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Showing 381 to 400 of 1666 Records
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2017 (10) TMI 1287
Addition u/s 14A - computation of deduction - Held that:- Hon’ble Delhi High Court in the case of Joint Investment Private Limited [2015 (3) TMI 155 - DELHI HIGH COURT] held that by no stretch of imagination can section 14A or Rule 8D be interpreted so as to mean that entire tax exempt income is to be disallowed
We direct the Assessing Officer to restrict the disallowance u/s. 14A r.w. Rule 8D to the extent of dividend income of ₹.1,83,000/- received for the Assessment Year 2012-13 and compute the income accordingly.
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2017 (10) TMI 1286
Addition on bogus purchases - addition relying on information from Maharashtra Sales Tax Department - CIT(A) upheld the addition of 12.5% by observing that purchases were not bogus, however, assessee might have shown lower income by taking bill from unregistered dealers - Held that:- Keeping in view profit rate declared by the assessee at 13% vis-à-vis judicial pronouncements cited by learned AR during the course of hearing, modify the order of the lower authorities and direct the AO to restrict addition to the extent of 10% of alleged bogus purchases. - Decided partly in favour of assessee.
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2017 (10) TMI 1285
Claim of deduction u/s. 80IB(10) - Held that:- It is a well settled principle of law that when the language of a statute is clear and unambiguous, the courts are to interpret the same in its literal sense. A perusal of discussions discussed above indicates that two diagonally opposite views have been taken by the different Hon’ ble High Courts while interpreting the provisions of section 139(1) and 139(4) read with section 80AC. The Hon’ble High Court of Andhra Pradesh liberally interpreting the provisions of section 80AC has granted relief of deduction by extending the time specified for filing return of income u/s 139(1) to time limit specified under sub-section (4) of section 139. On the other hand, Hon’ble Calcutta High Court and Hon’ble Uttrakhand High Court by literal interpreting the provisions of section 80AC has restricted benefit of deduction u/s. 80IB where return of income has been filed within the time specified u/s. 139(1) of the Act.
It is a trait law that where two divergent views are available and there is no direct decisions on the issue by Hon’ble Jurisdictional High Court, the view in favour of assessee has to be followed [CIT Vs. Vegetables Products (1973 (1) TMI 1 - SUPREME Court). Thus assessee is eligible for claiming deduction u/s. 80IB(10) of the Act.
Whether four residential units i.e. D-601, D-602, E-601 & E-602 in the housing project, “Hill View” developed by assessee have built up area beyond 1500 sq.ft and hence, ineligible for claiming deduction u/s. 80IB(10)? - Held that:- A perusal of the building plan at page No. 236 of the paper book shows that open area mentioned adjoining to the living room and bedroom is ‘terrace’ and not ‘balcony’. The open area which has been included while computing ‘built up area’ of flat is terrace and not balcony. The definition of ‘built up area’ does not include terrace and in the case of CIT Vs. Amaltas Associates (2016 (10) TMI 359 - GUJARAT HIGH COURT) has held that terrace is different from balcony. Thus, open area of terrace would not form part of built up area of flats in question. Accordingly, second issue i.e. Ground no. 1.b. raised in the appeal is decided in favour of the assessee.
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2017 (10) TMI 1284
Corporate Insolvency Resolution Process - existence of debt - Held that:- Liability to pay the Operational Creditor for the service rendered has been in dispute even prior to the filing of the present petition. Disputes with respect to the quality of service rendered is evident from the various communications on record. Liability on account of delay in executing the job work arising out of the work order is also sought to be invoked.
While it is beyond the scope of this Forum to adjudicate the evidentiary value of the dispute, its existence is sufficient ground for rejecting the present petition. Petition Rejected.
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2017 (10) TMI 1283
Liability of Central Excise Duty - processing of iron ore whether amounts to manufacture or not? - Held that: - There is no special process facility with the appellant. Improvement in the content of “Fe” due to the processes undertaken by the appellant by itself will not make the resultant product as iron ore concentrate - process undertaken by the appellant do not amount to manufacture of new product as understood in the industry - liability of duty do not arise - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1282
Refund of excess duty paid - denial on the ground of unjust enrichment - Held that: - the rejection of chartered accountant certificate by the lower authorities seems to be erroneous as chartered accountant has clearly stated that the amount of 1,34,894/- has been shown as receivable in the year 2015-2016 due to finalization and that the said amount has not been recovered by the appellant from any person - refund allowed in cash - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1281
In view of the findings recorded by the learned Customs, Excise and Service Tax Appellate Tribunal and the O.M. dated 05.06.2013 of the Ministry of Communications and Information Technology, we find no ground to interfere - appeal dismissed.
