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Showing 421 to 440 of 2063 Records
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2019 (1) TMI 1645
Valuation - parts of fire protection systems manufactured on site while undertaking turnkey projects - adoption of price on clearance to independent buyers, when ascertainable at the factory gate - rule 6 of the erstwhile Central Excise (Valuation) Rules, 1975 - HELD THAT:- The entire dispute pertains to the period prior to 1st July 2000 and the applicability of rule 7 of Central Excise (Valuation) Rules, 1975.
The appeal of the appellant herein before the first appellate authority was rejected solely on the ground of coverage by the decision of the Tribunal in re Vijay Fire Protection Systems Ltd [2004 (4) TMI 146 - CESTAT, MUMBAI] which has been set aside, after detailed consideration by the Hon’ble Supreme Court, in re UTC Fire and Security India Ltd. [2015 (8) TMI 494 - SUPREME COURT].
In UTC Fire and Security India Ltd, it has been held that The only mistake which is committed by the Commissioner is to refer to Rule 6(b) inasmuch as in the present case, the goods are not consumed by the appellant/ assessee itself but used in the turnkey projects/contracts meant for the third party. Thus, it was Rule 7 which should have been referred to by the Commissioner (Appeals) as none of the preceding rules would apply. To put it otherwise, it is the case of ‘best judgment assessment’.
The demand pertaining to the period prior to 1st July, 2000 is set aside - appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1644
Disallowance of provision for warranty - HELD THAT:-The appellant has relied on the decision of the Hon’ble Delhi High Court in case of CIT vs. Ericssion Communication P. Ltd. [2009 (9) TMI 710 - DELHI HIGH COURT]. As observed that it could be that in particular year actual warranty claim may exceed the provisions which is made. Assessee was therefore, entitle deduction in respect of provisions for warranty claims.
The appellant has relied on Kirloskar Borthers Ltd. [2014 (9) TMI 1065 - ITAT PUNE] wherein provision for warranty were fully allowed. The crux of these judicial pronouncements are that provisions for warranty are full allowable. The only thing is that the estimation of the provisions for warranty should be on scientific basis. The appellant has calculated provisions of warranty on the basis of warranty period, actual expenditure on warranty. The obligation of warranty starts at the point of sale itself.
Provisions for warranty is allowable and disallowable made by the AO cannot be upheld - Decided in favour of assessee.
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2019 (1) TMI 1643
Penalty u/s.271D & 271E - violation of Section 269SS and section 269T by accepting and repayment loan otherwise than by account payee cheque respectively - HELD THAT:- Predominantly the assessee had utilized the cash loan through the banking system, we are of the considered view that assessee is entitled to relief U/s.273B of the Act for having established reasonable cause for entering into cash transactions.
We hereby set aside the Orders of the Ld.CIT(A) and direct the Ld.JCIT to delete the penalty levied U/s.271D & 271E of the Act in the case of the assessee for all the relevant assessment years since the details of cash disbursement submitted by the Ld.AR before us which is extracted herein above is not disputed before us. Further it is pertinent to mention that in the decisions relied by the Ld.DR, the assessee has not established any reasonable cause for entering into cash transactions and further the assessee had not exposed the loan obtained by cash into the banking system and therefore the ratio laid by the decisions as relied are not applicable to these relevant cases before us. - Decided in favour of assessee.
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2019 (1) TMI 1642
CENVAT credit - input services or Capital Goods? - Rent-a-Cab Service - it was submitted that Rent-a-Cab Services were used for ‘pick-up and drop‟ facility of the employees - HELD THAT:- The definition of “capital goods’ in Cenvat Credit Rules provides that vehicles have to be capital goods for the service provider, who is providing the service of transportation to passengers - Clause B of definition of ‘input services‟ provide that the said credit is eligible only if the vehicles are capital goods for the service provider.
On the basis of the law, authorities below have correctly analyzed the issue and disallowed the credit - appeal dismissed - decided against appellant.
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2019 (1) TMI 1641
Validity of Section 174 of the KSGST Act - time limitation - Section 25(1) of the KVAT Act - HELD THAT:- The issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS [2019 (2) TMI 300 - KERALA HIGH COURT] where it was held that The petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017.
