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Showing 41 to 60 of 1750 Records
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2018 (1) TMI 1715
Extended period of limitation - Short payment of duty - intent to evade tax - HELD THAT:- It is undisputed that the show cause notice invoked the extended period. That is beyond a normal period of one year. For the extended period to be invoked, there are certain pre-requisites and pre-conditions, which the Revenue has to satisfy in terms of the statutory provision, namely, section 11A of the Central Excise Act, 1944. The tribunal found from the factual matters that there were not one, but two audits and the second one was for the overlapping period. If during both, the Revenue could not trace out anything, which was held back by the assessee or was unable to unearth from the records the necessary materials to allege suppression, then, the invocation of the extended period was impermissible. There were no materials to indicate that there is any short payment of duty with intent to evade service tax.
Once there is no perversity in the order under appeal nor the same is vitiated by any error of law apparent on the face of the record, then, we are not obliged to entertain this appeal. There is no substantial question of law arising for consideration. Consequently, the appeal fails and it is dismissed.
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2018 (1) TMI 1714
Dishonor of Cheque - rebuttal of statutory presumption under section 118(a) and 139 of NI Act - preponderance of probabilities - HELD THAT:- In RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], the Hon'ble Apex Court, while holding that since the signature on the cheque is not disputed, the statutory presumption under Section 139 of the Act is activated, which the accused could not rebut since the defence of lost cheque was not probable, observed that Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.
Whether the accused has brought on record material which would persuade this Court to believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man - If the conscious of this Court is satisfied that the accused has discharged the initial onus of proof by demonstrating that the existence of consideration was improbable or doubtful, it is axiomatic that the onus would shift to the complainant to prove the existence of legally enforceable debt or liability, as a matter of fact. In such a scenario, the accused would have rebutted the statutory presumption under section 118(a) and 139 of the Act and the burden of proving the existence of legally enforceable debt or liability would shift on the complainant.
It is the case of the complainant that the loan was extended for a short duration of a month. The admission that the complainant did not maintain accounts of the transaction and the inference drawn by the learned Magistrate that the transaction was not reflected in the income tax returns, in the factual matrix, is not sufficient to render the existence of legally enforceable debt or liability doubtful - since the statutory rebuttal which concededly is activated, is not rebutted by the accused by evidence showing that the existence of defence is probable, the evidence must be appreciated on the anvil of the statutory presumption in favour of the complainant that the cheque was issued towards discharge of an existing debt or liability which is legally enforceable.
The judgment and order impugned suffers from an error of law in appreciating the import and implication of the statutory presumption under section 139 of the Act - accused is convicted for offence punishable under section 138 of Negotiable Instruments Act and is sentenced to suffer simple imprisonment for three months and to pay compensation of Rs. 2,00,000/- to the complainant under section 357(3) of the Code of Criminal Procedure - Appeal allowed.
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2018 (1) TMI 1713
Playing cards for money in Thalikkulam Beach Resort at Thalikkulam - Search and seizure of playing cards - Section 7 & 8 of Kerala Gaming Act, 1960 - HELD THAT:- Since there are conflicting views expressed by two benches of this Court and considering the important question of law raised on the subject, this Court feels that it is necessary that the correct principle of law has to be resolved by a larger bench, since there are two contradictory decisions rendered by two Single Benches of the same Court on the same question of law involved. So the following question has to be considered for reference. Whether in view of the dictum laid down in the decision reported in Abraham v. State of Kerala [2000 (7) TMI 1013 - KERALA HIGH COURT], the earlier decisions of this Court reported in State of Kerala v. Scariah, Kunhikannan and Others v. Asst. Sub Inspector of Police [1985 (4) TMI 344 - KERALA HIGH COURT], Anthumayi v. State of Kerala [1998 (11) TMI 700 - KERALA HIGH COURT] and SUNIL AND ORS. VERSUS STATE OF KERALA AND ORS. [2014 (1) TMI 1930 - KERALA HIGH COURT] are having any binding effect and which of the dictum laid down is the correct law taking into consideration the presumption available under Section 6 of the Kerala Gaming Act.
Place it before the Honourable Chief Justice for making a reference to a larger bench to resolve this question.
