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Showing 41 to 60 of 2364 Records
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2018 (7) TMI 2328
TP Adjustment - royalty payment made to associate enterprise - Nil ALP determined - HELD THAT:- As decided in own case [2018 (6) TMI 1843 - ITAT KOLKATA] the lower authorities have been very fair in not holding the assessee’s royalty transactions to be a sham ones. They have applied benefit and commercial expediency test in the instant case whilst computing nil ALP. We see no reason to approve the same these two tests of benefits and commercial expediency are not to be invoked as per the above legal position. The impugned action of the lower authorities under challenge is therefore held to be not sustainable.
Quantification impugned ALP - TPO admittedly applied ‘CUP' method in his order (supra). He appears to have treated the tax payer itself as a valid comparable as it had not paid any royalty to the very payee in earlier assessment years. This made him to adopt nil price of the impugned royalty so as to make the adjustment in question. No reason to concur with such a course of action since the assessee itself having paid Nil amount in the past to the AE, cannot be taken as a valid comparable. This tribunal in the case of Technimont ICB India (P) Ltd. [2013 (9) TMI 595 - ITAT MUMBAI] has concluded long back that a transaction between payee and its AE is not an uncontrolled one so as to be taken as a comparable. We accept the assessee’s instant first substantive ground both on legality as well as on quantification therefore. The impugned ALP adjustment stands deleted accordingly.
Disallowing provision for leave encashment u/s 43B(f) - HELD THAT:- This issue deserves to be remitted back to the Assessing Officer for taking a fresh call after the hon’ble apex court’s decision in the Revenue’s special leave petition converted to appeal staying operation of hon’ble jurisdictional high court’s judgment in Exide Industries Ltd.. [2007 (6) TMI 175 - CALCUTTA HIGH COURT] deleting identical disallowance as well as holding the statutory provision itself to be unconstitutional. We accept this fair stand and direct the AO to keep the instant issue in abeyance to be decided after the hon’ble apex court’s final verdict in the department’s appeal hereinabove.
Assessee’s appeal is treated as partly allowed.
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2018 (7) TMI 2327
TP Adjustment - MAM selection - determination of arm’s length price of international transaction - HELD THAT:- Since there is no factual and functional difference in the activities of assessee for the year under consideration as compared to the Previous Year, respectfully following the above observation of Co-Ordinate Bench in assessee’s own case for A.Y.2009-10 we direct Ld.TPO to benchmark international transactions by using TNMM as most appropriate method at entity level.
Provision for service tax on rent expenses in the books of accounts - AO treated the entire amount as an unascertained liability and disallowed it - HELD THAT:- Considering the legal position of applicability of service tax on rental income, the liability to collect and deposit service tax on rent income was on the landlord which was in dispute before Hon’ble High Courts for a considerable period of time. It is an admitted position that assessee has made payment as per invoice raised by landlord in Assessment Year under consideration for Gurgaon premises whereas insofar as the Bangalore premises are concerned no payment was made as the invoice was not released.
We therefore direct Ld.A.O, to verify if service tax liability towards Bangalore premises has been made by assessee as subsequently the law was absolutely clear and the burden was cast upon the landlord to mandatorily collect service tax, to be deposited with Government. Assessee is directed to provide all the bills/invoices raised by the landlord in respect of both the premises and A.O. is directed to verify actual payment made and to allow as per law. This ground raised by assessee stands allowed for statistical purposes.
Nature of expenses - disallowance of service tax considering it as prior period expenses - HELD THAT:- . On perusal of order passed by Service Tax Department party has claimed a rebate which is not corresponding with the amount of service tax and cess paid by the party during the material period. As the party has not submitted copies of ST-3 returns of the relevant period, it is not a certain double how the duty element, rebate of which is claimed has been discharged by the party.
We therefore direct Ld.AO to verify the actual amount paid by assessee and accordingly allow the claim.
TDS credit denied - since assessee has not offered income to tax, it was not eligible for credit of TDS - HELD THAT:- As AR submitted that customers of assessee had duly deducted and deposited taxes while making payment to assessee, which is why it is reflected in the form 26 AS of assessee. We direct Ld. AO to verify the claim of TDS credit and allow as per law.
Working capital adjustment - HELD THAT:- As there is no difference in the FAR analysis as well as the factual matrix for year under consideration vis-a-vis Assessment Year 2009-10, we do not find any infirmity in granting working capital adjustment of tested party and comparables, provided the necessary details/data have been provided by assessee.