Petition dismissed.
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2019 (1) TMI 1640
Short deduction of TDS - disallowances u/s 40(a) (ia) - HELD THAT:- The issue is squarely covered in favour of the assessee, so far as the disallowances under section 40(a) (ia) of the Act is concerned by the decision of the Hon’ble Kolkata High Court in case of CIT vs SK Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] as well as by the decision of coordinate bench in case of the assessee itself for the Assessment Year 2011-12, wherein the identical issue is decided and disallowances is deleted. In view of the above ground No. 1 of the appeal of the revenue is dismissed.
Cross objection of the assessee on the issue that tax should have been required to be deducted by the assessee @ 10% as per the contention of the AO and @ 2% as claimed by the assessee - HELD THAT:- As stated by the ld AR that no action has been taken by the ld AO u/s 201(1) and (1A) of the Act in the impugned Assessment Year, Therefore, the ground raised by the assessee in the cross objection are hypothetical and when we have already deleted the addition in the case of the assessee, we do not find it appropriate at this stage to decide it. Assessee is at liberty to raise such question at the appropriate stage but not in this appeal where the assessee has succeeded based on the decision of the co-ordinate bench in assessee’s own case. Accordingly, cross objection of the assessee is dismissed.
Addition of interest on service tax considered as prior period expenses by the assessee - HELD THAT:- CIT (A) has deleted the above disallowances holding that interest on service tax has crystallized during the year and therefore it is allowable as expenditure during the year. We confirm the finding of the ld Commissioner of Income-Tax (Appeals) and dismiss Ground No. 2 of the appeal of the revenue.
Unexplained cash credit u/s 68 - HELD THAT:- Whatever credit balance appearing in the books of account of the assessee, the assessee substantiating the same by filing a confirmation letter of the party. DR also could not show how the AO has worked out the addition of ₹ 333999/-. In view of the above facts, we do not find any reason to interfere with the order of CIT (Appeal). Accordingly, we confirm his finding. Ground number 3 of The Appeal of the revenue is dismissed.
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2019 (1) TMI 1639
Disallowance u/s 14A - disallowance made with regard to expenditure for earning of income which was exempt - HELD THAT:- The issue pertains to disallowance to be made under Section 14A towards the expenditure incurred by the assessee to earn exempt income. The Tribunal, by the impugned judgment, while allowing the assessee's appeal came to the conclusion that the Assessing Officer had not recorded satisfaction with respect to the correctness of the claim of the assessee in respect of such expenditure. This is a requirement flowing from sub-section (2) of Section 14A of the Act. Only when sub-section (2) of Section 14A is made applicable, the question of having resorted to Rule 8D(2) of the Income Tax Rules would arise. In the result, we do not find any error in the view of the Tribunal.
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2019 (1) TMI 1638
Maintainability of application - initiation of CIRP - Corporate Debtor - default in repayment - Section 7 of the Insolvency and Bankruptcy Code - HELD THAT:- On going through the facts and submissions of the petitioner and upon considering the same, it is concluded that the Financial Creditor has established that the loan was duly sanctioned and duly disbursed to the Corporate Debtor but there has been default in payment of Debt on the part of the Corporate Debtor.
The nature of Debt is a “Financial Debt” as defined under section 5 (8) of the Code. It has also been established that admittedly there is a “Default” as defined under section 3 (12) of the Code on the part of the Debtor.
The petition deserves admission - petition admitted - moratorium declared.
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2019 (1) TMI 1637
Unexplained cash found - unexplained cash withdrawals - HELD THAT:- Admittedly, the cash books was not updated on the day of search and the statements were also recorded, before the books of accounts were completed. The A.O. and the CIT(A) have verified the cash balances available and found that there were huge cash withdrawals by the assessee by way of cheques. The reason for not accepting the assessee’s contention by the authorities is that, the assessee has failed to explain as to why on a particular date the assessee had to withdraw cash by way of four cheques when it could have done by one cheque and that the assessee has also failed to establish the link between the cash withdrawn and the cash found at the time of search. Since both the A.O. and the CIT(A) have verified the cash and bank statements and have come to the conclusion that the assessee could not explain the sources for the cash found at the time of search, and even before us, the assessee could not establish the live link, we see no reason to interfere with the order of the CIT(A).