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2018 (1) TMI 1712
Revenue receipts - income of cane society - Anshdan & Nirman Yojna Fund received for the sanctioned project and spent by the assessee - Tribunal come to the conclusion that grant in aid that was extended is for a specific purpose and expenditure, therefore, could not be termed as a revenue receipt so as to form part of the total income - HELD THAT:- As decided in UP. UPBHOKTA SAHKARI SANGH LIMITED. [2006 (8) TMI 148 - ALLAHABAD HIGH COURT] the amount in question was given by the State Government for specific purpose. It did not partake of the nature of income of the respondent-assessee. Even if it is to be treated as an income, it would not be liable to be taxed as it is stated that there was diversion of the income by way of overriding title on the said amount by way of a condition to distribute it as the salary to the employees of the bhandars.
The assessee in that case was also Cane Cooperative Society. In view of above, the questions of law are answered in favour of the assessee.
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2018 (1) TMI 1711
TP Adjustment - additions in respect of MSS fee paid by the assessee to its AEs - AR submitted that the assessee has entered into Advance Pricing Agreement (APA) u/s. 92CC of the Act with CBDT - contentions of the assessee is that in the past as well in the subsequent assessment years payment of MSS fee by the assessee to its AE has been accepted by the TPO/DRP at arm’s length and only for the assessment year under appeal that the TPO has raised doubt over rendering of such services by AE to assessee - HELD THAT:- There is no impediment on department in applying the terms and conditions of APA while considering international transactions in the assessment year not covered by the APA, but subject to the condition that the nature of international transactions should be identical in both the situations.
In view of the fact that the assessee has entered into APA with the Board, for the subsequent assessment years, without commenting on the merits of the adjustment made, we deem it appropriate to remit this file back to Commissioner of Income Tax (Appeals) to re-adjudicate the issue, in accordance with the aforesaid directions. Accordingly, the appeal of the assessee is allowed for statistical purpose.
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2018 (1) TMI 1710
Seeking quashment of charges - It is the case of the prosecution that the accused were running Gayathri Chits (A-1) and Selvam Finance (A-2) and they had collected deposits from about 37 persons to the tune of Rs.1,06,91,632/- and had defaulted in making the payment - Section 305 Cr.P.C. - HELD THAT:- The definition of the word "person" in Section 11 of the Indian Penal Code can be incorporated into the provisions of the Code of Criminal Procedure. In this case, there can be no cavil that Gayathri Chits (A-1) and Selvam Finance (A-2) fall within the definition of "person" as defined in Section 11 of the Indian Penal Code. Therefore, they can be prosecuted for the offences under the Indian Penal Code as well for the offences under the TNPID Act. This issue is no more res integra, in the light of the law laid down by the Supreme Court in IRIDIUM INDIA TELECOM LTD. VERSUS MOTOROLA INCORPORATED [2010 (10) TMI 85 - SUPREME COURT].
Who should represent Gayathri Chits (A-1) and Selvam Finance (A-2) before the Trial Court? - HELD THAT:- It is not the duty of the prosecution nor the Court to nominate the person to represent Gayathri Chits (A-1) and Selvam Finance (A-2). Section 305 Cr.P.C., clearly states that the accused Corporation may appoint a representative for the purpose of the inquiry or trial. Dictates of common sense demands that some human being must represent A-1 and A-2 to answer the charges, engage an advocate to defend them and answer the questions under Section 313 Cr.P.C., etc - liberty is given to Gayathri Chits (A-1) and Selvam Finance (A-2) to appoint anyone to represent them before the Trial Court and that can be one of the accused or an outsider also, but, with due authorization under the seal of Gayathri Chits (A-1) and Selvam Finance (A-2). However, this cannot be a ground for discharging the present petitioner/A-9 from the prosecution.
This Criminal Revision Case is devoid of merits and hence, it is dismissed.
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2018 (1) TMI 1709
Deduction u/s 80IB - exclusion only the net interest income after adjusting the interest expenditure from the profit eligible for deduction - HELD THAT:- It is observed that the case of Spring Merchandisers Pvt. Limited [2012 (8) TMI 1215 - ITAT AGRA] decided by the Agra Bench of this Tribunal and cited by the ld. D.R. is distinguishable on facts, inasmuch as, the interest income earned on FDRs in the said case was held to be chargeable to tax under the head “income from other sources” while interest expenditure constituted the business expenditure of the assessee.
In these facts and circumstances of the case, it was held by the Tribunal that netting of the income under one head of income against expenditure under the different head of income is not possible as per law. In the present case, interest income was offered by the assessee to tax as business income and even the interest expenditure was also claimed under the same head as business expenditure. As regards the case of Asian Cement Industries [2013 (1) TMI 178 - JAMMU AND KASHMIR HIGH COURT] cited by the ld. D.R., it is observed that even though the issue relating to the netting off interest was raised as question no. 3, the same apparently was not decided by the Hon’ble Jammu & Kashmir High Court specifically by giving any finding or conclusion.
