|
Advanced Search Options
Case Laws
Showing 421 to 440 of 2067 Records
-
2017 (11) TMI 1649
CENVAT credit - various services received at wind mill electricity generator of the appellant - denial on the ground that the said windmill farm is not situated within the factory premises and is situated at a different place - Held that: - identical issue decided in appellant's own case M/s. Mangalam Cement Ltd. Versus C.C.E., Jaipur-I [2017 (8) TMI 1096 - CESTAT NEW DELHI], where it was held that Since there is no stipulation contained in either Rule 2 or Rule 3 ibid providing for use of the services exclusively within the factory, the disputed services used in the wind mill for generation of electricity, which in turn, were used for manufacture of the final product in the factory of the appellant, should be considered as input service for the purpose of availment of CENVAT credit of service tax paid thereon - credit allowed - appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 1648
Admission of the petition under I & B Code - initiation of Corporate Insolvency Resolution Process against the Respondent - continuing dispute - Whether there is an any dispute between the parties before filing petition filed under I & B Code, 2016? - petition barred by limitation - Held that:- It is a fact that the winding up petition filed before the High Court has been transferred to this Tribunal on its constitution and at present the same is proceeded with under the provisions of the I & B Code, 2016. It is also on record that the Respondent has disputed the claim before the High Court.
Since the petition has been transferred to this Tribunal on its constitution, and since it is not abated, the dispute raised by the Respondent is still continuing and it cannot be ignored for the reason that the present proceeding is being considered under the provisions of the I & B Code. Further it is also on record that the Applicant has submitted the final bill certificate to the Respondent in the month of February 2009 and the notice under section 434 of the Companies Act, 1956 was issued to the Respondent only on 25.11.2013.
It is also on record that the Respondent vide its letter dated 19.12.2013 has raised the issue of limitation and it was not disputed by the Applicant by placing any reply or any other material to show how the claim is within limitation. In view of this, I conclude that there is dispute exists between the parties in relation to this claim, and the petition is also barred by limitation. Therefore, I answer the issues (i) and (ii) above in affirmative.
Applicant has not made out any case for invoking the jurisdiction of this Adjudicating Authority under the provisions of I & B Code, 2016. - Petition dismissed.
-
2017 (11) TMI 1647
Corporate insolvency process - Operational Creditor has proposed Ms. Bhavna Sanjay Ruia as Interim Resolution Professional for Corporate Insolvency Resolution Process with exorbitant amount of fee quoted - Held that:- The remuneration quoted by the IRP is quite exorbitant and the same needs to be referred to IBBI. Though there are no prescribed set of Rules and Regulations/ Guidelines at present with regard to the fee to be payable to the IRP/ RP, the Adjudicating Authority is of the considered view that the fee quoted by the professionals should be reasonable, commensurate with the work to be handled. In view of the above we recommend the matter to IBBI for taking appropriate action/remedial measure against the Proposed IRP including disciplinary action if any, as deemed fit.
-
2017 (11) TMI 1646
CENVAT credit - rent-a-cab service - insurance service received to insure the life of employees and their family member - Held that: - In respect of rent-a-cab services availed, whether the vehicle was capital goods was not proved by Revenue. It does not appeal to common sense as to how a service recipient having no scope to know whether the motor vehicle was capital goods or not shall face adversity even though he has paid tax on the service of rent-a-cab availed - credit allowed.
Insurance service received to insure the life of employees and their family member - Held that: - taking into consideration the appellant was a manufacturer, its employees including their family members are insured, there should not be denial of cenvat credit since insuring workers has integral connection with manufacture - So also health insurance being requisite of labour welfare legislation, denial of cenvat credit of service tax paid on insurance service availed for the employees welfare would be unreasonable - credit allowed.
Appeal allowed - decided in favor of appellant.