Disallowance of claim u/s 80-IB(10) in respect of project Sai Sagar Heights - HELD THAT:- During the course of search proceedings and post search investigation, the DDIT (Inv) noticed that the assessee-company violated the provisions of section 80-IB by constructing the flats where the built up area of almost every flat exceeded the prescribed limit of 1500 sft. A.O. observed that the assessee-company has constructed four residential complexes viz., Manasarovar Heights-I, II and III at Hasmatpet Village and IVth one at Sai Sagar Heights at Begumpet, Secunderabad.
As far as the deduction with regard to the project at Sai Sagar Heights is concerned, the A.O. observed that the assessee has been claiming deduction on the profits derived from this housing project in the earlier assessment years and the same has been denied on the ground that the assessee did not fulfil the mandatory condition of having minimum 1 Acre of land for the development of housing project. The CIT(A) confirmed the disallowance of deduction u/s 80-IB and brought it to tax against which, the assessee is now in second appeal before us. Since the deduction u/s 80-IB with regard to Sai Sagar Heights is emanating from the earlier assessment years, the same shall be considered while dealing with the issue in the Assessment Year 2007-08.
Addition u/s 40A(3) despite taking on record the compelling reasons and circumstances under which the payment was made in cash - HELD THAT:- We find that the contention of the assessee that it had initially issued crossed cheques, but because of insufficient funds in its bank account, the cheques were dishonoured against which payments were made in cash is not disputed by the Department. It is also a fact that every subsequent payment made by the assessee is in cash only. Considering the above, in our opinion, the assessee has satisfactorily explained the reason for making the cash payments. Therefore, we are inclined to accept the contention of the assessee and the addition u/s 40A(3) is deleted.
Exemption claimed u/s 80IB(10) on the additions / disallowances u/s 40A(3) and also u/s 69A sustained by him as the said additions / disallowances constituted a part of the business profits - HELD THAT:- Assessee relied upon the CBDT Circular No.37/2016 dated 02.11.2016 wherein the Board has clarified that where the disallowances are made u/s 32, 40(a)(ia), 40A(3), 43B etc., of the Act and other specific disallowances, relating to the business activity against which the Chapter VI-A deduction has been claimed, and such disallowance results in enhancement of the profits of the eligible business, the deduction u/s Chapter VI-A is admissible on the profits so enhanced by the disallowance.
Disallowance @ 10% of the direct and indirect expenditure claimed by the assessee on the ground that the assessee has not furnished the evidence in support of the total expenditure claimed by it - HELD THAT:- CIT(A) has deleted the same by holding that the assessee has maintained proper books of account and that it is supported by bills / vouchers and that the Assessing Officer, in a hurry to complete the assessment, caused this blanket disallowance. For holding so, the CIT(A) has considered that in the immediately preceding previous year, the assessment was completed u/s 143(3) of the Act and the books of account have been verified and no disallowances were caused and that the projects are the same in the relevant previous year and that the Assessing Officer should have considered this aspect while causing an ad-hoc disallowance of 10% of the total expenditure.
DR supported the assessment order while the Learned Counsel for the Assessee supported the order of the CIT(A). We find that except relying upon the order of the A.O., Ld DR has not been able to rebut the findings of the CIT(A) that the expenditure which has been disallowed during this A.Y. is the expenditure of same project which was considered and allowed in the earlier assessment years as well. Therefore, we see no reason to interfere with the order of the CIT(A) on this issue and therefore, the Revenue’s grounds of appeal are rejected.
Even otherwise, in view of the CBDT Circular No. 37/2016 (supra) the disallowances which enhanced the business income ought to be allowed as deduction under Chapter VI-A of the Act and the assessee is eligible for deduction in respect of the said project. Therefore, the Revenue does not benefit even if the ground is allowed.
