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Showing 461 to 480 of 1831 Records
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2017 (5) TMI 1373
CENVAT credit - diverted billets/slabs - penalty u/r 57AH(2) read with Section 173Q of CER, 1944 and Rule 13 to of CCR, 2001 - clandestine removal of billets - Held that: - the inputs in questions were procured from SAIL and duty was paid. Both HML & MSL were independently entitled to purchase the inputs and avail credit on the same. There was no apparent gain for HML to purchase the input and avail credit and divert the said duty paid inputs to MSL. The Revenue failed to demonstrate any benefit accruing to HML or MSL, due to indulgence in such practices. Admittedly both the companies are under the same management and are closely held companies.
Clandestine manufacture and removal of 7,651.817 MT of MS Strips - Held that: - The basis for the demand raised appears illogical, as no apparent benefits is shown to have accrued to either of the appellants. The sending of goods on job work by M/s HML to M/s MSL was duly intimated to Revenue vide letter dated 02/01/2002. A confirmation letter dated 18/03/2002 was issued by Assistant Commissioner, to this fact (brought on record by appellants). Further appellants have led evidence that Mr. S. K. Tyagi had retracted his statement within a few days vide letters dated 17/04/2002 & 22/04/2002 addressed to the D. G. of DGCEI, New Delhi. The contention of Revenue that factory of M/s MSL was running for 7 more hours, than declared, is untenable, being based only on the basis of statements of some employee. The same does not stand in view of order dated 18/03/1998 passed by commissioner of Central Excise, Kanpur, determining the Annual Capacity of production at 17 MT per day. Further under the facts and circumstances, extended period of limitation is not invokable. The impugned order is also bad and unsustainable for non-compliance of the provisions of Section 9 D of the Act.
The case of Revenue is not proved and the allegations are sham and illusory and Show Cause Notice is not maintainable - appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1372
Valuation - Import of crude oil - finalization of provisional assessment on the basis of transaction value - Held that: - Quantity actually received into shore tank in port in India should be the basis for payment of Customs duty - Quantity shown in bill of lading cannot be used for this purpose as it does not reflect quantity of goods at the time and place of importation - the lower authorities are directed to redetermine the customs duty by adopting the shore tank quantity as opposed to the Bill of Lading quantity.
Demurrage charges - includibility - Held that: - the demurrage charges are admittedly incurred after the goods reached the Indian port and therefore it is a post-importation event. Such charges therefore cannot form part of the transaction value.
Appeal allowed - decided partly in favor of appellant and part matter on remand.
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2017 (5) TMI 1371
Refund of SAD - rejection for the reason that as certified by the Chartered Accountant, VAT/Sales Tax has been paid on the sales of Rock Phosphate imported since this item is exempted vide the Kerala Finance Act, 2011 notified vide N/N. 4175/Leg.A2/2011/Law dt. 08/11/2011 - whether the appellant will be eligible for payment of refund of SAD, by considering the NIL rate of VAT as appropriate payment of VAT? - Held that: - an identical issue came up before the Tribunal in the case of Gazal Overseas [2015 (12) TMI 427 - CESTAT NEW DELHI] in which the Tribunal allowed payment on refund of SAD - the condition prescribed in N/N. 102/2007 is satisfied and the appellant will be eligible for the refund of the SAD paid at the time of input - appeal allowed - decided in favor of appellant.
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2017 (5) TMI 1370
Classification of exported goods - placemats, napkins and runners of composition 60%/70% silk and balance cotton - classified under heading 57025920 of the Customs Tariff, which covers “carpet and other floor coverings of silk” or otherwise? - Benefit of DEPB scheme - The appellant sought benefit of DEPB under DEPB group code 89 Sr.No.47C which entitles credit of DEPB @ 4.7% of the FOB value - Held that: - the shipping bill has the description of 70% silk and 30% cotton or 60% or 60% silk and 40% cotton. It is obviously a product, which is not covered by the description provided under DEPB entry 89/47C which reads “Made-ups made out of one or more manmade filament yarn with or without metalized yarn”. - it is likely that it was a clerical error on the part of the exporter. None the less there has been a violation of Section 113 (i) of the CA, in so far as wrong DEPB entry was claimed.
