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Showing 401 to 420 of 1861 Records
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2018 (6) TMI 1463
Addition u/s 40A(3) - cash payments made to M/s Asansol Bottling and Packaging Co. Ltd - Held that:-We find that the CIT(A) by placing reliance in assessee’s own case for A.Y.2008-09 and 2009-10 [2016 (9) TMI 813 - ITAT KOLKATA] deleted the addition made by the AO u/s 40A(3) the payment made by the assessee retail vendor to the Principal, Government of West Bengal through its wholesale agent. The relationship between the assessee (authorized retailer) and Government of West Bengal (the supplier) acting under West Bengal Excise Rules through its Authorised Wholesaler Licensee (Agent), both de facto and dejure , is one of ‘Principal’ and ‘Agent’. We hold that the assessee retail vendor had made payment to the said agent (wholesale licensee) would fall under the exception provided in Rule 6DD(k) of the Rules. - Decided against revenue
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2018 (6) TMI 1462
Assessment u/s 153A - no proper notices were issued/served - Held that:- In the present case the notice under Section 143(2) was issued to the assessee which is not the mandatory requirement under the provisions of Section 153A of the Act. As per Section 153A, simple notice has to be given to the assessee. Thus, the contention of the Ld. AR that issue of notice u/s 143(2) within stipulated time is mandatory requirement and is not curable u/s 292BB of the Act does not find support. The notice issued to the assessee has mentioned Section 143(2) but that can be treated as simple notice which has to be given under the provisions of Section 153A of the Act. Case of Ashok Chaddha vs. ITO [2011 (7) TMI 252 - DELHI HIGH COURT] to be followed - Thus, the contention of the Ld. AR that no proper notices were issued/served and the order passed is without jurisdiction and barred by limitation does not survive. - Decided against assessee
Cash seized from the residence of the assessee - Facts do not inspire any confidence in the explanation of the assessee that sum of ₹ 1.07 crores found from the residence of the assessee at the time of search by police alleging him to be a Satta operator is money withdrawn from his dairy business of M/s. Naman Dairy wherein he is a partner. Thus, there is no need to interfere with the findings of the CIT(A). - Decided against assessee.
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2018 (6) TMI 1461
Disallowance u/s 14A - Held that:- Addition should not be made unless and until there is a receipt of exempt income for the assessment year under consideration, and for that, we rely on the case of Cheminvest Ltd. vs. CIT (2015 (9) TMI 238 - DELHI HIGH COURT), wherein it was held that no disallowance under section 14A can be made in a year in which no exempt income had been earned or received by the assessee.
The expression ‘does not from part of total income’ in section 14A envisages that there should be an actual receipt of income, which was not includible in the total income, during the relevant previous year for the purpose disallowing any expenditure incurred in relation to the said income, therefore, section 14A would not apply if no exempt income was received during the relevant previous year. That being so, we decline to interfere in the order passed by the CIT(A), his order on this issue is hereby upheld and the ground of appeal raised by the Revenue is dismissed.
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2018 (6) TMI 1460
Rejection the deduction claimed u/s.80P (2)(a)(i) - Held that:- As the issue is squarely covered in favour of the assessee by the decision of the coordinate bench of this Tribunal in assessee’s own case [2017 (12) TMI 1049 - ITAT MUMBAI] we uphold the contention of the assessee and direct the Assessing Officer to examine and consider as to whether or not the assessee’s activities are in compliance with the Maharashtra State Co-operative Act, 1960 as also the Maharashtra State Co-operative Regulations, 1961. If it is so found, then, in the absence of any licence from the Reserve Bank of India, the assessee cannot be treated as an entity falling within the restrictions imposed in Sec. 80P(4) of the Act. So however, if the findings of the Assessing Officer are to the contrary, he shall be free to take appropriate action as per law. - decided in favour of assessee for statistical purposes.
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2018 (6) TMI 1459
Expenditure for repairs of existing factory building at Vapi to strengthen the beam of the existing building - Held that:- The assessee has carried repair to the existing factory building at Vapi and to strengthen the beam of the existing building. The assessee also carried out repair of boundary walls of factory at Nasik. Once this is repair, the expenditure is Revenue in nature, hence, we agree with the findings of CIT (A) and confirmed the same. This issue of Revenue’s appeal is dismissed.
