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Showing 41 to 60 of 1764 Records
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2016 (11) TMI 1729
Seeking grant of bail - Illegal execution of warrant of arrest or not - illegal detention in custody or not - whether petitioner and other police staff poured kerosene from a jerrycan upon the deceased persons or the deceased person has committed suicide? - HELD THAT:- It is revealed that statements of the inmates of the family accused the petitioner to have caused death of the deceased persons, whereas the outsiders eye witnesses including one of the accused in other case who was inside the jeep and accompanied police officials gave different version saying self immolation by the deceased persons to avoid arrest. It is also revealed that one of the witnesses stated to have recorded the dying declaration of Sk. Sabir where he has named the present petitioner, but the treating physician stated that the deceased having 95% burn injury has no ability to talk.
It appears that the Investigating Officer has maintained both the above statements while opposing bail, but had recorded to the effect that "accused persuaded his mission to execute the N.B.W. issued by the court as a result of which the deceased persons committed self immolation which was with the knowledge of persuasion of the accused for which prima facie case under section 304 Part-II of the Indian Penal Code is made out". When the Investigating Officer has come to conclusion about a case of self-immolation of the deceased persons as per the statements of the eye witnesses, prima facie case is yet to be made out against the present petitioner. Whether self-immolation is within the knowledge of the present petitioner or not can be decided at the time of trial. It is too early to opine on the merit of the case, but as per discussions made above and the opinion of the Investigating Officer, it is the considered opinion of this Court that prima facie case against the petitioner for the purpose of granting bail is yet to be formulated.
Regard being had to the facts and circumstances of the case as discussed, including the nature of allegation and punishment prescribed for the alleged offence, let the petitioner be released on bail on furnishing bail bond of Rs. 1,00,000/- with two solvent sureties each for the like amount to the satisfaction of the court in seisin over the matter subject to condition imposed - bail application disposed off.
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2016 (11) TMI 1728
Penalty u/s 271(1)(c) - Defective notice u/s 274 - whether it is for concealment of income or for furnishing of incorrect particulars of income? - HELD THAT:- In New Sorathia Engg. Co [2006 (1) TMI 71 - GUJARAT HIGH COURT] it has been held that ‘where penalty order and order of Commissioner (Appeals) showed that no clear-cut finding had been reached as to whether penalty under section 271(1)(c) was being levied for concealment of particulars of income by assessee or whether any inaccurate particulars of income had been furnished, order of penalty could not be sustained.
In CIT vs. Smt. Kaushalya [1995 (1) TMI 25 - BOMBAY HIGH COURT] has held that ‘The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charges he had to face. In this background, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.’
We hold that the notice issued by the AO u/s 274 r.w.s. 271 for the AY 2003-04 for initiating penalty proceeding u/s 271(1)(c) of the Act in the present case is invalid. The order of the CIT(A) directing the AO to impose penalty u/s 271(1)(c) is thus set aside. Appeal filed by the assessee is allowed.
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2016 (11) TMI 1727
Penalty u/s 271(1)(c) - Defective notice u/s 274 - whether it is for concealment of income or for furnishing of incorrect particulars of income? - HELD THAT:- In New Sorathia Engg. Co [2006 (1) TMI 71 - GUJARAT HIGH COURT] it has been held that ‘where penalty order and order of Commissioner (Appeals) showed that no clear-cut finding had been reached as to whether penalty under section 271(1)(c) was being levied for concealment of particulars of income by assessee or whether any inaccurate particulars of income had been furnished, order of penalty could not be sustained.
In CIT vs. Smt. Kaushalya [1995 (1) TMI 25 - BOMBAY HIGH COURT] has held that ‘The vagueness and ambiguity in the notice had also prejudiced the right of reasonable opportunity of the assessee since he did not know what exact charges he had to face. In this background, quashing of the penalty proceedings for the assessment year 1967-68 seems to be fully justified.’
We hold that the notice issued by the AO u/s 274 r.w.s. 271 for the AY 2003-04 for initiating penalty proceeding u/s 271(1)(c) of the Act in the present case is invalid. The order of the CIT(A) directing the AO to impose penalty u/s 271(1)(c) is thus set aside. Appeal filed by the assessee is allowed.