Disallowance of claim u/s 80IB(10) - A.O. observed that the area of most of the flats sold, exceeded 1500 sft. A.O. therefore carried out further investigations from the flat owners and some of them deposed that the builder himself sold flats exceeding 1500 sft to them but got registered them by splitting them into smaller flats - HELD THAT:- Minimum land required for an approved project is ‘One Acre’ and though the project Sai Sagar Heights was built only on 4800 sq yds, the area available was more than One Acre and therefore, the project is eligible for deduction u/s 80IB(10) of the Act. Except for stating so, the assessee has not been able to produce any evidence in support of its contention. Since the registered area on which the Sai Sagar Heights project has been constructed is less than One Acre, we find that the project is not eligible for deduction u/s 80IB(10). Therefore, we see no reason to interfere with the orders of the authorities below on this issue.
Claim of deduction u/s 80IB(10) with regard to the project Manasarovar Heights – II - Claim denied on the ground that the assessee has constructed flats whose area exceeded 1500 sft - HELD THAT:- We find that 90 flats of Manasarovar Heights – III exceeded 1500 sft of built up area, and the assessee’s contention is that it is the purchasers who have merged two flats into one, thereby area has exceeded 1500 sft.
However, this contention is not convincing. Therefore, the assessee is not eligible for deduction in respect of such flats. We therefore, direct the Assessing Officer to grant proportionate deduction only in view of the decision of Hon’ble Madras High Court in the case of Viswas Promoters (P) Ltd [2012 (11) TMI 1117 - MADRAS HIGH COURT]. Thus, Ground no.2 is partly allowed.
Disallowance u/s 40A(3) of the payments made in cash on the ground that the assessee has not explained the reasons for doing so and the CIT (A) has confirmed the disallowance - HELD THAT:- We find for the A.Y. 2009-10, similar disallowance was deleted by us and even if this disallowance is confirmed, the assessee is eligible for deduction on the same u/s 80IB(10) of the Act, as per the Board Circular No.37/2016 as raised by the assessee in the additional ground of appeal. Thus, the additional ground of appeal raised by the assessee for allowing deduction for such enhanced income is allowed.
House property income - considering the ‘market rent method’ and ‘gross maintainable rent method’ - HELD THAT:- CIT(A) correctly directed the AO to apply rate of 7% on the investment of the assessee subject to cost inflation index and also further investments / improvements made by the assessee on this property during the year under consideration. To reach this conclusion, CIT (A) followed the coordinate Bench decision of the ITAT for the AYs 2002-03, 2003-04 and 2005-06
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2019 (1) TMI 1636
Correct head of income - Income earned from sale and purchase of share - STCG OR business income - Whether considering the magnitude, intention, frequency of transactions which reflects modus operandi of assessee of share business as an adventure in the nature of trade? - HELD THAT:- As observed that the assessee is maintaining the details/records of purchase/sale of equity shares as if it is running a business. It is consistently maintaining the books of account showing the details of equity shares under the head opening stock, closing stock, purchases & sales and gross profit which is a regulars real feature of showing the business transactions. Normally there is no requirement to get audited the gain/loss from purchase and sale of equity shares claimed under the head short term capital gain by an auditor but the assessee has disclosed all the transactions relating to equity shares under the head profit and loss account and got it certified by the auditor.
Frequency of transactions also plays vital role in examining taxability of such transactions. Though it is pleaded that the assessee is a very busy Doctor engaged in the professional work but what transpires from the records is that the assessee is devoting his time and knowledge for regular purchase and sale of equity shares round the year. Even otherwise there is no Estoppel by law on the assessee to carry more than one business or profession. There are innumerable instances where a particular individual carries on multiple businesses from multiple locations then why cannot the assessee.
The situation in the case of assessee seems to be different because assessee is keeping continuous watch on the share market. He selects various scripts for regular purchase and sale and he is also engaged in the future and option market. Hundreds of transactions have been entered with the same brokers for purchase/sale. No separate demat account have been kept by the assessee relating to the alleged investment in equity shares and profit and sale from share trading and future and option. In these given facts it is hard to believe that such gain from such magnitude of transactions can be taxed under the head of short term capital gain.
AO was fair enough to give the benefit of exemption for the long term capital gain but as regards the alleged income we find merit in the finding of Ld. AO and are inclined to hold that the alleged income of is purely income from business from purchase/sale of shares and therefore, is to be taxed as a business income. We, therefore, allow the grounds raised by the revenue and dismiss the ground no.1 raised in the cross objection filed by the assessee.