The redemption fine is reduced from ₹ 20 lakhs to ₹ 2 lakh and penalty is reduced from ₹ 1 lakh to ₹ 10,000/- only - appeal allowed - decided partly in favor of appellant.
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2017 (5) TMI 1369
Violation of conditions for goods imported at concessional rate of duty for manufacture - import of LCD Panel for use in their factory for manufacture of L.C.D. TVs - N/N. 21/2002-Cus. dated 01/03/2002 as amended - Held that: - for the period subsequent to the period of SCN the said Rules were amended wherein it was provided that the imported goods which could not be utilized can be re-exported. Though the said provision was not applicable to the period for which the SCN was issued, the principle involved in the said provision should be applicable for all the material periods - if the goods on importation are re-exported as such then they should be treated as if they were never imported. In that event, Rule 8 of the said Rules will not be applicable - appeal allowed - decided in favor of assessee.
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2017 (5) TMI 1368
Addition made on the basis of declaration of the assessee during search action - bogus purchases - Held that:- The assessee has filed copy of ledger extracts of Shree Sai Industries and Soham Metal Pvt. Ltd. for the financial year 2004-05 indicating purchases made during the financial year starting from 01-04-2004 to 31-03-2005. The Department has not raised any doubt over the ledger extracts furnished by the assessee. The letter dated 28-03-2012 along with Annexure-I was filed by the assessee shortly after search. The said letter clearly indicates that the additional income declared includes opening balances for Financial Year 2004-05. We do not find any infirmity in the findings of Commissioner of Income Tax (Appeals) in deleting the addition. - Decided against revenue
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2017 (5) TMI 1367
Addition on account of transfer pricing adjustment AMP expenses - AR contended that the TPO for the A.Y. 2012-13 in assesse’s own case has not made any transfer pricing adjustment on account of AMP expenses but has factored in the AMP intensity adjustment in the profit margin of the comparables and made transfer pricing addition on account of the international transaction of `Import of finished goods’ - Held that:- We are not convinced with the proposition put forth on behalf of the assessee because the entire proceedings before the TPO/DRP/AO have proceeded on the basis of a separate international transaction of AMP and its independent benchmarking. There is not even a whisper in the orders about carrying out AMP intensity adjustment instead of treating AMP as an international transaction. If the contention of the ld. AR is accepted, it will change the entire complexion of the case and would amount to travelling beyond the impugned order. As the TPO has considered AMP as a separate international transaction and determined its ALP; and further that the tribunal in assessee’s own case for the immediately preceding A.Y. 2009-10 has dealt with the determination of the AMP as a separate international transaction, we cannot now concur with the request of the assessee in allowing the setting up of an altogether different case. This contention, ergo, fails.
To sum up, since the facts and circumstances of the instant appeals are mutatis mutandis similar to the immediately preceding year, respectfully following the precedent, we set aside the impugned order and send the matter back to the A.O./TPO for deciding this issue afresh in light of the foregoing discussion and the directions given by the Tribunal in its order for the immediately preceding year in the second round. Needless to say, the assessee will be allowed a reasonable opportunity of hearing in the resulting fresh proceedings.
Transfer pricing adjustment AMP expenses - Assessment Year 2012-13 - Held that:- Respectfully following the decision taken for the A.Y. 2009-10, we hold that, firstly, the RPM should be applied as the most appropriate method for determining the ALP of the international transaction of purchase of material from the AE, but, by carrying out the AMP intensity adjustment in the profit rate of comparables. If, however, it turns out that such an adjustment cannot be done due to one reason or the other, then the RPM should be discarded and another suitable method be adopted, which encompasses the effect of AMP intensity adjustment. Our view is fortified by the judgment in the case of Sony Ericsson (2015 (3) TMI 580 - DELHI HIGH COURT), in which it has been held in para 165 that : `Comparable analysis of the tested party and the comparable would include reference to AMP expenses. In case of a mismatch, adjustment could be made when the result would be reliable and accurate. Otherwise, RP Method should not be adopted’.
We, therefore, set aside the impugned order and remit the matter to the file of Assessing Officer/TPO for re-determining the ALP of the international transaction of ‘Import of finished goods’ in the manner delineated above. The assessee should be given an adequate opportunity of hearing in such fresh proceedings.
