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Showing 41 to 60 of 1255 Records
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2015 (5) TMI 1227
Addition u/s 68 - bogus share application money - HELD THAT:- No such evidence appears to have been gathered by the department in course of search proceedings against the two parties. On perusal of bank statement of these two parties, it can be gathered that no cash has been deposited by these parties before issuing cheques to assessee towards share application money. Shares issued to alleged two companies were transferred to Director of the company on 31.07.2008 long before search conducted in case of Shri Mukesh Choksi on 25.11.2009 and so the statement of Shri Mukesh Choksi recorded after the transfer of shares cannot be relied upon in absence of any evidence collected in course of search in case of Shri Mukesh Choksi indicating transfer of cash.
We find that all the transactions were duly supported by the Share application form, acknowledgement of return of income, audited financial statements & bank statements, Memorandum of Association (hereinafter referred as “MOA”) and Articles of Association (hereinafter referred as AOA””) of the share applicant. All the share application monies have been received through proper banking channel and there is no evidence that assessee has paid any money in cash to the share applicant in consideration of cheque received from share. No inquiry is made by the Assessing Officer once the assessee has discharged his primary onus to prove the identity, genuineness and creditworthiness of the share applicants. On perusal of the bank statements of share applicant, it can be seen that no cash has been deposited by them before issue of cheque to assessee towards share application money. None of the parties are related to assessee company. The assessee has proved all the three ingredients of proving a genuine cash credit by establishing identity (limited/listed companies), genuineness (transactions through normal banking channel) and creditworthiness (IT returns and balance sheet with huge share capital).
If the Assessing Officer doubts the source of the source of the source, he was free to conduct inquiries in the case of persons from whom assessee has received funds. However, on that count, addition cannot be made u/s 68 in the hands of the assessee once the assessee discharges the onus on it as per the requirement of section 68.
There was a clear lack of inquiry on the part of the assessing officer once the assessee had furnished all the material - Decided in favour of assessee.
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2015 (5) TMI 1226
Taxability of interest under the head Income from other sources - Commissioner of Income Tax (Appeals) justification in holding that the interest accured / received was the Income of the assessee appellant - HELD THAT:- We find that during this year assessee has borrowed certain funds as mentioned in the submissions before AO from PFC and ADB. Assessee had earlier taken the money from Delhi Jal Board on which no interest was required to be paid. It was held in the earlier year in assessee’s own case that interest on such investment of these funds would be taxable. In view of the decision of Hon’ble Supreme Court in case of Tuticorin Alkali Chemicals And Fertilizers Ltd. Vs. CIT[1997 (7) TMI 4 - SUPREME COURT]. However, the interest earned on temporary investment made out of the borrowed funds can not be taxed because these funds have been specifically borrowed for the purpose of project but project was delayed and therefore funds were parked in temporary investment in the form of FDR.
However the details of these funds are not available on record therefore, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to examine bifurcation of funds borrowed by the assessee and funds owned by the assessee. Interest earned on account of funds borrowed should not be subjected to tax and only interest on balance surplus funds should be subjected to tax. Appeal of the assessee is allowed for statistical purposes.
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2015 (5) TMI 1225
Estimation of Net profit - provisions of Section 44AD applicability - interest on capital paid to partners and the remuneration paid to working partners from the income estimated @8% of turnover - assessee has submitted that the assessment was framed u/s.144 of the Act and the books of accounts were rejected by the AO and estimated the net profit @8% of the gross turnover - HELD THAT:- In the instant case, the turnover of the assessee is more than ₹ 1 crore, therefore, provisions of Section 44AD cannot be strictly applied but inference can be drawn from this provision. Even the proviso to Section 44AD says that where the eligible assessee is a firm, the salary and interest paid to its partners shall be deducted from the income computed under sub-section (1) subject to the conditions and limits specified in clause (b) of Section 40 of the Act.
