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Showing 481 to 500 of 1740 Records
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2019 (9) TMI 1263
Addition u/s 68 - income from unexplained sources - HELD THAT:- The assessee failed to explain nature and source of cash deposit in his Bank Account before the authorities below. The assessee for the first time contended before the CIT(A) that he is running a general store shop and cash has been deposited out of the sales made. The explanation of assessee is not supported any documentary evidences.
When assessee made purchases out of the same Bank Account as per the contention of Learned Counsel for the Assessee through Banking channel, assessee could have produce purchase bills before the authorities below to show that it was in fact the business transaction of assessee.
Assessee did not produce any evidence before the authorities below. Same is the position before the Tribunal that assessee did not produce any purchase bills to show that purchases were made through banking channel out of the same Bank account in which cash have been deposited.
Therefore, there were no justification even to remand the matter back to the file of A.O. as is argued by the Learned Counsel for the Assessee. - Decided against assessee.
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2019 (9) TMI 1262
Reopening of assessment - Claim of exemption u/s 10A - HELD THAT:- It is clear from the reasons recorded that Assessing Officer clearly mentioned that the assessee made irregular claim of deduction/exemption u/s 10A and it is clear that on alleged wrong claim made by the assessee, the Assessing Officer reopened the assessment. Therefore it is established that without having any new material but on mere change of opinion, the assessment was reopened by the Assessing Officer, in our opinion, the assessment made thereon u/s 147 of the Act is not maintainable.
Assessee filed objections questioning the reasons recorded for initiation of proceedings u/s 147 of the Act. On perusal of the assessment order, it is noted that nowhere the AO discussed about the objections raised by the assessee and without considering the same proceeded to reopen the assessment, is bad in law.
Assessee filed all the details such as audited accounts, tax audit report u/s 44AB and required documents for claim of exemption u/s 10A of the Act in the original assessment proceedings itself and having accepted the same, the Assessing Officer cannot reopen the same assessment again by recording that the income has escaped by virtue of being making a wrong claim. It is also noted from the record that from Assessment Year 2001-02 to 2009-10, the claim u/s 10A of the Act were allowed except Assessment Year 2007-08 which is under consideration before us. Department of Revenue has been granting deduction u/s 10A to the assessee in earlier assessments as well as in subsequent assessments. Therefore, there was no new tangible material was brought on record by the Assessing Officer and in the absence of which the Assessing Officer is not entitled to reopen the assessment and it is merely a change of opinion - Decided in favour of assessee.
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2019 (9) TMI 1261
Computation of deduction u/s 10AA - HELD THAT:- AO reduced the aforesaid expenditure incurred in foreign currency for providing technical services outside India from the Export Turnover while computing the deduction u/s 10AA of the Act and accordingly determined the deduction u/s 10AA. There is no dispute that the assessee is entitled for deduction u/s 10AA of the Act in the instant case.
CIT-A held that items that were excluded from export turnover should also be correspondingly reduced from total turnover also and hence it would not alter the claim of deduction u/s 10AA of the Act for the assessee. Hon’ble Supreme Court in the case of CIT vs HCL Technologies Ltd in Civil [2018 (5) TMI 357 - SUPREME COURT] had held that items that were excluded from export turnover should also be excluded from total turnover. In view of this decision, we find no infirmity in the order of the ld CITA in this regard. Accordingly, the Ground No.1 raised by the revenue is dismissed.
Carry forward of losses without setting it off against the income eligible for deduction u/s 10AA - HELD THAT:- High Court in the case of CIT vs Black & Veatch Consulting P Ltd [2012 (4) TMI 450 - BOMBAY HIGH COURT] wherein it was held that section 10A is a deduction provision and not an exemption provision ; that section 10A benefit has to be given effect to at the stage of computing the profits and gains of business; that it is anterior to the application of the provisions of section 72 of the Act which deals with the carry forward and set off of business losses.
