|
Advanced Search Options
Case Laws
Showing 501 to 520 of 2170 Records
-
2019 (4) TMI 1676
Deduction u/s. 80-IB - Profit derived from the business of the industrial undertaking engaged in the manufacture and sale of Pig Iron - Profit from the sale of slag, which is a by-product in the manufacture of Pig Iron - whether the slag generated out of the manufacturing process would satisfy the test 'first degree source' or not and, if satisfies such test, would be eligible to deduction under Section 80-IB of the Act or not ? - HELD THAT:- In view of the findings already rendered by the CIT(A), which are upheld by the Tribunal that the slag generated out of the manufacturing process, the profit earned from such sale, is derived from the Industrial Undertaking which is engaged in manufacturing of Pig Iron, the Revenue cannot be allowed to contend that the sale of slag would not be a part of profits earned from the manufacturing process and would not be eligible for deduction under Section 80-IB of the Act. The findings rendered by the CIT(A) and upheld by the Tribunal having attained finality, are binding on the Revenue. - Decided in favour of the appellant- Assessee.
-
2019 (4) TMI 1675
Disallowing the expenses of liquidated damages - contingent contract - allowability in year of execution of contract or fulfillment of conditions mentioned in contracts - HELD THAT:- A perusal of clauses of the agreement indicates that the said agreement dated 5th March, 2010 entered into between the Assessee and M/s. Timblo Minerals Pvt. Ltd. was a contingent contract u/s 32 of the Contract Act and could be enforced only when the conditions prescribed therein would have been complied with and not on the date of execution of the agreement. In our view, the Tribunal was thus right in holding that the Assessee was entitled to seek deductions in respect of the said amount in the Assessment Year 2011-12. We do not find any infirmity in the order passed by the Tribunal.
Since the rate of income tax in the Assessment Years 2010-11 and 2011-12 being uniform, it was of no consequence to the Revenue whether to allow the said expenditure in the Assessment Year 2010-11 or 2011-12. The issue raised by the Revenue in these Appeals is thus academic and does not give rise to any substantial question of law.
Disallowance of the deferred revenue expenditure - Assessee had claimed deduction at the rate of 1/17th of the said expenditure while filing the return of income in the impugned assessment year - Tribunal held that since the liability was as per interpretation of the accrual towards the said expenditure in the Assessment Year 2011-12 and since the Assessees had made payment on 5th March, 2010, and held that the said sum was also not hit by the provisions of Section 40(a)(ia) - HELD THAT:- Tribunal held that following the rule of consistency, deduction to the Assessee amounting to ₹ 9,87,993/- being 1/17th of ₹ 1,67,95,982/- was allowed. These findings of fact rendered by the Tribunal in the impugned order are admittedly not impugned by the Revenue and have attained finality. In our view, the issue raised by the Revenue recorded in paragraph 3(D) aforesaid is also academic and does not raise any substantial question of law.
-
2019 (4) TMI 1674
Application for stay - precondition for grant of stay on demand - assessee has to deposit 20% of the tax demanded as precondition for grant of stay - HELD THAT:- The assessee himself voluntarily disclosed certain amount of income over and above the regular income during the course of survey proceedings. The case of the petitioner appears to be that the same has been retracted. The said aspect has not been considered by the authority.
It is discretion of the authority to direct payment of particular percentage of the amount as a precondition for stay. However while considering the stay petition the prima facie case put forth by the parties is required to be considered. The authority has to deal with the contentions raised by the parties so as to disclose the application of mind by the authority to the contention put forth by the parties. Reasons are required to be given. Reasons now are considered to be one of the pillar of the principles of natural justice.
The case put forth by the petitioner has been dealt with while passing impugned order so as to substantiate the discretion exercised by him. If after considering the case put forth by the petitioner, the authority may come to the conclusion about the quantum of the amount the petitioner is required to deposit as a precondition for stay.
