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Showing 41 to 60 of 2133 Records
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2018 (2) TMI 2095
Levy of Excise Duty - body cover of the diesel generating sets - demand is confirmed against the appellant who is the principal manufacturer - evasion of duty - HELD THAT:- The appellant is receiving the acoustic enclosures (cover) which is manufactured by M/s. SBN Engineering Works as job worker on the request of the appellant who is the principal in the instant case. Regular payment is being made by the appellant to the job worker. Principal manufacturer i.e. the appellant has not given any undertaking to take the responsibility for payment of the duty. At the same time, the job worker has also not paid the duty.
To protect the interest of the Revenue, the duty will have to be paid by someone. In the instant case, the appellant is the principal and by not giving the undertaking, the appellant has developed a system to evade payment of Central Excise duty. By connivance of two parties, sovereign function of payment of duty cannot be avoided - In the instant case, the principal and the job worker with a conspiracy as stated above have made an attempt to evade the payment of duty. They tried to take advantage of the technicality of the law.
There are no infirmity in the impugned order and the same is hereby sustained - appeal dismissed.
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2018 (2) TMI 2094
Penalty u/s 271(1)(c) - Non specification of clear charge in notice - defective notice u/s 274 - introduction of fresh share capital including premium - AO held that the purported fresh share capital along with share premium was nothing but assessee’s own money conduited under the garb of fresh share capital into its books of account - HELD THAT:- Imposing of penalty u/s 271(1)(c) of the Act is bad in law and invalid for the reason that the show cause notice u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealment of particulars of income or furnishing of inaccurate particulars of income. See MANJUNATHA COTTON AND GINNING FACTORY [2013 (7) TMI 620 - KARNATAKA HIGH COURT] - Also decided in SHRI SAMSON PERINCHERY [2017 (1) TMI 1292 - BOMBAY HIGH COURT]imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be sustained
Thus imposition of penalty and subsequently confirmed by the Ld. CIT(A) in the present case cannot be sustained and the same is hereby deleted. Appeal of assessee is allowed.
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2018 (2) TMI 2093
Claim of on money paid for purchase for the project V-69 scheme - claim of expenditure in proportion to revenue recognised - since the project has not been started during the A.Y. 2009-10 and stated that same will be included in the closing stock of the land - HELD THAT:- As taken into consideration the contention that when the order of the Ld. CIT(A) was passed for A.Y. 2009-10 by that time the return of A.Y. 2011-12 was already filed and books of accounts were also finalized. Therefore the assessee has claimed that 31% of the Revenue of Vedika Exotica Scheme which was recognized during the A.Y. 2011-12 and accordingly claimed 31% of the expenditure during the year under consideration. We observe that above stated fact demonstrate that assessee is justified in claiming the above expenditure during the year under consideration. Therefore, the appeal of the assessee is allowed.
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2018 (2) TMI 2092
Unexplained Cash deposited in RCC Bank account - income from undisclosed sources - set off of loss from share transaction of income - CIT(A) observed that there was no nexus between profit earned through the job work and the cash deposit in RCC bank - CIT(A) has computed the undisclosed income from the RCC bank and total income of the assessee was computed - He has also allowed to set off the loss from share transactions.
HELD THAT:- As per provisions of section 70 of the act loss from one source against income from another source under the same can be set off. As per provisions of section 80 of the act such loss is allowed to set off even if the return is not filed in time. Therefore, we consider that ld. CIT(A) has correctly allowed set off of loss from share transaction of income in the case of the assessee. Assessee failed to controvert with any relevant evidences that the findings of CIT(A) is not correct. After considering the above facts and circumstances, we do not find any reason to interfere in the decision of the ld. CIT(A), therefore, the appeal of the assessee is dismissed.