In the instant case, the Assessing Officer has estimated the income @8% of the total turnover of the assessee but he has not allowed the salary and interest paid to the partners, though the AO was required to allow the same even as per the provisions of Section 44AD of the Act. In the light of the these facts, we find force in the contention of the ld. AR of the assessee, therefore, we direct the AO to allow deduction on salary paid to working partners and interest paid to them on their capital from the estimated income subject to the conditions and limits specified in clause (b) of Section 40 of the Act. Accordingly, we modify the order of the CIT(A) and direct the AO to allow deduction of interest and salary paid to the partners subject to conditions and limits specified in clause (b) of Section 40 of the Act.
Appeals of the assessee are allowed for statistical purposes.
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2015 (5) TMI 1224
Refund claim - period of limitation - HELD THAT:- In view of the amendment to Section 27, the claim for refund made beyond the period of six months in the facts and circumstances of the case was barred.
Appeal dismissed.
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2015 (5) TMI 1223
Period of limitation - issuance of SCN or Delivery of SCN - alleged that SCN given to the petitioner beyond the period of six months - whether mere dispatch of a notice under Section 124(a) of the said Act would imply that the notice was “given” within the meaning of Section 124(a) and Section 110(2) of the said Act - HELD THAT:- The interlocutory applications for modification of Court’s order dated 17th March, 2015, stand rejected.
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2015 (5) TMI 1222
Levy of countervailing duty - import of Cyanoacrylate Adhesive Alteco - method of valuation - HELD THAT:- Revenue’s grounds of appeal only talks about statutory requirement to declare retail price as per the Standards Weights and Measures (Packed Commodities) Rules, 1977 and there being no exemption for declaration. Besides this there are no other grounds of appeal urged in the impugned order. Ld. Departmental Representative’s contention that it would fall under the category of goods covered under MRP retained is also without any persuasive value for us to hold that the impugned order is erroneous.
Appeal dismissed.
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2015 (5) TMI 1221
Valuation of imported goods - polyester partially oriented yarn - revision of assessable value upwards - value revised upwards from US dollars 0.70 per Kg. to USD 0.91 per kilogram - HELD THAT:- It is a fact that the entire quantity as per the contract was not imported and only a quantity of about 6600 MTs. was imported when the anti-dumping duty was imposed making further imports unviable for the appellant. It is also a fact that the supplier did not demand any additional amount on the ground that the entire quantity as per the contract was not imported. It is not the Revenue’s case that any additional amount was paid to the suppliers for the goods already imported for not importing the entire quantity as per the contract. Indeed there was a very valid reason for not importing the entire contracted quantity because the imposition of anti-dumping duty, which could not have been foreseen at the time of entering into the contract, made the imports unviable for the appellant. Thus, it was not a case of manipulation or stratagem.
The transaction value remained US $ 0.70 Kg. and there is no legal basis to reject the same - Appeal allowed - decided in favor of appellant.
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2015 (5) TMI 1220
Seeking direction to consider 25% of developed land and compensation - original khatedars have prayed for payment of compensation to them - Khatedars have claimed that they are 'Bairwa' by caste which is a Scheduled Caste notified under the Constitution Scheduled Castes Order, 1950 - HELD THAT:- In the instant case, notice Under Section 12(2) was issued to the Society by the Special Officer on 31.12.1988, treating the Society as 'person interested' and informing that an award had been passed on 30.11.1982 in accordance with Section 11 of the Land Acquisition Act. On the strength of the aforesaid notices it was urged on behalf of the Society that the limitation to seek the reference would commence from the date of receipt of the notices issued and received on 31.12.1988. The reference sought was within the period of limitation.
In the instant case it is apparent that the Housing Society had preferred objections and was aware of the land acquisition process and determination of compensation and has filed objections which stood rejected on 4.9.1982. Thus, the constructive knowledge of the award is fairly attributable to it when it was so passed. Constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have - On a conjoint reading of Sections 12(2) and 18(2) of the Rajasthan Land Acquisition Act, it was not open to the LAO to refer the case to the civil court on the basis of the time barred application.
In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in Section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes.
In the instant case, even the prevalent instructions which have been modified did not confer any right on the Society or the Khatedars to claim the developed land. It was not a case of surrender of land; thus there was no question of the provisions of the circular being applied as the circular was in the form of guidelines for future acquisitions where Khatedars surrendered their lands and award has not been passed.