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2018 (7) TMI 2326
Unexplained cash deposit in the bank account - As claimed total turnover of the assessee may be considered as total cash deposits made during the year on which net profit may be estimated as per provisions of section 44AD - HELD THAT:- We find that the assessee has shown total turnover of Rs.7,42,213/- for the year under consideration and therefore the claim that cash deposit corresponding to this sale should be set off from total deposits of Rs.16,06,700/- made during the year is not found convincing
Further set off on account of amount from debtors and unsecured loan from relatives respectively should be given only if the estimation of income have been made only on the balance amount. Therefore, the claim that cash deposit of Rs.6,39,567/- should be considered and for set off against opening cash balance available with the assessee and after allowing set off of Rs.1,06,429/-, the balance figure comes to Rs.5,33,138/- only and this amount the profit should have been estimated by the AO.
Assessee has shown cash sales amounting Rs.7.42 lakhs only for which bills have been produced during the course of assessment proceedings. Therefore, we are not persuaded with the contention that the set off of Rs.7.42 lakhs being cash sales should be given against the cash deposits of Rs.16.06 lakhs.
It is further noticed from the pattern of cash deposits, as reflected in the bank account of the assessee, which are made during the month of December 2010 and January 2011 only. Therefore, it cannot be said that these cash deposits are representing unaccounted cash sales of the assessee.
Considering the totality of facts and taking a harmonious construction and considering the fact that the assessee has filed Return of income under the provision of section 44AD. Therefore, it would be reasonable to restrict the addition of cash deposit to the extent of peak credit balance as appearing on 23.12.2010 in the bank account - Addition made on account of cash deposits is restricted to Rs.3,51,042/-. Accordingly, ground no.2 of the appeal is partly allowed.
Treating income shown in the Return of income as income from other source - Set off shown in the Return of income while making the above addition as unexplained cash deposit in the bank account - As we are of the view that this cannot be allowed as the deposits are not found to be linked with the sale proceeds of the assessee - income as been shown @ 20% of total turnover the same relates to business transaction, therefore, AO is directed to treat the said income as income from business instead of income from other source treated by the AO - ground no.1 is allowed.
Question of set off - we find that the same cannot be allowed as the same represent business income as interest income on bank deposits under other source. Therefore, ground no.3 of appeal is dismissed.
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2018 (7) TMI 2325
Detention of goods - absence of Transit Declaration Form (TDF) - mis-description of goods - Refined Palm Oil - penalty - Section 129(1) of UP GST Act - it was held by High Court that The seizure order as also the penalty order are wholly unsustainable.
HELD THAT:- The Special Leave Petition is dismissed.
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2018 (7) TMI 2324
TP adjustments - mirror transactions ALP adjustments - TPO has accepted the expenditure incurred by the AE to be at arm’s length but has not accepted the income of the assessee to be at arm’s length - HELD THAT:- The controversy involved herein is no more res integra in view of the decision of this Court in M/s. Softbrands India Pvt. Ltd [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable.
We are of the opinion that the DRP was right in holding that what is true of one end is true of the other end of the transaction but it erred in holding that the remedy is to suitably substitute the ALP determined in the hands of assessee also in the hands of the AE. As rightly pointed out by the learned counsel for the assessee, the DRP can only give directions as regards the determination of ALP in the hands of the assessee before it. It cannot give directions to consider the issue in the hands of an assessee whose case is not before it. It is for the relevant TPO/AO to take action in accordance with law in the light of facts and circumstances of the case before them applying their mind independently and not on the directions of DRP or any other authority in another case. Therefore, the relevant ground of appeal on this issue is allowed.
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2018 (7) TMI 2323
Constitutional validity of Rule 8(3A) of the Central Excise Rules 2002 - Prohibition on assessee from utilising cenvat credit for payment of excise duty for default in payment of duty - HELD THAT:- Delay condoned - Leave granted.
The appeals to be heard along with the Civil Appeal arising out of S.L.P. (C) No. 28309 of 2015.
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2018 (7) TMI 2322
Deduction u/s 10A - Whether telecommunication charges and expenses incurred abroad are required to be reduced from the export turnover as well as total turnover also? - HELD THAT:- The controversy is no longer res integra and is covered by the decision of M/s.Tata Elxsi Ltd [2015 (10) TMI 634 - KARNATAKA HIGH COURT] which has been affirmed by the Hon’ble Supreme Court in the case of Commissioner of Income-tax, Central – III vs. HCL Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT] when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd.
