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2016 (12) TMI 1878
TDS u/s 195 - Disallowance of commission u/s 40(a)(ia) - HELD THAT:- As decided in own case [2016 (2) TMI 1339 - ITAT JAIPUR] CIT(A) has given a clear finding that the services rendered and expenditure incurred is in the nature of commission. Given the fact that the commission has been paid in relation to export of garments outside India and the fact that the no services have been rendered in India we are unable to accede to the arguments of the Ld. DR that the subject payments are taxable in India. Assessee paid commission in relation to export of garments as apparent from the agreement as well as working of the commission payments. Accordingly, provisions of section 195 are not attracted in the instant case - Decided in favour of assessee.
Addition made for depositing the employee’s contribution to PF &ESI beyond the prescribed time limit provided in the respective Acts - HELD THAT:- As employees contribution to ESI and PF has been paid before filing of the return of income u/s 139(1) of the IT Act. In view of the consistent stand taken by this Bench and respectfully following the decision of the Hon’ble Rajasthan High court in the case of State Bank of Bikaner and Jaipur [2014 (12) TMI 65 - RAJASTHAN HIGH COURT] and others, the ground taken by the Revenue is dismissed and assessee’s cross-objection is allowed.
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2016 (12) TMI 1877
Provisional release of vehicle - drill ship - vessel is deployed for operations of ONGC in India - HELD THAT:- Mr. Jetly, on instructions, has stated that so long as the vessel is deployed for operations of ONGC in India, the respondents would have no objection for such deployment within India. However, Mr. Jetly submits that in the event the vessel is required to be moved out of India, the petitioners would have to take all the requisite steps in accordance with law for obtaining the clearance from the Competent Authorities for such movements.
The notice of motion is disposed off.
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2016 (12) TMI 1876
Addition on account of unexplained investment u/s 69 - parties were alleged to be paper-company of M/s. M.D. Patel Group - HELD THAT:- Similar issues reached ITAT in various cases including Smt. Alkaben Amrutram Guru and Smt Kanchanlal Natwarlal Rana [2016 (8) TMI 1563 - ITAT AHMEDABAD] as observed that these assessees are connected to M/s. M.D. Patel Group thus facts about Settlement Commission owning up of the income by the kingpin M/s. M.D. Patel Group etc. are not on the record. In view thereof these appeals are set aside and restored back to the file of the Assessing Officer to call the assessees to demonstrate that the subject matter raised in these appeals is covered by the alleged settlement petition of M/s. M.D. Patel Group and the result thereof. It is made clear that the Assessing Officer will verify necessary records and the assessees will fully co-operate in this matter. In case of non-cooperation by the assessees, the ld. Assessing Officer will be at liberty to take appropriate view in accordance with law. Accordingly, both the appeals are allowed for statistical purposes.
Addition of additional grounds - addition made on unexplained gifts received by the assessee and on substantive basis on account of alleged unexplained capital/interest income/donation etc - HELD THAT:- All these issues involve Settlement Petition and income owned up by M/s. M.D. Patel Group in respect of all the constituents. It is not disputed that the assessee is connected to M D Patel Group and the fact that the additions in question are subject matter of reassessed income as well as impugned reframing of assessment u/s 143(3) r.w.s. 263 of the Act. The doubt of ld. DR that the additional grounds will require verification of fresh evidence and facts seems to be out of place inasmuch as the relevant record of the Settlement Petition and other relevant evidence is on the record of the AO in multiple proceedings. In any case, host of assessments are being set aside and restored back to the file of AO in view the Settlement Petition and owning up of income by M/s. M.D. Patel Group. Consequently the application for admission of additional grounds deserves merit.
In consideration of entirety of facts and circumstances, contentions and judicial precedents relying on the judgments of National Thermal Power Corporation & Jute Corporation of India Ltd (supra), the additional grounds as raised by the assessee are admitted.