The impugned orders are quashed and set aside. The authority shall consider the stay application filed by the petitioner on its own merits and take decision prima facie meeting out the case put forth by the petitioner
-
2019 (4) TMI 1673
Immunity from penalty - applicability of Clause 5(2) of the Explanation u/s 271(1)(c) - made the disclosure of undisclosed income in the statements u/s 132(4) in search and had also specified the manner in which such income was derived from his real estate business and had also paid tax though belatedly together with interest - AO denied Immunity alleging that admitted tax liability was not paid in the returns filed u/s 153C and subsequent payment of tax cannot entitle the Assessee to the immunity - HELD THAT:- There is no dispute of facts before us that besides the adjustment 1.65 crores of the cash seized during the course of search and the monthly payments of taxes made by the Assessee aggregating to ₹ 2,42,53,137/- total of which would come to ₹ 4,07,53,137/- the total tax paid by Assessee is in excess of the admitted tax liability of ₹ 3.50 crores on the undisclosed income of ₹ 8.25 crores disclosed in the six Returns filed by the Assessee on 13/14th August 2009.
Therefore, in our opinion, the Assessee not only satisfied all the three conditions, namely (I) disclosure of undisclosed income in the course of the statements under Section 132(4) of the Act; (II) specify the manner of earning the same from real estate business; and (III) payment of tax with interest for which no time frame is fixed in the said Explanation 5(2). Therefore the Assessee was entitled to the immunity from penalty u/s 271(1)(c).
No merits in the contentions raised by the Revenue that the payment of such tax liability in respect of undisclosed income as disclosed in the Returns of income filed by the Assessee after Notice u/s 153C, has to be made at the time of filing of the return itself.
We are not dealing with the case for assessment of tax in the hands of the Assessee as per the amended procedure of assessment in question u/s 158(C) after 01.06.2003 but we are concerned with the applicability of Clause 5(2) of Explanation to Section 271(1)(c) which is an exception to the presumption of concealment u/s 271(1)(c).
There has been no amendment in the language of the said provision before or after 01.06.2003 and therefore the interpretation as made by the Hon'ble Supreme Court in the case of Gebilal Kanhaialal HUF [2012 (9) TMI 297 - SUPREME COURT] is binding and applies to the facts of the present case on all fours. Tribunal has erred in reversing the order passed by the learned CIT (Appeals), denying the immunity as per Clause 5(2) of the Explanation to the Assessee in the present case. The Appeals filed by the Assessee therefore deserve to be allowed and the same are allowed answering the first substantial question of law framed above in favour of the Assessee and against the Revenue.
Penalty u/s 217(1)(c) - AO taxed agricultural income as 'Income from Other Sources' and imposed penalty - CIT(A) treated as agricultural income and deleted penalty - HELD THAT:- Matter of there being agricultural income of the Assessee and the estimation of agricultural income by the authorities below is a finding of fact and a particular amount of the same as assessed by the Assessing Authority being reduced the learned CIT (Appeals), nonetheless remains a finding of fact and therefore, on the basis of such findings of fact by the First Appellate Authority below if the learned Tribunal has found it to be a fit case not to impose the penalty on the Assessee u/s 271(1)(c), we do not find any reason to interfere with the said findings of the learned Tribunal and therefore in our opinion, the second question also deserved to be answered in favour of Assessee and against the Revenue.
-
2019 (4) TMI 1672
Provisional attachment of the property u/s 281B - notices u/s 147 and 148 - Provisional attachment in absence of final order or demand is permissible? - HELD THAT:- A bare perusal of the provision of Section 281B of the Act would reveal that it provides for a provisional attachment of the property of the Assessee to protect the interest of the revenue, during the pendency of other proceedings for assessment or reassessment. The requirement of passing of the final order or reassessment order before issuing attachment under this provision is not envisaged in this section.
Section 281B is akin to attachment before judgment provided under Order 38 of the Civil Procedure Code, where an attachment of the property of the defendant can be made even at any stage of suit, in order to protect the interest of a decree holder, when such decree is passed, later on.
The Provisions contained under Sections 220 to 232 of the Act, are different from the provisions in Chapter XXIII of the Income Tax Act, 1961, which deals with 'Miscellaneous' in Sections 281 to 298. The provisions in Chapter XXIII under the head 'Miscellaneous' assist in the effective implementation of the other provisions of the Act. With great respect, appears to have erred in holding that provisional attachment u/s 281B also could not be made without serving a Notice for Demand u/s 156. To this extent, the contention of the learned counsel for the appellant/Revenue deserves to be accepted and the order under appeal deserves to be set aside.
As far as the recovery of dues from the Assessee is concerned, since reassessment orders have already been passed by the ACIT on 25.10.2013 and 31.03.2015 against which, first appeals are also pending before the CIT (A), the parties are left free to have their respective course in those proceedings and the same is not required to be interfered with in any manner by this Court.