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2017 (10) TMI 1280
Imposition of ADD - low ash (below 12.5%) - low phosphorus less than 0.018% - Held that: - this Court is of the opinion that the petitioner has the right to approach the CESTAT Bench (C-2), which is the designated Appellate Tribunal. In case they prefer an appeal under Section 9C within two weeks from today, the same shall be entertained and heard on its merits in accordance with law - petition disposed off.
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2017 (10) TMI 1279
Deemed dividend - decision in the case of COMMISSIONER OF INCOME TAX Versus ANKITECH PVT LTD. & OTHERS [2011 (5) TMI 325 - DELHI HIGH COURT] referred - Held that: - the judgment is a detailed judgment going into Section 2(22)(e) of the Income Tax Act which arises at the correct construction of the said Section. We do not wish to add anything to the judgment except to say that we agree therewith.
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2017 (10) TMI 1278
Validity of assessments made u/s.153C r.w.s. 153A - search under section 132 was conducted on 02/11/2011 at the residence of the assessee in connection with the search warrant issued on Shri John Kuriakose of M/s Dentacare Group - Held that:- If during the course of search, documents pertaining to the assessee are found, the Assessing Officer has the jurisdiction under section 153C of the Act but the addition in respect of the assessment, which has not been abated, can be made only on the basis of the incriminating material found during the course of search not otherwise.
Now coming to assessment year 2006-07 to 2010-11. We noted that no incriminating material, during the course of search, was found in respect of the agricultural income treated as unexplained cash credit as well as cash shortage treated as unexplained investment. Therefore, no addition in respect of these can be made. We, therefore, delete the addition in each of the assessment years in respect of agricultural income treated as unexplained cash credit and cash shortage treated as unexplained investment. Thus, the grounds in each of these assessment years relating to these additions stand allowed.
Addition on basis of statement recorded in search - Held that:- we noted that the assessee himself before the Assessing Officer tried to explain the source of the investments made outside the books of account in the land transaction to the extent of ₹ 29,30,600/- by taking the loan from Reliance Capital, Barclays Bank and Standard Chartered Bank amounting to ₹ 7,50,000/-, ₹ 11,00,000/- and ₹ 15,00,000/- respectively. These loans were taken on 04/09/2008, 01/11/2008 and 04/09/2008 while the assessee has purchased the land vide sale deed registered on 18/06/2008, 02/07/2008 and 10/07/2008. We do agree with the contention of learned D.R. and the finding given by the authorities below that no seller would transfer the land until and unless he received the on-money agreed between the two. Explaining the source of onmoney does not prove that the assessee has paid the on-money for the purchase of land. In view of this fact, we do not find any illegality or infirmity in the order of CIT(A). This is the settled law that the statement recorded during the course of the search will be valuable evidence being incriminating document found during the course of search
Coming to assessment year 2011-12. So far ground Nos. 1 to 3 are concerned, as discussed while disposing ground No. 1 to 3 in preceding paragraph relating to assessment years 2006-07 and 2010-11, we dismiss the said grounds as in this case we noted that the return for the aforesaid assessment year has been filed by the assessee after the search had taken place on 02/11/2011 not prior to that. Since the search had taken place prior to that therefore, the assessment for the impugned assessment year has been abated being pending at the time of search
Unexplained investment - AO recasted the cash flow by taking the opening balance to be zero as in the recasted cash flow statement for assessment year 2010-11 the closing balance was taken to be zero and noted that there was a cash shortage - Held that:- Since the assessment for the assessment year 2010-11 was not abated and no material was found during the course of search, on the basis of which the cash flow statement for the assessment year 2010-11 has to be modified, therefore, in our view, the assessee has to get the set off of opening balance of the cash in hand amounting to ₹ 4,83,751/-. We accordingly reduce the addition by the said amount. We also noted that the assessee has shown the profit from the business belonging to Mini Eldhose and the assessee has also considered the expenses as well as the drawing of Mini Eldhose in her cash flow statement. Therefore, in our opinion, the Assessing Officer was not correct in law excluding the sum of ₹ 3,65,000/- profit earned from the said business as the cash to that extent must have been available with the assessee during the year.
Agriculture income earned by Mini Eldhose - Held that:- Since the facts relating to the agriculture income earned by Mini Eldhose and holding of the land by her are not before us, therefore, we cannot decide how much agriculture income would have been earned by Mini Eldhose. To the extent the agriculture income is earned by here, the same will be available as a source of receipt of the cash in the hands of the assessee. Since neither the Assessing Officer nor the CIT(A) and even the assessee has not brought out on record any document in this regard therefore, in the interest of justice and fair play to both the parties, we set aside the issue for the purpose of determining the shortage of cash in respect of the agricultural income earned by Mini Eldhose. Thus, this ground is partly allowed.
