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Showing 421 to 440 of 2170 Records
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2019 (4) TMI 1756
Non-compliance with the pre-deposit - statutory remedy of appeal - Section 128 of the Customs Act, 1962 - HELD THAT:- It is undisputed that a remedy of appeal provided in the statute is available to the petitioner. The condition of predeposit of 7.5% amount has been held not to be arbitrary by this Court. The contentions regarding illegality which are sought to be raised in the petition can always be raised before the Appellate Authority.
We declined to entertain this petition under Article 226 of the Constitution of India on the ground of availability of an efficacious remedy of a statutory appeal - the petition is disposed of.
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2019 (4) TMI 1755
Assessments u/s. 153C - admission of additional ground raised by the assessee - as per assessee no satisfaction is recorded by the AO who has passed the order u/s. 153A of the Act in case of searched person u/s. 132 - contention of the assessee is that satisfaction is said to have been recorded by the AO who has passed the order u/s. 153A in the case of the assessee and it is also satisfaction note to that effect that there exists income-tax belonging to any person other than the searched person in respect of whom search was made u/s. 132 of the Act or requisition of books of account were made u/s. 132A - HELD THAT:- The person who has passed the order in the case of the searched person u/s. 153A of the Act is required to record the satisfaction note before completion of assessment u/s. 153A of the Act.
Provisions contained u/s. 153C of the Act can only be invoked where there was satisfaction by the AO having jurisdiction over the person searched or requisitioned u/s. 132A during the course of assessment proceedings. Therefore, the proceedings u/s. 153A of the Act always precede the proceedings u/s. 153C of the Act and without recording satisfaction note by the Assessing Officer initiating proceedings for completion of assessment u/s. 153A of the Act cannot be proceeded u/s. 153C of the Act in the case of such other person not searched. Same view was taken by the Supreme Court in the case of CIT vs. Calcutta Knitwears, Ludhiana [2014 (4) TMI 33 - SUPREME COURT]
In the present case, there was a search u/s. 132 of the Act in M/s. Kunhitharuvai Memorial Charitable Trust, Calicut which revealed that the assessee received training charges from College of Nursing which is an institute under KMTC. It was also noted that during the course of search, the assessee had not filed return of income from assessment year 2006-07 onwards. It received income from IP and OP collections, dialysis, advertisement, X-rays, Lab, CT scan, MRI, income from hospital canteen in addition to the training charges received from KMCT. Consequently, notice u/s. 153A(a) r.w.s 153C was issued to the assessee. It was therefore, a prima facie proof that condition of section 153C was satisfied before invoking the jurisdiction in the case of the assessee. The assessee had not raised this issue before the Assessing Officer. The additional ground raised by the assessee is not arising out of the impugned order of the authorities below.
In the present case, the assessee brought on record only one Panchanama recorded from M/s. Kunhitharuvai Memorial Charitable Trust, Kozhikode dated 01/11/2011 which is a searched party. In these circumstances, the assessee should have raised this ground at the earliest before the authorities below. No facts or material has been brought on record by the assessee in support of the additional ground of appeal. Since additional ground is raised by the assessee, therefore, the assessee shall have to prove that the same is fit for admission. The onus on the assessee was not discharged in this case. The challenge to notice issued u/s. 153A(a) r.w.s. 153C of the Act was not made before the authorities below. The assessee had filed the return of income before the Assessing Officer on 06/12/2012 for all the assessment years. It cannot be said that material and evidence connected with invoking the jurisdiction u/s. 153C of the Act are the internal record of the Department and the assessee could not lay hands on the same - assessee has not brought on record all the facts necessary for adjudication of the issue. - Decided against assessee
Disallowance u/s 40(a)(ia) - whether deduction attracted only if the amounts are remaining payable at the end of year or whether it is applicable even for amounts paid during the year has not become final and there are conflicting judgments of various high courts on the said issue? - HELD THAT:- Section 40(a)(ia) of the Act covers not only those cases where the amount is payable but also when it is paid. In view of the above judgment of the Supreme Court in the case of Palam Gas Service [2017 (5) TMI 242 - SUPREME COURT] we do not find any infirmity in the order of the CIT(A) on this issue. This ground of appeals of the assessee is rejected.
Disallowance under section 40(a)(ia) when the book results are rejected and income is determined on an estimate basis - HELD THAT:- Nothing in law which prevents the Assessing Officer to invoke the provisions of section 145 of the Act for estimation of income and provisions of section 40(a)(ia) of the Act. We do not find any infirmity in the order of the Assessing Officer and the same is concerned. Hence, this ground of appeals of the assessee are dismissed.