Computation made by the Transfer Pricing Officer - The controversy involved herein is no more res integra in view of the decision of this Court in M/s Softbrands India Pvt. Ltd. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable
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2018 (7) TMI 2321
Disallowance u/s. 14A - HELD THAT:- We direct the AO to recompute the amount of disallowance u/s. 14A by following this decision of Vireet Investment (P) Ltd [2017 (6) TMI 1124 - ITAT DELHI] if any judgement of any High Court is available by the time the issue is decided by the AO then the same may also be considered for deciding this issue. Accordingly, this issue is decided in favour of the assessee for statistical purposes.
Non-granting of TDS credit - HELD THAT:- AO has made addition of interest income and the AO has noted that TDS was deducted against this income. But before allowing credit of TDS for this amount, it has to be seen whether TDS was paid to credit of Central Government by concerned deductors or not. Hence feel it proper to restore this matter also back to the file of AO for fresh decision on this aspect and to allow credit of such TDS as per law after providing adequate opportunity of being heard to the assessee.
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2018 (7) TMI 2320
Award of interest pendente lite at 12% on the award for damages excluding security deposits - Whether Clause 16(3) of the General Contract Clauses (GCC) restricted the power of the arbitrator to award interest pendente lite? - HELD THAT:- The liability for interest pendente lite does not arise from any term of the contract, or during the terms of the contract, but in the course of determination by the Arbitrators of the losses or damages that are due to the claimant. Specifically, the liability to pay interest pendente lite arises because the claimant has been found entitled to the damages and has been kept out from those dues due to the pendency of the arbitration i.e. pendente lite.
The Arbitrators rightly awarded interest pendente lite for the period from 26.09.1988 to 23.03.2001 which is the date of the award, on the amounts found due to the claimant. Undoubtedly, such a power must be considered inherent in an Arbitrator who also exercises the power to do equity, unless the agreement expressly bars an Arbitrator from awarding interest pendente lite. An agreement which bars interest is essentially an agreement that the parties will not claim interest on specified amounts. It does not bar an Arbitrator, who is never a party to the agreement from awarding it.
Further, this Court considered an identical Clause in the contract in the case of Ambica Constructions v. Union of India [2017 (4) TMI 1423 - SUPREME COURT], wherein it observed that the Clause of the GCC did not bar the arbitrator from awarding interest pendente lite and affirmed the award passed by the arbitrator. The three Judge Bench of this Court held that the contention raised by the Union of India based on the Clause of the GCC that the arbitrator could not award interest pendente lite was not a valid contention and the arbitrator was completely justified in granting interest pendente lite.
Thus when a dispute is referred to for adjudication to an arbitrator, a term of such a nature as contained in the Clause 16(3) of GCC, that is binding on the parties cannot be extended to bind an Arbitrator. The Arbitrator has the power to award interest pendente lite where justified - the award passed by the Arbitral Tribunal is restored - appeal allowed.
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2018 (7) TMI 2319
CENVAT Credit - Inputs used for output service or not - steel items such as Steel Plates, HR Plates, Angels, Channels etc. used for repair of Barges which were used for providing output services - HELD THAT:- he steel items were used for repair of Barge and Barge is in turn used for providing output service. Therefore, the steel items such as Steel Plates, HR Plates, Angels, Channels were used for providing output service. The issue is squarely covered by the decision of Hon'ble Gujarat High Court judgment in case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT] wherein the issue involved was whether the steel, cement used for construction of Jetty is admissible inputs against the provisions of output service i.e. Port Service. The Hon'ble High Court has allowed the credit.
Following the ratio of the said judgment where identical facts were involved, the impugned order set aside - appeal allowed.
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2018 (7) TMI 2318
Meaning of charity - Cypres doctrine - direction to give free of cost to patients of economically weaker sections - Validity of Circular issued by the Government of NCT of Delhi (GNCTD) as intimated the hospitals to implement the judgment of Delhi High Court with regard to free treatment to the weaker sections of the society in terms of the judgment in the case of Social Jurists v. Government of NCT of Delhi & Ors [2013 (3) TMI 832 - DELHI HIGH COURT] - whether Moolchand Kharaiti Ram Trust and St. Stephens Hospital have obtained the land for charitable purposes at a concessional rate, it was open to the Government to impose a condition of 10% in IPD and 25% in OPD services to be provided free of cost to patients of economically weaker sections?