Disallowance u/s. 14A - HELD THAT:- In the absence of such satisfaction on the part of the assessing officer as well as the fact that the assessee has not claimed any expenditure in the profit and loss account to earn the exempted income we find that the judgment of Coordinate Mumbai Bench in the case of ACIT vs. Sachin R. Tendulkar [2017 (1) TMI 1339 - ITAT MUMBAI] is squarely applicable on the assessee wherein it was held that “ as no expenses were claimed in the profit and loss account attributable to the earning of exempt income, therefore no disallowance is called for u/s 14A of the Act r.w. Rule-8D. No disallowance was called for u/s 14A by the assessing officer. We therefore, set aside the finding of the Ld. CIT(A) and delete the disallowance made by the assessing officer byway invoking provision of section 14A of the Act. Thus, ground no.2 of the cross objection filed by the assessee is allowed.
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2019 (1) TMI 1635
Addition u/s 56(2)(viib) - valuation of equity shares / FMV - excess share premium amount received by the assessee company - HELD THAT:- The valuation of the property at Kolkata is the major part of the total assets and therefore, the correct and true value of the property at Kolkata is inevitable part of the process of the fair market value of the shares issued by the assessee. AO has taken the value of the said property as per the book value which is shown at the cost price and not at the market value whereas the CIT (A) has conducted some verification at his level and found that the valuation of the property after applying 32% discount on account of encumbrance comes to ₹ 18,23,74,333/-.
The fair market value of the shares as per clause (ii) of Explanation (a) to section 56(2)(viib) has to be taken based on the value of the assets including intangible assets of the company as on the date of issue of shares which connotes that the value as on the date of issue and not as per the book value or at cost.
Hence we find merit in the submission of the A/R that fair market value of the shares has to be computed by taking the market value of the assets of the assessee company as on the date of issue of shares. We find that the land/property situated at Kolkata is not free from encumbrances as assessee had admitted that there is encroachment in the said land and, therefore, it becomes essential to value the said property after finding out the actual status of the land/property in question.
The issue requires a proper verification and enquiry at the level of the AO and in case the AO does not agree with the value claimed by the assessee, the matter is required to be referred to the DVO for the purpose of determining the value of the assets of the assessee as on the date of issue of shares.
Since the land in question is situated at Kolkata, therefore, a proper enquiry is required to be conducted to find out the true and correct value of the land at the hand of the assessee. Accordingly, the matter of fair market value of the shares as per the method provided under clause (ii) of Explanation (a) to section 56(2)(viib) is set aside to the record of the AO for fresh adjudication in terms of the above order.
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2019 (1) TMI 1634
Registration u/s 12AA - whether direction for registration can be issued by Tribunal or not while exercising appellate jurisdiction? - HELD THAT:- Refer the following questions to the Larger Bench:
"(i) whether Income Tax Appellate Tribunal while hearing appeal in a matter where registration under Section 12 AA has been denied by Commissioner Income Tax can itself pass an order directing Commissioner to grant registration or should leave the matter to be considered by Commissioner Income Tax to consider matter afresh giving rise to further litigation in the matter;
(ii) whether co-extensive appellate jurisdiction conferred upon Income Tax Appellate Tribunal being a last court of fact can be read to confer upon it similar powers as been exercised by authorities below whose orders are considered in appeals by Tribunal"
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2019 (1) TMI 1633
Release of seized goods - Betel Nuts - the consignment of the petitioner is said to have been put under seizure alleging that the same seems to be of 'Indonesian Origin' - allegation based on test report of Arecanut Research and Development Foundation, Mangalore - HELD THAT:- This court is of the opinion that in absence of there being a standardized laboratory test for tracing the country of origin, established under some statute and such Labs have been accredited by the competent authority and the Labs could have the scientific method to come to a conclusion that a Betel Nut is of a particular country's origin, it would not be in the interest of justice to direct the petitioner to pay the custom's duty.
Revenue submits that in fact on the basis of materials which are available on the record, in his opinion now the time has come when the Government of India will have to think over either continuing with the treaty in question or to develop a scientific method to find out the country of origin to save the government's revenue - In the opinion of this court, it is for the Government of India to think over it.