On the other hand in the case of CIT –vs.- Warren Tea Limited [2015 (8) TMI 465 - CALCUTTA HIGH COURT] relied upon by the ld. CIT(Appeals) in his impugned order has upheld the principle of netting off of interest income against interest expenditure and although the said decision of the Hon’ble jurisdictional High Court was rendered in the context of computing business income of the term manufacturing unit as per Rule 8, we are of the view that the same analogy can justifiably be applied even in the present case to hold that only net interest income after adjusting the interest expenditure is liable to be excluded while computing the profit eligible for deduction under section 80IB.
Business of the assessee as eligible for deduction under section 80IB.
Disallowance under section 14A read with Rule 8D only on the investment in shares of Punjab National Bank
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2018 (1) TMI 1708
Non appearance by Assessee - neither the assessee nor its Authorised Representative attended the hearing; not filed any Application for adjournment by the Assessee - whether assessee is not interested in prosecution of its Appeals? - HELD THAT:- No useful purpose would be served to serve the notice again and again to the assessee. In view of above, it is thus inferred that the assessee is not interested in prosecution of its Appeals.
Having regard to Rule 19(2) of ITAT Rules and following various decisions of Delhi Bench of the Tribunal including that of Multiplan India Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] and Estate of Late Tukojirao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] we treat these appeals as unadmitted and dismiss the same. We would like to clarify that subsequently if the assessee explains the reasons for non appearance and if the Bench is so satisfied, the matter may be recalled for the purpose of adjudication of the Appeals.
Appeals of the assessee are dismissed in limine.
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2018 (1) TMI 1707
Liability of tds - payments were made to Government - whether the external development charges are payable by the petitioner under the Haryana Development and Regulation of Urban Areas Act, 1975 to the Government of Haryana or to any other party? - If it is to the Government of Haryana, it is possible that the exemption under Section 196 of the Income Tax Act, 1961 would apply - HELD THAT:- The petitioner states that it entered into the agreements in Forms LC-IV and LC-IV A. Prima facie, the agreements are with the Governor of Haryana.
In these circumstances, the petitioner shall pursuant to the impugned notice dated 22.01.2018 appear before the officer. Till further orders, the order, if any, however, shall not be given effect to.
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2018 (1) TMI 1706
Depreciation and society charges claimed on Housing accommodation - Disallowance made as these expenses are not incurred wholly and exclusively for the purpose of the Appellant's business - HELD THAT:- We find that the “E” Bench of the Tribunal in [2016 (2) TMI 1356 - ITAT MUMBAI] for the assessment year 2009-10 as held claim of the assessee was denied by the authorities below in the absence of the particulars of the person having not been provided by the assessee. In all fairness we are of the view that the matter needs to be looked into by the AO, in order to verify claims of the assessee. Following the principles of natural justice we may it fit deem to the restore this issue back to the file of the AO to verify the names of the employees to whom the premises have been allotted and in whose hands the perk has been offered. Reasonable opportunity of hearing shall be afforded to the assessee. The ground of appeal no. 4 raised by the assessee is thus allowed for statistical purposes
Adhoc disallowance being 5% of various expenses debited to the Profit & Loss A/c as not incurred wholly and exclusively for business purpose - HELD THAT:- While deciding the issue of ad–hoc disallowance of 5% out of various expenses, the Tribunal did not interfere in the matter and upheld the disallowance. Following the order of the Tribunal For assessment year 2008–09 we uphold the disallowance by dismissing the ground raised by the assessee.
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2018 (1) TMI 1705
Income chargeable to tax in India - Income attributable on account of PE - Transaction between the assessee and its AE found at arms length price on the issue of agent for space selling - HELD THAT:- Once no income chargeable to tax in India is attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arms length price, no further income chargeable to tax in India can be said to be attributable on account of PE. Accordingly, this issue is squarely covered in favour of assessee by the decision of Hon’ble Supreme Court in the case of E-Funds IT Solution Inc. [ [2017 (10) TMI 1011 - SUPREME COURT] and alsocase of Taj TV Ltd. [2016 (12) TMI 1291 - ITAT MUMBAI] and ZEE TV USA INC[2017 (11) TMI 1642 - ITAT MUMBAI]. Respectfully following the same, we allow the cross objections of the assessee.
