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Showing 441 to 460 of 2067 Records
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2017 (11) TMI 1629
Service is complete - Ld. Counsel for the petitioner to take fresh steps for service of respondent No.1 within two weeks, as last opportunity. Notice thereafter be issued. - The Ld. Counsel for the appellant to file affidavit of valuation within four weeks, as last opportunity - List again on 19.1.2018.
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2017 (11) TMI 1628
Cargo Handling Service - the issue was pending before Larger Bench - Held that: - the issue pending for decision of the Larger Bench is involved in all these appeals and the Tribunal, therefore, could not have remanded the matter back to the Adjudicating Authority, but should have waited for decision of the Larger Bench - issue notice to respondents.
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2017 (11) TMI 1627
Addition u/s 14A r.w.s. 8D(iii) on an exempt dividend income - Held that:- As the disallowance made by AO has resulted in absurd situation of disallowing genuine other business expenditure, on which assessee earned more than ₹ 19 Lakhs income (as against ₹ 8,100/- of dividend), we are satisfied that the disallowance u/s. 14A should be restricted to the income earned of ₹ 8,100/-. AO is directed accordingly.
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2017 (11) TMI 1626
Addition u/s 41 - Held that:- A perusal of the judgment would show that the High Court [2015 (12) TMI 1390 - BOMBAY HIGH COURT] took into consideration the provisions of Section 41 of the Act and the conditions which are required to be satisfied for bringing a particular receipt as "income" within the ambit thereof and found that those conditions are not satisfied in the present case. The High Court also repelled the contention of the Revenue that the assessee obtained the benefit of reduction of sales tax liability under Section 43B of the Act as per the CBDT Circular No. 496 dated 25th September, 1987.
The aforesaid approach of the High Court is without any blemish, inasmuch as all the requirements of Section 41(1) of the Act could not be fulfilled in this case.
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2017 (11) TMI 1625
Disallowance u/s 14A - Held that:- CIT(A) after due appreciation of material, reached a conclusion that own interest free funds far exceeded the investment. Secondly, the strategic investment and investments which yielded no exempt income were to be excluded for the purpose of computation of expenses disallowance. We find the approach to be a quite fair, reasonable & plausible and therefore, find no reason to interfere with the same. - Decided against revenue.
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2017 (11) TMI 1624
Denying exemption u/s 80P(2)(a)(i) - eligibility criteria - Held that:- Without answering the questions of law raised, the impugned orders are set aside and the matter is remanded to the Assessing Officer to redo the assessment in terms of the law enunciated in the case of Citizen Co-operative Society’s case [2017 (8) TMI 536 - SUPREME COURT] wherein pronounced what is required to be noticed by the Assessing Officer for allowing the deduction under Section 80P(2)(a)(i), is firstly that the activities of the assessee is catering to two distinct categories of people namely resident/ordinary members or the nominal members. Secondly, whether the activities of the assessee comes within the ambit of co- operative society. These are the findings of fact which requires to be adjudicated by the Assessing Officer in terms of the judgment of the Hon’ble Apex Court. - Decided in favour of assessee for statistical purposes.
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2017 (11) TMI 1623
Clandestine removal - shortage of finished goods - Held that: - when the shortages of finished goods were detected, the appellant paid the duty. Revenue has failed to prove that the short found goods have been cleared, therefore, the date of shortages detected is the date of clearance and on the same date, the appellants have paid duty - demand of interest set aside.
No option has been given to the appellant to pay 25% duty as penalty as per the provisions of Section 11 AC of the Act - option given to the appellant to pay 25% duty as penalty with in 30 days of the receipt of the date of communication of this order and failing this opportunity to the appellant to pay 100% duty as penalty.
Penalty u/r 26 of CER, 2004 - Held that: - as the main firm has been penalized - penalty on the partner under Rule 26 of CER, 2004 is not sustainable.
Appeal allowed in part.
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2017 (11) TMI 1622
Revision u/s 263 - Section 54B applicability regarding investment in tubewell - investment made by the assessee in the name of his wife - Held that:- On the first issue of sec.263 in view of the decision of Malabar Industrial company Ltd. (2000 (2) TMI 10 - SUPREME Court) Sec.263 provisions are taken only on the ground of prejudicial and interest loss of the revenue to the Government. Merely change of opinion will not give any right u/s 263 hence, the issue regarding Sec. 263 is required to be answered in favour of the assessee and against the department.
On the ground of investment made by the assessee in the name of his wife, in view of the decision of Delhi High Court in Sunbeam Auto Ltd.[2009 (9) TMI 633 - Delhi High Court], the word used is assessee has to invest it is not specified that it is to be in the name of assessee.