-
2017 (11) TMI 1645
Bad debts - allowability - general provision of 25% on standard assets - Held that:- The amount is not available to the assessee for its business purpose. The assessee has extended its meaning by interpreting net worth and the Companies Act. Therefore, we are unable to accept the argument of the assessee that the bad debts reserve is allowable as a deduction and this ground of appeal of the assessee
Reserve for bad and doubtful debts - Held that:- We agree with the assessee’s argument that if the expenditure is debited to the P&L account, bank would incur a loss, therefore, the assessee has rightly debited the expenses to the customer’s account. Hence the same should be included in the outstanding balance of the debts and while creating the provision the debt should be included by the expenses incurred by the bank. The Cooperative bank is eligible for deduction u/s 36(1)(viia) of the APCS Act @ 7.5% of the profits and 10% of its rural advances. The deduction claimed by the assessee as a provision for doubtful debts or NPA is within the limit provided by the Income Tax Act u/s 36(1)(viia) inclusive of the expenses. Therefore, the above sums are allowable u/s 36(1)(viia) of the Act, accordingly, we uphold the order of the Ld. CIT(A) and dismiss the appeal of the revenue on this ground.
Reserve created for sundry debtors - Held that:- The assessee is a Cooperative Bank following the mercantile system of accounting. The subsidy released to PACS was not a loan, it was the assistance of funds in lieu of expected subsidy. Therefore, the order of the Ld. CIT(A) on this issue cannot be sustained, hence set aside and the order of the A.O. is restored and the addition is upheld.
DCCB’s share of 35% of waiver of penal interest and interest on overdue deposits - Held that:- Though the subject expenditure does not fall u/s 36(2) or 36(1)(viia) of the Act, undoubtedly, the same is business loss and the aggregate amount of overdue interest and penal interest and the NPA provision did not exceed the limit for allowing the deduction u/s 36(1)(viia) or 36(1)(vii) of the Act. Since the expenditure is genuine and incurred in the ordinary course of business, we hold that the IOD interest and the penal interest should be allowed as business loss and accordingly the appeal of the revenue is dismissed and the order of the Ld. CIT(A) is upheld.
Over due interest - Held that:- Since the issue involve verification with regard to the true and correct nature of the overdue interest, both the parties have agreed to remit the matter back to the file of the A.O. to verify the true and correct nature of interest whether it is relating to bad and doubtful debts or NPA or on performing assets. Therefore, we direct the A.O. to verify the true nature of the overdue interest and decide the issue afresh on merits. This ground of appeal of the revenue is allowed for statistical purposes.
Provision of NPA - Held that:- AO did not dispute the fact that the sum represented the interest on advance which was categorized as NPA. The AO did not bring any evidence to show that the same was not NPA and not covered by the prudential norms of RBI. The Ld. D.R did not controvert that the provision for Bad and doubtful inclusive of NPA provision crossed the limit provided in section36(1)(viia). Since the deduction claimed by the assessee is within the limit of section 36(1)(viia) of the Act, the same is allowable as per the provisions of section 36(1)(viia) of the Act, therefore, we do not find any infirmity in the order of the CIT(A) and the same is upheld.
3% interest on agricultural stabilization fund - Held that:- Since the amount is interest paid on the deposits of the co-operative societies relating to fund called agricultural credit stabilization fund, the same is a business expenditure and the CIT(A) has allowed the same correctly. There is no dispute with regard to the genuineness of the expenditure and we agree with the Ld. CIT (A) that it was not an appropriation of the profits and it was the interest paid on the deposits of PACS. The appeal of the revenue on this ground is dismissed.
Reserve for Co-operative Educational fund for the assessment year 2010-11 - Held that:- The assessee submitted that the payment was made to A.P. State Cooperative union to give training to their staff but not the contribution to the Union. Therefore, as rightly held by the CIT(A), the payment or contribution to co-operative educational fund is diversion of profits at source by over riding title under the Act. Hence, we do not find any reason to interfere with the order of the Ld. CIT(A) and the same is upheld.
-
2017 (11) TMI 1644
Rectification of mistake - Disallowance u/s 14A read with Rule 8D(2)(ii) & (iii) - Held that:- ITAT's failure to consider the submissions filed by the assessee at the time of hearing wherein it was demonstrated that the own capital of the assessee exceeds the amount of investment therefore there is no question of making the disallowance of interest expenses.