Foreign travel expenses - Held that:- We find the assessee had furnished all the details, including the purpose of foreign visits of the Directors, that in the earlier years details were not furnished, that because of non availability of the details disallowance was made under the head foreign travel, that facts for the year under consideration are different from the facts of the earlier year. Therefore, we hold that the order of the FAA does not suffer from any legal or factual infirmity. Decided against revenue
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2018 (6) TMI 1458
Disallowance u/s 14A read with rule 8D - Held that:- Disallowance u/s 14A in this case cannot exceed than the tax exempt income as earned by the assessee during the year. So far as the contention that the assessee itself has offered disallowance in the return of income more than the exempt income earned is concerned, we note that the said issue has also been dealt with the Coordinate Bench, that is, even if the assessee under a mistake or misconception has over assessed itself in the return of income, the Tribunal can give relief to the assessee to the extent the assessee is over assessed and direct the lower authorities to tax the assessee as per the provisions of law - we uphold the contention of the assessee and direct the AO to restrict the disallowance under section 14A read with rule 8D to ₹ 40,068/-.
Addition as business income on account of unreconciled AIR transactions (26AS) - Held that:- The assessee has produced the reconciliation before the CIT(A) by providing party-wise details and confirmations of transactions and the TDS deducted wrongly in respect of some transactions, but the ld.CIT(A) has not admitted these additional evidences nor sent them to the Assessing Officer for his examination. CIT(A) ought to take remand report on these additional evidences and adjudicate the issue in accordance with law, but CIT(A) neither examined himself nor he sent them to the Assessing Officer for his examination - set-aside to the file of the assessing officer.
Denial of set off of brought forward business losses of the earlier assessment years - Held that:- We note that the CIT(A) has not given instruction to the AO to examine the set off of brought forward losses as per the provisions of the Act. Assessee is entitled to claim the benefit of carry forward of losses, therefore, we think it appropriate to direct the Assessing Officer to examine the claim of the assessee with regard to carry forward of business losses in accordance with law. This ground of appeal raised by the assessee is allowed for statistical purposes.
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2018 (6) TMI 1457
Penalty under section 271FA - assessee failed to file Annual Information Return (AIR) within the prescribed time limit, as specified in section 285BA read with rule 114E of the Income Tax Rules - Held that:- The assessee was depending on the private agency to file the AIR report and there was also shortage of manpower and inadequate infrastructure facility in his office, and moreover, the TAN Number of the assessee was inactive, all these factors have contributed delay in filing the AIR report which were beyond his control. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. We note that considering these facts and circumstances and position of law as explained above, the penalty should not be levied. - Decided in favour of assessee.
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2018 (6) TMI 1456
Penalty u/s 271(1)(c) - Held that:- It is evident that the addition in question in respect of which penalty was levied, has already been deleted by the Tribunal and the Hon’ble jurisdictional High Court - In such circumstances, when the addition itself has been deleted, the penalty levied on the same cannot survive - Decided in favour of assessee
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2018 (6) TMI 1455
Section 94(8) application - allotment of additional units without any payment on the basis of holding of such units on any particular date - Held that:- As gone through the provisions of Section 94(8) of the Act and found that all the clauses under (a) to (c) have to be satisfied cumulatively for invoking the said provision.
Clause (b) thereof speaks of allotment of additional units without any payment on the basis of holding of such units. In this matter such details as are furnished establish that there is always investment and redemption at very short durations and in such a situation it cannot be said that there is allotment of units without any payment merely on the basis of holding of the earlier units. We, therefore, hold that to the facts of the case on hand, Section 94(8) has no application and any addition made on that basis cannot be sustained.
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2018 (6) TMI 1454
TPA - comparable selection - Held that:- Relying in assessee’s own case, we are of the considered opinion that there are no reasons brought to our notice to take a different view. We accordingly held that Hindustan Syringes & Medical Devices Pvt. Ltd. is not a suitable comparable. We, therefore, direct the learned TPO to exclude this company from the final list of the comparables.