It is true that the contentions which have been raised by the department is that the investment is made by the assessee in his own name but the legislature while using language has not used specific language with precision and the second reason is that view has also been taken by the Delhi High Court that it can be in the name of wife. In that view of the matter, the contention raised by the assessee is required to be accepted with regard to Section 54B regarding investment in tubewell and others. In our considered opinion, for the purpose of carrying on the agricultural activity, tubewell and other expenses are for betterment of land and therefore, it will be considered a part of investment in the land and same is required to be accepted. - Decided in favour of assessee
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2017 (11) TMI 1621
Corporate Insolvency Resolution Process - pendency of some applications for winding up - Held that:- In the present case, admittedly no order for winding up has been passed against the ‘Corporate Debtor’ by Hon’ble High Court. No liquidation proceeding has been initiated. It appears that some of the applications for ‘winding up’ under the Companies Act, 1956 are pending, but no order for ‘winding up’ has been passed. In the circumstances, in the absence of actual initiation of ‘winding up’ proceedings against the Corporate Debtor, it is always open to the Financial Creditor/Operational Creditor to file an application for Corporate Insolvency Resolution Process against the Corporate Debtor.
For the reasons aforesaid, the objection raised by the appellant that petition under Section 7 is not maintainable against the Corporate Debtor because of pendency of some applications for winding up cannot be accepted.
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2017 (11) TMI 1620
Penalty under section 271(1)(c) - invalid notice - no recording of satisfaction by AO - Held that:- Assessing Officer has not recorded any satisfaction regarding the exact nature of offence committed by the assessee for initiating proceedings for imposition of penalty under section 271(1)(c) of the Act. Therefore, the basic conditions of the said penalty provision has not been complied with. Thus we are of the considered opinion that the impugned penalty order passed in case of the assessee is invalid due to lack of recording of satisfaction by the Assessing Officer with regard to the nature of offence committed by the assessee. Hence, we have no hesitation in deleting the penalty imposed. - Decided in favour of assessee.
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2017 (11) TMI 1619
Penalty u/s 271(1)(b) - failure to comply with the statutory notices - Held that:- The assessee claimed to be a part of the 'MDLR' Group comprising of several entities in respect of which search operations was conducted by the Income Tax department on 31.01.2008. Main reasons for non-compliance included, search operation in MDLR Group, detention of Sh. Gopal Goyal, poor turn-out of employees at work place, large number of pendency of assessments u/s 153A and preparation of voluminous details etc.
The contention of the assessee before us is that the above reasons constituted a reasonable cause that prevented the assessee from complying with the notice under reference or filing letters to seek adjournments is acceptable as we find that in the case of Sh. Gobind Kumar Goyal (2017 (8) TMI 1339 - ITAT DELHI) cited by the assessee, the Tribunal has deleted the penalty under Section 271(1)(b) of the Act on similar set of circumstances.. The said case is also one of the case of 'MDLR' Group - Decided in favour of assessee.
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2017 (11) TMI 1618
Non-deduction of tax at source on guarantee commission paid to bank – TDS u/s 194H – principal and agent relation - Held that:- As decided in the case of Kotak Securities Limited v. DCIT [2012 (2) TMI 77 - ITAT MUMBAI] Principal agent relationship is a sine qua non for invoking the provisions of Section 194H. While it is termed as 'guarantee commission', it is not in the nature of 'commission' as it is understood in common business parlance and in the context of the section 194H. This transaction, in our considered view, is not a transaction between principal and agent so as to attract the tax deduction requirements u/s 194H. - Decided in favour of assessee.
Disallowance u/s 14A - Held that:- The assessee had not earned any exempt income during the year and as such no expenditure could be said to have been incurred to earn the exempt income. It is settled law that if there is no exempt income, no disallowance u/s 14A can be made. See CIT vs. Holcim India Pvt. Ltd [2014 (9) TMI 434 - DELHI HIGH COURT]- Decided in favour of assessee.
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2017 (11) TMI 1617
Input tax credit - whether the petitioner can be denied input tax credit for the period from April 2007 onwards and whether the respondent was right in restricting it for a period of 90 days? - Held that: - The question of restricting the input tax credit for 90 days is incorrect. If such is the situation, it goes without saying that the petitioner would be entitled to input tax credit for the entire period, as the petitioner has paid higher rate of tax - The decision in the case of CKG. Agencies Versus Assistant Commissioner (CT) FAC Avinashi Assessment Circle, Coimbatore [2010 (4) TMI 1022 - MADRAS HIGH COURT], would squarely apply to the facts of the case, wherein it has been held that the assessee was entitled to avail benefit of input tax credit, once the turnover exceeds ₹ 50,00,000/- limit - petition allowed.