In view of the above we hold that the mistake apparent from the record has occurred in the order passed by this Hon’ble ITAT in pursuance to the provisions of section 254(2) of the Act. We therefore recall the impugned order for the limited purpose of adjudication of the disallowance made by the AO under section 14A of the Act. Accordingly the registry is directed to fix the case for hearing in due course of time. Hence the ground filed by the assessee in Miscellaneous Application is allowed.
-
2017 (11) TMI 1643
CENVAT credit - separate units - case of Revenue is that, as the boiler unit and the manufacturing units are two separate units having two separate registrations, therefore, inputs received in the boiler unit are not entitled for Cenvat credit to the respondent - Held that: - Admittedly in this case, the whole of the coal which has been used for boiler for generation of steam and such generated steam has been used by the respondent 100% through pipelines - credit allowed - appeal dismissed - decided against Revenue.
-
2017 (11) TMI 1642
Income chargeable to tax in India - existence of PE in India - Held that:- The assessee is accepted that no further income chargeable to tax in India can be said to be attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arms length price in the present case on the issue of agent for space selling, there is no requirement for dealing with the issue of, whether there is PE or not and no addition on this count can be made in the case of assessee.
We find that the alternative contention made by the assessee that once no income chargeable to tax in India is attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arms length price, no further income chargeable to tax in India can be said to be attributable on account of PE. Accordingly, this issue is squarely covered in favour of assessee by the decision of Hon’ble Supreme Court in the case of E-Funds IT Solution Inc. (2017 (10) TMI 1011 - SUPREME COURT OF INDIA) and also co-ordinate Bench decision in the case of Taj TV Ltd. (2016 (12) TMI 1291 - ITAT MUMBAI). Respectfully following the same we allow the appeal of the assessee.
-
2017 (11) TMI 1641
Reopening of assessment proceedings u/s 147 - non furnishing of reasons to believe to assessee - Held that:- As AO could not produce any record or document to show that a copy of the reasons recorded for reopening of the assessment has been served on the assessee before the completion of the assessment on 22.12.2010, despite repeated requests by the assessee to the A.O for furnishing the same. Under these circumstances, as the ld. A.O has failed to give a copy of the reasons recorded for reopening to the assessee despite application for the same, the assessment is to be held as bad in law. - Decided in favour of assessee
-
2017 (11) TMI 1640
Maintainability of petition - main plea taken by the Appellant-'Corporate Debtor' is that there is an 'existence of a dispute' and therefore, the petition under Section 9 of the 'I & B Code' was not maintainable - whether pendency of a case before a Court u/s 34 of the Arbitration and Conciliation Act, 1996 can be termed to be 'dispute in existence' for the purpose of sub-section (6) of Section 5 of the 'I & B Code'? - Held that: - for the purpose of Arbitration and Conciliation Act, 1996, an Arbitral Award reaches its finality after expiry of enforcement time or if the application under Section 34 is filed and rejected. However, for the purpose of I & B Code' no reliance can be placed on Section 34 of the Arbitration and Conciliation Act, 1996.
The I & B Code' being a Complete Code will prevail over all other Acts including Arbitration and Conciliation Act, 1996.
From the provisions made in the Form-5 if read with sub-section (6) of Section 5 and Section 9 of the I & B Code' it is clear that while pendency of the suit or Arbitral Proceeding has been termed to be an 'existence of dispute', an order of a Court, Tribunal or Arbitral Panel adjudicating on the default (commonly known as Award), has been treated to be a "record of Operational Debt".
No person can take advantage of pendency of a case under Section 34 of the Arbitration and Conciliation Act, 1996 to stall 'Corporate Insolvency Resolution Process' under Section 9 of the 'I & B Code' - appeal dismissed.
-
2017 (11) TMI 1639
Condonation of delay - reasons for delay for 72 days - sufficient cause - Held that:- In the present case, the reason advanced by the assessee cannot be considered as good and sufficient reason to condone the delay. The reasons advanced by the assessee really show that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the delay by exercising of due care and attention. In our opinion, there exists no sufficient and good reason for delay of filing the appeal by 72 days.