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2018 (1) TMI 1704
Disallowance of loss on foreign exchange forward contract loss - Whether the said loss was a notional loss and hence cannot be allowed? - HELD THAT:- It is an agreed position between the parties that the issue raised herein stands concluded against the Revenue and in favour of the Assessee by the decisions of this Court in CIT v/s. M/s. D. Chetan & Co. [2016 (10) TMI 629 - BOMBAY HIGH COURT] and CIT v/s. M/s. Chaitya[2017 (7) TMI 1439 - BOMBAY HIGH COURT]
No substantial question of law.
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2018 (1) TMI 1703
Disallowance of Service Tax u/s. 43B - service tax was paid after the due date of filling of return of income and added to the total income of the Appellant - HELD THAT:- Issue decided in favour of assessee as relying on case of Knight Frank (India) (P) Ltd.[2016 (8) TMI 1096 - BOMBAY HIGH COURT] as held that it is an admitted position before us that the respondent assessee had not claimed any deduction on account of the service tax payable in order to determine its taxable income. In the above view, there can be no occasion to invoke Section 43B of the Act. Appeal filed by the assessee stands allowed.
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2018 (1) TMI 1702
Accrual of income - Disallowance on account of derecognized interest - HELD THAT:- As regards accrual of interest on sticky loans, the Hon'ble Supreme Court in the case of State Bank of Travancore Vs. CIT [1986 (1) TMI 1 - SUPREME COURT] held that interest accruing on sticky loans is taxable to Income tax on accrual basis.
Accordingly, the NBFC, as in the present case, has to follow the directions of the CBDT and as per the decision of various courts, NBFC including banks follow the cash basis of accounting for interest on sticky loans until they are recovered or the loan itself is written off. There is consistency in following the accounting principles by the assessee and therefore, derecognition of interest on NPAs is not something barred by the Income tax law.
Thus we find no infirmity in the order of the ld. CIT(A) who has rightly deleted the addition so made by the Assessing Officer. Thus, the sole ground of appeal raised by the Revenue is dismissed.
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2018 (1) TMI 1701
Exemption u/s 10(23)(c)(iiiab) - AO held that since no amount has been received from the Government the institute cannot be held to be eligible for exemption under section 10(23)(c)(iiiab) - HELD THAT:- As it is not in dispute that the assessee fulfils the twin conditions of:
a) university or other educational institution existing solely for the educational purposes and not for purposes of profit, and
b) which is wholly or substantially financed by the government. as stipulated under section 10(23)(c)(iiiab).
Since the assessee is wholly funded and owned by the Govt., the finance are being audit by the CAG, Punjab and the receipts are paid into consolidated fund of the Govt. the assessee is eligible for exemption under section 10(23)(c)(iiiab). Hence we decline to interfere with the order of the Ld. CIT(A). The appeals of the Revenue are dismissed.
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2018 (1) TMI 1700
Legal obligation to supply copies of documents to the accused - whether accused is entitled to copies of documents at the pre-charge evidence stage in a warrant case instituted on a private complaint? - violation of principles of natural justice - HELD THAT:- The Criminal Procedure Code makes a clear distinction between cases instituted on a police report and those instituted otherwise than on police report in the matter of supply of copies of documents relied upon by prosecution. In respect of a case instituted on a police report special provisions were made in Section 173(4) and Section 251A(1) for furnishing copies of documents to the accused by the Code of Criminal Procedure (Amendment) Act 1955 but no such corresponding provision was made in cases instituted on a private complaint by virtue of which it can be said that the complainant is bound either by an express provision of law or by necessary implication to furnish to the accused copies of documents produced by him along with the complaint or relied upon in support thereof - It cannot be said that non supply of copies of documents to the accused at the pre- charge stage will be prejudicial to his interest since it is open to the accused to look into the documents and cross-examine the witnesses before charge if necessary.
The ratio of the Judgment of the Supreme Court in Melwani's case [1968 (10) TMI 49 - SUPREME COURT] appears to be that the legislature has consciously provided two distinct procedures for trial of two different categories of cases depending upon their origination on the police report or otherwise. The procedure which is prescribed for cases originating on a police report and more particularly the provision of Section 173(4) of the Code cannot be introduced or extended to the trial of the other category of cases which are instituted on a private complaint - It is legally impermissible to extend the provisions of Section 173(4) Cr.P.C. to a case instituted on a private complaint. Mr. Mukherjee could not refer to any provision in the Criminal Procedure Code or any authority by virtue of which the accused would be entitled to copies of documents at the pre-charge evidence stage in a case instituted on a private complaint.
