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Showing 41 to 60 of 2184 Records
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2018 (5) TMI 2150
Non-payment of Refund - non-filing of Form ST-21 - HELD THAT:- Without prejudice to the rights and contentions of the petitioner, the petitioner would furnish Form ST-21 within a period of two weeks and the respondents would process the case of refund within a period of three weeks thereafter. It is stated that Form ST-21 will be filed manually, as facility of uploading of Form ST-21 under the Sales Tax Act, 1975 is not available.
Relist on 10.8.2018.
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2018 (5) TMI 2149
Suit seeking declaration, partition, possession and injunction dismissed - dismissal on the ground that the same was barred by limitation - suit have not been properly appreciated and examined - principles of natural justice - HELD THAT:- The first and foremost argument of the learned counsel of the appellant is that the learned Single Judge ought to have followed the mandate of Section 26 of CPC and issued the summons to the respondents. By not doing so and dismissing the suit at the initial stage, he has acted in violation of the provisions of CPC and, therefore, the findings need to be set aside on this ground alone - There is no doubt that Section 26 of CPC requires that when a suit has been instituted on the presentation of a plaint, the summons be issued to the respondents in terms of Section 27 of CPC. The mandate of Section 26 of CPC is to issue summon when a plaint is presented, supported by an affidavit.
The stage for issuance of summons to the opposite party arises only when the Court is satisfied that the suit is 'duly instituted. A suit which is barred by limitation, or does not disclose any cause of action, i.e. if it is barred by provisions of Order VII Rule 11 of CPC or any other law cannot be said to be a suit which is duly instituted and Courts are not bound to issue summons in such cases and are within their power to dismiss the same in limine. The contention, therefore, that the learned Single Judge could not have dismissed the suit at the initial stage, has no merit - There is no dispute that while arriving at the conclusion under Order VII Rule 11 of CPC, the Court has to rely solely on the averments in the plaint and also the documents relied upon by the petitioner in support of his/her contentions in the plaint. It is a well settled principle of law.
The claim of the appellant that the period of limitation is to be reckoned from the date of cause of action i.e. when there arose "a need to challenge" the instrument, has no force in it. The period of limitation to challenge the instrument once start running does not stop. The plaint is bereft of any facts, showing as to why it should be reckoned from the date of alleged cause of action and not from the date of execution of the instrument.
There are no illegality or perversity in the impugned order. The impugned order needs no interference - appeal dismissed.
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2018 (5) TMI 2148
Offence of Forgery - attempt to transfer the property of complainant by executing a mortgage deed by using Power of Attorney - Section 465 of the Indian Penal Code, 1860 - HELD THAT:- Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery Under Section 463, Indian Penal Code. Therefore, Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction Under Section 465, first it has to be proved that forgery was committed Under Section 463, implying that ingredients Under Section 464 should also be satisfied. Therefore unless and untill ingredients Under Section 463 are satisfied a person cannot be convicted Under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
Keeping in view the strict interpretation of penal statute i.e., referring to Rule of interpretation wherein natural inferences are preferred, it is observed that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence Under Section 464 it is imperative that a false document is made and the Accused person is the maker of the same, otherwise the Accused person is not liable for the offence of forgery.
This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the Accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the Accused, still the Accused could not be convicted.
The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the Appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the Appellant got back the property.
Appeal dismissed.
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2018 (5) TMI 2147
Interest income earned towards the surplus funds lying with it - business income or income from other source - disallowance made on the provision for retirement benefits - AO had brought two amounts to tax – on the one hand, determining that the amounts derived constituted income from other sources, on the other, that such expenses could not be allowed under Section 37 - HELD THAT:- Both issues are covered by decisions of this Court with respect to the question of treatment of the amounts derived as to whether they are business income or income from other source. The judgment in NTPC SAIL Power Co. Pvt. Ltd. [2012 (10) TMI 524 - DELHI HIGH COURT] is conclusive and averse to the Revenue. The judgment in Commissioner of Income Tax v. Insilco Ltd. [2009 (2) TMI 31 - DELHI HIGH COURT] has ruled against the assessee that such amounts are deductible under Section 37 of the Act.
No substantial question of law.
