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Showing 481 to 500 of 2184 Records
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2018 (5) TMI 1706
Attachment orders - Forcibly collection of post-dated cheques by the Department at the time of search - Held that: - The question of forcibly collecting cheques from dealers at the time of search operation has occupied the minds of this Court as well as other Courts on multiple occasions. The Courts have deprecated the practice of coercive recoveries, without any order of assessment or without initiation of assessment proceedings. There may be a given situation where, in order to avoid the unpleasant consequence of stock attachment, the dealer may have volunteered to deposit some amount.
The Department cannot retain the cheques, seek realization thereof while still attaching the petitioner’s stock.
Such action on the part of Department is quashed - Department shall return the cheques of the petitioner - petition disposed off.
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2018 (5) TMI 1705
Assessment of wealth tax - assessee claims that Thiruvanmiyur property can be taken as self-occupied and the Kodaikanal property can be assessed for wealth-tax - Held that:- When the assessee resided at Thiruvanmiyur house and used the premises for his medical profession, it has to be construed as if the property was residential one and self-occupied. Therefore, the Thiruvanmiyur property is exempted from wealth-tax.
Coming to the Kodaikanal property, the Ld. Sr. counsel very fairly submitted that it can be subject matter of wealth-tax assessment. Therefore, the Assessing Officer may assess the value of Kodaikanal property for wealth-tax, after valuing the property as per the procedure prescribed in Wealth-tax Act as on the valuation date.
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2018 (5) TMI 1704
Levy of GST on rent payable by a Hospital, catering life saving services - appellant have taken premises of one floor on rental basis from existing building of Mallige Hospital for heart Care Services only - Rental or leasing services involving own or leased non-residential property - purview /jurisdiction of authority under Section 97(2) (e) of the CGST Act 2017.
Held that:- The Applicant has taken the premises on lease and running exclusive heart care centre & providing health care services on commercial basis - The impugned service of Rental or leasing services involving own or leased non-residential property is classified under the heading (SAC) 997212 and is taxable under GST. Further no specific exemption is available under any notification for the time being in force for the said service. Also there is no provision available in the Act which allows exemption on an input service if the output service provided by the taxable person is exempt.
Ruling:- GST is leviable on the rent paid / payable for premises, taken on lease by the applicant.
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2018 (5) TMI 1703
Release of seized goods - books of account not produced - order passed under Section 67(6) of the GST Act, 2017 - principles of Natural Justice - as submitted that the books of account were produced along with the reply submitted by the petitioner on 25.02.2018 and without taking into account, on surmises and conjuncture, the impugned order dated 04.05.2018 was passed - Held that:- Prima facie, issue requires scrutiny - the respondent-authorities are directed to release the goods which were seized on 25.04.2018 subject to deposit of ₹ 3 lakh being made by the petitioner and for the balance amount adequate security may be provided other than cash or bank guarantee.
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2018 (5) TMI 1702
Seizure of goods - penalty - E-Way bill - case of petitioner is that State E-Way bill though not required was still downloaded from the portal of the U.P.GST before the interception/seizure memo dated 24.2.2018 - Held that:- The matter is squarely covered by the judgment of this Court in the case of SATYENDRA GOODS TRANSPORT CORP. THRU. PROP. BHUWAN KOHLI- [2018 (4) TMI 807 - ALLAHABAD HIGH COURT] where it was held that on the relevant date i.e. 17.12.2017 there was no requirement of carrying T.D.F. Form-1 in the case of an inter-State supply of goods. In fact on the relevant date there was no prescription of the documents to be carried in this regard under Rule 138 of the C.G.S.T. Act 2017, accordingly, the seizure and penalty imposed upon the petitioners based on the notification dated 21.7.2017 issued under Rule 138 of the U.P.G.S.T. Act 2017, which was not applicable, is illegal.
Seized goods directed to be released - penalty also not warranted - petition allowed.
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2018 (5) TMI 1701
Classification of supply - supply of goods along-with supply of services - Composite Supply u/s 2(30) of the GST Act - GTA Service - naturally bundled services - consideration payable under the Second Contract for inland/local transportation and ancillary services like in-transit insurance - Held that:- It is immediately apparent that the First Contract cannot be executed independent of the Second Contract. There cannot be any ‘supply of goods’ without a place of supply. As the goods to be supplied under the First Contract involve movement and/or installation at the site, the place of supply shall be the location of the goods at the time when movement of the goods terminates for delivery to the recipient, or moved to the site for assembly or installation.