-
2019 (4) TMI 1671
Deemed dividend u/s 2(22)(e) - advance received by the assessee against the property - assessee explained that the money received from HDA Buildcon [P] Ltd. is nothing but advance received by the assessee against the property and being a business transaction - HELD THAT:- There is no dispute that the assessee was having business transaction with HDA Buildcon [P] Ltd. AO himself has accepted the transaction to the extent of ₹ 2.15 crores. CBDT vide Circular No. 19/2017 dated 12.06.2017 issued the Circular to the extent that advances which are in the nature of commercial transactions would not fall within the ambit of the word ‘advance’ in section 2(22)(e) of the Act.
In the case of Creative Dyeing and Printing Pvt. Ltd. [2009 (9) TMI 43 - DELHI HIGH COURT] has held that amounts advanced for business transaction do not fall within the definition of ‘deemed dividend’ u/s 2(22)(e) of the IT Act. As in the case of CIT vs. Arvind Kumar Jain [2011 (9) TMI 363 - DELHI HIGH COURT] has held that amount received by the assessee shareholder from a company as a result of trading transaction could not be regarded as deemed dividend
Vide agreement dated 20.11.2012 between the appellant and HDA Buildcon [P] Ltd., HDA Buildcon [P] Ltd. has given a sum of ₹ 14 lakhs as an earnest money in advance against the sale of property being entire third floor with its roof/terrace rights upto the sky of the built-up property bearing No. C-377, situated in the layout plan of Government Teachers Co-operative House Building Society Ltd., known as Saraswati Vihar, Pitampura, Delhi.
Money received from HDA Buildcon [P] Ltd. is a business transaction and, therefore, outside the ambit of the definition of ‘deemed dividend’ u/s 2(22)(e). Direct the Assessing Officer to delete the impugned addition. - Decided in favour of assessee.
-
2019 (4) TMI 1670
Levy of penalty u/s 271(1)(c) - claim of HRA denied - assessee has claimed HRA deduction from his salary income - HELD THAT:- There is no dispute that the assessee was 1/3rd owner of the house property for which he has paid rent to the other co-owners, It cannot be said that the assessee paid rent with malafide intention to reduce his tax liability. The rent was actually paid to the co-owners and this fact has also not been disputed by the AO. Merely because the claim of the assessee did not find any favour with the AO would not, ipso facto, become a bogus claim.
As RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] direct the Assessing Officer to delete the penalty so levied u/s 271(1)(c) of the Act. - Decided in favour of assessee.
-
2019 (4) TMI 1669
Levy of penalty u/s 271(1)(c) - salary income and rental income were subjected to TDS - assessee did not file his return of income originaly and only pursuance to notice issued u/s 148, filed his return of income and paid additional tax - HELD THAT:- There is no dispute that the salary income and rental income were subjected to TDS. It is true that the assessee did not file his return of income and only pursuance to notice issued u/s 148 the assessee filed his return of income. It is equally true that the assessment has been framed on the returned income itself though the notice u/s 148 was issued on the information that the assessee has made agreement for purchase of immovable property for a consideration of ₹ 10.21 lakhs with Shweta Estate Pvt Ltd. I find that no addition has been made in this respect as the Assessing Officer himself is satisfied with the reply of the assessee.
When the assessed income and the returned income are same, no reason to hold that the assessee has concealed its particulars of income, since both the incomes were subjected to TDS. This to be a fit case for levy of penalty u/s 271(1)(c) - Decided in favour of assessee.
-
2019 (4) TMI 1668
Addition u/s 14A - Assessee received dividend income - HELD THAT:- In the case in hand, the assessee has derived dividend income only from one company and no expenditure has been incurred. Therefore, no disallowance needs to be made. Direct the AO to delete the disallowance.
Allowable business loss - advances given in the ordinary course of business - HELD THAT:- Assessee has made advance to Shri Nikhil Talwar in F.Y. 2009-10. The advance was given in respect of tours and travels for business purposes. Shri Nikhil Talwar happens to be the President of the assessee company who died in June, 2013. Since no travelling bills/ bills of expenses incurred by Shri Nikhil Talwar were submitted, the assessee wrote off the advance given to Shri Nikhil Talwar. The advances were given in the ordinary course of business cannot be brushed aside lightly. It is true that the write off does not come within the purview of section 36(2) of the Act, but at the same time, the same has to be considered as business loss u/s 28 of the Act.