Therefore this kind of delay does not warrant condonation, since the assessee has not shown valid reasons cause for filing the appeal belatedly by such inordinate delay of 72 days - Decided against assessee
-
2017 (11) TMI 1638
Provision for liquidated damages and warranty - permissibility of the claim – which appears to have been added back under Section 41 - Tribunal which directed a remit to the CIT(A) on the question of provisions - Held that:- the Court is of the opinion that the impugned order of the ITAT requires to be modified; instead of the remand to the CIT(A), the Court hereby directs the ITAT to decide the issue with respect to provision for liquidated damages and warrants – claimed by the assessee as expenses, in this appeal along with the appeals for AY 2005-06, said to be pending before it. The parties shall be present before the ITAT on 28.11.2017 when the other appeals are listed.
-
2017 (11) TMI 1637
Disposal of petitioner appeal - Held that: - there is no legal impediment for the Tribunal to dispose of the petitioner`s appeal in Appeal No. C/1151/2012 expeditiously - CESTAT requested to dispose of the aforesaid appeal within three months from the date of receipt of a copy of this order - petition disposed off.
-
2017 (11) TMI 1636
TPA - Excluding the comparables selected - Held that:- Assessee was engaged in the business of designing and development of chip, integrated circuits and storage components and allied services for its holding company AMCC, USA. Companies Comparable for design engineering segment should be selected as comparable to assessee.
Claim of risk adjustment - Held that:- We direct the Assessing Officer to allow risk adjustment and re-work the margins of comparables, in turn, relying on the ratio laid down by the Delhi Bench of Tribunal in the case of Sony India Pvt. Ltd. (2008 (9) TMI 420 - ITAT DELHI-H) and compute the TP adjustment, if any, in the hands of assessee.
Setting off of unabsorbed depreciation before allowing deduction under section 10A of the Act - Held that:- We direct the Assessing Officer to allow the deduction under section 10A of the Act before setting off of unabsorbed depreciation against the profits of eligible units. Thus, the ground of objection No.2.4 is allowed in favour of assessee.
-
2017 (11) TMI 1635
Additions u/s 68 - unexplained share application money - ITAT deleted the additions - revenue contended that the share applications alongwith premium were merely accommodation entries and the identity, genuineness and creditworthiness of the applicants was not proved. - Additions u/s 69B - commission payment made for obtaining accommodation entry - Held that:- Now the issue is squarely covered by the decision of Supreme Court in case of Lovely Exports (P) Ltd., [2008 (1) TMI 575 - SUPREME COURT OF INDIA] - No additions - Decided against the revenue.
-
2017 (11) TMI 1634
Rectification of mistakes - valuation of capital asset - substituted the value of sale consideration with the value of sale deed for the purpose of stamp duty - not confronting the assessee regarding application of provisions of section 50C - Held that:- AO had not given any opportunity to the assessee regarding this and Ld. CIT(A) has also held that unless the assessee provides any evidence of low rates to show that his property was situated in a manner which would fetch lower rates than other comparable rates in the locality, the Assessing Officer was not bound to consider the same and in the absence of any such evidence or claim, he has upheld the action of Assessing Officer. The assessee before the Hon'ble Tribunal vide ground no. 1 has specifically taken up this issue but Hon'ble Tribunal has passed the order holding that no fresh evidence was provided by assessee but it has omitted to adjudicate on the specific ground as to whether the Ld. CIT(A) can uphold the addition u/s 50C by substituting apparent consideration with the value as per stamp duty when the assessee was never confronted. Therefore there is a mistake in the order of Hon'ble Tribunal as far as ground no. 1 is concerned, and it needs rectification as the specific grievance of assessee has not been adjudicated.
As regards ground no. 2, Hon'ble Tribunal has not adjudicated this ground of appeal and has wrongly considered the ground no. 2 as second limb of the ground no. 1 and therefore it needs to be adjudicated and therefore there is a mistake in the order of Hon'ble Bench.