The First Contract is no contract at all unless tied up with the Second Contract. The two promises – supply of the goods and their transportation to the Contractee’s site are, therefore, not separately enforceable in the present context. The supplies of goods and services of transportation etc are, therefore, naturally bundled.
Supply of goods, packed and transported with insurance, is a composite supply and supply of goods is the principal supply. The illustration being part of the Section, supplies as that of the applicant’s should be construed as specifically mentioned under the GST Act as Composite Supply with supply of goods as the principal supply and services like transportation, in-transit insurance etc ancillary or incidental to the principal supply.
Ruling:- Services of transportation, in-transit insurance and loading/unloading, being ancillary to the principal supply of goods, shall be treated to taxation under Section 8 (a) of the GST Act, and the consideration receivable on that account be taxed accordingly.
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2018 (5) TMI 1700
Disallowance of software expense treating it as capital expense - nature of expenditure - revenue or capital expenditure - Held that:- If the advantage consists merely in facilitating the assessee's trading operations or enabling the management and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched the expenditure would be on revenue account, even though the advantage may endure for an indefinite future - thus the test of enduring benefit is, therefore, not a certain or conclusive test and it cannot be applied blindly - fast changing technology, software has to be regularly updated so as to keep pace with the changing technology - view taken by the Tribunal that the expenditure is on Revenue account is an entirely possible view - Decided in favor of assessee.
Whether the expenses towards consultancy fees, video shooting for training etc in respect of occupation, health and safety measure for the benefit of its employees are revenue in nature - Held that:- The test of one time payment of payment or not is not the sole test to determine the nature of expenditure - the expense does not add to or expands the profit making apparatus of the assessee - thus revenue in nature - Decided in favor of assessee.
Appeal admitted on the substantial question of law at No. (3) - Whether on the facts and circumstances of the case and in law the Tribunal is justified in upholding the decision of CIT (A) in deleting the disallowance u/ s 40a(ia) of the Act ?
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2018 (5) TMI 1699
Defective return - filing of belated return to seek refund - Whether the return is invalid in terms of Section 139(9) - application u/s 119(2)(b) filed to condone the delay in filing the returns rejected by the third respondent without providing an opportunity of hearing to the petitioner - Held that:- The returns filed by the assessee was wrongly declared by the Income tax Department as invalid return u/s 139(9) - since the time having been lapsed for scrutinizing the returns, this Court deems it proper to direct respondent No.2 to scrutinize the returns and if the petitioner is entitled to a refund - thus respondent No.2 shall scrutinize the returns filed by the petitioner relating to the AY 2011-2012 within a period of eight weeks from the date of receipt of certified copy of this order and pass appropriate orders
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2018 (5) TMI 1698
Revision u/s 263 - authority of the Commissioner of Income Tax to entertain and dispose of the revision petition - unexplained cash credit - special audit demand - Held that:- The issues pertained to opening cash balance , Unsecured loans with respect to which, the assessee had not satisfactorily discharged the onus of establishing identity, capacity of the creditors or the genuineness of the transactions, as also clarification regarding sum found in the suspense account. If this was the opinion of the Commissioner, he could not have simply ignored such materials on record on the ground that addition of a sum of ₹ 20 crores being a serious matter, the same should be examined again. It is not the quantum of additions but the justification thereof which would be germane for deciding to exercise revisional powers.
Special audit can be called for only with the prior approval of the concerned authority. It is certainly not an option or a choice which an assessee can exercise or insist upon. The Commissioner of Income Tax therefore gave undue importance to the assessee requesting for such special audit. In fact, he referred to such offer of the assessee as having 'thankfully requested'. We wonder what would the Commissioner have done had the assessee not made such request.
Be that as it may, both the grounds for interfering with the order of assessment and to remand the proceedings for fresh assessment before the assessing authority after obtaining special audit report are unsustainable.