As held that the deduction u/s 10A of the Act is to be allowed without setting off of carry forward unabsorbed losses and the depreciation from the earlier assessment year or current assessment year either in the case of non-STPI unit or in the case of very same undertaking. CIT-A for the year under consideration directed the ld AO to allow the carried forward of losses without setting it off against the income exigible for deduction u/s 10A. We find that similar views were endorsed by the Hon’ble Supreme Court in the case of PCIT vs Rangsons Electronics Pvt Ltd [2017 (11) TMI 1047 - SC ORDER] and in the case of CIT vs Yokogawa India Ltd [2016 (12) TMI 881 - SUPREME COURT] - Decided against revenue
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2019 (9) TMI 1260
Condonation of delay - delay of 11½ years - on the basis of findings in the order for subsequent year, appeal was filed for earlier year before CIT(A) - HELD THAT:- It is admittedly only on account of the said finding that the assessee has filed the appeal as there is no other alternative remedy available to the assessee. This being so, as it is noticed that the delay issue is a technical issue and the delay is not on account of lethargy on the part of the assessee or on account of any malafide reasons.
This being so, applying the principles laid down by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. Mst.Katiji & Ors [1987 (2) TMI 61 - SUPREME COURT] the delay in filing of the appeal stands condoned. As the Ld.CIT(A) has not adjudicated the issues on merits, the issues in this appeal are restored to the file of the Ld.CIT(A) for adjudication on merits. Appeal filed by the assessee is partly allowed for statistical purposes.
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2019 (9) TMI 1259
Validity of Notice u/s 143(2) - period of limitation - notice issued by an officer who had no jurisdiction over the assessee - curable defect u/s 292B - HELD THAT:- It is an admitted fact that the assessee efiled the return of income on 14/09/2015 mentioning the address at Mohali, in the earlier years also, the returns of income were filed at the same address. Therefore the A.O. Ward-6(4) Mohali was having the jurisdiction upon the case of the assessee. In the present case the ACIT, Circle-1, Amritsar who was not having the jurisdiction over the assessee’s case issued the notice under section 143(2) dt. 12/08/2016 therefore the said notice was beyond the jurisdiction.
From the proviso to sub section 2 of Section 143 of the Act, it is clear that no notice under section 143(2) of the Act shall be served on the assessee after the expiry of six months from the end of the Financial Year in which the return was furnished. In the present case the assessee filed the return on 14/09/2015 and the Financial Year ended on 31/03/2016. Therefore the time available to issue the notice under section 143(2) was upto 30/09/2016 but the A.O. who was having the jurisdiction i.e; the ITO, Ward 6(4) Mohali issued the notice under section 143(2) alongwith the questionnaire under section 142(1) of the Act to the assessee on 22/05/2017.
As notice under section 143(2) of the Act was not issued in prescribed time limit as per the proviso to section 143(2) of the Act by the A.O. having the jurisdiction upon the case of the assessee and the notice issued by the ACIT, Amritsar suffered from an inherent lacuna affecting his jurisdiction so the same could not be cured by having resort to the provisions of section 292B of the Act. Therefore the assessment framed under section 143(3) of the Act, by the A.O. without issuing the notice u/s 143(2) of the Act within the time limit prescribed in the proviso to section 143(2) of the Act was invalid and accordingly quashed. - Decided in favour of assessee.
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2019 (9) TMI 1258
Deduction on account of various expenses - HELD THAT:- As the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that A.Y. 2009-10, we respectfully follow the order of the Tribunal for A.Y. 2009-10 [2018 (9) TMI 785 - ITAT KOLKATA] and restore the order of the Assessing Officer treating the income received by the assessee by way of service charges as income from house property. We also restore the issue relating the allowability of various expenses claimed by the assessee to the file of the Assessing Officer for deciding the same afresh as per the same direction as given by the Tribunal for A.Y. 2009-10.
Long-term capital loss - disallowance of capital loss arising from the extinguishment of its interest in the shares of SSPL on liquidation - HELD THAT:- The assessee-company having received money as shareholder on the liquidation of a Company, sub-section (2) of section 46 is clearly applicable and the capital gain or loss is required to be computed by applying the said provision.
Contention that the money was actually received by the assessee on 14.05.2008 and the capital gain or loss, if any, arising to the assessee was required to be computed as per the provisions of sub-section (2) of section 46 in A.Y. 2009-10 and not in the year under consideration, i.e. A.Y. 2010-11 - In the present case, SSPL was liquidated vide order dated 06.11.2009 and the order for strike off (liquidation) of SSPL having been passed on 09.11.2009, we are of the view that the capital gain or loss arising from receipt of money by the assesese-company as a shareholder on the liquidation of a Company was chargeable to tax as per section 46(2) in the year under consideration, i.e. A.Y. 2010-11. We, therefore, set aside the impugned order of the ld. CIT(Appeals) on this issue and restore the matter to the file of the Assessing Officer to re compute the capital gain/loss chargeable to tax in the hands of the assessee-company as per the provisions of section 46(2). Ground No. 2 of the Revenue’s appeal thus is treated as allowed for statistical purposes.