Disallowance of expenditure - Held that:- Hon'ble Tribunal has discussed this issue at para 7 and has upheld the action of Ld. CIT(A) by concurring with the findings of Ld. CIT(A) that no specific expenditure was shown to have been incurred by the assessee through his bank account. In this regard, we find that the Assessing Officer had made the disallowance by holding that there was no cash withdrawls for making the expenditure. The Ld. CIT(A) on the other hand had held that the assessee had made cash withdrawls from his bank account but he has upheld the disallowance on the basis that the assessee had not shown to have incurred the expenditure through his bank account. Therefore, the Ld. CIT(A) has upheld the disallowance on a different premise and Hon'ble Tribunal was requested to adjudicate on this issue as to whether Ld. CIT(A) can confirm an addition on a different premise. From the findings of order of Hon'ble Tribunal, we find that Hon'ble Tribunal has not given any finding in this respect and has upheld the action of Ld. CIT(A), therefore there is apparent mistake which needs to be rectified.
As regards the other mistake, the Ld. AR argued that ground no. 8 was raised specifically and the Hon'ble Tribunal was required to adjudicate as to whether the AO without affording proper opportunity and Ld. CIT(A) even after conceding on this issue erred in still upholding the additions and the Hon'ble Tribunal has dismissed this ground vide para 14 holding that the ground was general in nature whereas we find that this is not a general ground and it needed adjudication which had skipped the attention of Hon'ble Tribunal. In view of these facts and circumstances, we find that mistake has crept in the order of the Hon'ble Tribunal - Decided in favour of assessee.
-
2017 (11) TMI 1633
TDS u/s 194J - liability to deduct tax on payment of transmission and wheeling charges - Held that:- As decided in assessee in favour of assessee [2017 (12) TMI 911 - ITAT DELHI] the expression 'technical service' could have reference to only technical service rendered by a human and that it would not include my service provided by machines or robots. However as against above contention we find that the AO has completely failed to bring relevant materials, whatsoever, on record to prove the existence of human interface/element in the present case.
In view of the above, we find that such transmission and wheeling charges paid by the assessee does not come within the purview of fees for technical service as defined under Explanation 2 to sec 9(1)(vii) of the Act and accordingly no tax is required to be deducted by the assessee u/s. 194J therefrom - Decided in favour of assessee.
-
2017 (11) TMI 1632
Allowability or disallowability of deduction of the statutory duties on payment basis under section 43B - Plea of the Revenue that these are continuous issues forming part of the assessment order for AY 2005-06 and 2006-07 also, and are at present pending adjudication before Hon'ble Delhi High Court is not a ground for us to deviate from the consistent view taken by this Tribunal in assessee's own case for the earlier years. We, therefore, while respectfully following the view taken for the earlier years, set aside the impugned order and direct the A.O. to firstly recast the assessee's profit and loss account on inclusive basis and then make suitable deduction in respect of the amount of unutilized PLA at the end of the current year and also the preceding year.
Customs Duty and amount paid on import of components for export purposes for which exports have not and have been made - Held that:- The entire amount of excise duty and customs duty paid by the assessee in a particular year are allowable as deduction irrespective of the fact that such duties are included in the value of closing stock. It was further held that provisions of Section 43B, while overriding all the other provisions of the Act, also override Section 145A and further that provisions of section 145A does not in any manner dilute or nullify the effect of provisions of Section 43B of the Act.
Excise duty actually paid on purchased inputs included in RG 23A Part II - Held that:- Facts being remained the same, we are not left with any clue as to why should we deviate from this consistent view taken for successive years, as such, we, therefore, respectfully following the same line of reason we set aside the matter to the file of the Assessing Officer to decide the issue afresh in view of the above decisions in the case of assessee itself in the appeal for the assessment year 2006-07 and 2007-08 after affording opportunity of being heard to the assessee.