Application allowed.
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2019 (1) TMI 1632
Framing of charges by the Additional Chief Metropolitan Magistrate - HELD THAT:- It is to be noted that the criminal application preferred by the accused before the High Court was against the order of the Trial Court at the stage of framing of charges, wherein it is the duty of the court to apply its judicial mind to the material placed before it and to come to a clear conclusion that a prima facie case has been made out against the accused. An order for framing of charges is of serious concern to the accused as it affects his liberty substantially. Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused.
Quashing of the charges - HELD THAT:- It is well settled that such exercise needs to be undertaken by the High Court in exceptional cases. It is also well settled that the framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination.
Charge under Section 415 punishable under Section 420 of IPC - HELD THAT:- The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred.
The High Court should have maintained judicial restraint and desisted from making such general observations at this stage of the criminal proceeding, as they may have had a bearing on the adjudication of the trial. Therefore, the observations made in paragraphs 42 and 43 of the impugned judgment stand expunged.
We are unable to uphold the impugned order passed by the High Court in Criminal Miscellaneous Application No. 4033 of 2012 and the same is hereby set aside. The application filed by the appellant under Section 482 of Cr.P.C. is allowed and the proceedings initiated based on the FIR instituted at the instance of respondent no. 2 are hereby quashed - Appeal allowed.
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2019 (1) TMI 1631
Penalty levied u/s 271(1)(c) - reporting of profits by filing wrong estimate of income of expenditure - HELD THAT:- Tribunal pressed in service several grounds for deleting the penalty. It is not necessary to examine such grounds since only on the first ground recorded by the Tribunal, it is possible to sustain the judgment.
The Tribunal noted that the addition of ₹ 28.62 crores made by the CIT(A) was on account of reworking of the estimated project cost based on actual cost incurred upto 31.03.2013. The Tribunal noted that against the cost of estimated cost ₹ 1628.02 crores, the CIT(A) adopted a sum of ₹ 1425.19 crores as the actual expenditure incurred on the project till the year end.
The Tribunal noted that rest of the calculations made by the CIT(A) were directly related to the change in method of accounting rejecting the assessee's figures and the method of accounting in this regard. The Tribunal, therefore, observed that whatever be the better method of accounting, this was not a case of concealment of income leading to penalty.
Tribunal noted that the addition of ₹ 28.62 crores had the genesis in the estimation on one side and preponement of the expenditure on the other, based on change of method of accounting. Thus, in clear terms the Tribunal found that the assessee had neither concealed the income nor concealing the particulars of such income. The penalty was, therefore, correctly deleted.
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2019 (1) TMI 1630
Revision u/s 263 - CIT stating that AO should have enquired the above claim of exempt long-term capital gain earned by the assessee on the basis of suspicious transaction - HELD THAT:- As the AO has neither carried out any enquiry with the 3rd parties such as the broker, stock exchanges, and most importantly the learned AO has not examined the assessee about the share transactions as directed by the CBDT.
It is rather surprising that despite the case of the assessee was selected for verification of the suspicious transaction entered into by the assessee the AO has not carried out any enquiry and merely believed on the documents submitted by the assessee. There is complete lack of inquiry with the perspective for which case is selected for scrutiny.
PCIT in his order has also given the issues on which AO has not made any inquiry. Further according to Explanation 2 to section 263 any order passed without making due inquiries which should have been made is an order erroneous and prejudicial to the interest of revenue. Therefore no infirmity in the order of the learned PCIT in assuming jurisdiction under section 263 of the income tax act and directing the assessing officer to make the necessary enquiry. No merit in the appeal of the assessee and the order passed by the learned CIT u/s 263 of the income tax act is upheld. - Decided against assessee.
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2019 (1) TMI 1629
Admissibility of application for intervention - application under section 7 of the ‘I&B Code’ is pending before the Adjudicating Authority (National Company Law Tribunal) since May, 2018 - HELD THAT:- In the present case, as we find that the matter is pending since May, 2018, we direct the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad to pass appropriate order on the application u/s 7 immediately not beyond three weeks, after hearing the ‘Financial Creditor’ (Appellant) and Corporate Debtor. Intervener is not required to be heard at the stage of admission. If the Corporate Debtor intends to settle the matter, then no order be passed. This Appellate Tribunal may pass the order on the application u/s 7 filed by the Appellant after notice to the Corporate Debtor.