Treating the agriculture income to be the income from other sources - Held that:- We do agree that in view of the quantum of the agriculture income returned by the assessee, the assessee is not required to maintain the regular books of account for the agriculture income but keeping in view the quantum of the land holding, the agriculture income shown by the assessee is on a higher side but since in the preceding assessment year the income from the same land holding stand accepted by processing the return under section 143(1) to the extent of ₹ 2,00,000/- therefore, we treat the sum of ₹ 2,00,000/- following principle of consistency, although it is on higher side from the said agriculture land, to be the agriculture income and confirm the action of the authorities below treating the balance sum of ₹ 1,00,000/- as income from undisclosed sources. Thus, this ground taken by the assessee is partly allowed.
Addition in respect of investment made in the land purchase - Held that:- The said sum of which represents ₹ 18,15,000/- which is the cash credit in the bank account of Eldhose K. Varghese on different dates i.e. ₹ 8,70,000/- on 18/08/2011, ₹ 9,00,000/- on 19/04/2011 and ₹ 45,000/- on 20/04/2011. It was noted that the said amount was also quickly withdrawn in cash and credited into the accounts of the assessee’s wife Mini Eldhose ₹ 9,00,000/- withdrawn on 19/04/2011 and ₹ 8,70,000/- on 18/08/2011. Once the CIT(A) has deleted the addition of ₹ 13,50,000/- which includes the sum of ₹ 9,00,000/- withdrawn by the assessee on 19/04/2011 and given to the assessee’s wife. Therefore, the contention of Learned D. R. that there was no withdrawal for paying the consideration of ₹ 5,44,000/- from the account of Mini Eldhose on 19/04/2011 amounting to ₹ 9,00,000/-, which is sufficient to cover up the sum of ₹ 5,44,000/- and the Revenue has not come in appeal against the deletion of ₹ 13,50,000/- Therefore, we delete the addition of ₹ 5,44,000/-. Thus, ground No. 3 stands allowed.
Estimate of the income by way of profit on sale of land - Held that:- As gone through the cash flow statement submitted by the assessee before the Assessing Officer during the course of assessment proceedings in replyto the notice issued under section 142(1) which is appearing at para 8 of the assessment order. From page 4 of the assessment order, we find that the assessee has shown the source of the sum of ₹ 7,15,000/- and ₹ 5,50,000/- to be the sale of land. Naturally when the assessee has sold the land the assessee might have earned the profit. The Assessing Officer has found that the assessee has not disclosed the said profit in the return filed by him and accordingly computed the said profit at ₹ 36,000/-. The profit earned on the sale of the land is chargeable to tax.
Agriculture income returned as treated by the Assessing Officer as undisclosed income - Held that:-In the earlier year, the income from agriculture has been accepted at ₹ 2,00,000/- but so far these lands are concerned, in our view, the onus lies on the assessee to prove that the assessee has cultivated the land and earned the agriculture income. No government document showing the cultivation of the crop by way of revenue record was placed before us. It is not denied that the land so purchased are in small pieces but following the rule of consistency, we direct the Assessing Officer to treat the sum of ₹ 2,00,000/- out of the sum of ₹ 4,30,000/- to be the agriculture income earned by the assessee.
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2017 (10) TMI 1277
Whether in the facts, evidences, circumstances and details available on record, the Tribunal was justified in rejecting the plea of grant of prospective effect u/s 56(2) of the MVAT Act?
Held that: - In view of these specific assertions, we request the learned President of the Tribunal to submit a report dealing with what is stated in paragraph 5. The report shall be submitted in a sealed envelope which shall not be opened without prior permission of this Court - appeal to be listed for directions.
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2017 (10) TMI 1276
Determination of compensation u/s 163-A and 166 of the Motor Vehicles Act, 1988 - claim in the case of death - liability of insurance company - a person who is selfemployed or who is paid fixed wages / salary - Established income of the deceased towards future prospects - Whether there will be no addition after 50 years? - Held that:- Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of selfemployed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.
In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be ₹ 15,000/-, ₹ 40,000/- and ₹ 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
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2017 (10) TMI 1275
Monetary limit for filing an appeal - ‘Tax effect’ less than the prescribed limit – Power of CBDT to give instruction with retrospective effect - circular dated 10th December, 2015 - Held that:- This Court in the case of Suman Dhamija [2015 (9) TMI 239 - SUPREME COURT] has held that, instructions/circular dated 9.2.11 is not retrospective in nature and they shall not govern cases which have been filed before 2011, and that, the same will govern only such cases which are filed after the issuance of the aforesaid instructions dated 9.2.2011.
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2017 (10) TMI 1274
Reopening of assessment - expenses on films/Tapes of TV serials allowability - change in opinion - Held that:- SLP dismissed. HC Order confirmed [2017 (10) TMI 1273 - DELHI HIGH COURT].
