Revenue, as held in Malabar Industrial Company Ltd. (2000 (2) TMI 10 - SUPREME Court). In the opinion of the CIT, the AO ought to have made a further probe into the nature of the transactions between the assessee and the two Trusts. In other words, the CIT has desired a fishing and roving enquiry which is not permissible
CIT has arrogated to himself the role of appellate body forgetting that he was only exercising his revisional power, the scope of which is far narrower than the scope of appeal. It is not as if from the material on record the CIT has found the transactions between the assessee and the two Trusts as sham or nominal, or any material was found revealing fraudulent nature of the transactions. He only wanted to know on a further appreciation/examination whether the transactions suffer from any such features. Therefore, the Tribunal, in our opinion, is justified in terming the order of the CIT as based on mere conjectures and surmises, and not on the facts borne out by the record.
CIT has not suspected the bona fides in creation of the Trusts and their activities or that no material is found showing that the assessee had made an effort to reduce the tax liability on the transactions entered with the two Trusts. - Decided in favour of assessee
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2017 (12) TMI 1540
Rejection of application for granting registration under section 12AA - Whether the income derived by the trust is spent for charitable purposes or whether the trust is earning profit or not? - Held that:- As the case of the present assessee is concerned, it was a new trust and all the details as sought by the Department were duly submitted and even trust deed was filed wherein the objects of the trust were clearly mentioned. When these criteria are complied with, then registration under section 12AA ought to have been granted to the assessee. We, are of the considered view that in the instant case registration under section 12AA of the Act should be granted to the assessee once as per object clause the genuineness of the activities of the trust is established. Thus we direct CIT (Exemptions) to grant registration to the assessee trust under section 12AA of the Act. - Decided in favour of assessee.
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2017 (12) TMI 1539
Non-payment of tax - petitioner's case is that it is never their intention not to pay the tax, but due to unexpected contingency and stringent financial crisis, they were unable to pay the tax - Held that: - there is no provision under the Puducherry Value Added Tax Act, to permit the dealer to remit tax in installments. If that be so, the Court would not be justified in granting such indulgence. However, this will not preclude the second respondent from considering the bona fidies of the dealer/petitioner, and make necessary accommodation. This is, with a view to ensure that the tax is collected from the defaulting dealer at the earliest - petition disposed off.
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2017 (12) TMI 1538
Scheme of Arrangement by way of Amalgamation - Dispense with convening the meeting of Shareholders and unsecured creditors of the Applicant Transferor Company and of the Applicant Transferee Company. Also Allow the Applicant Companies to make Petition u/s 230, 232 of the Companies Act, 2013 for approval of the Scheme of Amalgamation - Held that:- This Tribunal however is not convinced by the representation put forth on behalf of the Petitioners/applicants that in the cases where the relationship between the Transferor and Transferee Company is that of a wholly owned subsidiary and a holding Company and that in the absence of any share exchange contemplated, then meeting should be dispensed with as was done by the Courts earlier under the provisions of Companies Act,1956. It is pertinent to note that under the erstwhile provisions of Companies Act, 1956, provisions which are analogous to Section 233 of the Companies Act, 2013 were not available for the companies to avail of. Hence taking into consideration the facts and circumstances of the case, Courts were permitting dispensation as per exigencies of the situation.
The companies involved in the Scheme should not be denied with an opportunity to seek sanction of their Scheme and hence a recourse or fall back has been provided by virtue of sub-Section (14) of Section 233 of the Act. Hence the Applicants/Petitioners have to show the reasons as to what prevents them from approaching the named authority prescribed in Section 233 of the Act for the sanction of the Scheme between companies envisaged thereunder and instead take recourse to this Tribunal for sanction.
As seen that no such reasons have been given in the instant application by the companies involved in the Scheme of Merger or Amalgamation. Once the applicant companies elect to approach this Tribunal instead of taking recourse to the provisions of Section 233 of the Act, it consciously subjects itself to the rigors of the provisions of Section 230 to 232 of the Act of 2013 read along with attendant rules framed thereunder. Even though in some instances this Tribunal had dispensed with meetings, however they are far and few and even in the said cases it has been dispensed with in view of they being private limited companies and also closely held having miniscule number of shareholders and consents having been also obtained and produced.