Following the ITAT judgment in the case of Smt. Alkaben Amrutram Guru and Kanchanlal Natwarlal Rana (supra) to which the undersigned is a party, the assessments are set aside which will include the admitted additional grounds as above
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2016 (12) TMI 1875
Penalty u/s.271E - violation of Section 269T - assessee has repaid a loan in cash - assessee explained that he is a partner in the said firm and it is a payment between partner and his firm and pleaded that Section 269T is not applicable - HELD THAT:- As decision in the case of CIT vs Lokhpat Film Exchange (cinema) [2007 (1) TMI 165 - RAJASTHAN HIGH COURT] held under the general provision relating to Partnership Act that partnership firm is not a juristic person and for inter relationship different remedies are provided to enforce the rights arising out of their inter se transactions, the issue about separate entities apart, it cannot be doubted that the assessee has acted bona fide and his plea that inter se transactions between the partners and the firm are not governed by the provisions of ss. 269SS.
We find that the CIT-A found examined and satisfied that the assesse is a partner in a firm i.e M/s.C.M.Roy & Sons and the AO also during the course of assessment proceedings on perusal of the ledger account in respect of advance receipt and payment found that the Assessee credited as advance from customers with an endorsement “To advance memo no- to- from customers” and also found the entire sale to M/s.C.M.Roy & Sons.
The assessee takes advances from its customers and makes payment to its firm time to time for meeting the business needs. We hold that the money received or paid in the above circumstances specially between the partners and its firm can be treated in the nature of advance and not loan or deposit as contemplated in sec.269SS of the Act and that the payments between the partnership firm and its partner and vice versa are payment to self. As discussed above the advances received by the assessee were from proper source and there is no doubt the genuineness of the transactions. In such circumstances, the penalty imposed u/s.271E of the Act is not maintainable - we cancel the penalty levied by the A.O. u/sec.271E - Decided against revenue.
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2016 (12) TMI 1874
Disallowance of expenses deducted as cost of Employees Stock Auction Plan (ESOP) - Revenue contends that the assessee/Revenue fell into error inasmuch as even though took note of the decision of this Court for the previous year as relied on CIT Vs. Oswal Agro Mills Limited [2015 (11) TMI 301 - DELHI HIGH COURT] has not applied the law correctly - HELD THAT:- The judgment in Commissioner of Income Tax Vs. Havells India Limited [2012 (5) TMI 449 - DELHI HIGH COURT] was considered specifically in Oswal Agro’s case [2015 (11) TMI 301 - DELHI HIGH COURT] i.e. decided on 04.08.2015. Havells’case (supra) had taken note of the various judgments including Punjab State’s case [1996 (12) TMI 6 - SUPREME COURT]. Moreover, this Court notices that the question of law arose only for two years i.e. Assessment Years 2008-09 and 2009-10. There were previous orders which cover Assessment Year 2008-09. In the circumstances, having regard to the overall circumstances and the fact that the previous orders took note of the relevant judgments, it is held that no substantial question of law arises. Appeal dismissed.
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2016 (12) TMI 1873
Disallowance u/s 14A - Assessee had received dividend income and claimed it as exempt - HELD THAT:- AO has clearly stated in the assessment order that from the books of account of the assessee it was not possible to work out the exact amount of expenses incurred by it in earning the exempt income. Under these circumstances, it would be difficult to hold that the aforesaid rule has been invoked by the AO without recording any satisfaction. Thus, this argument of the assessee is rejected.
We find force in argument of assessee that investment in the subsidiary / group companies should be excluded while working out the average amount of investments since investment in these companies have been made not for the purpose of earning exempt income but for acquiring control and for strategic reasons. As relying on Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT], CIT vs Oriental Structural Engineers Pvt Ltd [2015 (3) TMI 102 - DELHI HIGH COURT], Garware Wall Ropes Ltd [2015 (2) TMI 628 - ITAT MUMBAI] and JM Financial Ltd [2014 (4) TMI 752 - ITAT MUMBAI]. Therefore, the AO is directed to exclude the amount of investment made in the group companies for strategic reasons. For this limited purpose, this issue is sent back to the file of the AO, who shall decide this issue afresh s a result, ground 1 is partly allowed.