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2016 (11) TMI 1726
Refund of CENVAT Credit - input services utilised for manufacture of goods at nil rate of duty supplied to the SEZ as well as exported - Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- There is an exception provided in sub-rule (6) of Rule 6 of Cenvat Credit Rules, 2004 to the application of sub-rule (1) to (4) thereof. Clearances made to SEZ are not governed by the denial provision. Appellant’s submission is therefore certainly correct to say that any attempt to deny the refund of input credit shall make the services or goods exported costlier and will amount to export or deemed export of taxes which is not permitted in international trade practice as well as supply to SEZ domestically.
Therefore, denial of refund to the appellant by the application of Rule 5 of Cenvat Credit Rules, 2004 is not reasonable, for which, the order of the authority below is set aside - appeal allowed.
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2016 (11) TMI 1725
Dishonor of Cheque - return of packet with the endorsement "unclaimed" - good service of statutory notice or not - HELD THAT:- There is a well-established presumption that the return of packet with the endorsement "unclaimed" is good service. Obviously, this means that an intimation of the packet was left with the Defendant at Navi Mumbai address and the Defendant was required to claim that packet. This is settled by a long line of authority on an interpretation of Section 27 of the General Clauses Act and Section 114 of the Evidence Act.
The Defendant has been properly served in view of the substituted service effected in Gurgaon; and, in any event, the presumption against the Defendant regarding service being effected in Navi Mumbai must also be drawn since the packet was properly despatched as required through the Sheriff's office and has been returned 'unclaimed'.
List the Suit for ex parte decree on 9th December 2016.
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2016 (11) TMI 1724
Validity of order passed u/s.143(3) r.w.s.153B(1)(b) - there was a search at the premises of the assessee, wherein incriminating documents and jewellery were found - addition was made by the AO on account as alleged to be received by assessee on account of payment from Natvar Parikh & Co. in addition to consideration mentioned in settlement deed for transfer of shares of NPCL - AR raised an additional ground to the effect that amount of capital gain so offered by the assessee was received out of family settlement, therefore, not liable to tax - CIT- A deleted the addition - HELD THAT:- These jewellery were acquired by the assessee out of drawings. Considering the withdrawals made by the assessee during the year amounting to Rs.43,14,569.30 towards personal expenses and the income declared by the assessee amounting to Rs.2,81,83,911/-, we do not find any merit for the addition of Rs.74,565/- so made by AO.
As assessee has not filed any revised return with regard to the capital gains originally offered in the return of income, the AO has declined to consider assessee’s claim of amount having been received under family settlement and not liable to tax. By the impugned order the CIT(A) confirmed the action of AO. From the record we found that during the year assessee sold shares of NPCL to the company itself, under a family arrangement scheme, endorsed by Company Law Board's order dated 30.03.2006, 13.04.2006 & 26.02.2007. Long term Capital gain arising out of said sale is Rs.16,23,94,604/-. Assessee invested the same in house property u/s 54F and residual amount of Rs.2,08,64,396/- was offered for capital gain and paid taxes accordingly. Assessee filed its return of income for the present year under assessment on 01.08.2007 declaring a total income of Rs. 2,81,83,911/- which includes the said capital gain. The said return was filed voluntarily by the assessee u/s 139 (1). No revised return has been filed by the assessee till date.
In view of the decision of Hon’ble Supreme Court in case of National Thermal Power Co. Ltd. [1996 (12) TMI 7 - SUPREME COURT] we accept the additional ground raised which is purely legal in nature. All the related facts are already on the record of the lower authorities, therefore, there is no hesitation in accepting the legal ground.
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2016 (11) TMI 1723
TDS u/s 194J OR 194C - ‘assessee in default’ in terms of section 201 and interest u/s 201(1A) - non-deduction of tax at source for payments made towards interconnect charges (including port charges, access charges, roaming charges and pass through charges) - HELD THAT:- As relying on own case [2015 (9) TMI 1358 - ITAT KOLKATA] for carrying out any work, manpower is sine qua non and without manpower, it cannot be said that work has been carried out. Under section 194C each and every work/service is not covered, hence the nature of work done or service performed is required to be seen. Moreover, the term 'work' is defined in section 194C of the Act. The word 'work' in section 194C referred to and comprehends only the activities of workman. It is the physical force which has comprehended in the word 'work'. We have already held that the payment of roaming charges does not require any human intervention. Hence in the absence of human intervention, the services rendered in the context of the impugned issue does not fall under the definition of 'work' as defined in section 194C and hence the provisions of section 194C are not applicable to the impugned issue.