HELD THAT:- The objects of the creation of Trust were imparting education in and preaching Sanskrit according to Sanatan Dharam methods; and, secondly, for devising means for imparting education in and improving the “Ayurvedic system of medicine” and preaching the same. In order to achieve the latter object, it was not prohibited to take help from the English or Yunani or any other system of medicine and according to need, one or more than one Ayurvedic Hospital may be opened. It was contended that it was not in the deed of the Trust to impart free medical aid. The ground raised and what is contained in the Will is against the very purpose for which the Moolchand Kharaiti Ram Hospital is being run.
When its object was of improving the Ayurvedic system of medicine only as is apparent from the material on record that at present the said activities had been confined to one room and the changed main activity is an Allopathic system of medicine which was not at all the intendment of the creator of the Trust. We leave the matter at that in these proceedings. However, having obtained the land for charitable purposes for the hospital, for no profit and for the public good, whatever system of medicine is being administered, it can be obligated with such charitable rider of free treatment as envisaged in the impugned order issued by the Government.
Similarly, St. Stephens Hospital is Missionaries’ hospital and its very objective admittedly is to provide the charitable services free of charge but it has also become more or less a commercial venture as in the case of other hospitals inter alia involved in the instant matter, how such provision for charity is opposed is beyond comprehension, is it charity versus charity. They have to abide by the just and reasonable legal conditions for free treatment which are constitutionally envisaged also.
Also urged on behalf of Moolchand Kharaiti Ram Hospital that though nine acres of land was allotted at Lajpat Nagar, it was not a prime locality at the relevant time and the land was given at the market rate. The submissions are wholly baseless and against the record and cannot be countenanced. The record belies the same.
Restriction under Article 19(6) to carry on profession, trade or business under Article 19(1)(g) of the Constitution of India - As stipulation for free treatment does not amount to restriction under Article 19(6) on the right enshrined under Article 19(1)(g) and even otherwise it was not necessary to enact a statutory provision by the Government in view of existing liability as per policy/rules/statutory provisions as to ethical standards and other statutory provisions in force.
Applicability of decision in Social Jurists v. Govt. of NCT - As we make it clear that the hospitals in question and other similarly situated hospitals, shall scrupulously observe the conditions framed in the order and in case any violation is reported, the same shall be viewed sternly and the lease shall be cancelled. We are constrained to pass this order as there had been resistance to wholesome policy violation of the afore-conditions contained in order dated 2.2.2012. Such violation cannot be permitted to prevail. We hereby direct the Government of NCT of Delhi to file a periodical report to this Court within a period of one year from today with respect to compliance of conditions by the respondents-hospitals and other similar hospitals in Delhi, not only governed by the decision of Social Jurists case (supra), but also governed by this judgment.
Resultantly, in our considered opinion, the judgment and order passed by the High Court are not sustainable and the same is liable to be set aside and is hereby quashed. The appeals are accordingly allowed. Parties to bear their own costs.
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2018 (7) TMI 2317
Application admitted u/s 9 of IBC - non-services of notices - it is alleged that notice under Section 8(1) of the I & B Code 2016 was never served on the Corporate Debtor - also alleged that Adjudicating Authority has not served any notice on the Corporate Debtor before admitting the application under Section 9 - HELD THAT:- The notice under Rule 5 (1) of the 'I & B Code' 2016 (Application to Adjudicating Authority) Rules 2016 i.e. Demand Notice under Section 8(1) was issued by the Operational Creditor on 29th August 2017. It was not served on the Corporate Debtor and returned with the note "insufficient address". The Adjudicating Authority at paragraph 4 of the impugned order though noticed that notice sent to the Corporate Debtor returned unserved with insufficient address, in spite of the same the application under Section 9 was entertained on the ground that the address of the Corporate Debtor as appearing on the website was mentioned by the Operational Creditor.
The legislative intent of issuance of Demand Notice under Section 8(1) is not a mere formality but a mandatory provision. Only after service of notice under Section 8(1) and on completion of 10 days, if payment towards the demand is not made, an Operational Creditor accrues right to file application under Section 9 and not before such date - in absence of service of Demand Notice, the application under Section 9 of 'I & B Code' 2016 was not maintainable.