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2019 (4) TMI 1754
Vires of sub-section (4) to Section 48 of the Chhattisgarh VAT Act, 2005 - HELD THAT:- Since under the interim orders, the petitioner had paid a sum of ₹ 5 crores; the amount so deposited shall be taken into account while arriving at the figure that the petitioner ought to deposit - Petition dismissed.
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2019 (4) TMI 1753
The Appellate Tribunal CESTAT NEW DELHI allowed the application for withdrawal of appeal by the Revenue under the litigation policy, leading to the dismissal of the appeal. (2019 (4) TMI 1753 - CESTAT NEW DELHI)
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2019 (4) TMI 1752
TP Adjustment - Comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee's software development segment and ITES segment need to be deselected from final list.
Deduction u/s 10A on account of adjustment of export turnover - AO excluded the value of telecommunication expenses from export turnover only - HELD THAT:- This issue is squarely covered by the Jurisdictional High Court in the case of CIT Vs. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] as held there should be uniformity in the ingredients of both the numerator and the denominator of the formula, Section 10-A is a beneficial section
Foreign exchange loss / gain - Whether not be considered as operating gain / loss? - HELD THAT:- CIT(A) has followed various Tribunal orders and held that foreign exchange fluctuation gain / loss is operating profit / operating loss. To this extent, there is no quarrel but whether such foreign exchange fluctuation gain / loss should be considered for the purpose of TP analysis, it has to be ascertained as to whether such gain / loss is in respect of current year’s turnover or in respect of earlier year’s turnover because for TP analysis, we are not comparing the operating profit alone of the tested party with the operating profit of the comparables.
We are comparing the profit percentage of tested party with profit percentage of comparable companies. The profit percentage is worked out on the basis of operating profit divided by turnover and hence, if any part of the operating profit is computed by considering the item of income or loss, which is not arising out of the present year’s turnover, it will give absurd result because such exchange fluctuation gain / loss will increase or decrease the operating profit being the numerator but the corresponding turnover will not be part of denominator if the same is not in relation to the current year’s turnover - Set aside the order of CIT(A) on this issue and restore back the matter to his file for fresh decision in the light of above discussion after providing reasonable opportunity of being heard to both sides. Accordingly, ground nos. 3, 4 and 5 are allowed for statistical purposes.
Rejecting comparable companies identified by the assessee using export earnings greater than 75% of the sales as a comparability criterion - HELD THAT:- We find that there is no finding of CIT(A) as to which comparables are affected by change in the export earnings filter in ITES segment. Hence it amounts to setting aside of the matter to the AO and as per the provisions of section 251(1A) of IT Act, the CIT(A) can confirm, reduce or enhance the assessment but he cannot remand the matter to the file of AO. Hence on this issue, the order of CIT(A) is not sustainable and therefore, we reverse the same and restore to the order of AO on this issue. - Decided in favour of revenue
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2019 (4) TMI 1751
Maintainability of petition - Initiation of Corporate Insolvency Resolution Process - Section 7 of the Insolvency and Bankruptcy Code, 2016 - defaults in payment of the monthly instalment due and payable by the Corporate Debtor - HELD THAT:- All requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, the application is complete as per the requirements of Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified.
It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code - We are satisfied that a default amounting to crores of rupees has occurred within the meaning of Section 4 of the Code and the application under sub-section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects.
Petition admitted - moratorium declared.
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2019 (4) TMI 1750
Scope of provisions of Section 12AA - HELD THAT:- The learned Additional Solicitor General has submitted that the issue as to whether the provisions of Section 12AA of the Income Tax Act, 1961 are directory or mandatory need to be considered.
Issue notice, returnable in six weeks.
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2019 (4) TMI 1749
Addition u/s 68 - Commission income on credit entries appearing in the bank statement - HELD THAT:- AO has exceeded his powers during remand proceedings, made by the Tribunal by making addition under section 68 of the Act on account of credit entries appearing in the bank statement and as such, the addition made by the AO is not sustainable, hence the ld. CIT(A) has rightly deleted the addition. Consequently, question framed is answered in the negative.
Applying the rate of commission at the rate of 2.25 % by the AO and reduced to 2% by the ld. CIT(A) is concerned, this issue has already been decided by the coordinate Bench of the Tribunal in the Group cases of Tarun Goyal [2019 (1) TMI 1266 - ITAT DELHI] thereby AO has been directed to adopt the rate of commission @ 0.50% or 50 paise and computed the profit accordingly
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2019 (4) TMI 1748
The Supreme Court of India in 2019 (4) TMI 1748 - SC Order, with Justices S.A. Bobde and S. Abdul Nazeer, granted leave and condoned delay in the case, tagging it with Civil Appeal No.7431 of 2012.