We find that there is no dispute on the non-applicability of provisions of section 194I of the Act in the instant case. We also draw support of our finding from the decision of Delhi Tribunal in the case of Bharti Airtel Limited & Anr [2016 (3) TMI 680 - ITAT DELHI] wherein they have held that the subject mentioned payments do not fall under the ambit of ‘fee for technical services’ or under ‘royalty’ u/s 194J of the Act.
We hold that there is no obligation to deduct tax at source for the assessee payer in terms of section 194C or 194J of the Act and hence the assessee cannot be treated as ‘assessee in default’ u/s 201 of the Act. Hence consequentially the interest u/s 201(1A) of the Act cannot be charged on the assessee in the instant case - Assessee appeal allowed.
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2016 (11) TMI 1722
Deduction u/s 80P - HELD THAT:- While dealing with Tax Case Appeal [2016 (9) TMI 952 - MADRAS HIGH COURT] a Division Bench of this Court to which one of us (Nooty. Ramamohana Rao, J) is a member, had occasion to consider the very same substantial questions of law which have fallen for consideration in this appeal and those substantial questions of law were answered in favour of the Assessee and against the Revenue, as the Assessee is a mere Co-operative Society but not a Co-operative Bank.
We have not found any error committed by the AO the Appellate Authority and the Tribunal in coming to the conclusions to which they have arrived at. We subscribe to the same reasoning and accordingly, we dismiss this Tax Case Appeal.
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2016 (11) TMI 1721
Exclusion of subsidy from the deduction claimed u/s. 80IA - assessee has received subsidy from the State Government in respect of the Capital Assets acquired on or before 31.03.2003 - very purpose of sanction of capital subsidy was to meet the project cost to set up Solid Waste Disposal Project and complete the project - HELD THAT:- As relying on case MEGHALAYA STEELS LTD [2016 (3) TMI 375 - SUPREME COURT] the subsidy received from the State Government is nothing but the recoupment of the cost and hence eligible for the deduction u/s. 80IA of the Act. Common Grievance No. 1 is accordingly allowed.
Exclusion of interest income from the deduction claimed u/s. 80IA - HELD THAT:- A perusal of the financial statements vis-à-vis the computation of income shows that the only head of income shown in the return is “profits and gains of business or profession”.A.O. has also proceeded by computing the assessed income taking the figure from “profits and gains of business or profession”. This means that the A.O. has admittedly accepted the miscellaneous income under head “profits and gains of business”.
As explained that the appellant-company had set aside the amount for expenditures to be incurred for inherent cost relating to the maintenance of the pits. Therefore, the interest income has a direct nexus with the business activity of the assessee, therefore eligible for deduction u/s. 80IA. As in the case of Empire Pumps Pvt. Ltd. [2014 (11) TMI 563 - GUJARAT HIGH COURT] held that interest income is held to be eligible for deduction u/s. 80IA.
Disallowance of provision for Pit Covering Expenses - assessee explained that the liability to incur expenditure on pit covering arises as soon as the pits were dug and the pits are required to be covered after each pit is completely filled as per guidelines issued by GPCB - A.O. denied the contention of the assessee on the ground that the pit is closed immediately and, therefore, the difference between the provision and the amount actually spent could not be explained properly - HELD THAT:- We direct the A.O. to allow the provision for pit covering expenses in totality.