Levy of penalty u/s 271B - assessee had not got his account audited u/s. 44AB of the act as the turn-over of the assessee was exceeding Rs. 40 lacs during the previous year - assessee has filed revised return of income disclosing net profit after taking into account the undisclosed cash deposit found in the ICICI bank a/c. - HELD THAT:- We observe that separate penalty has been provided as per the provisions of section 271A for failure to keep, maintain or retain books of account, documents, etc. as required by section 44AA of the act. In view of the above, the assessee has violated the provision of section 44AA by not maintaining books of accounts and the assessing officer has not initiated any penalty as prescribed u/s. 271A of the act. We observe that section 271B is not attracted in a case where no account has been maintained and instead an recourse u/s. 271A can be taken. Therefore, we consider that in the case of the assessee the imposition of penalty u/s. 271B is not justified. Accordingly, the appeal of the assessee is allowed
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2018 (2) TMI 2091
Non adjudicating grounds of appeal - HELD THAT:- As submitted by the counsels on both sides it is clearly evident from a reading of the impugned order that the ld CIT(A) has disposed off the assessee’s appeal after adjudicating only the additional ground raised and without addressing/adjudicating the grounds at S.Nos. 1 to 4 listed out at page 2-3 of the impugned order.
We restore these grounds to the file of the ld CIT(A) for consideration and adjudication after affording the assessee adequate opportunity of being heard in the matter and to file details/submissions which shall be duly considered.
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2018 (2) TMI 2090
Disallowance u/s. 14A r.w. Rule 8D - contention of the assessee that, the Capital Reserves and interest free funds are much more than the investments, have to be examined by the AO - HELD THAT:- It is true that the in the cases of CIT v. HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] and CIT v. Reliance Utilities Power Limited [2009 (1) TMI 4 - BOMBAY HIGH COURT] held that, if assessee had adequate interest free funds available with it, no disallowance needs to be made u/s 8D2(ii).
We remit this issue to the file of the AO who shall examine the contentions of the assessee that the interest free funds are much more than the investments. If the submissions of the assessee are found to be correct, no disallowance under Rule 8D2(ii) is required in view of the decisions in the cases of CIT v. HDFC Bank Ltd [2014 (8) TMI 119 - BOMBAY HIGH COURT] and CIT v. Reliance Utilities Power Limited [2009 (1) TMI 4 - BOMBAY HIGH COURT] Similarly, the Special Bench in the case of ACIT v. Vireet Investments Private Limited [2017 (6) TMI 1124 - ITAT DELHI] held that only those investments which yielded dividend income should be considered for disallowance under Rule 8D2(iii). Thus, respectfully following the Special Bench decision, we direct the Assessing Officer to recompute the disallowance under Rule 8D2(iii) following the Special Bench. Accordingly, we set-aside this issue to the file of the Assessing Officer with the above observations. This ground of appeal is allowed for statistical purpose.
Disallowance of interest u/s. 36(1)(iii) - HELD THAT:- This issue arose in the Assessment Years 2008-09 [2013 (9) TMI 1297 - ITAT MUMBAI], 2009-10 and 2010-11 [2016 (6) TMI 1460 - ITAT MUMBAI] and the Tribunal had set aside the issue to the file of the AO for examining the contentions of the assessee and the consequential orders were passed accepting that the assessee has its own funds much more than the investments and no interest was disallowed u/s. 36(1)(iii) and also no proportionate interest expenses were disallowed towards and the advances to partnership firm.
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2018 (2) TMI 2089
Miscellaneous Application seeking recall of the order passes ex-parte, without hearing the assessee - assessee submitted he had to assist an Advocate in a Write Petition filed before Hon'ble Bombay High Court and hence he could not appear before the Tribunal - as submitted that, on the very same date, another appeal which belong to the same group, was also listed before 'E' Bench and he had duly moved an application before the 'E' Bench seeking adjournment - As submitted that he inadvertently failed to take note of the date of hearing of the impugned appeal in his diary and hence an application seeking adjournment could not be moved
HELD THAT:- Having regard to the submissions made by the assessee, we are of the view that there is sufficient cause for the assessee in not appearing before the Tribunal on the date of hearing. Accordingly, in exercise of powers vested with the Tribunal under Rule 24 of the Appellate Tribunal Rules, we recall the impugned order. We also direct the Registry to post the appeal for hearing in the normal course under notice to the parties.