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2017 (5) TMI 1366
TPA - selection of comparable - Held that:- The assessee is engaged in rendering IT enabled support services to Credit Pointe US. Thus the assessee is a captive service provider. Companies functionally dissimilar with that of assessee need to be deselected from final list of comparable.
Allowability of claim of deduction u/s. 10B - Held that:- A perusal of the definition shows that 100% export oriented undertaking has to be approved by Board appointed by the Central Government in exercise of the powers conferred by section 14 of the Industries Development Regulation Act, 1941. Admittedly, the assessee has not been approved by the Board as specified under the provisions of section 10B of the Act. The language of the section is unambiguous and hence requires no further interpretation. Therefore, the assessee is not eligible for claiming deduction u/s. 10B of the Act.
Alternate prayer that if the assessee cannot be granted benefit of deduction u/s. 10B the same may be granted under the provisions of section 10A - Held that:- The Co-ordinate Bench of the Tribunal in the case of Clarion Technologies Pvt. Ltd. Vs. Dy. Commissioner of Income Tax (2014 (11) TMI 141 - ITAT PUNE ) has held that where the assessee is not eligible to claim deduction u/s. 10B for want of approval from the competent authority, as specified under the said section and if the assessee is eligible to claim deduction u/s. 10A subject to fulfillment of all mandatory conditions as set out in the section, the alternate claim of assessee can be considered. We deem it appropriate to remit this issue back to the file of Assessing Officer to consider assessee’s claim of deduction u/s. 10A of the Act. The Assessing Officer shall verify assessee’s eligibility for claiming deduction u/s. 10A. While considering assessee’s alternate claim u/s. 10A, the Assessing Officer shall afford due opportunity of hearing to the assessee, in accordance with law.
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2017 (5) TMI 1365
Deemed dividend u/s 2(22)(e) - loan & advanced to the shareholders in the guise of share application money to the another concern / company - taxability in the hands of shareholders - Held that:- The intention of the legislature is clarified in circular issued by the CBDT as at the time of amendment of clause (e) of sub section (22) of sec. 2 is further fortified by the fact that for deduction of tax at source. Sec. 194 provide that such deduction of tax has to be made in the case of the payments of the nature mentioned in clauses (a), (b), (c), (d) and (e) of sub section (22) of Section 2 only in a case where such payments were made to a shareholder. Section 199 also indicates that adjustment of TDS would be provided in the assessment of shareholder only. The very fact that the provision for deduction of tax at source and adjustment of tax is only in respect of the payments to the' shareholder would clearly indicate that even after the amendment, the effect of clause (e) of sub section (22) of Sec. 2 would apply only when the payment is made to shareholder. Wherever, the tax is to be deducted at source from a dividend or deemed dividend and the consequential effect of giving effect to such deduction of tax at source, etc., reference was made only to the payments to the shareholder. This would indicate clearly that clause (e) would apply only in case of payments to the shareholder and not to others.
In view of the foregoing discussion and following the special bench decision of Mumbai Tribunal in the case of ACIT Vs. Bhaumic Colour Pvt. Ltd. [2008 (11) TMI 273 - ITAT BOMBAY-E] as well as the decision of the Hon’ble Delhi High court in the case of CIT Vs. Ankitech P. Ltd.[2011 (5) TMI 325 - DELHI HIGH COURT ], we hold that the dividend income is taxable in the hands of shareholders and not in the hands of the concern. Accordingly, we dismiss the assessee’s ground on this issue.
Once we find that the loan or advance is not taxable in the hands of such concern and should be taxed in the hands of shareholder and that is a correct legal position according to us, such a circular would be of no use. Further, Circulars are not binding on the courts. Accordingly, we dismiss this ground of assessee.
Unable accept the contention of the AR that the deemed dividend should be assessed in the hands of the assessee proportionately to the extent of assessee’s shareholding in the recipient company. Therefore, we dismiss the ground raised by the assessee on this issue. - Decided against assessee.
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2017 (5) TMI 1364
Claim of exemption u/s 11 - violating conditions u/s 13 - foreign travel expenses of spouse of the employee - Held that:- Admittedly, has no business connection with the assessee, except the relation with the Managing Director of the trust. Admittedly, the said foreign travel expenditure which has been incurred on the wife of Managing Director is not to be allowed as deduction.