Risk adjustment - Held that:- Unless the adjustment on account of risk is quantified and working is given, it is not possible to direct the authorities below to allow the risk adjustment as pleaded by the assessee. It is not possible for us either to consider at the Tribunal level or to direct the AO to consider this aspect.
Working adjustment - Held that:- Remand this ground to the file of the AO for computing the working capital adjustment only on the opening and closing balance of the working capital employed at the beginning and end of the year.
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2018 (6) TMI 1453
TDS u/s 194C - Disallowance u/s. 40(a)(ia) - non deduction of tds on charges paid on shirting - Held that:- The assessee has produced copies of invoices raised by the job workers which is in the form of additional evidences filed for the first time before the tribunal and it is claimed that there was no requirement of deduction of income-tax within the provisions of Section 194C as is contained in Chapter XVII-B of the 1961 Act as it is claimed that each payment was below ₹ 20,000/- and in aggregate amount paid in the year to each of job workers was less than ₹ 50,000/- to each of the job worker and hence it is claimed that there was no requirement to deduct income-tax at source with in the provisions of the 1961 Act . The assessee did not produce these parties before the AO and as well before the learned CIT(A) . Under these circumstances in our considered view the matter need to be restored to the file of the AO for fresh adjudication
Disallowance of reimbursements to custom house agents (CHA) disallowed u/s. 40(a)(ia) - Held that:- The disallowance has been made on the grounds that custom duty paid by CHA agent on behalf of the client will also get aggregated and will call for deduction of income-tax at source within the mandate of Chapter XVII-B with which we donot agree and in our considered view payment of custom duty to Government on import of goods even if paid through CHA agent by way of reimbursement will not warrant deduction of income-tax at source within provisions of the 1961 Act and no additions were warranted which we hereby order to be deleted subject to verification to a limited extent by the AO that the amount as were disallowed by the authorities below do actually constitute custom duty paid by CHA to government on behalf of the assessee on import of goods which is to be verified by the AO with reference to books of accounts maintained by the assessee
Addition being refund of custom duty (SAD) receivable by the assessee from custom department as at year end - Held that:- No additions is warranted so far as refund of custom duties is concerned because it never entered Profit and Loss account and hence no addition is warranted. However, material is not placed on record to prove that no deduction whatsoever was claimed of this SAD refund by the assessee while computing income and thus for limited purposes the matter is restored to the file of the AO for verifying the contention of the assessee vis-a-vis its books of accounts that the assessee never claimed the deduction of said custom duty (SAD) component as expenses to the tune of this refund receivable amount of ₹ 6,40,888/- of additional custom duty is concerned and only net amount of custom duty paid was claimed as an expense by the assessee in its return of income filed with the Revenue. In any case learned CIT(A) has given direction to the AO for verifying the same
Disallowance of purchases made u/s 40A(3) - payments to the said party from whom purchases were made by the assessee namely Flora Texculture P. Ltd. was made by assessee otherwise than through account payee cheque or account payee bank draft - Held that:- On evidence on record and keeping in view factual matrix of the case, the said payment made directly by assessee‟s debtor namely M/s Challenger Tradelink P. Ltd. to assessee's creditor namely M/s. Flora Texculture P. Ltd. through approved banking mode as prescribed in Section 40A(3) in settlement of inter-se transaction between debtor and creditor will not trigger provisions of Section40A(3) and hence no disallowance as was made by Revenue is warranted under these circumstances . We hereby order for deletion of the said addition
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2018 (6) TMI 1452
Revision u/s. 263 - directing the AO to re-compute the taxable income of the assessee - income tax paid by a charitable trust - deduction in arriving at income available for application of charitable purposes - Held that:- Issue in the present case is no longer res integra and the consensus view among various Hon’ble High Courts are that the income tax paid by a charitable trust must be allowed as deduction in arriving at income available for application of charitable purposes. The finding and the direction given by the Ld. CIT(E) in the impugned order requiring the AO to disallow the income tax paid of ₹ 40,60,061/- as expenditure is clearly contrary to the consistent view taken by the Hon’ble High Court at Delhi, Gujarat and Andhra Pradesh and, therefore, the direction of the Ld. CIT(E) is not inconformity with the view of the Hon’ble High courts, therefore, the direction of Ld. CIT(E) is clearly unwarranted and legally not tenable, so the direction of ld. CIT(E) is invalid.