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2018 (2) TMI 2088
Addition of commission expenses - Commissioner of Income Tax (Appeals) allowing the commission expenses disallowed by AO - ITAT dismissed the appeal filed by the revenue and upheld the order passed by the Commissioner of Income Tax (Appeals) - HELD THAT:- As in earlier assessments the same was accepted by the Assessing Officer for Assessment Years 1992-93, 2007-08 and 2008-09, we are of the view that order passed by the learned Income Tax Appellate Tribunal, Indore Bench, Indore is just and proper, in view of the law laid down by this Court in case of Commissioner of Income Tax v. Pure Pharma [2004 (3) TMI 31 - MADHYA PRADESH HIGH COURT]
No case to interfere with impugned order passed by the learned Appellate Tribunal, as prayed for, is made out; nor any substantial question of law is arising in these appeals.
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2018 (2) TMI 2087
Bogus LTCG - claim of exemption U/s.10(38) on the long term capital gains earned by the assessee from the sale of shares rejected - HELD THAT:- When the transactions are routed through banking channels and the identity of the seller and the purchasers are established and when the transactions are covered through contract notes, demat accounts which shows transfer in and out of shares then there is no necessity to doubt the genuineness of the transactions.
From the above it is apparent that the decisions relied by the Ld. Revenue Authorities will not be strictly applicable to the case of the assessee and the decisions cited by the assessee are in support of the claim of the assessee.
We do understand the genuine anxiety of the Revenue to tax the assessee due to the various unnatural happening of events, but as a Judicial body our hands are tied due to the lack of material evidence against the activities of the assessee and we cannot step into the shoes of the Revenue by making further investigations and enquiries to tie up the loose ends left out by the Revenue. From the materials produced before us there is nothing on record to establish that the transactions of purchase and sale of shares made by the assessee are dubious other than the fact that the share prices of M/s. PFL Infotech Ltd., rose substantially without sound backing and the statements of few persons such as Shri Aspi Bamanji Vairava, Shri Pankaj Kumar K Shah & Shri Dipti P Shah. At the same time it should be kept in mind that stock prices may raise due to certain hidden factors which may be not known to the public at large even with respect to blue chip companies. Hence conclusion cannot be bluntly made on the basis of surmises and conjectures in the case of any assessee when certain other material factors are in favour of the assessee.
The Hon’ble Punjab & Haryana High Court in the case CIT vs. Anupam Kapoor [2007 (2) TMI 159 - PUNJAB AND HARYANA HIGH COURT] in a somewhat similar situation has categorically stated that no presumption could be drawn by the Assessing Officer merely on surmises and conjectures.
We hereby direct the Ld.AO to delete the addition made by invoking Section 68 of the Act and also to grant deduction U/s.10(38) of the Act by treating the gain arising out of the sale of shares as Long Term Capital Gain. Appeal of assessee allowed.
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2018 (2) TMI 2086
Validity of assessment made u/s 143(3)/147 - Deemed dividend u/s 2(22)(e) - Non disposing of the objections raised by the assessee - HELD THAT:- It is observed that the facts involved in the case of Hardware Trading Corporation (supra) were materially similar to the facts of the present case, inasmuch as the specific object ions raised by the assessee challenging the validity of reopening of assessment after going through the reasons recorded were neither considered nor disposed of by the AO by passing a speaking order. By relying on the decision in the case of G.K.N. Driveshaft (India) Limited [2002 (11) TMI 7 - SUPREME COURT] Tribunal held that the reassessment order passed by the Assessing Officer without disposing of the objections raised by the assessee in respect of the validity of reopening was bad- in-law.