The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. In the facts of this case, particularly when the issue of violation of Section 42 of Rajasthan Tenancy Act was raised by the State Government and reference was also as to the award passed in 1982 in favour of Khatedars in which the Society was denied the right to receive compensation. Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction - In order to protect the interest of the Scheduled Caste persons, we further direct that the Society or other intermeddler, or power of attorney holder shall not be paid compensation on their behalf and the Collector/Land Acquisition Officer to ensure that the compensation is disbursed directly to the Khatedars or their legal representatives, as the case may be, and that they are not deprived of the same by any unscrupulous devices of land grabbers etc. Let the compensation be disbursed within a period of three months from today along with other permissible statutory benefits.
The direction issued by the High Court to grant 25% of the developed land is hereby set aside - appeals preferred by the Rajasthan Housing Board and the Khatedars are allowed.
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2015 (5) TMI 1219
Dominant purpose and object of U.P. Industrial Area Development Act, 1976 - development of industries - compulsory to acquire the land by the Authority or not - delay and laches in the facts of the present case - bar on invocation or Constitutional remedy Under Article 226 of the Constitution of India - invocation of Sections 17(1) and 17(4) of the Land Acquisition Act - delay caused before issuance of notification Under Section 4 and delay caused subsequent to notification - acquisition of land are vitiated due to mala fide and colourable exercise of powers - non-declaration of the award within two years from the date of publication of the declaration made Under Section 6 - non payment of 80% of the compensation as required by Section 17(3A) of the Land Acquisition Act - waiver of right to challenge the acquisition proceedings - estoppel from challenging the acquisition proceedings at this stage - creation of third party rights, development carried out by the Authority and developments and constructions made by the allottees on the acquired land subsequent to the acquisition.
HELD THAT:- It is clear that the Appellants did not challenge the acquisition per se inasmuch as when the land was acquired even after invoking urgency provisions contained in Section 17 of the Act and dispensing with the requirement of Section 5A of the Act, this position was accepted by the land owners. They even allowed the authorities to proceed further in passing the award and taking possession from many of these land owners and even paying compensation to them. It is a matter of record that before coming to the Court and filing the writ petitions, most of these Appellants had received the compensation. They also sought reference Under Section 18 of the Act for higher compensation. Physical possession of land of many of these Appellants have also been taken. In many other cases, paper possession had been taken before filing of the writ petition. A great deal of argument was made as to whether such physical possession/paper possession should be treated as taking possession in the eyes of law, it would be a debatable point inasmuch as in various judgments, this Court has held that whenever there is large scale of acquisition and possession of large chunk of land belonging to number of persons is to be taken, paper possession would be a permissible mode, particularly when it is Abadi land.
It is mentioned that abadi area is what was found in the survey conducted prior to Section 4 Notification and not what is alleged or that which is far away from the dense village abadi. It is also mentioned that as a consequence of the acquisition, the Authority spends crores and crores of rupees in developing the infrastructure such as road, drainage, sewer, electric and water lines etc. in the unacquired portion of the village abadi - it is difficult to accept the argument of the Appellants based on parity with three villages in respect of which the High Court has given relief by quashing the acquisition.
Following benefits are accorded to the land owners:
(a) increasing the compensation by 64.7%;
(b) directing allotment of developed abadi land to the extent of 10% of the land acquired of each of the land owners;
(c) compensation which is increased at the rate of 64.7% is payable immediately without taking away the rights of the land owners to claim higher compensation under the machinery provided in the Land Acquisition Act wherein the matter would be examined on the basis of the evidence produced to arrive at just and fair market value.
These are not the cases where this Court should interfere Under Article 136 of the Constitution.
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2015 (5) TMI 1218
Computation of capital gain addition - indexed cost of acquisition - HELD THAT:- It is not in dispute that the assessee obtained 75 cents of land from his mother by means of settlement deed dated 23.01.2004. The assessee also sold the land during the year under consideration and claimed capital gain by adopting the value as on 01.04.1981. AO disallowed the claim on the ground that the asset was owned only on 23.01.2004. Therefore, the value as on 23.01.2004 is to be adopted in respect of the property received by the assessee from his mother. We find that the Bombay High Court in the case of Manjula J. Shah [2011 (10) TMI 406 - BOMBAY HIGH COURT] had an occasion to consider an identical issue.
Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to compute the indexed cost of acquisition from 01.04.1981 in view. Appeal of the assessee is allowed.
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2015 (5) TMI 1217
Deduction u/s 80IB(10) - HELD THAT:- As in assessee own case [2013 (11) TMI 1745 - ITAT CHENNAI] Tribunal has allowed the claim of the assessee. Since, the very project is considered by the Assessing Officer in the impugned assessment year, viz., Chettinad Enclave, and the Tribunal already held that the assessee is a developer and entitled for deduction under sec.80IB(10) of the Act, we are inclined to dismiss the appeal of the Revenue for this assessment year also.
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2015 (5) TMI 1216
Addition on account of processing charges paid for availing personal and home loans - Expenditure not connected with business - disallowance u/s 37(1) - whether section 40a(ia) is applicable to it or not? - HELD THAT:- The assessee has paid interest on housing loan and claimed as business expenditure. We find from the order that the assessee has taken housing loan from HDFC Bank and he has also taken housing loan from Indiabulls Private Limited. It is the contention of the assessee that the assessee has taken this housing loan but this loan has been used in his jewellery business. Therefore, this may be allowed as business expenditure, but we find that the housing loan is taken from Indiabulls and Reliance Capital for construction of house, therefore, we are of the view that the AO, has not verified whether this housing loan has been used for construction for construction of house or not. The AO has also not verified from the Bank as to how the assessee has taken his loan from Indiabulls and Reliance Capital for construction of house and housing loan has been used in business purpose. Therefore, we restore this issue to the file of AO and the AO is directed to verify from Bank and concerned companies for what purpose the assessee has taken this loan and housing loan and how it was used and how it was shown to be taken from India bulls Housing Finanace and Reliance Capital. The AO is directed to make the inquiry and if the AO finds that the assessee has taken this housing loan for which housing loans are given for business purpose, then processing charges and interest payment should be decided accordingly. The AO is directed to verify whether section 40a(ia) is applicable to it or not.
Addition u/s 68 - assessee has taken unsecured loan from the above parties and has not submitted the income tax returns of the depositors - HELD THAT:- The assessee has submitted the balance sheet and list of sundry creditors. The accounts of the two borrowers show that there was no movement in the accounts of the two parties. The borrowing amount was not paid since last three years, therefore, the AO has held that liability is ceased. Therefore, he has added it u/s 41(1) of the Act. We find that Hon'ble Supreme Court in the case of Sugauli Sugars [1999 (2) TMI 5 - SUPREME COURT] wherein it is clearly held that if any liability which the assessee wanted to pay this amount, then the Limitation Act would not apply and the liability still remains. Therefore, the ld. CIT(A) is justified in his action and our Pinterference is not required.
Gross profit addition by 2 % - HELD THAT:- We find that the AO has not pointed out any specific explanation or evidence in rejecting the claim of low gross profit rate. The books of the assessee are audited by statutory auditors. The assessee has given the reasons that there was fall in gross profit due to the market condition on account of rate of fluctuation in gold and silver ornaments. Looking to these facts in to consideration, we are of the view that it is proper and appropriate to restrict the addition on account of gross profit @ 2.5 % instead of 2% adopted by the ld. CIT(A). In the result, this ground is partly allowed.
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2015 (5) TMI 1214
Block assessment order u/s.158 BC - Assessment order passed beyond the period of limitation prescribed under the Act - undisclosed income for block period - whether or not the panchnama of 6.2.1998 is of the type mentioned in the Explanation 2(a) to Section 158BE(1)? - HELD THAT:- It has to be inferred that the panchnama of 6.2.1998 cannot be understood as a panchnama of type mentioned in Explanation 2(a) to section 158BE(1) - A natural collorary of the aforesaid is that the period of limitation prescribed in section 158BE(1) for passing the block assessment order u/s. 158BC in the present case cannot be computed by considering the panchnama of 6.2.1998 as execution of the last of the authorizations for search initiated by the authorization u/s 132 dated 8.12.1997.