Customs duty paid under protest - Held that:- This aspect of disallowance of claim for deduction under section 43B of the Act for the amount of Customs Duty paid under protest has been one of the subject of matters in assessee's own case for the AY 2006-07 and 2007-08 successively as similar issue supra while dealing with 'Excise duty paid under protest' by holding that first the Profit and loss account be recast as per 'Inclusive method' in terms of section 145A and then some adjustments as stated above be separately made. Such directions are fully applicable pro tanto to the customs duty paid under protest. The AO is directed to follow the same.
Not allowing withdrawal of add back u/s 43B - Held that:- For the AY 2007-08, though the AO refused to allow the deductions claimed by the assessee under section 43B of the Act, by order dated 20-05-2016 the Tribunal considered the case of the assessee and set aside the matter to the file of AO, and the relief on this aspect is dependent upon the findings of the AO while implementing the said order, as such we deem it just and proper to direct the AO to consider this aspect also in the light of implementing the order of this Tribunal for the AY 2007-08. These grounds are, therefore, allowed for statistical purpose.
Addition in respect of purported alleged excess consumption of raw material and components to be deleted as relying on Commnr. Of Central Excise v. M/s Maruti Suzuki India Ltd [2015 (8) TMI 493 - SUPREME COURT]
Disallowance under section 14A - Held that:- We agree with the submissions made on behalf of the assessee that insofar as the interest expense under Rule 8D(ii) is concerned, it has to be determined after examination of the macro fund/ cash flow position during the year and if the assessee had sufficient surplus funds available, presumption should be drawn in favour of the assessee that surplus funds have been utilized for making investments, and while calculating the disallowance under Rule 8D(iii) has to be calculated in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income after reducing the strategic long-term trade investments. We, therefore, deem it just and proper to set aside the impugned order on this score and send the matter to the file of AO for making disallowance u/s 14A.
Disallowance of deduction under section 35DDA - Held that:- this Tribunal directed the Assessing Officer to allow the claimed deduction under sec. 35DDA of the Act at ₹ 23,91,54,586. Since facts are similar in assessee's own case, we follow the decisions above and direct the Assessing Officer to allow the deduction under section 35DDA of ₹ 23,91,54,836/- (being 1 /5th of the total expenditure of ₹ 119.58 crores incurred by the appellant company, in respect of payment made to its employees under the voluntary retirement scheme during the F.Y. 2003- 04).
Disallowance of expenditure incurred on club membership to be allowed
Disallowance of expenditure incurred on account of royalty - Held that:- The amount of royalty considered by the Assessing Officer as capital expenditure should be allowed as a revenue expenditure, and at the same time, depreciation allowed by the Assessing Officer on this amount should be taken back
Disallowance on account of R&D Cess on Royalty - Held that:- Since the related facts of the present assessment year are similar to those in the assessment year 2006- 07 and 2007-08 on an identical issue, we, while respectfully following the same direct the Assessing Officer to allow the deduction as directed by the ITAT in the appeal for the assessment year 2006-07 and 2007-08 after affording opportunity of being heard to the assessee
Sales Tax Subsidy claimed as capital receipt from the total income - Held that:- Any subsidy given to the assessee post accomplishment of the project or expansion there, without any obligation to utilize the subsidy only for repayment of term loans undertaken by the assessee for setting up new units/expansion of existing business, or to liquidate the cost incurred in creating the capital asset or its expansion, is only in the nature of the revenue receipt and is liable to be brought to tax
Disallowance on account of Provisional Liability relating to Expenditure on account of FPI-OE Components - Method of accounting - Held that:- There is no dispute that the same method of accounting is regularly and consistently followed by the assessee as such rule of consistency is applicable as per which under the similar facts and circumstances, department ought to follow same approach on an issue in other assessment years. We, therefore, respectfully following the reasoning adopted by the coordinate Bench of this Tribinal for the AY 2007-08, set aside the matter to the file of the Assessing Officer with direction to decide the issue afresh after affording opportunity of being heard to the assessee
Allow the deduction representing the excise duty paid by the appellant during the relevant previous year
Sharing of resources with other Group Companies/ Subsidiary Companies - Held that:- There is no material that is brought on record to controvert the plea of the assessee that they have provided the support to the Insurance subsidiaries due to its business exigency rather than supporting the said companies and it is it is in the best interests of MSIL to do so for maximizing their profits, as such the related cost is allowable business expenditure for the company. It also further goes undisputed that this being the business expenditure will have to be allowed as deduction under section 37(1) of the Act, either in the hands of the appellant company or to the group companies. No addition warranted.
