|
Advanced Search Options
Case Laws
Showing 41 to 60 of 2024 Records
-
2017 (9) TMI 1989 - SC ORDER
Compromise or arrangement - section 391 to 394 of Companies Act - HELD THAT:- The special leave petition is dismissed.
-
2017 (9) TMI 1988 - ITAT HYDERABAD
Reopening of assessment u/s 147 - Period of limitation - Applicability of provisions of section 150(1) - HELD THAT:- As in the order passed by the ITAT for the AYs 2001-02 to 2004-05 [2017 (2) TMI 854 - ITAT HYDERABAD] the Tribunal decided the matter by holding that section 150(1) of the Act can be invoked only when there is a direction to bring the balance of interest to tax in the earlier assessment years whereas there is no such direction in the order passed by the ITAT for the A.Y. 2006-07. It deserves to be noticed that section 150(1) refers to “finding or direction”.
The Division Bench of the ITAT, while disposing of the appeal for the AYs 2001-02 to 2004-05, appears to have been of the view that in the absence of any specific direction section 150(1) cannot be invoked, probably by assuming that there is no difference between the expression “finding and direction”. Since this is an order passed by the Division Bench and that too in the assessee’s own case in the earlier years, respectfully follow the same to hold that the provisions of section 150(1) were wrongly invoked by the Assessing Officer. Under these circumstances, the reopening of the assessment is treated as bad in law and the assessment is hereby set aside. Appeal filed by the assessee is allowed.
-
2017 (9) TMI 1987 - RAJASTHAN HIGH COURT
Denying the exemption claimed u/s 54EC - Capital gain not to be charged on investment in certain bonds - Learned counsel contended that he is entitled for the benefit of the investment which has been made in the subsequent date - whether word used is ‘whole’ and the two investments which have been made are within six months and the whole capital gain is invested in two different financial years? - HELD THAT:- Taking into account the object of Section 54EC is to give benefit to the assessee to invest in the Government bond and where proviso came for the first time on 01.4.2007 providing benefit of 50 lacs each of the transaction of the property the view taken by the Tribunal is just and proper.
We are not in agreement with the view taken by the Madras High Court [2014 (11) TMI 54 - MADRAS HIGH COURT]. The benefit is qua one transaction. It cannot have for different financial years. The purpose is to have investment for benefit of long term capital and once there is interpretation put forward by the basic connotation of law, in that view of the matter, we are affirming the view of the Tribunal. Decided against the assessee.
-
2017 (9) TMI 1986 - DELHI HIGH COURT
TP Adjustment - intra-group services - issue to be decided by the ITAT by giving reasons was whether “the issue as to the payment on account of other group charges made by the Assessee to its AE for services rendered was to be determined by the TPO/DRP or it was to be determined by the AO under Section 37 (1) of the Act?” - Whether the ITAT erred in not deciding the issue before it instead of remanding it to the AO/TPO - HELD THAT:- The Court is of the view that remanding the matter to the AO again, when all the relevant material on record was available, was not warranted. Repeatedly remanding the matter results in delay in resolution of the issue arising in a particular AY. A remand would be necessary only where the relevant facts necessary for deciding the issue are not available.
In the circumstances, the impugned order of the ITAT is set aside and the Assessee’s appeal for AY 2007-08 is restored to the file before the ITAT for a decision on merits, in accordance with law, on the above issue regarding the payment of group charges by the Assessee to its AE. The appeal will be decided on the basis of the documents already on record before the ITAT.
-
2017 (9) TMI 1985 - CESTAT CHENNAI
Jurisdiction - power of DRI to issue SCN - HELD THAT:- It appears that the preliminary issue which emerges in the present appeal is regarding the jurisdiction of the DRI to issue the show-cause notice under the Customs Act. The assessee-Respondent has taken a stand that in terms of the Hon’ble Apex Court decision in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [2011 (2) TMI 5 - SUPREME COURT], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962.
It may be mentioned that recently, the Hon’ble High Court of Delhi in the case of BHARAT SANCHAR NIGAM LIMITED VERSUS UNION OF INDIA & ORS [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI. The Hon’ble High Court of Delhi has considered the judgment in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT] which is stayed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. Finally the Hon’ble High Court has granted liberty to the petitioner by observing that “petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd.”