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2018 (5) TMI 1697
Deemed registration u/s 12AA - non granting of registration from original date of application for registration made u/s 12A - Held that:- Once the assessee has made an application under section 12A of the Act as on 25.03.2002 which have not been disposed off, would imply that deemed registration has been granted to the assessee from the year in which the application has been made - See CIT Kanpur Vs. Society for Promotion of Education(2016 (2) TMI 672 - SUPREME COURT) - as directed to register the trust w.e.f. the date of filing application 25.03.2002 and issue certificate in this regard - Decided in favor of assessee.
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2018 (5) TMI 1696
TDS u/s 194H - Disallowance u/s 40(a)(ia) of bogus expenses on account of commission/discount to retailers - payment to retailers by the Mobile operators through the distributor/dealers/retailers - contra entries passed in the books of accounts - Held that:- The payment was not made by the assessee and it was directly paid by the company and further the quantum and percentage of the said commission/discount was also in the full control of the company and not in the hands of the assessee - assessee only made necessary entries in his books - thus merely because the assessee has passed the contra entry would not bring the said transaction in the category of commission paid by the assessee so as to attract the provisions of u/s 194H - Decided in favor of assessee.
Addition on account of bogus commission expenses - Held that:- Where the payments are directly made by the company to the retailers and the assessee is only showing the entries in the books for receipts as well as payments without actual receipt and payment of the said amount, then the AO cannot made addition by looking one side of the transaction - thus addition made by AO is not justified - Decided in favor of assessee
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2018 (5) TMI 1695
Additions on account of bogus purchases of diamonds - reopening of assessment - Held that:- Addition made on account of the alleged bogus purchase of diamonds is squarely covered in favour of the assessee inter alia by the decision M/s. M.B. Jewellers and Sons vs DCIT [2018 (3) TMI 1525 - ITAT KOLKATA] - assessee was maintaining proper books of accounts as per the tax audit report - assessee furnished the bills containing the name address as well as the sales tax numbers both Gujarat and Central sales tax together with the PAN of those parties from whom goods were purchased - payments were made to them by account payee cheques - thus the source for such purchases are explained - Decided in favor of assessee.
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2018 (5) TMI 1694
Validity of reopening of the assessment - assessee did not declare and disclose any business transactions of purchase or sale of properties - Held that:- Documents found by revealed the transactions of purchase and sale of the properties and the name of the assessee is found mentioned against the land dealing transactions - since these material were also not disclosed in the return of income of assessee which it certainly constitute a reason to believe that an income assessable to tax in the hands of the assessee has escaped assessment - thus there is no error or illegality in the reopening of the assessment - Decided against the assessee.
Additions made by the AO based on the impounded material and statement of Shri Rajesh Tambi recorded u/s 131 - Held that:- In view of the decision of M/s Andaman Timber Industries vs CCE (2015 (10) TMI 442 - SUPREME COURT) it is held that since the assessee did not specifically demand the cross examination of Shri Rajesh Tambi (director of the company) during the assessment proceedings, therefore the matter is set aside to give an opportunity to the assessee to cross examine Shri Rajesh Tambi and then adjudicate the issue of addition made by the AO - allowed for statistical purposes
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2018 (5) TMI 1693
Application of income of the Trust u/s 11 - Carry forward and set off of losses - carry forward excess expenditure in the earlier year for setting off against the surplus of current year and all the subsequent years and considering the same as application of income for charitable purpose - Held that:- In assessee's own case [ 2017 (5) TMI 1564 - ITAT MUMBAI] as income derived from the trust property has also got to be computed on commercial principles and if commercial principles are applied then adjustment of expenses incurred by the Trust in the earlier years against the income earned by the Trust in the subsequent year will have to be regarded as application of income of the Trust u/s 11 - Decided in favor of assessee.
Deletion of excess interest income already included in the gross receipts and was brought to the notice by filing the revised return - Held that:- Since the income was already shown in the gross receipts and thus resulting into double income - it would be in the interest of justice and fair play, the matter is restored back to the file of the AO - allowed for statistical purposes
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2018 (5) TMI 1692
Addition of trade receipts - nature of receipts - revenue receipts admissibility - business of automobile dealer and service centre - Held that:- Assessee's vehicles are kept with ARDs and SSPs for display, test drive, etc. trade deposits are received from them by the assessee by way of security deposits - when sales takes place through the ARDs and SSPs, assessee account for the sales proceeds in the books of accounts and refunds the corresponding deposits to the ARDs and SSPs - this method has been consistently followed over the years - assessee's own case [2016 (8) TMI 1354 - ITAT AHMEDABAD] to be followed. - Decided in favor of assessee.