Similar view has been taken by the Hon'ble Delhi High Court in the case of Mohan Meakin Ltd [2011 (5) TMI 243 - DELHI HIGH COURT] and case of Lucky Goldstar Company Ltd [2018 (11) TMI 546 - ITAT KOLKATA] . The write off may not be allowable as bad debt but the same is definitely allowable as business loss. Ground No. 2 is also allowed
-
2019 (4) TMI 1667
Disallowance of ‘Pooja Expenses’ of the total expenditure claimed - Addition on adhoc basis - HELD THAT:- Assessee had furnished unit wise details of day to day Pooja Expenses before the Ld. CIT(A). Further, the remand report was also called upon by the CIT(A) from the AO. AO has not disputed the contention of the assessee that out of the total Pooja Expenses of ₹ 1,47,886/-, an amount of ₹ 83,316/- was relatable to Haridwar Unit, the total income of which was eligible for deduction u/s 80IC. Further, considering the small amount of ₹ 64,570/- incurred by the assessee for normal day to day Pooja expenses as compared to the total returned income of ₹ 12,94,52,310/-, we do not find any justification on the part of the lower authorities in making the aforesaid disallowance, as admittedly, the said Pooja expenses have been incurred in the premises of the unit for the need of the workers and to maintain peace and harmony among them.
Disallowance of foreign travelling expenses - HELD THAT:- CIT(A) has allowed the expenditure relating to the foreign travel of the wife as well as has restricted the disallowance relating to the boarding & lodging of the children to the extent of 25% of the total boarding & lodging expenditure as against 50% made by the AO. As noted above, the assessee has disputed the calculation made by the CIT(A) in this respect also. Since there is a calculation issue, we restore the matter to the file of the AO to recompute / calculate the disallowance made under this head after going through the order of the AO as well as considering the relief granted by the CIT(A).
Disallowance of interest expenditure u/s 36(1)(iii) - HELD THAT:- The issue is now squarely covered by the recent decision of the Hon'ble Supreme court in the case of ‘CIT (LTU) Vs. Reliance Industries Ltd.’ [2019 (1) TMI 757 - SUPREME COURT] as affirmed the proposition of law that if the own funds / interest free funds are available with the assessee to meet the investment, presumption will be that the assessee had used its own / interest free funds for the said investment.
This issue is accordingly decided in favour of the assessee and the disallowance made u/s 36(1)(iii) of the Act is ordered to be deleted.
Appeal of the Revenue is dismissed on account of low tax effect being hit by the CBDT Circular No. 3/2018 dated 11.07.2018, whereas, the Cross objections of the assessee, in view of our observations made above, are treated as allowed for statistical purposes.
-
2019 (4) TMI 1666
Penalty 271(1)(c) - case selected for scrutiny under CASS with the reason “suspicious Long Term Capital Gain” - assessee suo moto surrendered an amount before any of the authorities of the Income Tax pointed out any undisclosed income of the assessee - furnishing of inaccurate particulars of income - HELD THAT:- The assessee suo moto surrendered an amount of ₹ 37 lacs and paid the due tax alongwith interest thereon much before the Investigation Wing or the A.O. pointed out any discrepancy about the undisclosed or concealed income of the assessee.
Considering all the impugned penalty levied by the A.O. u/s 271(1)(c) of the Act and sustained by the CIT(A) was not justified. Accordingly, the same is deleted. This finding has been given by considering the peculiar facts of the present case, therefore, it is made clear that it may not be considered as a precedent in the other cases. - Appeal of the assessee is allowed.
-
2019 (4) TMI 1665
Bogus Long term capital gain - ingenuity of purchase and sale of shares - test of human probability - HELD THAT:- Evidences to prove the genuineness of transaction are themselves found to serve as smoke screen to cover up the true nature of the transactions in the facts and circumstances of the case as it is revealed that purchase and sale of shares are arranged transactions to create bogus profit in the garb of tax exempt long term capital gain by well organised network of entry providers with the sole motive to sell such entries to enable the beneficiary to account for the undisclosed income for a consideration or commission.