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2019 (4) TMI 1747
Condonation of delay of 111 days in filing appeal - It was pointed out that, initially, the appeals has been file through an official who was not authorized to do so and another 50 days of delay occurred in rectification to bring the appeals in line with the authorization - HELD THAT:- The Tribunal was dealing with a prayer for condonation of delay for 111 days. The order passed on application for condonation of delay is always discretionary. A liberal approach is required to be adopted while dealing with such applications.
Considering the fact that the delay was of 111 days, we do not find any perversity in the impugned order of the Tribunal for condoning the delay of 111 days - appeal dismissed.
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2019 (4) TMI 1746
The Supreme Court of India disposed of writ petition, special leave petitions, and civil appeals after the required payment was made following a judgment dated 20.02.2019. Post Interlocutory Application No. 48446/2019 in W.P. (C)No. 845/2018 along with other related petitions in July 2019. Pending applications were also disposed of.
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2019 (4) TMI 1745
Maintainability of application - initiation of Corporate Insolvency Resolution Process - Corporate Debtor committed default in paying the loan - default of debt - section 7 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- It is not in dispute that the financial creditor gave corporate advance of ₹ 15 lakhs to the corporate debtor. There appears to be dispute of the rate of interest. In my considered opinion, if the amount payable towards interest is kept aside and not considered as the rate may be exhorbitant, still it is seen from evidence on record that the corporate debtor is liable to pay to the financial creditor the financial debt of more than ₹ 1 lakh - Since there is a default of debt of a sum more than ₹ 1 lakh committed by the corporate debtor, then corporate debtor has to be admitted in CIRP.
It is not in dispute that the financial debt as claimed by the Financial Creditor is due and payable by the corporate debtor. The corporate debtor did not raise defence that corporate advance given to them is in contravention of provisions of sections 185 and 186 of the Companies Act, 2013 - the financial creditor proved both crucial facts that there is a debt of more than ₹ 1 lakh due and payable by the corporate debtor and the corporate debtor committed default in paying the debt. The application has to be admitted.
Application admitted.
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2019 (4) TMI 1744
Reopening of assessment u/s 147 - as alleged approval given u/s 151 by the superior authorities is not in accordance with the law and was given in a mechanical manner and without application of mind - HELD THAT:- Hon'ble Delhi High Court in the case of Pr. CIT vs. N.C. Cables Ltd. [2017 (1) TMI 1036 - DELHI HIGH COURT] while deciding an identical issue has held that section 151 of the Act clearly stipulates that the CIT, who is the competent authority to authorize the reassessment notice has to apply his mind and form an opinion. Mere appending of the expression ‘approved’ says nothing. It is not as if the commissioner has to record elaborate reasons for agreeing with the noting put up before him. At the same time, satisfaction has to be recorded of the given case which can be reflected in the briefest possible manner. When such exercise appears to have been ritualistic and formal rather than meaningful which is the rationale for the safeguard of an approval by a higher ranking official, the finding of the Tribunal quashing the reassessment proceedings cannot be disturbed. -
Hon'ble Supreme Court in the case of Chhugamal Rajpal vs. S.P. Chaliha & Ors [1971 (1) TMI 9 - SUPREME COURT] has held that where the commissioner had mechanically recorded permission and the important safeguards provided in the section 147 and 151 were lightly treated by the officer and the commissioner, the notice issued u/s 148 was held as invalid. - Decided in favour of assessee.
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2019 (4) TMI 1743
Initiation of Corporate Insolvency Resolution Process - Corporate Debtor defaulted in repayment of sum - Section 9 of Insolvency and Bankruptcy Code, 2016, R/ w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 - HELD THAT:- The Petitioner Supplied goods to the Corporate Debtor as per directions given in the purchase orders but the Corporate Debtor tries to pass the liability on the USA Company which cannot be accepted and hence Corporate Debtor failed to pay invoices raised by the petitioner and has committed the default and the amount of ₹ 10,995,593 remained unpaid. Therefore, there are grounds to admit the petition - Petition is admitted.
The Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code.
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2019 (4) TMI 1742
Validity of assessment order - section 31 of the Bihar Value Added tax Act, 2005 - service of notice - casual default - principles of natural justice - HELD THAT:- section 31 of the Bihar Value Added tax Act, 2005 - HELD THAT:- While the records of the proceeding do indicate a service of notice to the petitioner by e-mail, there is no physical service of notice on the petitioner as provided under the Rules. May be the petitioner has his reasons for not checking his email which is a valid form of service but then, unless it is established that the petitioner was deliberately avoiding service, a simple case of a casual default may not be sufficient to shut the doors for such assessee and for proceeding ex parte.