Computation of book profit u/s. 115JB - Hon’ble Supreme Court in the case of Appollo Tyres Ltd. [2002 (5) TMI 5 - SUPREME COURT] held that “while determining the “book profits” u/s.115J, the Assessing Officer could not recompute the profits in the profit and loss account by excluding provisions made for arrears of depreciation”. Assessing Officer has to accept the authenticity of the accounts with reference to the provisions of the Companies Act, which obligate the company to maintain its account in a manner provided by that Act and the same to be scrutinized and certified by statutory auditors and approved by the company in general meeting and thereafter to be filed before the Registrar of companies who has a statutory obligation also to examine and be satisfied that the accounts of the company are maintained in accordance with the recruitments of the Companies Act. Sub-section (1A) of section 115J does not empower the Assessing Officer to embark upon a fresh enquiry in regard to the entries made in the books of account of the company.
Disallowance of Post Closure Expenses - HELD THAT:- As in the light of the stipulation of Gujarat Pollution Control Board and the Scientific Working we direct the A.O. to allow the post closure expenses. Common grievance is allowed.
Disallowance of deduction u/s. 80IA on account of land and pit construction expenses - HELD THAT:- As the company is in the new line of business, there is no established practice of determining exact expenses incurred on the process of treatment of solid waste. Accordingly, in the beginning year, the company has estimated expenses in relation to the treatment of Solid Waste Management by applying available best parameters and accordingly charged of the expenses to Profit and Loss account of the respective years. Gradually, the company developed scientific method of estimation of expenses and accordingly the company has revised its working to arrive with the exact expenses.
As the revised computation is scientific. We further find that the expenditures claimed in the earlier years were allowed by the revenue. Therefore, write back of the same has a direct nexus with the business activity of the assessee. Hence, the assessee is eligible for the deduction u/s. 80IA of the Act. Ground no. 1 is accordingly allowed.
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2016 (11) TMI 1720
Powers of the Commissioner (Appeals) - Deduction u/s 80IB(10) denied - income in respect of housing project namely, 'Kamdhenu Siddhi' being developed by the assessee at Kothrud, Pune - AO denied the claim of deduction on the ground that the assessee has not fulfilled the conditions prescribed in section 80IB(10) by not completing the project before the stipulated date - AO also disallowed the compensation paid to the flat owners on the ground that in the agreement done before the Sub-Registrar office it is nowhere written that if the assessee fails to give possession to the flat owners he will be liable to pay compensation - CIT(A) set aside the issue to the file of the Assessing Officer with certain directions - submission of the assessee that after the amendment by the Finance Act, 2001 to the provisions of section 251(1)(a) the CIT(A) has no power to set aside the issue to the file of the Assessing Officer for reconsideration - HELD THAT:- CIT(A) should have decided the issue himself instead of setting aside the matter to the file of the Assessing Officer since he has no power to set aside the matter to the file of the Assessing Officer in view of the amendment to provisions of section 251(1)(a) by the Finance Act, 2001 w.e.f. 01-06-2001. We therefore are of the considered opinion that the matter requires re-visit to the file of the CIT(A) who shall decide the issue himself after obtaining a remand report from the Assessing Officer, if necessary. He shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. Grounds raised by the assessee as well as the revenue are accordingly allowed for statistical purposes.
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2016 (11) TMI 1719
Reopening of assessment u/s 147 - Submission of objections so made against reopening of assessment - HELD THAT:- In the light of the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd.[2002 (11) TMI 7 - SUPREME COURT] the petitioner/assessee is entitled to submit their objections to the reasons for reopening. It is only thereafter the respondent has to pass orders either accepting or rejecting the objections so made. Therefore, at this stage of the matter, the question of quashing the impugned notice does not arise in the light of the fact that after issuance of the impugned notice, by a communication dated 24.10.2016, the respondent communicated the reasons for reopening. Therefore, the petitioner has to comply with the directives of the Hon'ble Supreme Court in the decision in GKN Driveshafts and follow the procedure contemplated therein.
Writ petition is disposed of granting 15 days' time from the date of receipt of a copy of this order, to the petitioner to submit his objections to the reasons for reopening communicated by proceedings dated 24.10.2016. On receipt of the objections, the respondent shall consider the same and pass a speaking order on merits and in accordance with law, within a period of 10 days thereafter.