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2019 (9) TMI 1257
LTCG - Exemption u/s 54 - assessee and her husband purchased the new property in their son’s name - HELD THAT:- The provisions of section 54 of the Act are beneficial and are to be considered liberally for reasonable bonafide cause but investment in residential property is mandatory which is not in dispute in this case. The Assessing Officer was not justified in rejecting the case law relied on by the assessee in the case of CIT v. Shri Kamal Wahal [2013 (1) TMI 401 - DELHI HIGH COURT] , wherein, it was held that the new residential house need not be purchased by the assessee in his own name nor is it necessary that it should be purchased exclusively in his name. Claiming exemption under section 54(1) of the Act deals with transfer of a long term capital asset being building or lands appurtenant, whereas, section 54F of the Act deals with transfer of any long term capital asset not being a residential house, but both are coming under computation of income from capital gains. From the observations of the Assessing Officer, it is evident that he has not appreciated the complete findings given
The issue is covered in favour of the assessee by the decisions of CIT v. Kamal Wahal [2013 (1) TMI 401 - DELHI HIGH COURT], CIT v. V. Natarajan [2006 (2) TMI 136 - MADRAS HIGH COURT] , CIT v. Gurnam Singh [2008 (4) TMI 28 - PUNJAB AND HARYANA HIGH COURT] and moreover, the decision of DIT v. Jennifer Bhide [2011 (9) TMI 161 - KARNATAKA HIGH COURT] . Under these facts and circumstances, the long term capital gains taxed by the Assessing Officer stands deleted.
Levy of short term capital gains - distress sale - AO proposed to adopt the guideline value as sale consideration as per section 50C - HELD THAT:- Admittedly, the provision of section 50C(1) of the Act reads as where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government [i.e., stamp valuation authority] for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessable shall, for the purpose of section 48 of the Act be deemed to be the full value of the consideration received or accruing as a result of such transfer. In this case, since the assessee has not opted for to refer her case for valuation to the Department Valuation Officer as per section 50C(2) of the Act, we are of the considered opinion that the Assessing Officer has rightly adopted the 50C(1) value as fair market value and determined the short term capital gain. - Decided against assessee
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2019 (9) TMI 1256
Bogus purchases u/s 69C - profit percentage at the rate of 25% on bogus purchases by CIT-A - HELD THAT:- CIT(A) has restricted the profit rate at the rate of 25%, which according to us is on higher side going by the nature of business of the assessee i.e. trading in Iron, Steel & cement on semi-wholesale basis. We are in agreement with the contentions raised by the assessee before CIT(A) and according to us a profit rate of 25% is on higher side by going through the nature of the business of the assessee and the fact that the business of Iron, Steel & Cement does not give higher profits. Even, the assessee has paid the VAT element on the bogus purchases. Hence, we direct the AO to recompute the income after applying profit rate at the rate of 8% of the bogus purchases and compute the income accordingly. The appeal of the assessee is partly allowed.
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2019 (9) TMI 1255
Bogus LTCG - Addition u/s 68 - HELD THAT:- AO has heavily relied upon the statement recorded from the director of NCL Research & Financial Services Ltd during the course of search and the investigation wing of income-tax department, Kolkatta. It is also an admitted fact that the AO has relied upon said information in the show cause notice issued to the assessee dated 05-12-2016. The assessee has sought for information relied upon by the assessee in the form of statement of director of the company and also requested for cross examination of the person, who gave the statement vide letter dated 14-12-2016. All these are part of paper book filed by the assessee.
When the assessee has specifically asked for statements, which are used against the assessee to draw an adverse inference and also requested for cross examination of the person, who gave the statement, it is the duty of the AO to provide such statements to the assessee and also to provide the opportunity of cross examination. In this case, inspite of repeated requests, the AO has failed to do so. Therefore, we are of the considered view that the assessment order passed by the AO suffers from jurisdiction and is in violation of principles of natural justice, consequently, liable to be quashed.