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2018 (5) TMI 2146
TP Adjustment - Comparable selection - R Systems International Limited rejected as it has different accounting period inasmuch as this company’s year ended on 31.12.2012 - HELD THAT:- As there are case laws for the proposition that companies having a different financial year ending can be selected if the margin for the period April-March can be computed based on audited segmental information available - See Mercer Consulting (India) (P.) Ltd.[2016 (8) TMI 1163 - PUNJAB AND HARYANA HIGH COURT], PANGEA3 AND LEGAL DATABASE SYSTEMS PVT. LTD. [2017 (3) TMI 267 - ITAT MUMBAI] and EGIS LIMITED [2017 (2) TMI 1204 - ITAT MUMBAI]. Thus we hold that this comparable is to be selected. The Transfer Pricing Officer may verify the margin as computed by the assessee.
Acropetal Technologies Limited - assessee submitted that the AO has taken health care segment from this comparable instead of the ITES services which is being compared - We direct the Transfer Pricing Officer to compute and take the margin of ITES Segment of the comparable for analysis.
Persistent Systems Limited - Revenue has not brought out any difference in the functional profile of the assessee for the year under consideration with that of the assessee for those assessment years. Hence, the Tribunal in assessee’s own case [2015 (11) TMI 1582 - ITAT MUMBAI] has accepted that a software product company is not comparable to assessee company which is into software development services. Accordingly, respectfully following the above precedent, we hold that this comparable has to be excluded from the final list of the comparables.
Aspire Systems (India) Private Limited - assessee submitted that this company is into IT Consultancy and Software Product Development and it is not Software Service Company - DRP has held that it was the assessee’s submissions that this comparable is into varied activities, the same argument has been placed before us. The Dispute Resolution Panel has held that this company is into Development and Software. Dispute Resolution Panel has held that merely because this company is having IPs & R & D centre, one cannot reject the comparable. We find that the ld. Counsel of the assessee has not been able to cogently rebut the findings of the authorities below. Hence, the objection of the ld. Counsel of the assessee against the selection of Aspire System Ltd. is rejected.
Infobeans Technologies Limited - DRP found that this company’s business is similar with that of the assessee - As found that Infobeans Software Solutions Pvt. Ltd. is into development of software and its sale. We find that from the perusal of the financial of this comparable submitted in the paper book we agree with the finding of the Dispute Resolution Panel and held that merely because company has shown sale of software in profit and loss account, one cannot reject this comparable. As regards the ld. Counsel of the assessee’s submission that there has been a demerger in the said comparable, hence it is not comparable, we find that it has not been explained as how the demerger has affected the results. Hence, we reject this aspect also of tassessee’s submission. Hence, we affirm the Transfer Pricing Officer’s action for inclusion of this comparable.
Thirdware Solutions Limited - assessee submitted that this comparable is into acquisition/purchase of hardware and software including software as a service - When this company's substantial revenue is from other various business segments like sale of licence, software services and segmental results are not available, this company cannot be a valid comparable for benchmarking the international transaction. Following the cases M/S. IVY COMPTECH LIMITED [2014 (12) TMI 1414 - TELANGANA HIGH COURT] and M/S INTOTO SOFTWARE INDIA PVT. LIMITED HYDERABAD [2014 (3) TMI 1071 - ANDHRA PRADESH HIGH COURT] we hold that this is not a valid comparable in the present case.
Inclusion of Pass-through Costs in the Operating Margin - TPO has recomputed the PLI by considering the out sourcing cost as operating cost, whereas the assessee has treated the same as pass through cost and adjusted the same in indirect expenses - HELD THAT:- We find that as rightly held by the authorities below, the outsourcing cost is directly related to the software development and services. It is not the case that the AE has directly given contract to other parties, rather it is to the assessee who has sub-contracted its part of work. The assessee has merely developed a part of the software through out-sourcing instead of in-house development. The outsourced work is incorporated in the work of the assessee in the final software prior to providing the same to the AE. Hence, we are in agreement that the TPO has correctly considered the outsourcing cost as operating expense of the assessee.
Assessee appeal is partly allowed.
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2018 (5) TMI 2145
Disallowance u/s 40(a)(ia) - AO made addition on the ground that the TDS has not been deducted, was upset by the CIT(A) who noticed that the payee [DTC] had reflected the amount as its tax liability in its returns.
HELD THAT:- This issue is covered by a judgment of this Court in Commissioner of Income Tax vs. Rajinder Kumar [2013 (7) TMI 454 - DELHI HIGH COURT] and also the Commissioner of Income Tax vs. Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] No question of law arise.