Expenditure incurred on foreign travel of Managing Director and other employees - Held that:-
First expenditure for Robocon event, the Executive Director had visited along with other heads of departments and professors and students to attend an exhibition of Robotics. The said being in the line of business carried on by the assessee, the same is to be allowed as deduction in the hands of assessee i.e. the expenditure incurred on persons other than trustees or their relatives. In respect of expenditure incurred on the Executive Director of assessee trust, the same is hit by the provisions of section 13(1)(c) of the Act and accordingly, the same is not to be allowed as deduction as the expenditure is incurred on related party as mentioned in section 13(3) of the Act. We have already held that the foreign travel expenses of wife of Executive Director are also to be disallowed. Similarly, expenditure incurred for Mrs. Vidya Joshi wife of Shri Prakash Joshi who was the head of Department being not for the purpose of business is also disallowed.
Travelling expenses to Paris for attending UNESCO conference - Held that:- Where the invitation was from the Government to attend the conference of UNESCO, then the expenditure as is eligible to him merits to be allowed in the hands of assessee i.e. to the extent of ₹ 1,63,370/-. Further, the expenditure incurred on Mrs. Suchitra Nagare who is the employee as well as the Executive Director Incharge of Medical College also, merits to be allowed. The balance expenditure is to be disallowed in the hands of assessee being in violation of provisions of section 13(1)(c) r.w.s. 13(3) of the Act. Accordingly, we hold so. The Assessing Officer is directed to verify the claim of assessee in this regard and allow the same accordingly. Accordingly, the ground of appeal raised by the assessee in respect of foreign travel expenses is partly allowed.
Expenditure on account of World Peace Centre - Held that:- The said expenditure has been held to be allowable by the Tribunal in assessment year 2003-04 on the ground that the objects of World Peace Centre were educational in nature and it was also held that mere non-intimating the change in trust deed would not result any disallowance of expenses incurred on the objects of the trust. It was also held by the Tribunal that the expenditure incurred abroad for WPC could not be held as not for the objects of the trust and that exemption under section 11 of the Act could not be denied. Following the same parity of reasoning, we hold that the expenditure incurred on World Peace Centre is deductible expenses
Corpus donation - Held that:- The assessee has no letters of donors against its claim of donations being corpus donations to the extent of ₹ 18,62,575/-. We hold that the said receipts are to be added in the hands of assessee. However, the assessee is not entitled to claim deduction under section 11 of the Act in respect of such donations. Hence, the ground of appeal decided against the assessee.
Disallowance of provision made for gratuity under section 40A(7) (b) - Held that:- Tribunal in assessment year 2003-04 has held that while computing the income under section 11 of the Act, various disallowances or additions under sections 43B, 40A(7) and 40A(3) of the Act could not be made under section 28 to 43 of the Act. Thus following the same parity of reasoning, we allow this claim of assessee.
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2017 (5) TMI 1363
Penalty U/s 271AAA - assessee has not clarified and not substantiated the manner in which the assessee derived undisclosed income - Held that:- . In the statement recorded U/s 132(4) of the Act when the assessee categorically stated that he has derived undisclosed income by way of inflating expenses recorded in the books of account. In view of this, the ld. CIT(A) was not justified in holding that the assessee has not clarified and not substantiated the manner in which the assessee derived undisclosed income. The assessee has categorically stated in answer to questions No. 5 to 7 in the statement recorded U/s 132(5) of the Act - Decided in favour of assessee.
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2017 (5) TMI 1362
Revision u/s 263 - disallowance of commission and addition on account of unexplained cash credit namely receipt of share capital - period of limitation - Held that:- The scope of proceedings before the AO pursuant to the order of Tribunal dated 10.01.2012 is very limited namely considering the two additions one on account of disallowance of commission and the second one relating to receipt of share capital u/s 68 of the Act. In the impugned order, the CIT has sought to direct the AO to make enquiries in regard to disallowance of freight loading and unloading charges and clearing and forwarding charges. These items of expenditure was never the subject matter of disallowance in the original order of assessment and was therefore not the subject matter of the dispute before the Tribunal as well as in the proceedings before the AO pursuant to the order dated 10.01.2012. In the garb of revising the order of AO dated 14.03.2013 passed u/s 254 r.w.s.143(3) of the Act, the CT was virtually seeking to revise the order dated 31.12.2008 passed by the AO u/s 144 of the Act which is the original assessment order.