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2018 (5) TMI 1691
Reopening of the assessment u/s 147 - suppression of sales - Held that:- Entire sale transaction cannot be taken as income - judgment of Hon’ble Gujarat High Court in the case of Asian Tiles Ltd. [2015 (7) TMI 1281 - GUJARAT HIGH COURT] is squarely applicable to the case on hand - respondent could not have issued impugned notice to the petitioner subject to suppressed sale transaction to income - thus the notice is inherently illegal and invalid - hence assessment order u/s 147 is quashed - Decided in favor of assessee.
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2018 (5) TMI 1690
Rejecting the registration u/s 12AA - charitable activities are yet to commence - Held that:- The application is made in accordance with the requirements of s. 12A r.w.r. 17A - from the trust deed we find that the objects of the trust are charitable in nature u/s 2(15) - This is not a case where exemption was denied for not complying with the conditions contained under section 12A - thus the order of the CIT rejecting the application was unjustified - in view of the case of [Self Employers Service Society vs. CIT (2000 (9) TMI 47 - KERALA HIGH COURT)] - Decided in favor of assessee.
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2018 (5) TMI 1689
Validity of reassessment proceedings u/s 147 - validity of notice u/s 148 - assessment barred by limitation - assessment in wrong hands - Held that:- The reopening is not permissible in the case of the assessee when the limitation was not available even on the date when the assessment order - the limitation is saved if the same was available on the date when the assessment order was passed in the wrong hands and, therefore, the subsequent time period consumed in the proceedings before the first appellate authority and thereafter will not affect the power of the AO for reopening of the assessment. - Decided in favor of assessee.
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2018 (5) TMI 1688
Penalty u/s 271(1)(c) - addition u/s 80D in revision of return filed u/s 153A - additional income offered suo moto - Held that:- The conditions under section 271(1)(c) must exist before the penalty is imposed - the assessee himself offered the additional income in revised return of income - Everything depends upon the return of income filed, because return of income is the only document, where the assessee can furnish the particular of income. When such particulars found to be inaccurate, the liability would arise. In the present case, the assessee offered additional income of ₹ 2,00,000/-, which was accepted by Assessing Officer. We have noted that the Assessing Officer has not recorded his satisfaction that return of income was found to be incorrect or erroneous or false - No penalty levied - Decided in favor of assessee.
Imposition of penalty u/s 271(1)(c) for failure to file return of income - Held that:- There was no incorrect particular furnished by the assessee while filing revised return of income and there is no evasion of tax - failure to furnish return causes penalty u/s 271F - Decided in favor of assessee.
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2018 (5) TMI 1687
Valuation of land u/s 50C - Sale of disputed property - disallowance of expenditure incurred towards land levelling, construction of wall and a room - Held that:- Assessee has sold the property with the disputes in the property - some disputes were unsettled at the time of sale, which is evident from the list of cases pending for which the court orders which were submitted subsequent to the date of sale - thus assessee is eligible to claim the adjustment in the valuation of land to the extent of 30% as per the guidelines for valuation of Immovable Properties, 2009 - Decided in favor of assessee
Expenditure incurred towards advocate fee disallowed - self made vouchers - Held that:- Assessee has legal disputes with the parties, who are claiming to be the owners of the land - since the vouchers are self-made, the issue is remitted back to AO in order to give one more opportunity to assessee to file proper confirmation with details such as, address and PAN details - Decided in favour of assessee for statistical purpose
Disallowing the expenditure incurred towards land levelling, construction of wall and a room - Held that:- Evidences are submitted before the authorities to show that there existed compound wall and room adjacent to the land - thus the matter is remitted back to AO to determine the value with the assistance from DVO with reasonableness and allow the same as cost incurred to build the compound wall and a room - Decided in favour of assessee for statistical purpose
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