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2018 (5) TMI 2144
TP Adjustment - determination of arm's length price by TPO/AO for management services received by the Appellant - TPO observed that the entire services are stewardship in nature and received by the Associate Enterprises for maintenance of overall control of the group - HELD THAT:- This issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in assessee’s own case and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings.
Therefore, we are of the view that arm’s length price adjustment made by the DRP/Assessing Officer in respect of management services needs to be deleted. Accordingly, we delete the arm’s length price adjustment in relation to management services - Appeal filed by the assessee, is allowed.
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2018 (5) TMI 2143
Admission of additional evidence by Tribunal in the interest of justice - Revenue submitted that rules does not enable the assessee to submit the additional evidences whether oral or documentary before the Bench without explaining the proper reason, why the same could not be produced before AO / CIT(A) - discretion lies with the Tribunal to admit additional evidence in the interest of justice once the Tribunal affirms the opinion that doing so would be necessary for proper adjudication of the matter - HELD THAT:- Hon`ble Delhi High Court, in the case of Text Hundred India (P) Limited [2013 (6) TMI 72 - DELHI HIGH COURT] held that: “It is well-settled that the procedure is handmaid of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage.”
Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect to admit the additional evidence.
We admit the additional evidence filed before us and therefore, we set aside the order of the ld CIT(A) and remand the issues back to the file of the AO for de- novo adjudication. We allow these appeals for statistical purposes.
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2018 (5) TMI 2142
TP Adjustment - ALP adjustment on account of interest on receivables from AE - CIT(A) remitted this matter back to AO/TPO to consider the rate of interest on domestic term deposit of SBI instead of 14.45% with a clear cut direction to restrict the interest up to the end of the year - HELD THAT:- In the case of GSS Infotech Ltd. [2016 (7) TMI 243 - ITAT HYDERABAD] as held whether it is AE or non-AE, it is in the interest of business that assessee receives the foreign exchange early so that it can claim deduction u/s. 10A. Therefore, in our view, putting a limit of two months of credit period itself is arbitrary. Moreover, as seen from the calculation provided in page 7 of the assessment order, the date of realization was shown as 02- 02-2011 and interest was levied from 01-04-2010 to 0202-2011 which is not pertaining to the year under consideration.
As far as this year is concerned, the invoices raised on 31-12-2009 were outstanding only for a period of three months by the end of the accounting year. We are of the opinion that this period is reasonable and so no interest can be levied, just because amounts are shown as 'outstanding'. Accordingly, we cancel the interest levied and allow assessee's contentions - thus we set aside the order of CIT(A) and allow the grounds raised by the assessee on this issue.
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2018 (5) TMI 2141
Penalty u/s 271B - assessee has violated the provisions of Section 44AA as well as 44AB of the Act for not maintaining the regular books of accounts as well as audit of the same - HELD THAT:- It is pertinent to note that when the assessee did not maintain the regular books of account then the question of getting of books of accounts audited does not arise. Once, there is a violation of provisions of section 44AA of the Act the said violation cannot be extended to section 44AB of the Act. The provisions of Section 44AB of the Act can be invoked only when the assessee has complied with the provisions of Section 44AA of the Act. Therefore, the violation of Section 44AA of the Act cannot continue because once it is found that the assessee did not maintain the regular books of account the said violation cannot travel beyond the provisions of Section 44AA and hence, cannot be held as a further violation of Section 44AB - See BISAULI TRACTORS [2007 (5) TMI 181 - ALLAHABAD HIGH COURT]
Once the assessee found to have not maintaining the regular books of account as contemplated by Section 44AA of the Act the default was completed and therefore, after the default of not maintaining the books of accounts there cannot be a further default for not getting the same audited as required U/s 44AB of the Act. Hence, the penalty of levy by the AO U/s 271B is not justified and the same is deleted. Appeal filed by the assessee is allowed.
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2018 (5) TMI 2140
Monetary relief under Section 20 of the D.V. Act - proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings or not? - Whether or not the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- A proceeding in which the party asserts the existence of civil rights conferred by the civil law or by statute and claims a relief for breach thereof would be a proceeding of civil nature and the proceeding which upon conclusion results in the imposition of sentences, such as death, imprisonment, fine or forfeiture of property would be a proceeding of criminal nature.