The appeals are allowed by way of remand to the adjudicating authority to decide the issue afresh after the judgment of the Hon’ble Supreme Court in the case of Mangli Impex.
-
2017 (9) TMI 1984 - DELHI HIGH COURT
Liability for demanded/ defaulted cash calls - Raising of dispute between the parties in terms of JOA for arbitration - entitlement to a sum from the Respondent as outstanding amount of cash calls made in terms of Joint Operating Agreement (JOA) where under the respondent was having 11.11% share - interest as per the rate contained in the agreement between parties for a period of default up to date of claim - interest from date of claim till the date of Award and for Post Award Period - mechanism as provided in clause 7.6 of JOA followed or not - HELD THAT:- It is quite clear that the interpretation which is sought to be made by the petitioner of the stated terms of the JOA is entirely baseless. If such an interpretation was accepted, it would tantamount to rewarding a party guilty of default. The interpretation urged by the petitioner would lead to absurd results. The moment it becomes apparent that no oil or gas is going to be discovered, the participants can default on the call money leaving only the operator to fund for the entire operation. The Award rightly relies upon clause 7.6.5 to hold that a defaulting party remains liable and obligated for its participating interest especially for costs and obligations.
The petitioner is essentially trying to challenge the interpretation of the JOA made by the learned Arbitrator. The interpretation of the learned Arbitrator of the said clauses of the JOA are a plausible interpretation and cannot said to be in any manner illegal or suffering from any illegality. It is settled legal position that interpretation of a contract is within the domain of an Arbitrator. The court shall not ordinarily substitute its interpretation of the terms of the contract with the interpretation of the arbitrator.
A perusal of the Award would show that the learned Arbitrator has noted that under Article 4.9.1 of the JOA any loss of damages suffered in connection with the conduct of the operations except in the case of gross negligence or wilful conduct will not render any liability on the operator. The Award notes that the only negligence alleged on behalf of the operator was seeking extension of time from the government for completion of Minimum Work Programme in respect of Phase-I of the Programme. It notes that the extension of time was obtained by the operator with the consent of the operating committee of which the respondent was a member. It is also noted that this issue has been raised for the first time in arbitration proceedings - the petitioner has not been able to show how this finding of fact is untenable or illegal. It is settled legal position that findings of fact recorded by the learned Arbitrator have finality.
Petition dismissed.
-
2017 (9) TMI 1983 - SUPREME COURT
Cross-examination of witnesses - power to examine or re-examine any witness under Section 311 of the Cr.P.C. - prayer for re-examination as witnesses for the reason that the statements recorded earlier were made on the instructions of the police, rejected by Sessions Judge - order of the Sessions Judge has been set aside by the High Court - whether the appellant has locus standi to challenge the order of the High Court? - HELD THAT:- In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.
Coming to the facts of the present case, PWs 4 and 5 were examined between 29.11.2010 and 11.3.2011. They were cross-examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re-examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over - there are no reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. In our view, High Court was not right in setting aside the said order.
Appeal allowed - decided in favor of appellant.
-
2017 (9) TMI 1982 - ITAT MUMBAI
Disallowance of bad debts written off - AO disallowed assessee’s claim in respect of bad debts written off on the ground that there was a credit balance as on 31.03.2009 in the reserve for provision of bad debts - AO was of the view that the provisions of Section 36(1)(vii) r.w.s. 36|(1)(viia), a claim of bad debts can only be allowed if the same is in excess of the provision for bad debts, therefore, disallowed the said claim - HELD THAT:- The deduction under section 36(1)(vii) is available in respect of bad debts written off subject to the fulfilment of the conditions specified under section 36(2). Section 36(1)(viia) provides for the treatment of provisions for bad and doubtful debts of an amount not exceeding 7.5% of the total income (computed before making any deduction under this clause and Chapter VIA) and an amount not exceeding 10% of the aggregate average advances made by the rural branches of such banks.