This apart, it is found that the Adjudicating Authority had not issued any Notice on the Corporate Debtor before admission of the application under Section 9 which was required to be issued in the light of the decision of this Appellate Tribunal in Innoventive Industries Ltd. Vs. ICICI Bank and Ors. [2017 (6) TMI 959 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] - the direction given to Operational Creditor to serve notice of date of hearing on the Corporate Debtor is not in accordance with the NCLT Rules, 2016 and cannot be treated to be a notice issued and served by the Adjudicating Authority. It is also against sub-Section (2) of Section 424 of the Companies Act, which is applicable to I & B Code 2016.
The orders passed by the Adjudicating Authority appointing 'Resolution Professional', declaring moratorium, freezing of account, and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action taken by the 'Resolution Professional', including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside - application dismissed.
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2018 (7) TMI 2316
Disallowance of deduction claimed u/s.36(1) (viia) - provision as required under the said Section was not created - HELD THAT:- Section 36 (1) (viia) indicate that allowance is for any provision for bad and doubtful debts.
In our opinion, the use of the word ‘’any’’ before the words ‘’ provision for bad and doubtful debts’’ indicate that nomenclature under which the provision is made may not be a critical factor in determining the allowance. Once a provision under whatever name is debited in the profit and loss account, then it is can be allowed, provided it is within the limits specified. No doubt assessee had preferred claims in its return which were in excess of what was allowable u/s.36(1) (viia) of the Act, since debits to the profit and loss account whether it was called provision for standard asset, reserve for DCB difference, NPA provision, waiver loans, sundry debtors over three years, bullet jewel loan, overdue interest reserves, sundry debtors over three years, even if they were all aggregated was lower than the amount assessee could have claimed u/s.36(1) (viia)
None of the lower authorities had carefully gone through the nature of the each of the debits mentioned above before coming to a conclusion that these were actually not provision for bad and doubtful debts, but something else, like creation of a Reserve. Though peculiarities of nomenclature by itself will not render the assessee ineligible for claiming deduction available to it u/s.36(1) (viia) it is required for the assessee to show that these were indeed provisions for bad and doubtful debts. We are of the opinion that this issue requires a fresh look by the ld. Assessing Officer - Decided in favour of assessee for statistical purpose..
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2018 (7) TMI 2315
Amount payable to the petitioner - Despite the Court's order with respect to the payment to the petitioner, no further action was taken - respondent Advocate submits that the decision quantifying the amount payable to the petitioner has since been taken and would be communicated to the petitioner within two days - HELD THAT:- The amounts determined shall also be credited to the petitioner accordingly within a week. It is stated that the petitioner has preferred a contempt proceedings for noncompliance of the Court‟s order. The present order will not in any way prejudice the rights of the parties in those proceedings.
Application stands disposed of accordingly.
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2018 (7) TMI 2314
Monetary limit for preferring appeals before the ITAT - Disallowance being dividend income as claimed as exempt - HELD THAT:- Admittedly, the tax is less than the prescribed limit for preferring appeals before the ITAT by the Income Tax department in view of Circular No. 3/2018 dated 11.07.2018 and the material available on record, DR could not point out if this case fell under any of the exceptions as provided in the aforesaid Circular.
We also find that the aforesaid Circular makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals also. We hold that the appeal of the revenue deserves to be dismissed in terms of low tax effect vide Circular No. 3/2018 dated 11.07.2018. Accordingly, this being a low tax effect case, we dismiss this appeal of revenue in limine, as un-admitted, without going into the merits of the case.
Appeal of the revenue is dismissed.
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2018 (7) TMI 2313
Exemption u/s.11 - assessee is carrying out activities which are commercial in nature resulting in huge surplus and thus hit by the proviso to section 2(15) introduced w.e.f. 01-04-2009 ? - HELD THAT:- As decided in assessee own case [2017 (9) TMI 1892 - ITAT PUNE] for the A.Yrs. 2010-11 and 2011-12 Activities undertaken by the assessee seen with reference to the dominant activity of the Trust shows that it has been carried out for the advancement of the dominant object of the Trust and the fees generation is only incidental to the activities carried out by the assessee and are not hit at all by the proviso to Sec.2(15)
As we hold that the assessee is entitled to exemption u/s.11 of the Act. As such, it is not the case of the Revenue that the assessee earned huge profits abnormally depicting the profit motive of such activities. Further, it is not the case of the Revenue that such profits are not ploughed back into the trust for achieving the objects of the Trust. Thus, the ground raised by the Revenue for both the assessment years are dismissed.