Hence, considering the facts and circumstances of this case and also by following the decision of Hon’ble Supreme Court in the case of Andaman Timber Industries vs Commissioner of Central Excise [2015 (10) TMI 442 - SUPREME COURT] and other decisions, we quash the assessment order passed by the AO and deleted addition towards unexplained credit u/s 68 of the Act. - Decided in favour of assessee
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2019 (9) TMI 1254
TP Adjustment - comparable selection - HELD THAT:- Entity namely M/s Suashish Diamonds Ltd. has been excluded on account of RPT filter. However, keeping in view the submissions made by Ld. AR that this entity has not crossed RPT filter, we deem it fit to restore the matter back to the file of Ld. TPO / Ld. AO to consider the RPT computations as submitted by AR before us. If the said comparable do not cross RPT threshold as suggested by Ld. AR, the said entity shall be included in the final list of comparable.
ALP has to be applied only in relation to international transactions and not in relation to assessee’s entire sales / turnover. The bench, at para 11, has also enumerated the mode of computation of the tolerance range of +5%. Taking a consistent view, we direct the lower authorities to re-compute the TP adjustment, if any, in the light of findings of Tribunal in AY 2007-08.
Expenditure on computer software - allowable revenue expenditure - HELD THAT:- As decided in own case in AY 2007-08 insofar as the directions on account of AMC for maintenance of software given by the DRP is concerned, the same appears to be very reasonable and no interference is called for. However, with regard to other expenditure, the Assessing Officer is directed to verify this contention of the assessee, in the light of the decision of the Special bench of the Tribunal, Delhi rendered in Amway India Enterprises V/s DCIT [2008 (2) TMI 454 - ITAT DELHI-C] .
Depreciation on Sony Viao Laptop - HELD THAT:- The assessee could not furnish any bill / voucher in support of the same and only filed credit card statement showing the payment of the same. Accordingly, depreciation of ₹ 0.54 Lacs claimed against the same was disallowed. DRP confirmed the same since the assessee failed to file requisite documentary evidences. We find that this ground would require no indulgence on our part since the assessee could not discharge the onus to substantiate the expenditure and secondly, this issue stood covered against the assessee by the order of Tribunal for AY 2007-08
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2019 (9) TMI 1253
GTA Service - Demand of service tax on transportation of palm oil fruit - whether the same is a fruit entitled for the exemption of N/N. 33/2004-ST dated 03.12.2004? - transport of fruits is exempted - HELD THAT:- Any produce of a tree which is the result of ripened ovary, irrespective of nature of it being edible or not, amounts to fruit. Admittedly, the product transported in the present appeal is palm oil fruit. The photographs as produced by the appellant during the arguments also support the opinion as formed.
Thus, the fruit in question is very much covered by the notification. The adjudicating authorities below are therefore held to have formed a very rigid and narrow description of the fruit.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1252
Relevant date for completion of CIRP - period between the date of order of admission and the actual date on which the RP takes charge for completing the CIRP to count the total period of 270 days - HELD THAT:- It is pertinent to mention that CIRP was initiated by order of this Tribunal dated 30.8.2018 and IRP Mr R. K. Bhuta was appointed by the same order. After that, CoC decided to change the IRP, and Mr Ramchandra D. Choudhary was appointed as RP on the recommendation of the CoC. Till the appointment of new RP, IRP was looking after the work of the RP. Therefore, there is no justification for the exclusion of the period as IRP was discharging his duties as RP for completion of the CIRP.
Application dismissed.
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2019 (9) TMI 1251
Profiteering - project “Paramount Emotions” situated in GH-05A, Sector 1, Greater Noida - benefit of Input tax credit not passed on - reduction in the price of flat - section 171 of CGST Act, 2017 - Imposition of penalty - HELD THAT:- The Applicant No. 1 had booked a flat with the Respondent in his project “Paramount Emotions” situated in GH-05A, Sector 1, Greater Noida and was allotted Apartment No. E301 in the Easy Tower of the project by the Respondent. It is also revealed that the Applicant No. 1 had filed a complaint on 19.06.2018 with the Uttar Pradesh State Screening Committee on Anti-Profiteering alleging that the Respondent had not passed on the benefit of ITC to him as per the provisions of Section 171 (1) of the CGST Act, 2017 and accordingly action should be taken against him.