The provisions of Section 36(1)(vii) and section 36(1)(viia) are distinct and independent. The provisions of Section 36(1)(viia) are applicable w.e.f. A.Y. 2007-08 to cooperative bank also. Therefore any provision allowed in A.Y. 2007-08 onwards in the case of a cooperative bank under clause (viia) will be hit by this amendment but a provision standing in the account of a cooperative bank prior to 01.04.2006 will not come in the ambit of section 36(1)(viia) and in our opinion if any bad debts written off for which a provision has been created prior to 01.04.2006 will be entitled for deduction under section 36(1)(viia) if the conditions stipulated under section 36(2) are satisfied. From the chart as appearing on page 15 it is apparent that the assessee had written off the bad debts amounting to ₹ 92,45,827/- during the year. It is not related to the provisions in respect of which the assessee has claimed deduction in the earlier assessment year. We, therefore, set aside the order of the CIT(A) on this issue and delete the said addition. Thus, this ground stands allowed.
Disallowance being excess claim of depreciation on account of want of proof for additions during the year - AO disallowed depreciation on addition of certain fixed assets on the ground that supporting evidences in the form of bills, etc. were not filed by the assessee - HELD THAT:- We noted that the assessee has filed copies of the bills and vouchers before the CIT(A) by making an application dated 19.01.2015 under Rule 16A but the CIT(A) did not accept the additional evidences. We, therefore, in the interest of justice and fair play to both parties set aside the order of the CIT(A) and restore this issue to the file of the AO with the direction that the assessee shall file copies of these bills and evidences pertaining to the addition to fixed assets in respect of which depreciation has been disallowed before the AO. The AO shall, after verifying the genuineness of purchases, allow depreciation to the assessee. In case the assessee is not able to file the direct evidences the AO is directed to verify the indirect evidences in the form of confirmation of purchases, etc. Thus, both these grounds are allowed for statistical purposes.
Claim of deduction by the assessee under section 36(1)(viia) as per the provisions of income tax law, i.e. 7.5% of the total income before deduction to be allowed under Chapter VIA of the Income Tax Act - HELD THAT:- It is not denied that the assessee is a cooperative bank, therefore in view of provisions of Section 36(1)(viia), in our opinion, the assessee shall be entitled for the deduction @7.5% of the total income (computed before making any deduction under this clause and Chapter 6A) and an amount not exceeding 10% of the aggregate average advances made by rural branches of such banks computed in the prescribed manner in respect of any provision for bad and doubtful debts made by the assessee. We accordingly direct the AO to allow the deduction to the assessee in respect of any provision for bad and doubtful debts made by the assessee during the year in accordance with the provisions of Section 36(1)(viia). Thus, this ground is allowed for statistical purposes.
-
2017 (9) TMI 1981 - ITAT PUNE
Treatment of profits arising on sale / redemption of investments which also includes the amount received on profits on account of amortization - HELD THAT:- The issue arising in the present ground of appeal similar to the issue in earlier years and the Assessing Officer had also disallowed the claim of assessee, following the deletion made in earlier years. However, following the same parity of reasoning, we hold that while computing income from business in the hands of assessee under section 44 of the Act and First Schedule of the Act, profit / loss on sale / redemption of securities or investments including the amortization of securities is to be reduced from taxable income of assessee. The grounds of appeal No.1.1 and 1.2 raised by the assessee are thus, allowed.
Disallowance under section 14A of the Act read with Rule 8D - HELD THAT:- Tribunal after considering the issue held the same to be identical to the issue before the Tribunal in assessment year 2003-04 and following the same parity of reasoning deleted the disallowance made by the Assessing Officer and the DRP but confirmed the disallowance made by the assessee under section 14A of the Act at ₹ 49,42,631/-. Following the same parity of reasoning, we direct the Assessing Officer to delete the addition worked out under section 14A of the Act except to the extent of ₹ 2,43,836/-, which has been suo motu disallowed by the assessee in the computation of income.
Disallowance u/s 14A of the Act in respect of profits and gains on sale/redemption of investments claimed as non taxable - HELD THAT:- In view of our order holding that the provisions of section 14A are not applicable, then the same even applied for income claimed as exempt under section 10 of the Act. Hence, the grounds of appeal No.1 to 3 raised by the Revenue are dismissed.
Disallowance made u/s 40(a)(i) in respect of re-insurance premium paid to Allianz SE, Germany - HELD THAT:- We find that the Tribunal in assessment year 2008-09 [2020 (1) TMI 1566 - ITAT PUNE] has elaborately discussed the issue and had decided the same. The Tribunal reversed the findings of DRP and held that the assessee was entitled to claim the deduction on account of reinsurance premium of ₹ 62.7 crores paid to the Germany company. We find that the issue raised in the ground of appeal No.4 is identical to the issue before the Tribunal and following the same parity of reasoning which are not being reproduced for the sake of brevity, we direct the Assessing Officer to allow the claim of assessee with regard to reinsurance premium of ₹ 69.86 crores paid to the Germany company. The ground of appeal No.4 raised by the assessee is thus, allowed.