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2018 (7) TMI 2312
Attimari Coolie Expenses - As per AO since the said expenditure have not been incurred under any statutory, judicial, commercial or administrative obligation and therefore not permissible as deduction, the same is required to be disallowed in full - CIT(A) restricted the disallowance at 25% of the expenses - HELD THAT:- As the assessee filed ledger account of Attimari Coolie Expenses and also vouchers for payment of such charges on sample basis. We find that similar disallowance in earlier years have not been challenged by Revenue, deleted by CIT(A). Going by the decision of G.G. Joshi [1993 (9) TMI 39 - GUJARAT HIGH COURT] and findings of CIT(A), we find no infirmity in the order of CIT(A). Hence, this issue of Revenue’s appeal is dismissed.
Disallowance of bad debts claimed - CIT(A) allowed the claim - HELD THAT:- As the assessee is actually write off the bad debts and that fact is not under dispute. This fact is clear from schedule ‘k’ of general and administrative expenses of P & L account, wherein the assessee has debited the amount on account of sundry debtors written off. This fact is acknowledged by the AO in his assessment order. Once, this is a fact the debts claimed by assessee are allowable. The CIT(A) has rightly allow the claim of the assessee and we confirm the same. This issue of Revenue’s appeal is dismissed.
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2018 (7) TMI 2311
Maintainability of appeal against ITAT order - TPA - include forex gain or loss to be part of operating income/loss - whether Tribunal is right in law in concluding that forex gain or loss are to be treated as operating in nature since, they are not critical to operating activities of the business conducted by the taxpayer - HELD THAT:- The controversy involved herein is no more res integra in view of the decision of this Court in M/s.Softbrands India Pvt. Ltd [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable - mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A - No substantial question of law arises for consideration in the present case.
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2018 (7) TMI 2310
Estimation of income - gross profit on alleged purchases made through entry - HELD THAT:- The transactions are duly recorded in the stock register and every purchase can be identified with the corresponding sales. It seems that the addition has been made on the basis of statement tendered by Shri S. K. Bajaj and that statement was retracted on 21/11/2008. The cross examination was never provided to the assessee and the whole addition is based upon estimation only, thus, considering the factual matrix and interest of Revenue, we deem it appropriate to adopt the gross profit @ 0.7 minus already GP declared by the assessee and against 1% estimated by the Ld. AO. Thus, this ground of the assessee is partly allowed.
Addition u/s 69C - commission paid on purchase of silver bills - commission was estimated by the Ld. Assessing Officer @0.5%, which may be reduced to 0.2% - HELD THAT:- As it will meet the end of justice, if the commission is estimated at the rate of 0.3%, in place of 0.5% made by the Ld. AO and 0.2% requested by the Ld. counsel for the assessee. AO is directed accordingly. This ground of the assessee is partly allowed.
Disallowance being 1/6th of car and telephone expenses and further disallowance at the rate of 15% of entertainment expenses for personal use - HELD THAT:- Vehicles of the assessee company are used as per terms and conditions of the service and since the assessee is a private limited company, it is assessable as a distinct assessable entity, as per the definition of ‘person’ under section 2(31) of the Act. The Hon'ble High Court in Dinesh Mills Ltd [2001 (12) TMI 65 - GUJARAT HIGH COURT] clearly held that it could not be stated that when the vehicles were used by the directors 'even if they were personally used by the directors', the vehicles were personally used by the company, because a limited company by its very nature cannot have any 'personal use'.
The limited company is an inanimate person and there cannot be anything personal about such an entity. The view was supported by the provision of section 40(c) and section 40A(5) of the Act. Once the expenditure in question was in terms as provided in sections 309 and 198 of the Companies Act, there could not be any 'non-business' purpose insofar as the assessee-company was concerned. While coming to the aforesaid conclusion, Hon'ble High Court followed the decision from L.G. Ramamurthi [1976 (10) TMI 18 - MADRAS HIGH COURT] No contrary decisions or facts were brought to our notice by the Revenue. Thus, grounds of the assessee are allowed
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2018 (7) TMI 2309
Notice of demand - petitioner is surprised by showing notice of demand - HELD THAT:-The legend as written in the writ petition discloses that there is no element of surprise in the matter at all. The petitioner is a practiced litigant; he has been dodging the department, not pursuing his appeals, not abiding by the Statute and the law and now he comes to the Court not for the first time but for the third time. This is sheer abuse of the process of law and the Court.
We are not inclined to interfere in the matter. Writ Petition is dismissed.
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