In the case of G.K.N. Driveshaft (India) Limited [2002 (11) TMI 7 - SUPREME COURT] it was held by the Hon’ble Supreme Court that the assessee on receipt of reasons recorded by the AO is entitled to file objection to the issue of notice under section 148 and the Assessing Officer is bound to dispose of the said object ion by passing a speaking order. Respect fully following the decision in the case of G.K.N. Driveshaft (India) Limited (supra) as well as the decision of the Division Bench of this Tribunal in the case of Hardware Trading Corporation [2017 (11) TMI 2005 - ITAT KOLKATA], hold that the assessment made by the AO under section 143(3)/147 without disposing of the objections raised by the assessee challenging the validity of reopening was bad-in- law and the same is liable to be cancelled. Aappeal of the assessee is allowed.
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2018 (2) TMI 2085
Levy of Additional Sales Tax - deletion of turnover assessed to tax - Section 12(3)(b) of the TNGST Act, 1959 - HELD THAT:- The issue as regards the levy of additional sales tax in respect of the assessment year 1996-97 is covered by the decision of this court in the case of THE STATE OF TAMIL NADU VERSUS TVL. NATIONAL TIME CO. [2010 (7) TMI 842 - MADRAS HIGH COURT], wherein, it has been held that after taking the taxable turnover for the entire year, the taxable turnover upto the date of amendment has to be assessed with reference to the relevant tax rate therein applicable to the period.
On the similar issue, a Division Bench of this Court in STATE OF TAMIL NADU VERSUS KIRTHILAL KALIDAS & CO. [2013 (10) TMI 1280 - MADRAS HIGH COURT], following the decision in THE STATE OF TAMIL NADU VERSUS TVL. NATIONAL TIME CO. [2010 (7) TMI 842 - MADRAS HIGH COURT], and while setting aside the order of the Sales Tax Appellate Tribunal, remanded the matter back to the assessing officer to work out the liability based on the decision of this court and thus, taking the taxable turnover for the entire year, the taxable turnover up to the period July 31, 1996, has to be worked out to attract the liability at the rates specified therein and beyond that, the liability of the turnover has to be worked out based on the amended provision depending on the taxable turnover crossing rupees 100 crores for the whole year.
The Tax Case Revision is dismissed.
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2018 (2) TMI 2084
Undertaking scientific examination of alleged Will - opinion regarding age of the ink or any other relevant matter - Order XXVI Rule 10A of the Code of Civil Procedure, 1908 - HELD THAT:- Under provisions of Order XXVI Rule 10A of the Code a discretion is conferred on the Court to direct scientific examination of any document which in its opinion would be relevant for adjudicating the dispute in question. The Will dated 06/11/1991 is the document of contest between the parties. That document has been laminated and therefore the defendants were justified in expressing an apprehension that removal of lamination cover could affect the document itself. It is therefore that a statement has been made on behalf of the respondent that the expert concerned without removing the lamination would examine the said document in presence of the parties or their representatives. The manner in which such examination would be done is stated in pursis dated 02/08/2017.
By taking adequate precaution to ensure that the document in question as laminated is handled with care, its scientific examination can be permitted in the light of discretion exercised by the trial Court. The same can be done by following the modality as stated by the expert and mentioned in the pursis dated 02/08/2017. It is to be noted that after the document is examined, the opinion of the expert would be available on record - While according to the defendants it is not possible to determine the age of the ink on the document, according to the expert sought to be appointed by the plaintiff such determination is possible.
The value of that report as well as the question whether the method adopted by the expert throws light on the age of the ink on the document are matters which can be considered after the report of the expert is received - contentions of both the parties in that regard can be kept open for evaluation by the trial Court in the light of provisions of Order XXVI Rule 10-A(2) of the Code are concerned.
No interference is called for as far as the order passed by the trial Court - the trial Court shall direct examination of the document dated 06/11/1991 by taking into consideration the contents of pursis dated 02/08/2017 - petition disposed off.