The provision made for designating the Court of Judicial Magistrate or the Metropolitan Magistrate as the Court where application under Section 12 (1) of the D.V. Act can be made, appears to have been done only with a view to provide teeth to the powers of the Court - Making of criminal and civil courts simultaneously as appropriate fora to obtain the reliefs provided under the D.V. Act is a certain pointer to the fact that the character of the proceeding is not dependent upon the nature of the tribunal which is invested with the authority to grant relief, but upon the nature of the right violated and the kind of relief that may be had.
Applicability of provisions of the Cr.P.C. and providing of criminal consequences for breaches are only indicative of the intention of the Parliament to make various civil remedies available under the D.V. Act more effective and meaningful. Parliament thought in it's wisdom that mere giving of remedies of civil nature or an order of injunction or prohibition for that matter, may not be sufficient to enable the aggrieved person realise the benefits of civil remedies. It were the speed and fear of the criminal procedure generally and the penal consequences visiting the respondent for some of his indiscretions would what really make a disobedient respondent behave - keeping with the vision of Parliament which sees domestic violence as a human rights issue and a serious impediment to development. Unless a wide array of remedies is provided, and it is possible only in civil law and not in criminal law and the remedies are also made speedy and effective, which is possible by infusing them with criminality, the issues of human rights and development cannot be addressed properly. This is what seems to be the overall scheme and theme of the D.V. Act.
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are predominantly of civil nature and it is only when there is a breach of the protection order as is contemplated under Section 31 and failure or refusal to discharge duty without any sufficient cause by the protection officer as contemplated under Section 33, the proceedings assume the character of criminality.
Whether or not the High Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973 in respect of the proceedings under the Protection of Women from Domestic Violence Act, 2005? - HELD THAT:- The literal rule of construction is about what the law says and means, as understood from the plain language of the law and not what the law should and ought to be, as understood by taking recourse to the external aids of construction. It is also well settled that literal construction should not be excluded only because the consequences lead to some undesirable results or penalty - In the case of TATA CONSULTANCY SERVICES VERSUS STATE OF ANDHRA PRADESH [2004 (11) TMI 11 - SUPREME COURT], the Hon'ble Supreme Court has cautioned the Courts by observing that the Court should not be overzealous in searching for ambiguities or obscurities in the words which are plain.
Sub-section (1) of Section 28 clearly lays down that all proceedings taken under Sections from 12 to 23 and in respect of offence under Section 31 shall be governed by the provisions of Cr.P.C. except as otherwise provided in the D.V. Act. It means that only such of the provisions of the Act as would lay down a particular procedure to be followed by the Magistrate, which would have prevalence over the provisions of the Cr.P.C. to the extent of their inconsistency with the specific provisions of the D.V. Act.
A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice - This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.
The reference is returned accordingly.
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2018 (5) TMI 2139
Maintainability of appeal - Assessment of appellant on a protective basis - AOP - order is passed by AO on the alleged Association of Persons (‘AoP’) of SASL and not against the Appellant (ie SASL) - HELD THAT:- At the very outset the counsel for the assessee pointed out that impugned issue stand decided in favour of the assessee and against the revenue by the order of the bench in assessee’s own case [2018 (3) TMI 1599 - ITAT NEW DELHI]
Thus respectfully following the decision of Hon’ble Delhi High Court in the case of Linde AG Linde Engineering Division vs. DDI (2014 (4) TMI 975 - DELHI HIGH COURT] we hold that Consortium Agreement dated 04/05/03 between Slumberger Asia Services Ltd and Transocean Offshore Deep water Drilling Pvt. Ltd., do not constitute an AOP. Transocean Offshore Deepwater Drilling Inc. being consortium member has rightly offered to tax the receipts u/s 44BB in the return of income.
Gross receipts for the purposes of Section 44 BB - presumptive income - As decided in TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC. C/O. NANGIA AND COMPANY [2018 (2) TMI 53 - ITAT DELHI] for the purposes of computing the 'presumptive income' of the assessee for the purposes of Section 44 BB of the Act, the service tax collected by the Assessee on the amount paid is for rendering services is not to be included in the gross receipts in terms of Section 44B (2) read with Section 44 BB (1). The service tax is not and amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The only collecting the service tax for passing it on to the Government.