Appeal disposed off.
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2019 (1) TMI 1628
Maintainability of petition - initiation of CIRP - pre-existing dispute or not - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is existence of dispute raised prior to the filing of petition under Section 433(e) and Section 434 (1) of the Companies Act, 1956, the application under Section 9 of the ‘I&B Code’ was not maintainable.
Appeal dismissed.
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2019 (1) TMI 1627
Revision u/s 263 - claim u/s 80IC - HELD THAT:- Pr. CIT has considered all the contentions of the assessee and thereafter rightly come to the conclusion that the AO failed to consider the fact that whether the assessee is entitled for claim u/s 80IC or not in respect of the products which do not come under the ambit of Fourteenth Schedule. It can be seen that the Pr. CIT has properly invoked the provisions of Section 263 and there is no procedural lapse on the part of the Pr. CIT. In fact, the AO did not made any inquiry and there is no mention of the same in the Assessment Order itself which proves that the order is passed without making inquiries or verification which should have been done by the AO before allowing the claim u/s 80IC of the Act. Thus, it is prejudicial to the interest of the Revenue and there is loss of revenue. CIT after issuing the Show Cause Notice u/s 263 of the Act given ample opportunity to the Assessee for explanation and dealt with the reply/details filed by the assessee in proper manner. Thus, proper opportunity was given by the Pr. CIT to the assessee during the proceedings u/s 263.
In the present case the Assessing Officer has not properly adjudicated the issue of claim u/s 80IC before allowing the same to the assessee company, therefore, the Pr. CIT has rightly invoked Section 263 of the Act and passed the order. Therefore, the Order under Section 263 of the Income Tax Act, 1961 passed by the Principal Commissioner of Income Tax is just and proper. There is no need to interfere with the same. The appeal of the assessee is dismissed.
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2019 (1) TMI 1626
Validity of re-opening of assessment u/s. 147 - assessment for the impugned assessment year has been completed u/s. 143(3) - HELD THAT:- AO has re-opened the assessment without making an allegation on the part of assessee to disclose fully and truly all the material facts necessary for completion of assessment. This legal proposition is supported by the decision of CIT Vs. Kelvinator of India Ltd., [2010 (1) TMI 11 - SUPREME COURT] wherein it was categorically held that AO has power to reopen, provided there is a tangible material to come to a conclusion that there is escapement of income from assessment.
This legal proposition further supported in the case of CIT Vs. Usha International Ltd. [2012 (9) TMI 767 - DELHI HIGH COURT] . Therefore no failure on the part of assessee to furnish fully and truly all the material facts necessary for completion of assessment. Since the assessment has been re- opened after a period of four years from the end of relevant assessment year and there is no allegation by the AO on the part of the assessee regarding furnishing of all the material facts necessary for assessment, reopening of assessment u/s. 147 of the Act is bad in law and liable to be quashed.
Applicability of provisions of Section 115JB of the Act to the banking companies - HELD THAT:- As relying own case [2018 (11) TMI 1171 - ITAT MUMBAI] Provisions of Section 115JB shall not be applicable to assessee.
Adjustment made towards disallowance of Broken Period Interest to book profits computed u/s. 115JB - We are of the considered view that there is no error in the findings recorded by the Ld. CIT(A) in directing the AO to delete the adjustment made towards disallowance of Broken Period Interest to book profits computed u/s. 115JB of the Act. Hence, we are inclined to uphold the findings of Ld. CIT(A) and reject the grounds raised by Revenue.
Computation of interest payable u/s. 244A of the Act on refund arising out of the order - HELD THAT:- . We find that this issue is also covered in favour of assessee by the decision of ITAT, Mumbai in assessee’s own case for the AYs. 2007-08 & 2009-10, where the Co-ordinate Bench by following its earlier order for the AY. 2005-06, restored the issue to the file of AO with similar directions as were given for the AY. 2005-06
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