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2017 (12) TMI 1537
Club or association services - The case of the department is that the respondents are liable to pay service tax on the subscription amount collected from its members - Held that: - The Hon ble High Court of Jharkhand in the case of Ranchi Club Ltd. [2012 (6) TMI 636 - Jharkhand High Court] had analyzed the issue and held that the club is formed on the principle of mutuality and therefore any transaction of the club with its members is not a transaction between two parties and therefore not subject to levy of service tax - demand set aside - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1536
Stay of demand - Held that:- For granting stay to the present assessee, payment of 55% of disputed demand and in addition to that maintenance of 20% of disputed demand as balance in the bank account of the assessee is just & proper condition. We deem it appropriate to direct the assessee to deposit a further amount of ₹ 175 crores so as to make it 55% (500 crores approx) of the impugned total demand of ₹ 910.61 Crores in respect to all these four assessment years i.e. 2009-10 to 2012-13, on or before 15.12.2017.
Direct the assessee to retain balance of another 20% in account No. 0037238007, maintained with CITI Bank, M.G.Road Branch, Bengaluru-560 001 which comes to ₹ 182 crores, during the pendency of these appeals before the Tribunal in addition to depositing further amount of ₹ 175 crores . In terms of conditions mentioned herein above, stay orders earlier granted are extended for a period of three months from the date of this order or till the date of disposal of the appeals, whichever is earlier subject to compliance of the above directions.
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2017 (12) TMI 1535
Estimation of stay - Held that:- It is noted that in the earlier writ petition disposed of by this Court, while staying the impugned directions of the Tribunal, on compliance of the directions issued by this Court, a further direction was issued to the Tribunal to dispose of that appeal concerning the Assessment Year 2013-14 on or before 31st January 2018. Learned counsel for the petitioner submits that the said appeal is under consideration before the Tribunal. In the circumstances, a similar order would have to be made in so far as these appeals are concerned.
Accordingly, the stay granted by the Tribunal is extended till the disposal of the appeals by the Tribunal, subject to compliance of aforesaid directions by the petitioner. The Tribunal is directed to dispose of the appeals, out of which, these writ petitions arise, on or before 31st of March 2018. It is needless to observe that in view of the specific direction issued by this Court for expeditious disposal of the appeals by the Tribunal, both parties are directed to co-operate with the Tribunal in that regard.
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2017 (12) TMI 1534
Appeal admitted on the following substantial question of law: -
“(a) Whether on the facts and in the circumstances of he case and in law, the ITAT was justified in not upholding the findings of the AO as endorsed by the CIT(A) that the amount of ₹ 1 Crore was the assessee's undisclosed income, without appreciating the fact this its 2 partners had admitted such undisclosed income by filing revised computation of their income, declaring therein their share of the aforesaid amount as their undisclosed income?”
“(b) Whether on the facts and in the circumstances of the case and in law, the ITAI was justified in not upholding the addition made by the AO on account of unaccounted cash receipts on sale of plots?”
Registry is directed to communicate copy of this order to the Tribunal. This would enable the Tribunal to keep papers and proceedings relating to the present appeal available, to be produced when sought for by the Court.
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2017 (12) TMI 1533
CENVAT credit - includibility - whether the freight insurance collected by the appellant separately over and above the invoice value by raising the commercial invoice is includible in the assessable value of the excisable goods? - Held that: - the purpose of showing freight separately in the invoice is only to show the actual amount of freight. However freight per say is not includible in the assessable value - Merely because the transportation charges are not mentioned in the excise invoice, the same cannot be charged to excise duty - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 1532
TDS u/s 194C - Disallowance u/s 40(a)(ia) - failure to deduct tax at source on the payment of labour charges to the alleged headman/ contractors of labour supplier - Held that:- Section 194C of the Act is attracted when any payment is made for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and a specified person. In the facts of the present case there is no contract between the assessee and any specified person for carrying out any work as contemplated in the section. The assessee had got the work done directly through labourers and had merely paid them through the head labourer. In the absence of any contract to carry out any work with a specified person, the provisions of section 194C of the Act would not be attracted and hence there would be no liability to deduct tax at source so as to attract the provisions section 40(a)(ia) of the Act. The Tribunal, therefore, did not commit any error in confirming the order passed by the Commissioner (Appeals). - Decided in favour of assessee
Unexplained cash credit - addition u/s 68 - Held that:- The course of action adopted by the Assessing Officer defies logic. If the Assessing Officer had disbelieved that M/s Hemani Enterprises had executed the contract as a sub-contractor, he, at best, could have disbelieved the payment made to it and held that it was the assessee, who had executed the contract and worked out the profit accordingly. But when the entire amount received by the assessee was towards payment for the contract, there was no question of considering any part thereof as unexplained cash credit. In the opinion of this court, the view adopted by the Commissioner (Appeals) as concurred by the Tribunal is just and proper. Consequently, this ground of appeal also does not merit acceptance. - Decided in favour of assessee
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