Section 31 of "the Act" has a purpose behind when it allows the assessee to present his case before any such order is passed and obviously an ex parte order passed is an exception to the legislative intent as well as the object behind the principle of due representation. May be, where an assessee continues to default on a notice, the assessing authority has valid reasons to proceed ex parte but a casual default of the present kind may not be sufficient enough to deny the assessee such right of representation.
Matter remanded to the assessing authority, i.e., respondent No. 4, Assistant Commissioner of Commercial Taxes, Munger Circle, Munger, to consider the matter afresh and for its disposal in accordance with law with due opportunity of hearing to the petitioner.
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2019 (4) TMI 1741
Permission for withdrawal of petition - Corporate Debtor to secure the payment of the Settlement Amount hereby issues 14 post dated cheques in favour of the Operational Creditor - HELD THAT:- Respondent has made a statement that it may be directed to the Petitioner that if the Respondent makes a payment through RTGS in the account of Petitioner, the PDC already issued by the Respondent may be returned to them. Directed accordingly.
Petition disposed as withdrawn.
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2019 (4) TMI 1740
Premature cancellation of Fixed Deposit - transfer of proceeds of the ‘Fixed Deposit Receipts’ into the account known as the Trust and Retention Account with the ‘Central Bank of India’ - issuance of direction to the Oriental Bank of Commerce to remit the balance in the Current Account - HELD THAT:- The application filed by the Resolution Professional merits acceptance and the one filed by the Oriental Bank of Commerce (OBC) is liable to be dismissed. It remains undisputed that there were 5 Fixed Deposits in the name of Corporate Debtor. The Resolution Professional as well as the Committee of Creditors (CoC) desired and issued instructions to OBC to discontinue the Fixed Deposits and the amount realized from the Fixed Deposits was to be credited in the Trust and Retention Account of the Corporate Debtor.
The OBC has indicated to the Corporate Debtor that it had given Corporate Guarantee to secure the credit facilities sanctioned to M/s Halio Photo Voltaic Limited and they were advised to get the account adjusted failing which the OBC was to initiate legal action. Similarly, endorsement has been made in the letter dated 01.12.2015.
Any withdrawal from the account/FDR by appropriation by OBC has to be regarded as violative of Regulation 19 also. In the absence of such a bar, it will not be possible for the Resolution Professional to verify the claim and the object of moratorium as contemplated under Section 14(1) (c) would stand defeated - the OBC has unnecessarily contested this litigation and the Interim Resolution Professional/Resolution Professional was merely performing his duties imposed on him by Section 17(l)(d) of the Insolvency and Bankruptcy Code, 2016.
Application dismissed.
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2019 (4) TMI 1739
Maintainability of petition - initiation of Corporate Insolvency Resolution Process - inability on the part of Corporate Debtor to liquidate its outstanding debt - Section 9 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- Upon filing of the present petition, the Corporate Debtor was issued notice. Since they failed to appear in Court to resist the petition, they were proceeded ex parte. In view of the facts and circumstances of the case which remain undemolished and uncontested, the prayer of the Operational Creditor merits consideration.
Petition admitted - moratorium declared.
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2019 (4) TMI 1738
Disallowance u/s 14A - HELD THAT:- Consistently different High Courts in the country have taken a view that the disallowance u/s 14A read with Rule 8D of the Rules cannot exceed the Assessee's exempt income. The Delhi High Court, in the case of Cheminvest Ltd. Vs. Commissioner of Income Tax [2015 (9) TMI 238 - DELHI HIGH COURT] has held that when the Assessee has not earned any income which was exempt from tax, disallowance of the expenditure under Section 14A read with 8D of the Rules would not be permissible.
Karnataka High Court, in the case of Pragati Krishna Gramin Bank Vs. Joint Commissioner of Income-tax [2018 (6) TMI 1283 - KARNATAKA HIGH COURT] has held that expenditure in relation to income not includable in the total income cannot exceed such income.
We reverse the decision of the Tribunal to the extent of limiting the disallowance under Section 14A. - Decided in favour of assessee.
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2019 (4) TMI 1737
Bogus loss on sale of shares - loss in trading of shares - genuine share purchase transaction - commission @ 5% addition - HELD THAT:- As relying on ADITYA VIKRAM SUREKA HUF VERSUS ITO, WARD-34 (2) , KOLKATA [2019 (1) TMI 892 - ITAT KOLKATA] Revenue has failed to pin-point any specific evidence rebutting correctness of assessee’s voluminous details regarding the share transactions in issue. Mutatis mutandis to delete the impugned business loss(es) disallowance / addition as well as commission @ 5% (supra) in these facts and circumstances.
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