As brought to our notice that AO has given effect to the impugned order of Ld. CIT(E) on 27.12.2017 and after complying with the direction of Ld. CIT(E) and after disallowing ₹ 40,60,061/- (income tax paid) still the total income is “NIL”. So we note that there is no prejudice whatsoever caused to Revenue, so even if for argument sake the Ld. CIT(E)’s contention and direction is accepted as correct, then also the twin conditions which is a condition precedent is not satisfied at all. Thus in any case, the AO’s original order dated 14.11.2014 cannot be held to be erroneous and prejudicial to the Revenue. - decided in favour of assessee.
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2018 (6) TMI 1451
Addition u/s 68 - denying the claim of exemption of long term capital gain on sale of shares sold on recognized stock exchange and, eligible for exemption u/s 10(38) - Held that:- Twin conditions of section 10(38) of the Act have been satisfied in the case of the assessee. The assessee has been able to prove that she has entered into the genuine transaction of purchase and sale of shares and the sale consideration is received from broker through banking channel. The brokers have not denied the transaction with the assessee.
The assessee rooted the transaction of sale of shares through recognized stock exchange after making payment of STT. In similar circumstances, ITAT SMC Bench, Delhi in the case of Meenu Goel vs ITO (2018 (3) TMI 1020 - ITAT DELHI) following the decision of Jurisdictional Hon’ble P&H High Court in the case of Pr.CIT vs Prem Pal Gandhi [2018 (1) TMI 1080 - PUNJAB AND HARYANA HIGH COURT] deleted the similar addition. Therefore, the issue is covered in favour of the assessee by the order of ITAT, Delhi Bench in the case of Meenu Goel vs ITO (supra) followed by judgement of Jurisdictional P&H High Court which is binding. There is no other material available on record to rebut the claim of the assessee of exemption claimed u/s 10(38) of the Act. - Decided in favour of assessee.
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2018 (6) TMI 1450
Addition for share of loss from two firms while computing the profit of the assessee for the purpose of applying Sec.115JB - MAT - Held that:- What is excluded from total income by the above sub-section (2A) of Section 10 is the share of the partner in the total income of the firm. Share of loss in a firm is not an expenditure relatable to any exempt income and application of clause –f explanation was in our opinion incorrect. It was Clause (ii) of the explanation which was applicable. Share of loss in our opinion is nothing but share of negative income.
Explanation (ii) to Section 115JB mandates reduction of income to which Section 10 applies, if such income is credited in the Profit & Loss A/c. When share of income from firm is exempt u/s.10 2(A) of the Act, necessarily share of loss is also exempt. What the AO did by adding the loss from the two firms to the profits was reducing, the negative Profit, since loss is nothing but negative profit. We are of the opinion what the AO did was in accordance with Clause(ii) of the Explanation and that the Ld.CIT(A) fell in error in relying on a wrong clause for giving relief to the assessee. Accordingly, we set aside the order of the Ld.CIT(A) and reinstate the addition made by the AO. - Decided in favour of revenue.
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2018 (6) TMI 1449
Reopening of assessment - “rubber stamp” reasons based on borrowed satisfaction and are without independent application of mind - addition u/s 68 - non production of Director of shareholder company - Held that:- Mere non production of Director of share holder company ipso facto cannot justify straight adverse inference u/s 68 dehors detailed documentary evidences filed and therefore, delete the additions. - Decided in favour of assessee.