Disallowance applying provisions of section 40A(2) with regard to the goods purchased from M/s Ganesh Polychem Ltd. - HELD THAT:- AO has rightly brought out the facts that the rates charged by the sister concerns were exorbitant in comparison to other independent concerns. It is noted that the rates charged by M/s.Ganesh Polychem Ltd were almost double the uncontrolled rates. Therefore, under these circumstances, there was heavy burden upon the shoulder of the assessee to show that when the purchases were made from M/s.Ganesh Polychem Ltd in March / April, 2007, then at that time, the rates in the open market were equivalent to the price charged by the sister concern. No such evidence was brought on record by the assessee. Under these circumstances, it would be very difficult to believe that within two months period, the rates were reduced to half in the open market. In any case, no such evidence was brought on record by the assessee. It is also noted that the Ld. CIT(A) has already given appropriate relief by re-working the amount of disallowance at correct rates. We do not find any need for making any further interference in the order of the Ld. CIT(A) on this issue and, therefore, the same is hereby upheld. This ground is dismissed.
Addition on account of difference in the balance shown in the account of Rashtriya Chemicals & Fertilizers Ltd (RCF, hereinafter) and M/s. Amarjyot Chemicals Pvt Ltd (ACP) - HELD THAT:- As noted by us that the assessee had submitted before the Ld. CIT(A) appropriate reconciliation wherein the reason was given for the difference and the same was duly reconciled. But, Ld. CIT(A) simply rejected the submission of the assessee by stating that he was not convinced with the submissions of the assessee. Thus, order passed by Ld. CIT(A) is neither properly speaking nor well reasoned. Under these circumstances, we find it appropriate to send this issue back to the file of the AO where the assessee shall get adequate opportunity of hearing to submit the reconciliation statement and other required details and evidences. The AO shall also consider all the arguments of the assessee including the arguments that the impugned difference is not leading to suppression of income, and therefore, no addition could be made on account of impugned difference. With these directions, this ground is send back to the file of the AO for deciding it afresh after giving adequate opportunity of hearing to the assessee. As a result, this ground may be treated as allowed, for statistical purposes.
Depreciation claimed on the basis of letter of approval dated 10-10-2010 - In the appeal before Ld. CIT(A), the assessee submitted in detail that required approval from DSIR was received by the assessee and the same was produced before Ld. CIT(A) - HELD THAT:- As stated by the Ld. Counsel that since required certificate has been provided by the assessee which has been examined by the Ld. CIT(A), and only thereafter relief has been provided by him in line with earlier years’ orders which have been confirmed by the Tribunal. Ld. DR could not point out anything incorrect or wrong in the factual finding of the Ld. CIT(A). Under these circumstances, we do not find any justification to interfere in the order of the Ld. CIT(A) on this issue. Thus, ground 1 raised by the Revenue is hereby dismissed.
Disallowance made of claim of weighted deduction u/s 35(2AB)(3) of the Act - HELD THAT:- We find that the relief has been granted by the Ld. CIT(A) after verifying the requisite approval in proper form. Nothing wrong or contradictory has been brought before us by the Ld. DR. Thus, we do not find any need or justification to interfere in the order of the Ld. CIT(A). Therefore, the order of the Ld. CIT(A) is upheld. Thus, ground of the Revenue is dismissed.
Disallowance made by the AO on account of interest u/s 36(1)(iii) on loans advanced to subsidiary companies - as submitted by the Ld. Counsel of the assessee that this issue has been decided in favour of the assessee by the Ld. CIT(A) following the order of the Tribunal for A.Y. 2007-08 .HELD THAT:- DR could not point out any distinction between the facts of A.Y. 2007-08 and the impugned year. Thus, in view of the order of the Tribunal for AY 2007-08, we find that the order of Ld. CIT(A) deserves to be upheld. Therefore, this ground is dismissed.
Deduction u/s 10B - interest and finance charges should be allocated on the basis of CWIP as against on the basis turnover as was done by the AO - HELD THAT:- It will not be appropriate to apportion the interest entirely on the basis of fixed assets. Similarly allocation on the basis of turnover may also not be a proper criteria for the purpose of allocation of interest keeping in view the peculiar facts and circumstances of the case. Therefore, in our considered opinion, as far as interest on unsecured loans (i.e. ₹ 3,60,32,974) and term loans (i.e. ₹ 7,05,53,202) is concerned, the same should be apportioned on the basis of fixed assets held under the gross block, i.e. 5.60% of such interest cost should be allocated to 10B unit and 94.40% should be allocated to non 10B unit. However, interest paid on working capital loans amounting to ₹ 25,61,18,560 should be apportioned in the ratio of net current assets, i.e. 5.81% of such interest should be allocated to 10B unit and 94.19% should be allocated to non- 10B units. The disallowance should be recomputed by the AO accordingly. As a result, this ground is partly allowed.