The Court further notes that the position has been made explicit by the CBDT itselfin two of its circulars. In Circular No. 4/2008 dated 28th April 2008 it was clarified that "Service tax paid by the tenant doesn’t partake the nature of "income" of the landlord. The landlord only acts as a collecting agency for Government for collection of Service Tax. Therefore, it has been decided that tax deduction at source) under sections 194-I of Income Tax Act would be required to be made on the amount of rent paid/payable without including the service toot. In Circular No. 1/2014 dated 13th January 2014, it has been clarified that service tax is not to be included in the fees for professional services or technical services and no TDS is required to be made on the service tax component under Section 194 J of the Act. Appeal of assessee allowed.
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2018 (5) TMI 2138
Maintainability of appeal - opportunity to file deficit court fee of Rs.19,000/- - HELD THAT:- A last opportunity is granted to file deficit court fee of Rs.19,000/- within four weeks, failing which the appeals shall stand dismissed for nonprosecution.
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2018 (5) TMI 2137
Non-representation on the date of hearing by assessee - HELD THAT:- The notice of hearing was sent to the assessee, but there was no compliance on behalf of the assessee. Even no application seeking adjournment was filed. It can be safely presumed that the assessee may not be serious in pursuing the appeal filed. Support is from the order of the ITAT Delhi Benches in the case of CIT Vs Multiplan India Pvt. Ltd [1991 (5) TMI 120 - ITAT DELHI-D] and the decision of Late Shri Tukoji Rao Holkar Vs Wealth Tax Commissioner [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT].
It is appropriate to add that in the eventuality the assessee is able to show that there was a reasonable cause for non-representation on the date of hearing, it would be at liberty to pray for a recall of this order by making an appropriate prayer. Said order was pronounced in the Open Court at the time of hearing itself. Decided against assessee.
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2018 (5) TMI 2136
Cancellation of registered sale deed - authority of law to cancel the registered sale deed, after a sale deed has been registered, under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made - allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court or not? - Whether the judgment in the case of RAJ KUMARI VERSUS STATE OF U.P. THR. PRIN. SECY. DEPTT. OF REVENUE, LUCKNOW & OTHERS [2014 (3) TMI 1206 - ALLAHABAD HIGH COURT] or the judgment in the case of RADHEY SHYAM ARORA VERSUS STATE OF U.P. AND 6 OTHERS [2013 (11) TMI 1802 - ALLAHABAD HIGH COURT] lays down the correct law?
HELD THAT:- On going through the Division Bench judgments in Raj Kumari and Radhey Shyam Arora, we do not find any conflict in the conclusions arrived. In Raj Kumari, a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, [2006 (10) TMI 517 - ANDHRA PRADESH HIGH COURT] held that once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transactions.
Whether a sale deed registered under the Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud? - HELD THAT:- The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Order cannot be invoked to annul a document. The Government Order dated 13.8.2013 is not only arbitrary but is wholly without jurisdiction and cannot be sustained.
If this Court while undertaking the powers under Article 226 of the Constitution of India interferes with the orders challenged in this petition then that would result into restoration of an illegality. It is well settled that powers under Article 226 of the Constitution of India must not be exercised if that restores and perpetuates an illegal order. Hon'ble Supreme Court in G. Venkateswara Rao Versus Government of Andhra Pradesh and others, AIR 1966 SC 828 concluded that though the State Government had no power to review its earlier order but if quashing of order reviewed would lead to restoration of an illegal order then High Court must refuse to exercise its extraordinary discretionary power. It is also well settled that the discretionary power vested with this Court is supposed to be invoked by taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, the nature and extent of injury that is likely to ensue by such grant or refusal, etc. and further that no writ, order or direction is required to be given if that does not subscribe to justice or serves the cause of justice.
In the case in hand, as already stated, it is the position admitted even by the petitioner that the sale deed was registered in her favour subsequent to registration of sale deed in favour of respondent no. 4, Smt. Sheela Rai. In view of this admission, it would not be appropriate to invoke the powers under Article 226 of the Constitution of India in favour of the petitioner as that would restore an illegality. The writ petition, as such, deserves to be dismissed.
The writ petition, hence, is dismissed.
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2018 (5) TMI 2135
Disallowing assessee’s market-to-market loss claimed treating the same to be notional and a contingent liability - HELD THAT:- Both parties are very fair in pointing out that various co-ordinate benches decisions have already upheld the CIT(A)’s similar action in the said preceding assessment years. Respective orders are [2018 (2) TMI 1806 - ITAT KOLKATA], [2017 (10) TMI 1399 - ITAT KOLKATA]and [2017 (3) TMI 1173 - ITAT KOLKATA]
DR is very fair in not indicating any distinction on facts or law therein. We therefore conclude that the CIT(A) has rightly deleted the impugned market-to-market loss disallowance. The Revenue’s former substantive ground fails.