Evidently the provisions of Section 294 are not apposite for the issue in hand - the impugned order is not sustainable and is liable to be set aside - Petition allowed.
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2018 (1) TMI 1699
Dishonor of Cheque second time - insufficiency of funds - Seeking recovery alongwith pendente lite and future interest till the date of full realisation of the entire amount - HELD THAT:- Admittedly, the cheques issued under the Compromise Deed/Settlement Agreement dated 23rd December, 2016 have once again been dishonoured by the bank on the ground of ‘funds insufficient’ - Though the learned counsel for defendants has tried to argue various issues like jurisdiction and the plaintiff being a money lender, yet this court is of the view that such pleas cannot be entertained as no leave to defend has been placed on record till date.
In view of the Compromise Deed/Settlement Agreement which provides the consequence for default of repayment, this court is of the view that the suit has to be decreed in accordance with the prayer clause and the default clause in the Compromise Deed/Settlement Agreement - the present suit is decreed against the defendants jointly and severally for a sum of Rs.4,38,00617/- along with interest @24% per annum from 01st February, 2016 (date of filing of suit) along with pendente lite and future interest till the date of actual payment of the full amount after deducting payment of Rs.25 lacs paid by the defendants to the plaintiff on 06th January, 2018.
Since the defendants have not honoured their commitment despite Compromise Agreements being executed before various judicial forums, this Court is of the view that the defendants need to be saddled with exemplary costs of Rs.5 lacs, which should be paid to the plaintiff - Application disposed off.
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2018 (1) TMI 1698
Revision of order of Appellate Tribunal - levy of Additional Sales Tax - threshold monetary amount not reached - Whether, the Tribunal has erred in dismissing the review petition, filed by the State, without considering the principles of law, to be applied, while dealing with a review petition and also on the merits? - HELD THAT:- The Additional Sales Tax cannot be levied, since the taxable turnover for the whole year is below Rs.100/- Crores.
The Tax Case Revision is dismissed.
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2018 (1) TMI 1697
Levy of service tax - import of services - HELD THAT:- The learned single Judge by placing reliance on the law laid down by the Division Bench of the Bombay High Court INDIAN NATIONAL SHIPOWNERS ASSOCIATION VERSUS UNION OF INDIA [2008 (12) TMI 41 - BOMBAY HIGH COURT], which was confirmed by the Hon'ble Supreme Court in UNION OF INDIA VERSUS INDIAN NATIONAL SHIPOWNERS ASSOCIATION [2009 (12) TMI 850 - SC ORDER] allowed the writ petition filed by the respondent. There is no question of setting aside the order passed by the learned single Judge on the basis of a decision rendered by a learned single Judge of the Rajasthan High Court. The appellants have filed this appeal without any legal basis - When there is a judgment rendered by the Hon'ble Supreme Court interpreting the provisions of Service Tax, it is not open to the appellants to file an appeal by placing reliance on the decision of the High Court of Rajasthan. In fact, the decision rendered by the High Court of Rajasthan was much prior to the judgment rendered by the Hon'ble Supreme Court.
The High Court is flooded with litigations at the instance of the Government and the present case is a classic example as to how appeals are filed in a routine manner by placing reliance on the judgment of the High Court in a matter wherein, the issue is covered by the judgment of the Hon'ble Supreme Court.
Appeal dismissed.
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2018 (1) TMI 1696
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- By the admission of the corporate debtor, it is undisputed that corporate debtor has taken various financial credit facilities from the applicant-financial creditor and has withdrawn money from the financial creditor. By certified copy of the statement of account, Annexure 74, clearly shows that up to 30/9/2017 total amount of Rs.975,27,33,040.53 was due from the corporate debtor. Applicant/financial creditor has also filed Reserve Bank of India ‘s willful defaulter’s list annexed with the application as Annexure 77 - Corporate debtor has not raised any objection regarding default amount i.e. Rs.975,27,33,040.53. In spite of recalling the loan, the corporate debtor has failed to make payment and thereby committed default. Petitioner has filed this application in the proper format as prescribed in I & B Code and Adjudicating Authority Rules which is complete.
The petition filed by the financial creditor under Sec.7 of the Insolvency & Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in Sec.13 of the IBC, 2016.
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