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2018 (2) TMI 2083
Assessment u/s 153A - unexplained credit in HSBC Bank - HELD THAT:- In the instant case, the return of income for the AY 2006-07 was filed by the assessee on 31.07.2006 declaring total income - AO completed the assessment u/s 143(3) on 14.07.2008 arriving at the same income as disclosed by the assessee. Department conducted the search and seizure action u/s 132 in the premises of the assessee on 22.02.2011.
We find that in the original assessment completed by the AO u/s 143(3) that the assessee filed the details called for.
We find of the assessment order passed u/s 153A r.w.s. 143(3) that during the course of assessment proceedings pursuant to search, the AO asked the assessee to produce the bank statement for the year under consideration. It was not seized during the course of search.
In Continental Warehousing Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT] it is held that finalized assessment/reassessment shall not abate. Only undisclosed income and undisclosed assets detected during search could be brought to tax in respect of those years. As the assessment for the AY 2006-07 was already finalized by the AO by making the assessment u/s 143(3) dated 14.07.2008, following the above decision of the Hon’ble Bombay High Court, we delete the addition confirmed by the Ld. CIT(A).
Disallowance u/s 2(22)(e) as deemed dividend - HELD THAT:- It is agreement by choice. In the present case it is tinged heavily with personal disputes. In the instant case, the assessee had received Rs.2,50,00,000/- from ISSCPL in which he was having 50% shareholding. Also ISSCPL is not a party to the consent term dated 15.12.2009. The present factual matrix is to tested on the anvil of the aforesaid enunciation of law. Examined on the touch-stone of the afore-noted legal principles, we confirm the order of the Ld. CIT(A) restricting the disallowance u/s 2(22)(e) to the accumulated profit as on 15.12.2009 of Rs.1,66,80,010/-.
Unexplained jewellery - streedhan of assessee’s wife - Scope of CBDT Instruction No. 1916 of 11.05.1994 - HELD THAT:- We are of the considered view that the Ld. CIT(A) has rightly confirmed an addition and deleted the balance addition on the basis of the CBDT Instruction No.1916. We uphold the same.
Corporate credit card expenses - allowable business expenses OR personal expenses - HELD THAT:- Having perused the relevant materials on record, we agree with the Ld. CIT(A) that the AO has made adhoc addition without bringing out the instances of expenditure which are personal in nature. Since the said expenditure was incurred by the assessee on behalf of the company in which he was the Director, the Ld. CIT(A) has rightly deleted the disallowance made by the AO.
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2018 (2) TMI 2082
Default in repayment of loan - forcible possession - Rule 9(1) of the Contempt of Courts (Bombay High Court) Rules, 1994 - HELD THAT:- It is beyond all doubt that the entire process of invocation of Arbitration on a non-existent so-called oral agreement and obtaining, within one day, a reference to Arbitration, a hearing before the Arbitrator, and, within two days, an Arbitral Award, and then promptly obtaining an appointment of the Receiver, all had one and only one objective: to prevent Fullerton from recovering its dues. There was no other purpose.
All manner of submission are attempted today, including telling me that Fullerton has an understanding with Tornado Motors. Then Mr Agrawal for the Claimant, Prithipal, with the same alacrity that his son-in-law displayed in consenting to the flat going into Receivership, agrees to that very order - one that he sought on the ground that the flat needed to be protected - being vacated. This is nothing but playing ducks and drakes with the Court and its processes.
List the matter for compliance on 15th February 2018.
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2018 (2) TMI 2081
Nature of expenditure - Legal & Professional Charges - revenue or capital expenditure - HELD THAT:- Upon perusal of the cited order of the Tribunal for AY 2008-09 & 2009-10 we find that the issue has been restored back by the Tribunal we restore the issue to the file of AO limited to the extent of making such verifications in respect of payments made to Dr. May Pharma Consult GMBH, which are claimed as expenditure incurred for the purpose of business. After conducting necessary verification, the AO is directed to decide this issue in accordance of law after giving the assessee a reasonable opportunity of hearing. Assessee’s appeal stands allowed for statistical purposes.