The period of limitation for an action u/s 263 of the Act in so far as order dated 31.12.2008 would end on 31.03.2011. The impugned order has been passed by CIT on 25.03.2015 which is clearly barred by time in so far the issue sought to be revised in the impugned order is concerned. - Decided in favour of assessee.
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2017 (5) TMI 1361
Penalty u/s.271(1)(c) - income from future and option transaction - Held that:- The assessee in its original return filed under section 139(1) had set off the said income against the loss incurred. However, while filing return under section 153A, the same was withdrawn in view of the realisation that the same was not permissible as per law. The explanation given by the appellant for disclosing reduced income in the return filed under section 139(1) is factually correct and the said reduced income is not attributable to any income regarding which particulars had not been correctly filed. The erroneous claim made earlier has been withdrawn on realising the mistake at the time of filing the return in response to notice under section 153A. The amount involved is ₹ 1,21,539. The said wrong claim could have been discovered by the assessee or could have been noticed by the AO in time after filing the return under section 139(1). However, the said incorrect claim did not get noticed either by the assessee or by the AO and its correction at the time of filing of return under section 153A would not lead to imposition of penalty under section 271(1)(c). - Decided against revenue
Penalty u/s.271(1)(c) - undisclosed foreign income - Held that:- The return revised by the appellant is within the limit stipulated as per section 139(5) and therefore gets substituted by the return filed under section 139(1). Since there is no difference between the income returned in a return filed under section 139 and the assessed income, there is no cause for imposition of penalty under section 271(1)(c). The same is therefore rightly directed to be deleted by learned CIT(A).- Decided against revenue
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2017 (5) TMI 1360
Addition on account of Long Term Capital Gains (LTCG) - sale of shop - transfer u/s 2(47) - Held that:- We find that the assessee is a member of co-operative housing society holding shop in the said society which was sold by him vide agreement to sale dated 9.2.2009 for a total consideration of ₹ 30.00 lakhs and a sum of ₹ 1.00 lakh was received as an advance with the signing of the agreement dated 9.2.2009. However, due to non fulfillment of terms of the agreement to sell qua the payment of balance amount the sale eventually took place in the assessment year 2010-11. The balance consideration of ₹ 29.00 lakhs was paid in the month of April, 2009 and the possession was handed over to the purchaser on 11.5.2009 as evidenced by a letter dated 11.5.2009 and also vide sale-com-assignment deed dated 11.5.2009.
Thus the sale of shop has definitely taken place in the assessment year 2010-11 and not in the assessment year 2009-10 as has been observed and concluded by the AO and confirmed by the ld.CIT(A). Further the sale is covered under the provisions of section 2(47)(v) and not under the provisions of section 2(47)(vi) of the Act as has been held by the lower authorites. In the provisions of section 2(47)(v) the sale of property means allowing of the possession of any immovable property to be taken or retained in part performance of a contract, whereas under the provisions of section 2(47(vi) it has been mentioned that any transaction whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever which has the effect of transferring, or enabling the enjoyment, of any immovable property is also sale. We also find that for a transfer of property in question the permission is required to be obtained from the CIDCO which was granted on 18.5.2009. Addition deleted - Decided in favour of assessee.
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2017 (5) TMI 1359
TDS u/s 195 - disallowance u/s 40(a)(i) - overriding effect of section 172 - freight paid to non-resident shipping companies - Held that:- any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest or any other sum chargeable under the provisions of this Act not being income chargeable under the head "Salaries", would have to deduct the tax thereon at the rates in force. - While considering levy and recovery of tax in case of business carried on with aid of any ship belonging to or chartered by a non-resident which carries passengers etc. shipped at a port in India, then, tax must be computed and recovered in relation to such business of non-resident as per section 172 of the Act. - there is no warrant in applying the provisions in chapter XVII for collection and recovery of the tax and its deduction at source vide section 195.