Addition of expenditure was not debited to the P & L Account by the assessee - HELD THAT:- Since the impugned amount was not debited by the assessee in the P&L Account, the disallowance made by the AO has been rightly deleted by Ld. CIT(A). No interference is called for in his order.
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2016 (12) TMI 1872
Dishonor of cheque - Legally enforceable debt or not - offence under Section 138 of the Negotiable Instruments Act proved beyond reasonable doubt, or not - acquittal of accused under Section 255(1) Cr.P.C. - HELD THAT:- A perusal of Section 190 Cr.P.C. indicates that it permits anyone to approach the Learned Magistrate to file a complaint. In fact, it does not prescribe has any qualification for an individual eligible to prefer a complaint. No wonder, any one can set the Criminal Law in Motion by filing a complaint of facts constituting an offence before the Magistrate concerned, who is empowered to take cognizance. One cannot brush aside an important fact that an explicit assertion as to the knowledge of 'Power of Attorney Holder' about the transaction in issue must be stated in the complaint, as opined by this Court. If a 'Power of Attorney Holder' who is not possessing any knowledge as to the transaction in question, then, he cannot be examined as a witness in a given case.
A 'Power of Attorney Holder' can adduce evidence before the Court concerned and also to prove the averments of the complaint, he can verify on oath, but the rider is that a 'Power of Attorney Holder' should have witnessed the transaction as an Agent of the Payee/Holder in Due Course should possess the requisite knowledge about the transaction in question - the strict liability under Section 138 of the Negotiable Instruments Act can be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability partly or wholly. However, the onus to establish that cheque was not issued against a legally enforceable debt was on the Respondent/Accused.
There is no two opinion of an important fact that a cheque must be issued in respect of either post or existing debt or other liability. One of the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act is that the cheque was drawn for discharge in whole or part of liability. If this aspect is not covered in the complaint petition, then, it will be a fatal one. Furthermore, an offence as defined in Section 2(n) of the Criminal Procedure Code includes not only the doing of possible act, but by omitting to do something as well - Under the Negotiable Instruments Act, the arising of cause of action is not mere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non payment of cheque sum or non compliance of demand through notice by the 'Drawer' within the statutory period.
The strict liability under Section 138 of the Negotiable Instruments Act, 1881 could be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability, partly or wholly the burden to prove the cheque was not issued against the legally enforceable debt, of course is on the Respondent/Accused. Moreover, the term 'Payee' means the party to whom a bill of exchange, cheque or note is payable - this Court is of the considered view that in the instant case, based on the materials available on record, it is not possible for this Court o pronounce a Judgment and therefore opines that 'Remand of the Matter' is just, fair and necessary, otherwise there would be a failure of Justice. Also that, this Court is of the earnest opinion that the evidence of the Complainant is necessary to prosecute the complaint (filed by P.W.1) in order to render a correct Judgment in the case.
The Criminal Appeal is allowed.
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2016 (12) TMI 1871
Finalization of provisional assessment - Non-issuance of show cause notice - Demand of duty with interest - HELD THAT:- it appears from the impugned order that there is no provision of issuance of show cause notice or granting any opportunity of personal hearing before the finalization of the provisional assessments. We also find that in Rule 9 B there is no provision of issuance of show cause notice or for granting any opportunity of personal hearing before the finalization of provisional assessment.
Needless to mention that Rule 9B is pertaining to provisional assessment. But before us the dispute is regarding finalization of the assessment. When it is so, it appears that the principle of natural justice has not been followed as per the doctrine of AUDI ALTERAM PARTEM.
The order set aside - Matter remanded back to the Commissioner (A) to pass fresh order on merit after providing a reasonable opportunity of hearing to the appellant. Fresh evidence, if need be, may be admitted as per law.