Disallowing risk inspection charges for want of purchase orders - HELD THAT:- The issue arising in the present appeal before us is identical to the issue before the Tribunal in assessment year 2008-09. Mere absence of purchase orders would not disentitles the assessee from the claim of risk inspection charges. However, we find merit in the plea of assessee that in the absence of any adverse evidences collected during the year, no disallowance is to be made in the hands of assessee in the instant assessment year. The assessee has further filed purchase orders by way of additional evidence before us. However, in the entirety of the ratio laid down in assessee’s own case in assessment year 2008-09, absence of purchase orders would not disentitles the assessee to claim the said expenditure. Accordingly, we allow the claim of assessee in entirety. The ground of appeal No.5 raised by the assessee is thus, allowed.
-
2017 (9) TMI 1980 - MADRAS HIGH COURT
Detention of detenue - allegation of Drug Offender, as contemplated under Section 2(e) of Tamil Nadu Act 14 of 1982 - HELD THAT:- In the subject case also, the detaining authority has actively participated in the process of sponsoring the name of the detenu for detention by attesting the affidavit filed by the sponsoring authority and it is sufficient to set aside the orders of detention on the ground of pre- determination.
The Habeas Corpus Petition is allowed and the order of detention passed by the second respondent is set aside.
-
2017 (9) TMI 1979 - ITAT MUMBAI
Penalty u/s 271(1) (c) - estimation of income on bogus purchases - assessee argued additions has been made on and estimate basis and that in case of estimation no penalties leviable - HELD THAT:- Perusal of assessment order reveals that the assessing officer, while passing the assessment order under section 143(3) rws 147, made the addition on the basis of estimation. The assessing officer made addition @ 25% of the alleged bogus purchases. The revenue has not disputed that additions were made merely on the basis of estimation. It is settled law that no penalties is leviable under section 271(1)(c) for ad hoc /estimated additions.Accordingly, we are of the opinion that this is not a fit case for levy of penalty. In the result the grounds of appeal raised by the assessee is allowed.
-
2017 (9) TMI 1978 - CESTAT NEW DELHI
100% EOU - non/short payment of Customs duty - appellant exported less quantity and for the remaining quantity the appellant has applied for the N/N. 52/2003-Cus dated 31.03.2003 read with Foreign Trade Policy 2009 to 2014 (FTP), to dispose of the raw material in DTA (Domestic Tariff Area) with approval of the Customs authorities - It is the allegation of the Department that on the quantity of the raw material which was cleared in the DTA, the assessee has not paid applicable customs / central excise duties - HELD THAT:- It appears that the appellant has claimed that the maximum quantity or value of the raw material has not been mentioned in the permission letter. From enquiry, it appears it is not clear as to how much raw material was utilized for the export of goods and how much remained with the appellant. Further, it is also not clear as to for how much amount permission was granted by the appropriate authority for disposal of surplus raw material and whether duty was paid at the time of clearance of such raw material as claimed by appellant. During the course of the arguments, both the parties have agreed that it is not mentioned in the enquiry how much additional raw material, upon the permission, was sold by the appellant.
When it is so, then the fresh adjudication is required by the adjudicating authority - matter remanded back to the adjudicating authority to decide the issue denovo and by providing reasonable opportunity to the appellant - appeal allowed by way of remand.
-
2017 (9) TMI 1977 - CALCUTTA HIGH COURT
Revocation of leave under Clause 12 of the Letters Patent - dismissal of suit on the ground that the plaint does not disclose any cause of action against the defendant No. 1 - non-existent pre-incorporation agreement - HELD THAT:- For rejection of plaint under Order 7 Rule 11 only contents of the plaint have to be seen and read as a whole and nothing else. As long as the plaint discloses cause of action, mere fact that plaintiff may not succeed in suit cannot be ground for rejection of plaint - A plaint cannot be defeated due to lack of proof at this stage since in deciding an application in the nature of demurrer, the Court is not supposed to assess as to whether the plaintiff would be ultimately able to prove its case. There is a distinction between lack of pleading and lack of proof. A plaint must fail if there is a lack of pleading leading to non-disclosure of a cause of action.