Additional depreciation claim disallowance third proviso to Section 32(1)(ii) - Asset put to use for period less than 180 days - Scope of amendment is carried out in the Act - HELD THAT:- The proviso inserted by the Act, 2015 being curative in nature was retrospective in operation since it merely removes the unintended hardship. Moreover the said amendment is in consonance with the judicial interpretation placed on the provisions of Section 32(1)(iia) of the Act and therefore direct he AO to allow the appellant benefit of additional depreciation in relation to actual cost of plant and machineries installed in AY 2011-12 but put to use for period less than 180 days - Ground is therefore allowed.
Revenue’s appeal is dismissed.
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2018 (5) TMI 2134
Money Laundering - predicate offence - It is asserted in the petition that none of the petitioner(s) has been named in the FIR or any chargesheet in respect of predicate offence and yet they are being prosecuted for offence under the Prevention of Money Laundering Act, 2002 - HELD THAT:- Issue notice on the special leave petition and SLP(Crl.) 4321/2018 etc. the stay application, returnable on 9.7.2018.
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2018 (5) TMI 2133
Income accrued in India - Applicability of Article 8 vis-a-vis Article 24 of DTAA - income assessable to tax at Singapore on the basis of accrual or remittance - full income would be assessable to tax on the basis of accrual and not on the basis of remittance - HELD THAT:- Leave granted. Hearing expedited.
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2018 (5) TMI 2132
Correct head of income - taxability of profits earned on sale of land - Capital gain or business income - assessee’s contention that profits are exempt from tax as the land is agriculture land whereas the Revenue’s stand is that the sale of land is adventure in the nature of trade and therefore business income - HELD THAT:- It is an undisputed fact that assessee along with 6 co-owners had purchased land at Dahegaon, which is located beyond 8 kms from any Municipality and the same was sold during the year under consideration. The disclosure of the land in assessee’s balance sheet as investments is not in dispute.
The Submission of the assessee that the land has been classified in the Revenue records as agricultural land, no permission from the concerned authorities has been obtained for transfer for nonagricultural use, no plotting/sub plotting of the land has been undertaken by the assessee has not been controverted by Revenue.
Submission of the assessee that the produce from the sale of cultivation was disclosed by the assessee, that the assessee wanted to start horticulture activities and for which the assessee had approached bank for financial assistance has not been proved to be false. We further find that the assessee’s contention of having satisfied of the various parameters spelt out by Hon’ble Apex Court in the case Sarifabibi [1993 (9) TMI 10 - SUPREME COURT] to hold the land as agricultural land has been met and the contention of the assessee has not been found to be incorrect.
We find that in the case of CIT Vs. Dhable, Bobde and others [1992 (9) TMI 45 - BOMBAY HIGH COURT] assessee, an association of persons, had purchased agricultural land in October, 1966 and sold in January, 1967 and had claimed it to be exempt. Revenue treated the transaction to be on adventure in the nature of trade and held it as taxable business come. The Hon’ble High Court while deciding the issue in favour of assessee has held that the onus of proving that the land formed part of business asset of the assessee was on Revenue and in the absence of evidence to that effect, the presumption was that land was held as capital asset and therefore income on its transfer was not income from business. was held as capital asset and therefore income on its transfer was not income from business.
Before us, Revenue has not placed any material to prove that the land formed part of business asset of the assessee. Further the contentions of the Ld AR have not been controverted by Revenue. In such a situation, we are of the view that the ratio of the decision in the case of Dhoble, Bobde and others (supra) would be applicable to the present case. We therefore after relying on the various decisions cited by the assessee, are of the view that the AO and Ld.CIT(A) were not justified in treating the profits from sale of land as business income. We therefore set aside the order of Ld.CIT(A) and thus the ground of the assessee are allowed.
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2018 (5) TMI 2131
Eligibility for deduction u/s 10AA - SEZ unit - nature of distribution fee received from Amadeus Spain - DRP observed that amount received under the Distribution Agreement was not on account of any export of software or data processing for which deduction could be claimed u/s 10A -
HELD THAT:- Heard.Delay condoned.
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