Search operations were also carried out at two other premises i.e. at Sonawala Building and at Krishna Niwas. The search operations at these premises came to an end on 16.1.1998 and 8.1.1998 respectively as is revealed by the Panchnama’s on record. In any case, on these aspects, there is no dispute between the assessee and the Revenue.
Last day when the authorization of search dated 8.12.1997 was finally executed / concluded is 16.1.1998 for the purpose of section 158BE(1)(b) of the Act. Considered in the said light, the assessment order passed by the Assessing Officer on 23.2.2000 is beyond the period of limitation prescribed in section 158BE(1)(b) of the Act. As a consequence the assessment order dated 23.2.2000 is untenable in the eyes of the law and it is hereby quashed. - Decided in favour of assessee.
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2015 (5) TMI 1213
Exemption u/s 11 - registration u/s 12A denied - CIT, while rejecting the registration sought by the assessee by order dated 28.12.2011, has observed that the Carmel Matriculation Higher Secondary School, which is said to be run by M/s. Carmel Education and Charitable Trust, being the applicant, it is already functioning under the trust called “Little Flower Education Society” - HELD THAT:- School of the applicant is already functioning under a trust, which is registered under the provisions of section 12A - The assessee carried the matter in appeal before the Tribunal and the Tribunal has directed the ld. CIT to give an opportunity to the assessee and decide the issue afresh.
CIT gave opportunity to the assessee as per the directions of the Tribunal and passed the order dated 21.03.2013. No infirmity in the order passed by the ld. CIT for the reason that as per the directions of the Tribunal, the ld. CIT has given reasonable opportunity and decided the issue in accordance with law. Even before us, assessee has not able to point out any infirmity in the order of the ld. CIT. Appeal filed by the assessee is dismissed.
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2015 (5) TMI 1212
Addition u/s 40A(3) - Cash payment for transporting charges in excess of ₹ 20,000/- for a single transaction - CIT-A restricted the disallowance @ 10% - assessee argued that the AO has pointed out only two expenses of truck No.1152 and truck No.2096 where each payment on a single day though was below ₹ 20,000/- but after aggregate the expenses is less than ₹ 20,000/- therefore, no addition is called for - HELD THAT:- On one hand, the CIT(A) is holding the order of the AO as wild and capricious and no estimate should have been made whereas on the other hand, he himself is restricting the disallowance at 10% of total claim, which is contradicting his decision.
AO has pointed out only two instances with respect to truck No.1152 and truck No.2096 where each payment is less than ₹ 20,000/- and, therefore, in our view no violation of provisions of section 40A(3) with respect to two instances have been made. No addition is called for and addition so sustained by the ld CIT(A) is directed to be deleted. - Decided in favour of assessee.
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2015 (5) TMI 1211
Disallowance of interest paid to Star India Pvt. Ltd. - Addition of interest as loan transactions have not been declared in Form 3CEB and, therefore, escaped addition of Transfer Pricing officer - assessee is engaged in business of trading in rights of cinematographic films and television programme software etc. - as per AO held that advance was not taken as business expediency, but was to evade taxable income in the hands of the assessee - CIT-A deleted the addition - HELD THAT:- As found from the record that the financial statements of assessee evidenced utilization of borrowed funds for procuring rights in respect of various genres of films from third parties for sale to SGL Entertainment. As such borrowed funds on which interest has been paid were utilized for purpose or business entitling assessee to claim deduction u/s 36(1)(iii).
Regarding A.O.’s observation that the act of borrowing funds from SIPL is not in business expediency and with a view to avoid taxability in the hands or the assessee, we found that funds were borrowed from SIPL for business purpose, the expenses being wholly and exclusively for the purpose of business based on commercial expediency. Interest expenses were incurred for purpose of assessee's own business, profits of which are chargeable to tax under the provisions of the Act. Whether a particular expenditure is necessary considering commercial expediency has to be decided from the point of view of businessman alone and not by the Revenue authorities.
As per the finding recorded by the CIT(A), M/s Star India Pvt. Ltd. is not coming within the purview of Section 40A(2), therefore, it cannot be said that interest so paid to a related party so as to avoid burden of tax on the assessee. The detailed findings of the CIT(A) recorded at para 2.3 and 2.3.1 has not been controverted by department by bringing any positive material on record. No reason to interfere in the order of CIT(A) deleting disallowance on interest. - Decided against revenue.