The DGAP has correctly assessed the additional ITC ratio as 2.42% and by applying this ratio to the payments made on or after 01.07.2017, has also correctly computed the profiteered amount as ₹ 3,69,26,963/- as has been mentioned in Annexure-18 of the Report This amount also includes profiteered amount of ₹ 15,231/- to be paid to the Applicant No. 1 and Rs. to all the other 1152 buyers.
This Authority hereby determines the profiteered amount as ₹ 3,69,26,963/- in terms of Rule 133 (1) of the CGST Rules, 2017 and directs the Respondent to pass on the benefit of ₹ 15,231/- to the Applicant No. 1 and ₹ 3,69,11,732/- to the rest 1152 buyers as given in Annexure-18 of the DGAP Report, along with interest @18% per annum to all the 1153 recipients from the dates from which the above amount was collected by him from the buyers till the payment is made, in terms of Rule 133 (3) (b) of the above Rules.
Imposition of penalty - HELD THAT:- It is evident that the Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his present project and resorted to profiteering in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus he has apparently committed an offence under section 171 (3 A) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty.
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2019 (9) TMI 1250
Release of goods alongwith the truck - section 129 of the Goods and Services Tax Act - HELD THAT:- By way of interim relief, the respondents are directed to forthwith release truck No.MH-04- DK-9208 along with the goods contained therein, subject to the final outcome of the petition.
Issue Rule returnable on 9th October, 2019.
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2019 (9) TMI 1249
Release of detained goods - section 130 of the Central Goods and Services Tax Act, 2017 - evasion of tax - HELD THAT:- By way of ad-interim relief, the respondents are directed to forthwith release the Truck No. MH18BG3887, upon the petitioner paying the amount of ₹ 58,576/-, as stipulated in the impugned order, as fine in lieu of confiscation of conveyance subject to the final outcome of the petition.
Issue Notice, returnable on 10.10.2019.
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2019 (9) TMI 1248
Release of detained goods - section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- By way of ad-interim relief, the second respondent is directed to release the vehicle of the petitioner being truck No.GJ-03-AX-5727 upon the petitioner paying a fine of ₹ 62,024/- as proposed in the notice dated 12.7.2019 issued under section 130 of the Act in lieu of confiscation of conveyance.
Issue Notice returnable on 10th October, 2019.
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2019 (9) TMI 1247
Withdrawal of cancellation of petitioner's registration - input tax credit - GST Act - HELD THAT:- We direct the respondents to examine the petitioner’s grievance and to unblock the petitioner’s ITC balance, if the blocking is found to be unjustified. Decision in this regard should be taken positively within the next four working days.
List on 15.10.2019.
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2019 (9) TMI 1246
Validity of assessment orders passed pursuant to a best judgment assessment - Section 62 of the GST Act - Default in filing of returns - HELD THAT:- The statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of Section 62 has to be strictly construed against an assessee and in favour of the revenue, since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside. The provision must be interpreted in the same manner as an exemption provision in a taxing statute.
This Court may not be justified in granting an extension of the period contemplated under sub section (2) of Section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under Section 62(1) of the GST Act - the prayer sought for in the writ petition cannot be granted.
Petition dismissed.
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2019 (9) TMI 1245
Validity of assessment orders passed pursuant to a best judgment assessment - Section 62 of the GST Act - Default in filing of returns - HELD THAT:- The statutory prescription of 30 days from the date of receipt of the assessment order passed under sub section (1) of Section 62 has to be strictly construed against an assessee and in favour of the revenue, since this is a provision in a taxing statute that enables an assessee to get an order passed against him on best judgment basis set aside. The provision must be interpreted in the same manner as an exemption provision in a taxing statute.
This Court may not be justified in granting an extension of the period contemplated under sub section (2) of Section 62, so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis under Section 62(1) of the GST Act - the prayer sought for in the writ petition cannot be granted.
Petition dismissed.
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2019 (9) TMI 1244
Validity of Summon issued under Section 70 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Though the present writ petitions are filed by contending that the summon was issued by granting short time for the petitioners to appear and therefore, it has to be quashed.
I am not inclined to entertain such a request as it is for the petitioners to approach the respondent and seek for sufficient time for appearance.
Petition dismissed as not maintainable.
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