High Court has held that, "As full facts relating to debited expenses on account of expenses on films/Tapes of TV serials were available before the A.O. at the time of framing the original assessment order. All other material facts were already disclosed fully and truly necessary for the said assessment were also available and considered by the A.O. originally. On the basis of the same facts and figures which were considered and one possible view has been taken the same A.O. or his successor A.O. cannot take a different view as it would amount to a change in opinion which is not permitted."
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2017 (10) TMI 1273
Reopening of assessment - expenses on films/Tapes of TV serials allowability - change in opinion - Held that:- As full facts relating to debited expenses on account of expenses on films/Tapes of TV serials were available before the A.O. at the time of framing the original assessment order. All other material facts were already disclosed fully and truly necessary for the said assessment were also available and considered by the A.O. originally. On the basis of the same facts and figures which were considered and one possible view has been taken the same A.O. or his successor A.O. cannot take a different view as it would amount to a change in opinion which is not permitted in law even after 1.4.1989 and even after considering the decisions of Hon’ble Apex Court in Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA ) rendered in this regard. In our considered opinion the primary facts necessary for the assessee were fully and truly disclosed by the assessee so the A.O. is not entitled to change opinion to commence proceedings for reassessment. - Decided against revenue
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2017 (10) TMI 1272
Misdeclaration of export goods - contraband item - red sanders wood - penalty - Held that: - in the instant case one container was loaded with glass tumblers in the factory of BG. The container was stuffed under the supervision of Central Excise officers and also sealed. The container after export was recalled by the DRI and examined and it was found to contain 9.34 mt of red sander wood which is prohibited for export. Along with the contraband a part of the declared goods i.e. glass tumblers was also found - it is evident that none of the appellants had any role to play in the fraudulent export of red sander wood - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1271
Classification of imported goods - parts/components/ accessories of various tools/dies - classified under chapter 82 or 84? - Appellant strongly argued that such summary classification of the goods imported under 13 bills of entry cannot be done - It has been claimed by the appellant that none of the goods imported are in the nature of parts of dies - Held that: - a significant portion of the imported goods are meant for captive consumption and not intended for manufacture of tools/ dies for M/s Honda. Goods falling in this category include items such as complete sets of dies checking fixtures, inspection jigs and various other such items. Such items are definitely required to be classified individually taking note of the nature of the goods imported and its individual classification.
In respect of goods which have been imported for use in the design and manufacture of tools/ dies to be supplied to M/s Honda, we are of the view that these are required to be assessed as presented at the time of import. If such goods are identifiable as classifiable under any of the headings/ sub-headings of Customs Tariff Heading, they are to be classified therein. Only those goods which are specifically identifiable as parts of base metals which are not specifically covered separately under any of headings/ sub-headings, will be classified under 8207.
The matter remanded to Adjudicating Authority for passing de novo order - appeal allowed by way of remand.
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2017 (10) TMI 1270
Determination of duty after the death of importer - at the time of assessment and determination of duty liability through the impugned order, the alleged importer Shri Gurmeet Singh Sehgal is not alive - Held that: - similar issue decided in the case of Shabina Abraham And Others Versus Collector of Central Excise & Customs [2015 (7) TMI 1036 - SUPREME COURT], where it was held that there is in fact no separate machinery provided by the Central Excises and Salt Act to proceed against a dead person when it comes to assessing him to tax under the Act.
The present appellants were nowhere in the picture in the proceedings before the adjudicating authority - it is not the case of Revenue recovery proceedings on confirmed duty liability during the life time of an importer. It is a case where the duty liability itself was determined after the death of the proprietor–importer - such demand of duty cannot be confirmed against the deceased person. Consequently, there can be no question of liability on the purported legal heir either for duty or redemption fine.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1269
Liability of interest - Simultaneous benefit of two schemes - Status Holder Incentive Scrips (SHIS) - Zero Duty Export Promotion Capital Goods (EPCG) - surrender of benefit under SHIS, on pointing out but without any interest - Public Notice dated 08th September, 2016 - Held that: - the said Circular is clarificatory in nature, so it is applicable retrospectively - it appears that the Annexure to the Public Notice dated 08th September, 2016 has not been followed strictly in the instant case. The interest has also not been computed. When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue de novo - appeal allowed by way of remand.
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2017 (10) TMI 1268
Condonation of delay in filing appeal - case of appellant is that the delay caused in filing the present appeal is not deliberate and intentional but on account of the various reasons stated in the application - Held that: - though the reasons stated in the COD application for filing the appeal belatedly are not very convincing, but in the interest of justice, and keeping in view the facts and circumstances of the case, the application is allowed subject to payment of cost of ₹ 20,000/- - application allowed.
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