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2016 (12) TMI 1870
Levy of penalty u/s. 76 of FA - entire amount of Service Tax paid along with interest, for the delayed period before issuance of the show cause notice - HELD THAT:- It is observed that the Order-in-Revision was issued on 26-4-2010. The revision powers of the jurisdictional Commissioner were done away with as per the substituted Section 84 of the Finance Act, 2009 w.e.f. 19-8-2009. Order-in-Revision passed by the Commissioner after 19-8-2009 is thus without jurisdiction and is set aside.
Appeal allowed.
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2016 (12) TMI 1869
Input tax credit - Respondent Assessee has not proved the transaction between it and M/s Mahesh Steel Centre & M/s Rajahans Metals - whether the finding recorded by the Tribunal for the discharge of the burden by the assessee could be said as perverse to the record or not? - Section 70 of the KVAT Act - HELD THAT:- Once the purchaser dealer-assessee satisfactorily demonstrates that while purchasing goods, he has paid the amount of VAT to the selling dealer, the matter should end so far as his entitlement to the claim input tax credit. If the selling dealer has not deposited the amount in full or a part thereof, it would be for the Revenue to proceed against the selling dealer. But thereby the benefit of input tax credit cannot be deprived to the purchaser dealer.
Petition dismissed.
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2016 (12) TMI 1868
Revision u/s 263 by CIT - order passed by the AO u/s 153A r.w.s 143(3) - Assessment u/s 153A of the Act after obtaining approval of Additional CIT u/s 153D - HELD THAT:- In the present appeals for six assessment years, it is seen that except for AY 2010-11 where the assessment was framed u/s 143(3), for all the other five years, the assessments were framed u/s 153A r.w.s. 143(3) meaning thereby that while framing the assessments in those respective years, the necessary approval of Addl.CIT was obtained and that apart from AO the Addl.CIT had also applied his mind to the facts before passing the assessment orders - we find force in the submission of ld.A.R. that it cannot be said that the necessary inquiries were not made while passing the assessment orders u/s 143(3) r.w.s. 153A - it is a settled position that the assessment orders cannot be set aside or revised for inadequate inquiry by ld. CIT u/s 263 of the Act. We therefore find force in the submission of ld.A.R. that revisionary proceedings u/s 263 cannot be initiated in the present cases and for which we also find support from the following decisions. - Decided in favour of assessee.
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2016 (12) TMI 1867
Computation interest payable to it u/s 214, 244 & 244A - HELD THAT:- Since the relevant assessment under consideration is assessment year 1984-85, we do not find any infirmity in the order of CIT(A) for directing the AO to compute interest u/s.214 and 244 and not u/s.244A of the IT Act. Accordingly, we confirm the action of the CIT(A) in this regard.
Grievance of the assessee in the A.Y.1984-85 pertains to applicability of provisions of Section 214(1A) for allowing interest on refunds - AO declined interest u/s.214(1A) on the plea that amendment was brought w.e.f. A.Y 1985-86, therefore, no interest was to be allowed in the A.Y.1984-85. CIT(A) confirmed the order of AO and assessee is in further appeal before us - HELD THAT:- Issue is squarely covered by the decision of Hon’ble Bombay High Court in the case of Ultramarine & Pigments Ltd [2005 (12) TMI 69 - BOMBAY HIGH COURT] wherein the Hon’ble High Court held that even though sub-section 1A was introduced in Section 214 by Taxation Law (Amendment)Act, 1984 w.e.f.1.4.1985, the same would be applicable to all the pending cases. Taxation Laws (Amendment) Act, 1984 is procedural in nature and, therefore, it will apply to all the pending actions. This being so, sub-section (1A) which was introduced in section 214 will apply to the petitioner’s case, for the assessment year 1982-83.
Respectfully following the above decisions of Hon’ble Bombay High Court, we do not find any merit in the order of the lower authorities for declining the claim of interest u/s.214(1A) for the assessment year 1984-85 under consideration.