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2015 (5) TMI 1210
Cancellation of registration u/s. 12AA(3) - charitable activity u/s 2(15) - as per CIT activities of the assessee's Trust, which involves rendering of services in relation to the port related business of stevedores and clearing and forwarding agents at Visakhapatnam Port, has a prominently commercial tinge about it, which fact has not been denied by the assessee trust so far - HELD THAT:- The undisputed fact is that the objects of the assessee society are charitable in nature. It was for this reason that the Ld. CIT had granted registration to the assessee w.e.f. 19.1.1994 - ITAT in the assessee's own case for the earlier AY [2010 (1) TMI 1276 - ITAT VISAKHAPATNAM]held that the assessee is a charitable organization. Right from the year 1994-95, the assessee has been claiming exemption u/s. 11 and the Revenue has been granting the same.
Whether the Ld. CIT was right in cancelling the registration by invoking his powers u/s. 12AA(3)? - In the case on hand the Ld. CIT clearly gives a finding that the assessee is carrying on its activities in accordance with the objects. There is no finding arrived at by the Ld. CIT, that the activities of the assessee Trust are not genuine. Hence on facts there is no dispute that the activities of the Institution are genuine and that the assessee trust is carrying on its activities in accordance with its objects. In the absence of contrary findings, we have to hold that the Ld. CIT was wrong in invoking the provisions u/s. 12AA(3)
As the conditions specified under the section 12AA(3) have not been satisfied, the cancellation of registration is bad in law. The finding of the Ld. CIT that the provisions of S. 12AA(3) need to be construed in a holistic manner, with a view to give effect to the object which the legislation intends to achieve and to derecognize the objects of the assessee, on the ground that they are not charitable under certain circumstances prescribed in both the provisions of S. 2(15) of the Act, in letter and spirit, is not the correct position of law. This interpretation is not based on a plain reading of the provisions of the Statute. The Courts have stated the manner in which this section has to be interpreted. Thus, we uphold the contentions of the assessee the very invocation of the power of cancellation of registration by the Ld. CIT u/s. 12AA(3) of the Act is bad in law.
Cancel registration u/s. 12AA(3) with retrospective effect from 1.4.2009 relevant to the AY 2009-10 - This issue is no more res integra. Withdrawal of registration with retrospective effect from 1.4.2009 by the order passed u/s. 12AA(3), is bad in law.
Whether the registration can be cancelled on the ground that the activities of the assessee attract the provisos to S. 2(15) ? - Assessee is not operating with a profit motto and that its activities are not in the nature of business and that the objects and activities of the trust are charitable in nature as recognized by the Ld. CIT when registration was granted. "Profit motto" is sine-qua-non of business or service in the nature of business. As there is no profit motive, there is no business activity.
a) The finding of the Ld. CIT, Visakhapatnam is that the assessee falls under the category "advancement of any other object of general public utility" u/s. 2(15) of the Act. Hence is a charitable organization. The only issue is whether the assessee falls within the ken of the provisos inserted to S. 2(15) of the Act by the Finance Act, 2010 w.e.f. 1.4.2009; When the finding of the ITAT is that the assessee activities are not with any "profit motive" and when it is held that the assessee is not carrying on any business, then the provisions to sec. 2(15) of the Act are not attracted in the case on hand and exemption cannot be withdrawn.
(b) In this case the fee/labour charge that has to be charged, are fixed by Visakhapatnam Port Trust through the Visakhapatnam Dock Labour Board and this fee is charged for supply of labour, which is in turn paid to the labour force. Such charge of fee, can not in our opinion be construed as commercial activity carried out by the Trust, when the tests laid down by various Courts are applied to the facts of this case.
(c) The main and predominant object of the assessee is to promote the welfare of the workers. The assessee is admittedly formed for supply of labour when there is shortage of work force in the port and for taking care of the welfare of the workers. The maximum expenditure incurred by the assessee is towards payment for the workers and for their welfare. The prime object of the assessee is not to do trade, commerce or business or rendering of any activity or services in relation to trade, commerce or business etc. The assessee has no profit motto. Hence the Proviso to S. 2(15) does not apply to the case of the assessee.