Adjustment on account of allegedly excessive AMP expenses - Held that:- While respectfully following the decision in in assessee's own case [2015 (12) TMI 634 - DELHI HIGH COURT]hold that the AMP expenses incurred by MSIL cannot be treated and categorised as an international transaction under Section 92B of the Act, and the question of the TPO making any transfer pricing adjustment in respect of such transaction Chapter X does not arise
Adjustment on account of payment of royalty for use of brand name - Held that:- While respectfully following the decision of this Tribunal for the AY 2006-07, we order for the deletion of the addition of ₹ 237.24 crore on account of transfer pricing adjustment of royalty for use of licensed trademark.
Not allowing credit of TDS certificates claimed through the revised return and during the course of assessment proceedings - Held that:- Allow ground for statistical purpose by setting aside the matter to the file of the Assessing Officer to consider the claimed TDS credit on the basis of revised return after affording opportunity of being heard to the assessee.
Error in computation of interest u/s 234B - Held that:- We set aside the matter to the file of the Assessing Officer to decide the issue afresh in view of the above finding in the case of C.C.Chokshi & Co. (2010 (5) TMI 698 - ITAT MUMBAI) after hearing the assessee
-
2017 (11) TMI 1631
Disallowance of deduction claimed u/s 35(1)(ii) - addition by AO without making his independent inquiries, and merely relying on the report of the Investigation Department - addition is on the basis of the statement recorded on oath during survey at M/s. Herbicure of Shri Swapan Ranjan Dasgupta - Held that:- AO got swayed away with the statement recorded on oath of Mr. Swapan Ranjan Dasgupta during survey conducted at the premises of M/s. Herbicure. We have reproduced Question no. 22 and 23 and answers given by Shri Swapan Ranjan Dasgupta, wherein he admits to provide accommodation entries in lieu of cash. This information we should say can be the tool to start an investigation when the assessee made the claim for weighted deduction. The general statement of Shri Swapan Ranjan Dasgupta against donation made the claim of assessee for deduction suspicious. However, when the AO investigated, Shri Swapan Ranjan Dasgupta has confirmed that M/s. Herbicure was in receipt of the donation and it has not given any refund in cash, then the sole basis of disallowance of claim as a matter of fact disappeared. It should be remembered suspicion howsoever strong cannot take the place of evidence.
The confirmation from Shri Swapan Ranjan Dasgupta fortifies the claim of the assessee for weighted deduction u/s. 35(1)(ii) of the Act. The sole basis of the addition/disallowance based on statement recorded on oath during survey cannot be allowed as held by Hon'ble Supreme Court in Kader Khan & sons (2013 (6) TMI 305 - SUPREME COURT). Moreover, we note that if the AO was hell bent determined to disallow the claim of the assessee, then he should have granted an opportunity to cross examine Shri Swapan Ranjan Das Gupta and Shri Kishan Bhawasingka as held by Hon'ble Supreme Court in Andaman Timber (2015 (10) TMI 442 - SUPREME COURT). - Decided in favour of assessee
-
2017 (11) TMI 1630
Service Tax on commission received - Contract for Maintenance and Handling Agreement - Policy Circular dated 20.04.2016 - Held that: - Writ Petitions are partly allowed and the impugned communications dated 12.10.2016 26.10.2016 are set aside with a direction to the petitioners to pay service tax as demanded by the 3rd respondent and after payment, produce the invoice to the 2nd respondent for reimbursement, which shall be considered by the 2nd respondent strictly in accordance with Policy Circular No.240-04/2016 dated 20.04.2016 - petition allowed in part.
............
|
9911796707