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2016 (11) TMI 1718
Rectification of mistake u/s 254 - excess addition on account of ‘on–money’ - whether the Tribunal is duty–bound to grant relief to the assessee as claimed during the hearing on the basis of the case eventually found by it, even if there is no specific ground of appeal raised before it in support of such relief.? - HELD THAT:- When an appeal from an assessment is brought before the Tribunal under Section 254(1) of the Act, all questions arising there-from, including questions which are incidental or consequential to such assessment, are open to be agitated before the Tribunal. The Tribunal is empowered to “pass such orders thereon as it thinks fit”. It is one thing to say that the Tribunal must confine itself to the subject matter of the appeal and not go beyond it, but quite another to say that whilst deciding such subject matter it cannot consider questions which are incidental to, or would follow as a consequence of, its determination. If the Tribunal rejects the assessee's case on a particular ground, and if such ground affords a certain relief to the assessee without his having to ever any new facts, such relief cannot be denied on the footing that the assessee never claimed it. If the assessee did not claim it, the Tribunal must grant it suo motu, as a matter of law, if the relief does follow as a legal incident.
Our Court held that the alternative submission did not amount to raising of an additional ground of appeal but the submission was a different facet of the same controversy; it was merely consequential to the finding of the tribunal against the assessee.
The submission would not arise in case the tribunal accepts the assessee’s contention for deduction of the amount as revenue expenditure; but where the tribunal turns down the assessee’s claim and holds it to be capital expenditure, “it is the duty of the Tribunal, even without an alternative submission, to pass necessary consequential orders, suo motu, to give further directions in the matter as the situation may warrant”.
We are of the view that the Tribunal was bound in law to consider the alternative plea raised by the assessee at the hearing of the appeals. The question now is, what relief should be granted on the applications before us. The miscellaneous application taken out before the Tribunal by the assessee clearly brings out an error apparent on record insofar as the original order passed by the Tribunal is concerned. It is particularly so since both the decisions in CIBA India [1993 (1) TMI 35 - BOMBAY HIGH COURT] and Mahalakshmi Textile Mills [1967 (5) TMI 4 - SUPREME COURT] were already available when the Tribunal considered the matter. We are, therefore, of the view that it would be more appropriate to allow the miscellaneous application and direct the Tribunal to consider the alternative plea of the assessee in the light of what we have stated above. Since the final order of the Tribunal on the appeal can only be crystallized after the plea is so considered by the Tribunal, the Reference may have to be returned unanswered.
The writ petition is, accordingly, allowed and the impugned order passed by the Tribunal on the miscellaneous application to the extent it relates to assessment years 1987-88 and 1988-89, is set aside and the miscellaneous application is allowed by directing the Tribunal to consider the alternative plea raised by the assessee in the light of what we have observed above. The Tribunal shall now decide the appeal on merits.
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2016 (11) TMI 1717
Seeking interim injunctions - several uncalled for letters/ complaints to bank authorities, the accounts of the company (R-1) could not be operated - HELD THAT:- It is deemed justifiable to pass an interlocutory order granting interim injunction - application disposed off.
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2016 (11) TMI 1716
Bogus purchases - assessee had obtained bogus purchase bills from 14 parties which were stated to be hawala operators - assessee contended that he was engaged in extensive projects and in need of huge quantity of materials to speed up the work of the projects towards completion which made the assessee to make purchases from dealers who offered fine quality of material at rational rates along with early delivery of the goods and thus the assessee, in hasten, did not inquire much about the genuineness of the dealers and their background in respect of default with the sales tax / VAT department - HELD THAT:- The Tribunal, in all such cases, has invariably taken a stand that when GP/NP rates are comparable and sales figures are not disputed by the revenue then entire purchases do not deserve disallowance rather some ad hoc disallowance ranging from 5% to 12.5% has been found to be a reasonable estimation of profit element embedded in the bogus purchases particularly when material consumption factor do not show abnormal deviations. We also observe that CIT(A) has enhanced the amount of bogus purchases with respect to three more parties aggregating to Rs.1,58,00,987/- without confronting the same to the assessee.