Thus the cancellation of registration granted u/s. 12A(a) of the Act is bad in law.
Violation of provisions of S. 13(3)(g) r.w.s. 13(cc) - Representative of M/s. South India Corporation Ltd. was not a trustee of the assessee trust, during the period when excess fee collected was refunded. This factual position, as already stated, was not controverted by the Ld. CIT, D.R. Thus prima facie, invocation of S. 13(2)(g) of the Act rws 13(3)(cc) is bad in law.
Fee to be charged by the assessee trust is fixed by the Visakhapatnam Port Trust through the Visakhapatnam Dock Labour Board - Visakhapatnam Port refunded an aggregate amount of ₹ 7.99 crores, of which, an amount of ₹ 4.39 crores was adjusted by credit notes and the balance only was refunded to the party to which it was due. This amount was refunded to South India Corporation Ltd. on various dates during the A.Y. 2008-09, 2009-10 and 2010-11. Refunding the amount legally due to a party cannot be considered a violation of any of the provisions of the Act much less violation of S. 13 of the Act. The amount is rightfully and legally due to M/s. South India Corporation. In fact the Ld. CIT, Visakhapatnam has without proper verification of the facts, come to such wrong conclusions. Thus we reverse this finding of the Ld. CIT, Visakhapatnam and hold that there is no violation of Sec. 13(1)(c) read with sections 13(2)(g) and 13(3) of the Act. - Decided in favour of assessee.
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2015 (5) TMI 1209
Jurisdiction - power of assessing officer to levy of compounding fee - Agreeing of petitioner for levy of compounding fee - release of detained goods on payment of tax - non-application of mind - principles of natural justice - HELD THAT:- Following the decision in the case of M/S. TRISTAR KITCHENS (P) LTD. VERSUS THE DEPUTY COMMERCIAL TAX OFFICER, THE ASSISTANT COMMISSIONER (CT) , CHENNAI [2015 (3) TMI 1375 - MADRAS HIGH COURT], this Court is constrained to set aside the impugned order - petition allowed.
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2015 (5) TMI 1208
Deduction u/s 80IC - AO denied deduction on the ground that assessee had not filed the return within specified time u/s 139(1) because as per records the return was filed on 1-10-2009 and not on 30-9-2009 - assessee’s contention that the return was actually uploaded and filed on the site of the Income-tax department at 12.46AM on 1-102009 and thus there was only a technical delay of 46 minutes in filing of return which, in any case, was filed before the commencement of the next working day - HELD THAT:- Section 80AC provides that deduction u/s 80IC shall be allowed to assessee if the return is filed on or before the due date specified under sub-section (1) of section 139. The provisions of section 80AC are directory and even the Board may, under the provision of section 119, condone the delay in order to avoid undue hardship.
In the present case it cannot be said that the delay was, in any manner, mala fide. On the contrary, the assessee was vigilant enough to file the return at the midnight. We, therefore, condone the delay in filing the return.
As far as ld. CIT(A)’s direction to the AO is concerned, we find that the assessee itself has clearly stated in its reply reproduced by AO in the assessment order, that the return was uploaded at 12.46 AM on 1-10-2009. Therefore, there was no necessity for restoring the matter to the file of AO for any verification.
Cross-objection filed by the assessee is allowed and, therefore, the department’s appeal has become infructuous. However, since the AO has not examined the assessee’s claim u/s 80IC in detail and has rejected the same only on the ground of delay in filing of the return, we restore the matter to the file of AO for examining the assessee’s claim u/s 80IC. - Decided in favour of assessee for statistical purposes.
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2015 (5) TMI 1207
Regularization of Land - petitioner would submit that the petitioner is from schedule tribe and was not aware about the procedure for regularizing the land, which is under his cultivation, situated in forest area, he could not apply for the same within time - HELD THAT:- The concerned department or president or secretary of village, where the land is situated, shall inform the petitioner in advance at the address mentioned in the cause title of the petition as and when the procedure to regularize such lands is undertaken - petitioner shall, thereafter, apply immediately to the concerned authority with regard to his claim.
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9911796707