The indeterminate ambit of "unlawful means" thus remains one of the principal causes of uncertainty as to the potential scope of liability under this tort. The issue has been the subject of some judicial deliberation in other common law jurisdictions - A party must be shown to have known that they were inducing a breach of contract. It is not enough that a defendant knows that he is procuring an act which, as a matter of law or construction of the contract, is a breach, nor that he ought reasonably to have known that it is a breach.
It was only on 4th August, 2005 that the present suits came to be filed by the appellants in which a prayer for injunction was made with a view to enforce the terms of clauses 15 and 20 of the agreement which incorporated negative covenants prohibiting mining operation by anyone else except the appellants, or without their permission. The use of the words "during the subsistence of this agreement" in clause 15, and "during the pendency of this indenture" in clause 20 of the agreement is significant. In the absence of a document renewing the original agreement for a further period of 5 years and in the absence of any declaration from a court of law that the original agreement stood renewed automatically upon the appellants exercising their option for grant of renewal, it was held that the appellants cannot be granted relief of injunction, for the simple reason that there is no subsisting agreement evidenced by a written document or declared by a court - the suit was held to be barred by limitation and, accordingly, dismissed under Order 7 Rule 11(d) of the Code of Civil Procedure.
Application dismissed.
-
2017 (9) TMI 1976 - ITAT KOLKATA
Exemption u/s 11 - cancelling the registration of the Appellant assessee trust u/s 12AA(3) on illegal/money laundering activities carried on by the assessee - bogus donation was ascertained on the basis of the statement recorded u/s. 131 of the Act of the Director of the company - HELD THAT:- There is no evidence brought on record to show any connection between those brokers and the assessee. In the absence of such corroborative evidence, it is not possible to come to any conclusion that the assessee indulged in money laundering and that the donation received by it was a bogus donation. In fact on identical facts this Tribunal in the case of Sri Mayapur Dham Pilgrim and Visitors Trust [2017 (5) TMI 1486 - ITAT KOLKATA] came to the conclusion that cancellation of registration u/s 12AA of the Act cannot be sustained.
Cancellation of registration granted to the assessee u/s 12A of the Act cannot be sustained and the impugned order is hereby quashed. The appeal of the assessee is accordingly allowed.
Donation to assessee is bogus then the amount of bogus donation will not be eligible for exemptions u/s 11 - The registration certificate issued u/s 12AA of the Act cannot be cancelled as long as the objects of the trust are within the provisions of law. The objects/ byelaws of the trust are placed on pages 1 to 12 of the paper book and on the basis of same objects the assessee was given registration certificate u/s 12AA of the Act. While holding so, we find support & guidance from the judgment of Hon’ble High Court of Punjab & Haryana in the case of CIT Vs. Apeejay Education Society [2015 (4) TMI 303 - PUNJAB & HARYANA HIGH COURT]
In the instant case the assessee is a charitable trust duly constituted as Charitable Trust under a Deed of Trust as a Public Charitable Trust for imparting education which is a “Charitable Purpose” u/s. 2(15) of the Income Tax Act. The trust duly applied for registration u/s. 12AA of the IT Act before the Director of Income Tax (Exemption) in conformity with rule 17A and submitted Form No. 10A together with other requisite documents. The Director of Income Tax (Exemption) after verification of documents and after being satisfied about the object of the trust and genuineness of its activities granted registration effective from 11.09.1979 vide order No. T-81/WB.VII of 1979-80 dated 11.09.1979
CIT(Exemption) before granting the registration certificate shall conduct necessary enquiries as he thinks fit in order to satisfy himself about the genuineness of activities of the trust. Once the ld CIT(Ex) is satisfied with the genuineness of the activities then he will grant the registration certificate. In the instant case before us, we find that the activities of the trust have not been doubted except the donation received by the assessee from two parties. Thus in our view at the most the exemption u/s 11 of the Act will be denied to such donation. Thus, in such circumstances the registration u/s 12A of the Act cannot be cancelled.