Vide Finance Act, 2008, w.e.f. 1.4.2008 sub-Section (6) has been inserted in Section 195 which requires the payer to furnish information relating to payment of any sum in such form and manner as may be prescribed by the Board. This provision is brought into force only from 1.4.2008. It will not apply for the period with which we are concerned in these cases before us
We find that on the issue of the expenditure on so called commission and disallowance u/s 40(a)(i) of the Act, the Tribunal considered the decision in G.E. India Technology Centre Pvt. Ltd., CIT vs R.D. Agrawal & Co. (1964 (10) TMI 9 - SUPREME Court), Orient Goa Pvt. Ltd. (2009 (10) TMI 575 - Bombay High Court ), CST vs Indra Industries (2000 (1) TMI 44 - SUPREME Court), etc. and thereafter set-aside the matter to the file of the Assessing Officer for proper factual as well as legal determination. Both the parties before us agreed that on identical lines, the issue may be restored to the file of the ld. Assessing Officer. We may add here that ld. Assessing Officer is directed to consider Circular No.7/2009 (F.No.500/135/2007-FTD-I) dated 22/10/2009, wherein, earlier Circular No.23 dated 23/07/1969, No.163 Dated 29/05/1975 and Circular No.786 dated 07/02/2010 were withdrawn. The assessee be given opportunity to substantiate its claim. Thus, this ground is allowed for statistical purpose.
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2017 (5) TMI 1358
ALP adjustment in respect of royalty payment made - MAM selected - Held that:- TPO had not applied TNMM at entity level. The TP study report submitted by the assessee company had been rejected by the TPO. This action of the TPO is confirmed by the Hon’ble DRP. But the TPO proceeded to bench mark the transaction of the royalty payment on stand alone basis. In the process, the cost of production or other transactions are not subjected to bench marking by the TPO. Therefore the contention of the ld. counsel that when the TNMM was applied at the entity level, there was no necessity of separate bench marking in respect of royalty transactions cannot be accepted. This submission made by the assessee-company is factually incorrect. On mere perusal of order of the ld. TPO it is manifest that the TPO had picked up the transaction royalty alone for the purpose of bench marking. The statement made by the ld. Counsel for the appellant is nothing but attempt to mislead the court. This conduct on the part of the counsel is highly deplorable.
Ld. counsel chosen not to point out any fallacies in the reasoning of the TPO or of the ALP analysis in the working of the ALP adjustment. The ld. counsel also failed to establish that the transaction royalty payment is closely linked with the other transactions carried out with AE. It is trite law that a justification should be shown for clubbing the transactions. In the absence of such justification clubbing other transactions is not possible. The onus always lies on the assessee-company to establish the justification for clubbing and aggregation of the transaction of payment of royalty with other transactions. As mentioned (supra) the assessee-company had failed to discharge such onus, in the circumstances we confirm the orders of the lower authorities in this respect of ALP adjustment on payment of royalty. - Decided against assessee.
Deduction u/s 10A - reduction of the expenditure incurred under telecommunication freight and travelling incurred in foreign currency from export turnover - Held that:- This issue is covered in favour of the assessee-company by the decision of the jurisdictional High court in case of Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT ]. Respectfully following the decision of the order we direct the AO / TPO to exclude the expenditure from both export turnover and total turnover. These grounds of the appeal are allowed.
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2017 (5) TMI 1357
Income from a let out house property determination - whether brokerage expenses, legal and professional fees, bank charges and electricity charges were necessarily required to be incurred for the enjoyment / use of the relevant property by the tenant and therefore, the annual value of the property should be taken after reducing such expenses which are directly attributed to the earning of rental income? - Held that:- We find that from the gross annual value, municipal taxes (including service taxes) levied by any local authority in respect of the house property are deducted. Municipal taxes are deductible only if (a) these taxes are borne by the owner, and (b) are actually paid by him during the previous year. The remaining amount left after deduction of municipal taxes is net annual value. As per provisions of section 24, the following two deductions are available:-
a) Standard deduction; and b) Interest on borrowed capital
The list of allowance of section 24 is exhaustive. In other words, no deduction can be claimed in respect of expenses on insurance, ground rent, land revenue, repairs, collection charges, electricity, water supply, salary of liftman etc.