We direct that assessee shall suffer disallowance with respect to bogus purchases to the extent of 10% of Rs.2,47,15,690/- as against full disallowance made by AO. The same comes to Rs.24,71,569/-. CIT(A) has enhanced bogus purchases with respect to three parties, two of which already figure in the list of AO. Therefore, no further additions shall be made against party at Serial No. 2&3 of the above table. Qua first party namely “M/s Ramex Trading Impex Pvt. Ltd.” for Rs.69,90,308/-, the matter is remitted back to the file of CIT(A) for fresh adjudication after providing suitable opportunity of being heard to the assessee. The assessee is directed to substantiate its claim before CIT(A) forthwith, failing which CIT(A) shall be at liberty to decided the issue on the basis of material available on record. The appeal of the assessee is thus partly allowed.
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2016 (11) TMI 1715
Dishonor of Cheque - seeking to recall the order - compromise subsequently entered between the parties - acquittal of the accused-petitioner for the offence under Section 138 of N.I. Act - HELD THAT:- On going through the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent-complainant, it is found to be a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled.
Application allowed.
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2016 (11) TMI 1714
Rejection of books of accounts - applying GP rate of 35% as against 18.71% shown by the assessee - non-maintenance of item-wise detail of jewellery purchased and sold - adoption of Weighted Average Cost (WAC) method for valuation of stock was found incorrect and the FIFO method was found to be appropriate as a consequence, the stock of gold was found undervalued - HELD THAT:- On perusing the order of the I.T.A.T. in the case of M/s Sunny Jewellery House [2016 (5) TMI 1579 - ITAT CHANDIGARH], we find that the facts in that case were identical to that in the present case, where the books of accounts of the assessee, a jeweler, were rejected for identical reasons as stated in the assessee’s case being non-maintenance of item-wise detail of jewellery purchased and sold and stock of the same as also incorrect method of valuation of stock adopted being WAC as against FIFO adopted by the Assessing Officer. The Hon'ble I.T.A.T., in that case, after relying on the order of Jagdish Chand [2003 (6) TMI 441 - ITAT CHANDIGARH] had held that there was no infirmity in the order of the CIT (Appeals) in deleting the addition made. - Decided against revenue.
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2016 (11) TMI 1713
Interest income from the sister Concern - assessee had borrowed an amount from the Andhra Bank in the financial year 2010-11 on interest @18.25 p.a., out of which partial amount was advanced by the assessee to sister concern MDC @12% p.a - as per DR amount of interest paid to Andhra bank ought to have been capitalised to WIP as the amount was borrowed for working capital - HELD THAT:- Assessee has borrowed the said amount from Andhra Bank for the purpose of working capital facilities which is used for making advance of ₹ 8 crores to MDC and also for other purposes for meeting administrative expenses. It is stated that assessee has advanced the said amount to MDC for commercial expediency and placed reliance on the decision of the Hon’ble Supreme court in the case of SA Builders Limited [2006 (12) TMI 82 - SUPREME COURT]
The assessee is partner in MDC entitled for 50% share in profits and the said concern is also engaged in real estate and construction. The Revenue could not controvert the said contention of the assessee that the said amount was advanced keeping in view commercial expediency as stated above, thus keeping in view our above detailed reasoning, we are of the considered view that the addition made by the Assessing Officer by disallowing the interest expenses and adding the same to WIP is not sustainable keeping in view peculiar facts and circumstances of the case.
The revenue is also not able to show that inventories are acquired out of borrowings and interest is to be capitalised keeping in view AS-16 issued by ICAI. The AS-2 issued by ICAI clearly stipulates that generally the interest shall not be added to the inventories as the same does not usually bring the inventories to the present location and condition The assessee has earned interest income from MDC f ₹ 3,37,40,072/- which is offered for taxation, while interest paid for Andhra Bank on OD is ₹ 1,59,27,795/- and hence there is net interest income which had been earned by the assessee. We have also noted a peculiar fact that advances received from customer by the assessee as at 31-03-2012 is ₹ 68.57 crores, while closing WIP is ₹ 45.04 crores, thus advances from customer received by the assessee are higher than closing WIP as at 31-03-2012. Thus, keeping in view our detailed discussions and reasoning as set out above, we donot find any infirmity in the appellate order of the learned CIT(A), which we confirm and refuse to interfere - Appeal of revenue dismissed.