We find that the activities of the trust in relation to its education activities have not been doubted and on the basis of same activities registration u/s 12AA of the Act was awarded to the assessee. Simply the assessee has received donation from some parties which are involved in the bogus transactions cannot be the basis for the denial of the registration certificates as discussed above. Appeal of assessee allowed.
-
2017 (9) TMI 1975 - CALCUTTA HIGH COURT
Validity of SCN - impugned notice is in consonance with section 46 of WB VAT Act 2003 or not - sufficient material existing before the Commissioner to invoke section 46 of the said Act of 2003 or not - HELD THAT:- The notice specify that, for the assessment period from April 01, 2015 to March 31, 2016, the petitioner has taken an excess Input Tax Credit of over ₹ 5.00 lacs and has carried forward to the next financial year. The notice requires explanation from the petitioner for such purpose.
In the facts of the present case, therefore, it cannot be said that the Commissioner has acted wholly without jurisdiction in issuing the impugned notice. It is within his purview to take cognizance of a situation emanating under section 46(1)(b) of the said Act of 2003. In the present case he is prima facie satisfied that, the State Government has suffered loss of revenue and that, there are adequate reasons for the purpose of asking for the explanation. The reasons given in the impugned order are sufficient for the assessee to react thereto.
The impugned notice not being vitiated any perversity, need not be interfere therewith. The authorities are entitled to look at the returns in accordance with the said Act of 2003, particularly under section 46 of the said Act of 2003 thereof - petition dismissed.
-
2017 (9) TMI 1974 - ITAT MUMBAI
Addition u/s 68 - Discharge of burden of proof - HELD THAT:- The assessee has furnished written submissions and therein furnished the details of evidences furnished by it in order to discharge the initial burden of proof placed upon it.
The assessee has discharged the initial burden of proof in this year. Accordingly, consistent with the view taken by the co-ordinate bench in AY 2006-07 in the case of Netscape Software P Ltd. [2012 (5) TMI 486 - ITAT, MUMBAI] we uphold the order passed by Ld CIT(A) - Appeal filed by the revenue is dismissed.
-
2017 (9) TMI 1973 - ITAT DELHI
Addition u/s 14A - Mandation of recording of satisfaction - assessee company did not specifically pointed out any expenditure which is attributable to exempt income - CIT-A deleted the addition - HELD THAT:- As carefully perused the computation of total income and we found that there is no exempt income earned by the assessee during the year. Further more, the expression given by the assessee before the Ld. assessing officer that investment made by the assessee were only ₹ 1 5652 9018/– whereas the shareholder’s funds available with the assessee are ₹ 2 6275 1170. Therefore, the amount of investment made by the assessee for earning tax-free income are much more than the shareholders fund available with it.
AO has not recorded any satisfaction with respect to the explanation of the assessee that no expenditure has been incurred by it and which is demonstrated by showing that the amount of shareholders fund available with the the assessee are more than the amount that is invested which can possibly earn the tax-free income. In view of this we agree with the contention of the Ld. authorised representative that in absence of any exempt income earned by the assessee during the year the disallowance under section 14 A of the act can not be made. - Decided in favour of assessee.
-
2017 (9) TMI 1972 - ITAT KOLKATA
Exemption u/s 11 - cancellation of registration u/s 12AA(3) & 12AA(4) - CIT(E) observed that the assessee had indulged in the practice of money laundering through payment of bogus donations - these facts were confirmed in a survey operation conducted u/s 133A of the Act on 3.9.2015 in the case of M/s Batanagar Education & Research Trust, wherein a statement of Sri Rabindranath Lahiri, Vice Chairman and Trustee, was recorded during the survey operation - HELD THAT:- We are in agreement with the arguments of the ld AR that there is no need to cross-examine Sri Rabindranath Lahiri by the assessee as no adverse statements / contents were reflected against the assessee in the said statement. In fact there is not even a whisper about the assessee society or its office bearers in any manner whatsoever in the entire statement of Sri Rabindranath Lahiri. Hence the ld CIT(E) deciding against the assessee on the ground that the assessee society had not availed the opportunity of cross-examination is of no relevance for invoking the provisions of section 12AA(3) of the Act.