Rate of interest payable as per the provisions of Section 214/244 - We have considered rival contentions and found that the CIT(A) had held that even though the provisions of section 214/244 were applicable the rate of interest given in 244A has to be considered for grant of interest on refund. Since the provisions of section 214/244 has not been repealed, therefore, the rate of interest as given in the said sections i.e., Section 214/244 in the respective years should only be applied. In view of the above, we direct the AO to allow interest u/s.214/244, as per the rate prevailing in the respective assessment years.
In the assessment year 1984-85, 1985-86 and 1987-88, the assessee has not given full credit for the TDS/DITR while computing net tax payable/refundable and interest thereon. In the interest of justice, we restore this ground back to the file of the AO to verify the same and for deciding the issue afresh as per law. We direct accordingly
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2016 (12) TMI 1866
Disallowance of bad debts written off - Admission of additional supporting documentary evidences - HELD THAT:- As additional evidence as filed by the assessee has substantial bearings on the issue involved and raised by the assessee. We, therefore, in the interest of justice inclined to admit the same. We further find that these evidences are required to be examined and evaluated at the end of the AO. We, therefore, set aside the order of the ld.CIT(A) and restore the issue to the file of the AO for appreciation of evidences as may be filed by the assessee and adjudication of the issue denovo as per facts and law after allowing reasonable opportunity of hearing to the assessee.
Levy of interest u/s 234C - non considering the computation furnished by the assessee evidencing the fact that interest levied u/s 234C not be charged - HELD THAT:- As assessee has fully paid the advance tax on the basis of the returned income as per the income tax return as per the provisions of the Act. We, therefore, find merit in the submissions of the ld. Sr. Standing Counsel qua non charging of interest u/s 234C of the Act and accordingly restore the matter to the file of AO with a direction to the AO to examine the issue on the basis of facts of the case and decide the issue accordingly. This ground is allowed for statistical purposes.
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2016 (12) TMI 1865
Deduction u/s 54F - claim denied as genuineness of the transactions not proved - onus to prove - whether the assessee is eligible for exemption under section 54F in view of the fact that the husband of the assessee released the property in favour of the appellant, whether such release is acceptable under the law? - HELD THAT:- The onus lies on the assessee to prove beyond doubt the transaction entered by the assessee and her husband as genuine. The very fact that the transaction is between the wife and husband had raised the eye brows of the AO about the genuineness of the transactions. The transaction is perhaps intended to avoid the tax liability in the hands of the assessee.
The release deed executed by her husband is not registered. The onus lies on the assessee to prove that the transaction was a genuine transaction by furnishing the details of actual date of payment of consideration to her husband towards relinquishing his share of right in the property - even after the relinquishment deed, the assessee along with her husband entered jointly into a lease agreement dated 09.01.2008 with Shell Technology India (P) Ltd. This goes to prove that the release deed is not actually intended to be acted upon - appellant is not entitled to any deduction under section 54F as she has failed to prove beyond doubt that the assessee acquired the new house by the sale proceeds of the original assets sold. Since we held that the assessee had not acquired any asset, the other aspects are considered to be irrelevant and does not require any adjudication. - Decided against assessee.
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2016 (12) TMI 1864
Maintainability of suit - benami property - ownership of the suit property in question - Possession of property - parties are related to each other - restraint on permanent injunction from interfering with the suit property.
Ownership of the suit property in question - HELD THAT:- There is no dispute that, in the revenue records property stood in the name of Vassudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act, Though we do not find any merit in the arguments of the Appellants that the Benami Act is not applicable, in any case there is hardly any material produced by the Defendants to support that real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar as the owner of the suit property.
Possession of goods - whether the suit was not maintainable in the absence of any relief qua possession? - HELD THAT:- The case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5:00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable - there are no merit in these appeals, which are accordingly dismissed with costs.
Appeal dismissed.
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2016 (12) TMI 1863
Principles of natural justice - case of petitioner is that the petitioner’s prayer for grant of eligibility certificate under Industrial Policy of Assam, 2008 has still not been considered - HELD THAT:- Without expressing any opinion on the merit of the case of the petitioner, the writ petition is disposed of by directing the Principal Secretary to the Government of Assam, Industries & Commerce Department, Dispur to dispose of the representation of the petitioner dated 03.12.2013 (Annexure-IX of the writ petition) in accordance with law by a speaking order within a period of 2(two) months from the date of receipt of a certified copy of this order.