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2018 (6) TMI 1448
Assessment u/s 153A - selection of assessment year - Held that:- As decided in RAJIV KUMAR VERSUS ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1 CHANDIGARH, [2016 (12) TMI 1722 - ITAT CHANDIGARH] It is well settled that an assessment is to be framed for the previous year which precedes the assessment year. For the previous year 2006-07, the assessment year 2007-08, this assessment year succeeds the period of search and not precedes. From the plain language of the provisions contained in cl. (b) of sub-s(1) of section 153A of the Act, it is clear that the assessment under section 153A of the Act could have been framed for the 6 Assessment Years which precedes the assessment year 2007-08. Therefore, we are of the confirmed view that the assessment under section 153A of the Act could have been framed from the Assessment Years 2001-02 to 2006- 07 only and not for the Assessment Year 2007-08
Valuation of Inventories - addition on account of stock difference between books and found during the course of search - Held that:- A method of accounting adopted by the taxpayer consistently and regularly cannot be discarded by the departmental authorities on the view that he should have adopted a different method of keeping accounts or of valuation.
Assessee firm is has adopted the valuation of inventory on average cost method / weighted cost which is a scientific method approved by ICAI in AS-2-Accounting Standard-2 –Valuation of Inventories. The assessee has also filed the copy of inventory of stock taken by search team containing pages 18 to 26 assessee's paper book. Looking into the facts and circumstances of the case and also the decision in the case of UCO Bank vs CIT[1999 (9) TMI 4 - SUPREME COURT] it is noted that there is merit in the submission of the assessee and we concur with the same - decided in favour of assessee.
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2018 (6) TMI 1447
Reopening of assessment - treatment to royalty - Held that:- The assessee has disclosed all material facts relating to the issue of Royalty on which the reopening has been resorted to. The case laws relied upon by the Ld. DR , we hold, therefore merit no consideration.
20. We also find merit in the contention of the Ld.Counsel for the assessee that there was no reason at all for reopening the case on the issue of treatment of royalty expenses ,since the same had already been decided in favour of the assessee by the ITAT, before the recording of reasons for reopening the present case. In fact, the ITAT had decided the issue in the very same assessment year, which assessment order had formed the basis for reopening the case i.e A.Y 2009-10. The AO could not have any reasons to believe that income had escaped assessment when the very basis of its belief, being the assessment order of a subsequent year, had been reversed by the ITAT before the recording of reasons by the AO - the order passed under section 147 was invalid - Decided in favour of assessee
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2018 (6) TMI 1446
Release of detained goods - time limitation for issuance of notice for seizure of goods - date of commencement period of six months under Section 110(2) - Held that:- Section 110(2) of the Customs Act, 1962 contemplates a situation where any goods are seized under sub-Section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized.
In the present case, the parties are at variance on the date of commencement. The respondents have a particular view on the subject. They should, therefore, be afforded one opportunity to file affidavits to substantiate their point of view on the issue concerned.
It would not be proper to grant an interim order directing the release of the goods - interim order refused.
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2018 (6) TMI 1445
Refund of Customs duty - principles of unjust enrichment - invocation of Section 18 of the Act, prior to insertion of Section 18(5) of the Customs Act - Held that:- The controversy is no longer res integra as the co-ordinate Bench of this Court in M/s Mangalore Refinery and Petrochemicals Ltd., Vs. Commissioner of Customs, [2015 (5) TMI 768 - KARNATAKA HIGH COURT] in the case of same assessee, has already held in favor of the assessee that prior to amendment of Section 18(5) of the Act with effect from 13.07.2006, the ground of ‘unjust enrichment’ of assessee cannot be invoked for denying the refund of custom duty determined and paid under the provisional assessment under Section 18 of the Act - unjust enrichment cannot be invoked - appeal dismissed - decided against Revenue.
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2018 (6) TMI 1444
Confication - Misdeclaration of imported goods - The description in Bill of Entry and invoice was of Hot rolled stainless steel Plate/ Sheet cutting grade 304 stock lot and chapter heading was shown as 72192390, whereas goods were found to be 24.975 Mts and were cold rolled steel sheets/ plate cuttings - Held that:- The description of the goods and weight were not found as per the invoice enclosed and Bill of Entry filed by the Appellant. In such circumstances the goods has been confiscated on ground of misdeclaration - confiscation upheld.
Redemption fine - penalty - Held that:- Looking to the fact that it is nowhere appearing from the case records and the adjudication order that the Appellant has committed deliberate act of misdeclaration, the quantum of redemption fine and penalty reduced.
Appeal allowed in part.
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