CIT(E) had made a bald allegation that the assessee society was involved in money laundering by receiving cash from various other trusts in lieu of donations paid to them by cheques. This allegation is not proven by any material evidence brought on record and is completely without any basis. It could be seen from the statement reproduced supra that Sri Rabindranath Lahiri had in fact deposed that certain corpus donations received by Batanagar Education & Research Trust were bogus. But the assessee had not given any corpus donations to the said trust. Infact it had given only revenue donations to the said trust.
It is well settled that the person making the allegation has to prove with material evidences that the allegation leveled against any other person is true and correct. In the instant case, except making a bald allegation, no evidences in any manner whatsoever had been brought on record . We find that the assessee trust had been unnecessarily impleaded by the ld CIT(E) in the entire episode, without any basis. Moreover, we find that when the ld CIT(E) examined the President of the assessee society Mr Mukul Agarwal, no questions were posed on him about the transactions with Batanagar Education & Research Trust. This is evident from the copies of order sheet entries filed by the ld AR. All the details called for by the ld CIT(E) from Mr Mukul Agarwal about the other three trusts were duly filed in writing by him vide letter dated 15.2.2016, which we find had been ignored by the ld CIT(E) in the order of cancellation of registration. Accordingly we hold that there is no case made out by the ld CIT(E) for invoking powers of cancellation of registration u/s 12AA(3) and 12AA(4) of the Act
Thus we hold that the ld CIT(E) ought not to have invoked the provisions of section 12AA(3) and 12AA(4) of the Act for cancellation of registration to the assessee society. Accordingly the grounds raised by the assessee are allowed.
-
2017 (9) TMI 1971 - ITAT MUMBAI
Interest granted as per Sec. 244A - interest on refund - Whether CIT(A) erred in granting interest upto the date of issuance of refund voucher, i.e. 29.3.2010 whereas as per the assessee, it is entitled to interest upto April, 2010 (i.e. upto the date of receipt of refund voucher on 6.4.2010)? - HELD THAT:- We find that in the case of Pfizer Limited, [1991 (3) TMI 121 - BOMBAY HIGH COURT] has held that assessee is entitled to interest upto the date of receipt of the refund order. Similarly, our coordinate bench in the case of M/s. Novartis India Limited [2011 (3) TMI 1822 - ITAT MUMBAI] has decided a similar issue in favour of the assessee wherein the claim of the assessee for interest was upheld upto the date when the Pay Order is “actually received by the assessee pursuant to the order sanctioning the refund”. Therefore, following the aforesaid precedents, in our view, the assessee is justified in seeking interest u/s 244A of the Act upto the date of receipt of the refund order, i.e. 6.4.2010. Thus, on this aspect, assessee succeeds.
-
2017 (9) TMI 1970 - ITAT JAIPUR
Addition made on account of inflation of purchases - HELD THAT:- AO has in the remand report reiterated the reasons given in the assessment order and has not been able to bring on record any evidence to hold that purchases made from these parties are inflated & bogus. The fact that all the payments for the material purchased have been made through the banking channel against the receipt of bills, the yield in the production process, no. of cylinders manufactured, etc. have not been disputed by the AO.
In the absence of any material/evidence to the contrary available on record,thus hold that there is no justification on the part of the AO to treat the purchases from these parties as inflated/not genuine
Disallowance on account of suppression of scrap sales - CIT-A deleted the addition - HELD THAT:- We find that the ld. CIT (A) after taking into consideration various aspects of the matter and also following the decision of the Tribunal in the assessee’s own case for the assessment year 1999-2000, deleted the addition. We find no reason to interfere into the order of ld. CIT (A), the same is hereby affirmed. The grounds of the revenue are rejected.
Disallowance of bogus payment of commission - HELD THAT:- As perused the material on record and gone through the orders of the authorities below. Both the parties have advanced the similar arguments as made for the assessment year 1998-99. We have adjudicated the identical grounds in the appeal of the revenue - Since there is no change in the facts and circumstances for the assessment year under consideration, we affirm the order of ld. CIT (Appeals) who had rightly deleted the additions by following the decisions of the Tribunal in the assessee’s own case for the A.Y. 1999-2000. The grounds of the revenue are rejected.
Reopening of assessment u/s 147 - HELD THAT:- We do not find any reason to interfere into the order of ld. CIT (A) in respect of this ground, the same is hereby upheld, as the ld. Counsel for the assessee could not point out any illegality into the re-opening of assessment by furnishing any contrary material on record. The ground of the assessee is rejected.
........
|