Petition disposed off.
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2016 (12) TMI 1862
Validity of proceedings initiated u/s 153A - whether the proceedings under section 153A, have been validly initiated on the basis of incriminating material unearthed as a result of search revealing undisclosed income ? - HELD THAT:- On a careful perusal of the impugned assessment order, we have not come across any observations by the AO relating to detection of undisclosed income as a result of incriminating material found during the search. In fact, to put it correctly, the AO in the entire assessment order has not referred to a single piece of incriminating material found and seized during the search and seizure operation which could have been remotely connected to the so called undisclosed income assessed by the AO save and except the statement recorded from a director of a newly set–up company. In fact, on a perusal of the said statement also, we do not find in any way it is having any reference to the assessee. In fact, to a specific query from the bench to the learned Departmental Representative, to point out the specific incriminating material on the basis of which the addition has been made, the learned Departmental Representative fairly submitted, in the assessment order there is no reference to any such incriminating material. Thus, prima–facie it is established that there is no incriminating material unearthed as a result of search which could reveal undisclosed income of the assessee.
In the present case, admitted factual position is, there is no incriminating material found at the time of search and seizure operation which could demonstrate that the money received towards share application and allotment of shares is not genuine. In the aforesaid circumstances, the initiation of proceedings under section 153A, in our view, is not permissible since these issues are subject matter of original assessment proceedings, completed before the date of search. - Decided in favour of assessee.
Addition u/s 68 - unexplained cash credit at the hands of the assessee represents share application money received from Preksha Exports Pvt. Ltd. - HELD THAT:- As treated as unexplained cash credit at the hands of the assessee represents share application money received from Preksha Exports Pvt. Ltd. We have noted, Preksha Exports Pvt. Ltd. is an income tax assessee and not only it has reflected the investment in share application money, in its books of account but also in the financial statements submitted along with return of income. The concerned party has also confirmed the investment in the share application money. In fact, the same Assessing Officer has completed assessment in case of Preksha Exports Pvt. Ltd. without making any corresponding addition in case of the said party. That being the case, in our considered opinion, the addition made at the hands of the assessee cannot be sustained. Accordingly, we delete the same. Ground no.1 is allowed.
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2016 (12) TMI 1861
Rate of Tax - Manufacture and sale of Lizol (floor cleaner), Harpic (toilet cleaner) and Mortein mosquito repellents – Classification - Entry 88 or Entry 20 to Schedule IV – Interpretation of Statute - Andhra Pradesh Value Added Tax Act, 2005 - HELD THAT:- The impugned judgment and order of the High Court need not not be interfered.
Petition dismissed - The question of law that has been raised in these special leave petitions, in case arises in future from a different judgment, it shall be addressed to on merits.
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2016 (12) TMI 1860
Exemption u/s 11 - Charitable activity u/s 2(15) - HELD THAT:- The assessee claims to be engaged in the maintaining of national/international youth centres at suitable centres in India for the benefit of foreign students and youth delegates as well as individuals visiting India and the assessee claims to be engaged, on non-profit basis, in establishing and running schools and regional centres for students and holds seminars and conferences. For the relevant years, the assessee reported receipt of some amounts towards fees for conducting various activities.
Assessing Officer (AO) felt that since the assessees were engaged in providing commercial activity, the proviso to Section 2(15) was attracted. The ITAT ruled - on the basis of this Court’s judgments in India Trade Promotion Organization v. DGIT [2015 (1) TMI 928 - DELHI HIGH COURT] and Institution of Chartered Accounts [2013 (7) TMI 205 - DELHI HIGH COURT] that the mere circumstance of collection of such amounts did not result in the assessees losing their essential character of being established for charitable purposes. No substantial question of law
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2016 (12) TMI 1859
Addition made to taxable income of the assessee by treating the interest accrued on FDR's as income from other sources - Whether the' assessee's business was in a pre-operational stage and the interest had been rightly reduced from the capital work in progress.”? - HELD THAT:- Issue decided in favour of revenue as relying on assessee's own case [2015 (6) TMI 1221 - ITAT CHANDIGARH] - Decided against assessee.
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9911796707