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2018 (2) TMI 2080
Ex-parte order passed by CIT-A - Addition applying provisions u/s 50C - HELD THAT:- It is an admitted fact that despite issue of notice, the assessee did not appear before the ld. CIT(A) for which he passed the exparte order sustaining the addition made by the AO. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the CIT(A) with a direction to give one final opportunity to the assessee to substantiate his case. CIT(A) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. The assessee is also hereby directed to appear before the ld. CIT(A) and not to seek any adjournment failing which ld. CIT(A) is at liberty to pass appropriate order as per law. Appeal filed by the assessee is allowed for statistical purposes.
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2018 (2) TMI 2079
Deduction u/s 10A - Tribunal directing AO to recomputed the deduction u/s 10A without reducing/ setting off unabsorbed depreciation and brought forward business losses - HELD THAT:- Revenue, very fairly states that the issue raised herein stands concluded against the Revenue. This he states by the decision of this Court in the Respondent-Assessee's case for the assessment year 2006-07 reported in Commissioner of Income Tax Vs. Black & Veatch Consulting (P.) Ltd. [2012 (4) TMI 450 - BOMBAY HIGH COURT] and by the decision of the Apex Court in Commissioner of Income Tax Vs. Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] - In the above view, question 1 as proposed does not give rise to any substantial question of law. Thus, not entertained.
Delayed employee share of provident fund - whether Tribunal is correct in-holding that employee share of provident fund not deposited within the period provided under the PF Act is covered under the provisions of Section 43B ? - HELD THAT:- Mr. Suresh Kumar very fairly states that the issue raised herein stands concluded against the Revenue and in favour of the Respondent-Assessee's case by the decision of this Court in Commissioner of Income tax, (central), Pune Vs. Ghatge Patil Transports Ltd. [2014 (10) TMI 402 - BOMBAY HIGH COURT]. In the above view, question 2 as proposed does not give rise to any substantial question of law. Thus, not entertained.
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2018 (2) TMI 2078
Principles of natural justice - grievance stands made is that no receipt thereof was given to the petitioner and these documents having a critical bearing on the case were not made part of the record by the police - applicability of Circular No. 08/2011 dated 10th February, 2011 issued by the Delhi Police - HELD THAT:- The respondent no.2 shall issue a circular forthwith upon receipt of a copy of this order directing the strict compliance of the procedure laid above, by every police personnel. The Circular shall be also posted on the official website of the Delhi Police and effective publicity given to ensure that the public is apprised of the procedure which has to be followed - The necessary features of the Circular shall be prominently displayed at all police stations in English and vernacular to enable every person who visits the police station of the procedure which has to be followed.
The present writ petition is a laudable effort on the part of a petitioner who, though facing criminal prosecution, has opted to pursue larger public interest and to bring some transparency to the manner of police functioning.
The prayer made in this writ petition stands satisfied. The petition is disposed of in terms thereof.
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2018 (2) TMI 2077
Jurisdiction - power of DRI to issue SCN - section 28 of the Customs Act - HELD THAT:- By following the ratio laid down by the Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] as well as by considering totality of facts and circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER] and then on merits of the case but by providing an opportunity to the assessee of being heard. Till the final decision, the status quo will be maintained.
Matter on remand.
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2018 (2) TMI 2076
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- This Adjudicating Authority is satisfied that the petitioner has proved by placing overwhelming evidence that default has occurred which the Corporate Debtor was responsible to pay. In relation to the laches as pointed out respondent in his counter, it is pertinent to mention that the petitioner has established clearly that the amount in default is genuine and is supported by the documentary evidence placed - the said objection is not a valid ground of rejection of the instant petition.
Application admitted - moratorium declared.
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