In the instant appeal, no dispute arose about payment of rent nor the tenants have filed any suit in the Court for fixation of standard rent nor the Court has passed any order fixing the rent. Respectfully following the judgement of the Hon'ble Delhi High Court in the case of H.G. Gupta and Sons (1983 (12) TMI 54 - DELHI High Court ), we dismiss ground no 1 to 4 of the assessee
Clerical error in taking interest income - Held that:- The actual interest income received by the assessee can be verified from the TDS certificates. Therefore, the order of the learned CIT(A) relating to this ground of appeal is set aside and the same issue is restored to the file of the AO. We direct the AO to verify the TDS certificates and bring to tax the actual interest income as per the provisions of the Act. Needless to say, the AO would give a reasonable opportunity to the assessee to represent before him this issue.
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2017 (5) TMI 1356
Initiation of proceedings u/s 153A - proof of incriminating material was found as a result of search conducted in the case of the assessee - addition u/s 68 - Held that:- In the present case, the assessee has been able to prove identity of the investors, their creditworthiness and genuineness of the transaction in the matter. Therefore, the authorities below should not have made or confirmed the addition of ₹ 5.75 crores in the hands of the assessee. In view of the above discussion, we set aside the orders of the authorities below and delete the addition
DR in his written submissions referred to several documents which have been referred to CIT(A) in the impugned order to show various documents were found during the course of search in the case of the assessee. Therefore, it is not a case where no incriminating material found during the course of search. May be, this may not be relevant to the ultimate addition made on account of unexplained share application money received of ₹ 5.75 crores. Further, the search is conducted in the case of the assessee on 19.03.2012 and original return of income has been filed by the assessee after search on 30.03.2012. Therefore, there is no question of assessment already stood completed on the date of search. In view of the above sole reliance of the assessee on the decision Delhi High Court in the case of CIT vs Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT ) is clearly misplaced. This ground of appeal of the assessee has no merit, the same is accordingly dismissed - Decided partly in favour of assessee.
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2017 (5) TMI 1355
Levy of fee u/s. 234E in order u/s.200A - appellant has filed TDS statement u/s. 200(3) beyond the prescribed due date - Held that:- - The adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A.
The impugned levy of fees under section 234 E is unsustainable in law. We, therefore, uphold the grievance of the assessee and delete the impugned levy of fee under section 234E of the Act. - See case of Tanish Industries Pvt Ltd [2015 (11) TMI 1507 - ITAT AHMEDABAD].- Decided in favour of assessee
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2017 (5) TMI 1354
Unrecorded sales/unrecorded business transactions and unrecorded payments etc. - search operations - addition on basis of loose papers - Held that:- CIT(A) grossly erred in confirming the addition as the assessee from the very beginning denied that loose papers belonged to him and that the presumption u/s 292C of the Act is rebuttable presumption and does not lead to a conclusive evidence. The assessee from the very beginning denied that the documents belonged to him and the AO made no effort to find out the real truth.
It is not brought on record that the assessee was engaged in the business of gold or jewellery and earning the income from said business, the addition has been made by the AO by presuming that the assessee had made payments to the certain parties but in those documents which had been relied by the AO nowhere it is mentioned that the assessee purchased the gold and even the nature of the transaction is not clear because against certain payments, some quantity of gold has been written and against the others nothing is mentioned. Therefore, the addition made by the AO is only on the basis of surmises and conjecture without bringing any cogent material on record to substantiate that the assessee was engaged in the business of gold and jewellery and the AO had not brought any material on record to substantiate that the denial of the assessee was false.
As during the course of search no unaccounted stock or assets were found. It is also noticed that in the assessee’s case search took place on 09.12.2005 and the seized material was with the AO who issued notice u/s 153A of the Act on 05.09.2007 but he did not make any enquiry during that period i.e. between 09.12.2005 and 05.09.2007, to ascertain as to whom the payments, if any, were made and how the assessee was related to those payments. On the contrary, the assessee denied the ownership of the document from the very beginning. We, therefore, considering the totality of the facts and by keeping in view the ratio laid down by the Hon’ble Jurisdictional High Court in the aforesaid referred to decision of Pr. CIT Vs M/s Delco India Pvt. Ltd. (2015 (7) TMI 47 - ITAT DELHI) are of the view that the addition made by the AO and sustained by the ld. CIT(A) was not justified. Accordingly, the same is deleted. - Decided in favour of assessee.
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9911796707