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2016 (11) TMI 1712
Maintainability of appeal - Court has no jurisdiction to entertain and adjudicate the appeal and that the same is required to be filed before the Supreme Court in view of the provisions of Section 130E of the CA, 1962 - whether the present case falls within the ambit of Section 130 of the Act or not? - it was held by Gujarat High Court that the appeal squarely falls within the ambit of Section 130 of the Act and has, therefore, rightly been filed before this Court.
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court.
The High Court is at liberty to decide the issue on merits - SLP disposed off.
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2016 (11) TMI 1711
Deduction u/s 80-IB - Difference between the amount claimed by the assessee u/s 80-IB of the Act and the deduction allowed by the AO - different method of apportionment of expenditure followed by the AO - HELD THAT:- There is merit in the submissions of the assessee, as the proposition canvassed by the assessee are supported by Judgments cited above and the facts narrated by him above.
AR has also pointed out that the assessee has been following the method for allocation of common selling and office expenses since long. Therefore the assessee under consideration has been following consistent basis for allocation of common selling expenses and head office expenses. The method adopted by the assessee has been confirmed by the ld. CIT(A) and also confirmed by the Jurisdictional ITAT Kolkata. The AO while making the assessment did not accept the basis for allocation of common selling and head office expenses adopted consistently by the assessee and he has not accepted the orders of the Kolkata Bench of Tribunal. Since the issue is squarely covered in favour of the assessee by the orders passed by the Kolkata Bench of the Tribunal in the preceding previous years, therefore we do not hesitate to confirm the order passed by the ld. CIT(A). Appeal of the revenue is dismissed.
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2016 (11) TMI 1710
Claim of exemption u/s 10(38) - capital gains arising from redemption of Deep Discount Bonds - Denial of exemption as capital assets was not in the nature of an equity share in a company or a unit of an equity orient fund subject to various other stipulations therein - whether the impugned redemption income is to be treated as capital gains or interest income from securities? - HELD THAT:- There is no dispute that assessee had acquired the Deep Discount Bonds in question way back on 11.01.1994. It has come on record that the CBDT Circular dated 15.02.2002 applicable from prospective effect only has directed the field authorities to treat such bonds redemption income as interest income. The CIT(A) relied upon the Board’s press note dated 20.03.2002 that the above circular would have prospective effect only.
We further notice that a co-ordinate bench decision in C. S. Goslla [2008 (7) TMI 1083 - ITAT MUMBAI] holds the very Deep Discount Bonds as capital assets. We thus find no force in Revenue’s argument that the impugned redemption income has been wrongly treated as capital gains in the lower appellate’s proceedings.
Assessee’s corresponding first argument seeking to assess his redemption income as interest income on mercantile basis also has not merit since the above Deep Discount Bonds have been declared in the original return as capital assets only. The assessee claimed redemption income therefrom as capital gains u/s.10(38) of the Act in his return filed. We thus find no reason to accept his first argument adopting a different stand at this stage without any tangible basis. The Revenue’s only argument fails.
Non cost indexation benefit qua the above Deep Discount Bonds whilst treating income therefrom as capital gains - We notice that the lower appellate authority has placed reliance on Section 48 third proviso stipulating that second proviso thereto regarding indexed cost of acquisition shall apply to long term capital gains arising from transfer of a long term capital asset being bond or debenture and so on. Ld. counsel fails to dispute the application of this proviso restricting the ambit and scope of the other proviso regarding indexation cost computation. This assessee’s argument also meets the same outcome.
Entitlement for assessment of his capital gains arising from redemption of Deep Discount Bonds at a flat rate of 10% u/s.112 - We find no reason to concur with the same as this proviso itself stipulates that where the tax payable in respect of any income arising from the transfer of a long term capital asset in the nature of listed security other than a unit or zero coupon bond exceeds 10% of the amount of capital gains before giving effect to provisions of second proviso to Section 48, then, such excess shall be ignored for the purpose of computing the tax payable by the assessee. It has already come on record that second proviso to Section 48 of the Act is itself not applicable as per third proviso discussed hereinabove. We thus observe that this assessee’s last argument also deserves to be declined since the above proviso to Section 112 applies before giving effect to the provisions of second proviso to Section 48 which admittedly is not the case here.
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9911796707