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2017 (11) TMI 1616
Supply of documents as necessitated by the petitioner - stay of proceedings - Held that: - till the next date of hearing, the Inquiry Officer is restrained from passing the final order - We are issuing a short date in the matter, in order to enable the learned counsel for the respondents to obtain instructions and in case, the copies of the relevant documents and oral statements relied upon by the respondents have not been furnished to the petitioner, the same would be brought to the court to be handed over to the petitioner on the next date of hearing.
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2017 (11) TMI 1615
Specific directions given to respondents to pass a speaking order - Held that:- The relief as sought by the petitioner cannot be granted. No directions to comply with the directions already given are required. The petitioner is at liberty to file a contempt petition for non compliance of the orders passed by this Court.
As respondents states that that the relevant file was missing and that is the reason for delay in compliance with the order passed by this Court. She further states that an order would be passed within a period of one week from today.
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2017 (11) TMI 1614
Stay of recovery of outstanding demand - Held that:- Applicant has prima facie case and balance of convenience for granting only partial stay of recovery of outstanding demand. We therefore, grant the stay of outstanding tax demand subject to the following conditions:-
a) The applicant is directed to deposit ₹ 18 crores in three installments i.e. ₹ 6 crores by 30.11.2017; ₹ 6 crores by 30.12.2017 and ₹ 6 crores by 15.01.2018.
b) The applicant shall furnish the proof of payment of taxes on payment to the Registry;
c) In case he fails to deposit the taxes as stated in (a) above, then the case would come for hearing in normal course and not be considered as stay granted matter.
d) That out of turn hearing is granted on 18.01.2018 subject to payment of ₹ 18 crores; no separate notice of hearing would be issued by the Registry;
e) That the applicant shall not seek frivolous adjournments. If Paper Book is desired to be filed by the applicant, then the same should be submitted well in advance as prescribed in ITAT Rules;
f) In case of breach of any of the above conditions, the stay granted shall automatically get vacated and matter would be heard in ordinary course.
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2017 (11) TMI 1613
Clean energy Cess on shale rejects - shale rejects (carbonaceous shale) got extracted, during the extraction of Coal - Held that: - as per the definition given in Rule 2(h), the ‘Specified Goods’ means “raw coal”. Shale rejects is also part of the raw coal. When it is so, then the Clean Energy Cess is leviable on the raw coal.
Penalty - Held that: - since the issue has come up for adjudication for the first time before the Tribunal and both sides have failed to produce any case law on the issue, and, more particularly, when there is no malafide intention on the part of the assessee-Appellants, the imposition of penalty is uncalled for - penalty set aside.
Appeal allowed in part.
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2017 (11) TMI 1612
Maintainability of petition - alternative remedy - time limitation - Held that: - as against the impugned order, the petitioner has an effective alternate remedy of filing an appeal before the CESTAT. Whether the appeal was presented within time and whether the date of receipt of the Order-in-Original as stated by the assesse is correct or not is a factual issue. Therefore, the petitioner has to necessarily avail the appeal remedy - petition dismissed being not maintainable.
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2017 (11) TMI 1611
Corporate insolvency procedure - Held that:- The Applicant has proved that there is a debt due payable by the Respondent/CD and they have defaulted in making payments even after entering into the Restructuring Agreement and Respondent is responsible to pay. The objections raised by Counsel for the Respondent are not valid ground for rejection of the instant petition. Further, the case laws referred by the Applicant are supporting the submission that the bonafide mistake can be corrected and therefore the contention of the Respondent is not tenable and the entire case of the Applicant cannot be brushed aside at the threshold itself for a simple bonafide and curable mistake. In these circumstances the present name of the applicant is amended as prayed.
Therefore, in view of the above the instant petition is admitted and order commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed within 180 days, reckoning from the day this order is passed.
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2017 (11) TMI 1610
Addition u/s 68 - failure to discharge the burden of explaining the gift - Held that:- Referring to Assessing authority as well as the impugned order of the Tribunal and we find that there is no illegality in coming to the conclusion that the present case is fully covered within the parameter of Section 68 of the Act.
The assessee has failed in establishing the creditworthiness of the donors, occasion for making the gifts and why and donors who were strangers and not men of means gifted such huge amounts to the assessee HUF out of love and affection. - Decided against assessee.
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