The share transactions leading to long term capital gains by the assessee are sham transaction entered into for the purpose of evading tax. Landmark decision in the case of McDowell and Company Limited [1985 (4) TMI 64 - SUPREME COURT] is squarely applicable in this case wherein it has been held that tax planning may be legitimate provided it is within the framework of the law and any colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods.
The assessee are on distinguished facts, hence, not applicable in the instant case. The assessee has not raised any legal ground and argued only on merit for which assessee has failed to substantiate his claim before the lower revenue authorities as well as before this Bench. - Appeal of the Assessee is dismissed.
-
2019 (4) TMI 1664
Addition Short Term Capital Gain made u/s 50C - adoption of the circle rate value of the immovable property disposed by the assessee during the relevant previous year and the consequential short term capital gains arising to the assessee which has been held to be taxable by the AO - HELD THAT:- In the present case the assessee has accepted the valuation of the capital asset transferred by the assessee has attained finality.
Under the provisions of Indian Evidence Act, 1872 the said admitted position of the assessee become proved fact. CIT(A) consistently held that wherever the assessee has accepted the valuation of the capital asset transferred by the assessee as determined by the concerned revenue authorities under the provisions of the Indian Stamp Act, 1899 and the said acceptance has become final and hence, the said assessee cannot go back on its admitted position and accepted valuation of the capital asset before the authorities acting under the provisions of the I.T. Act, 1961. CIT(A) has rightly confirmed the addition in dispute - Decided against assessee.
-
2019 (4) TMI 1663
Monetary limit - maintainability of appeal - tax effect - HELD THAT:- The amended circular is not applicable to the facts of the present case rather it is covered by the original circular No.3/18 dated 11.07.2018, vide which the CBDT has revised the monetary limit to ₹ 20,00,000/- for not filing the appeal before the Tribunal.
From Clause 12 & 13 of the above said circular it is clear that these instructions are applicable to the pending appeals also and as per clause 13, there is clear cut instruction to the department to withdraw or not to press the appeals filed before the ITAT wherein tax effect is less than ₹ 20,00,000/-. These instructions are operative retrospectively to the pending appeals.
Keeping in view the CBDT Circular No. 3 of 2018 dated 11.07.2018, we are of the view that the Revenue should not have filed the instant appeals before the Tribunal. - Appeals of the department are dismissed
-
2019 (4) TMI 1662
Addition u/s 68 - unsecured loans received from various friends and family members - HELD THAT:- Merely suspicion should not be the basis of addition. There should be some material when the assessee has proved credit by furnishing material in the form of confirmation etc. to discard such evidence.
AO should ascertain the veracity of claim of the assessee by summoning the persons who have advanced unsecured loans to the assessee. We therefore set aside the orders of the authorities below and restore this issue to the file of the AO for decision afresh. The AO is hereby directed to verify the claim of the assessee by making necessary enquiries and by giving reasonable opportunity to the assessee.- Assessee’s appeal is allowed for statistical purposes.
-
2019 (4) TMI 1661
Penalty u/s 271(1)(c) - recording of satisfaction - penalty initiated u/s 143(3) order for concealment of particulars of income - penalty imposed for furnishing inaccurate particulars of income - HELD THAT:- We find force in the plea of the assessee that where the penalty has been imposed on a ground different from the ground for which the penalty was originally initiated, the imposition of penalty is vitiated in law.
It is apparent that the satisfaction of the AO in the penalty proceedings is not consistent with that of the satisfaction formed in the course of quantum assessment. In parity with the view taken by the co-ordinate bench, the penalty imposed is liable to be struck down on this score alone. Accordingly, we set aside the first appellate order passed by the CIT(A) in this regard and direct the AO to delete the penalty. - Decided in favour of assessee.
-
2019 (4) TMI 1660
Penalty u/s.271(1)(c) - non specification of charge - disallowance of excise duty paid and disallowance out of technical fees paid - HELD THAT:- From the perusal of the assessment order, it is seen that AO has though specified the charge that he is initiating the penalty proceedings u/s. 271(1)(c) on account of furnishing of inaccurate particulars of income, however, at the time of issuance of show cause notice u/s.274, no such charge has been specified. The notices have been sent on a printed format wherein he has not strike down or mentioned as to under which limb he is proposing to levy the penalty.
Section 271(1)(c) stipulates two limbs of charges in which penalty can be levied, one, where any person has concealed the particulars of his income; or second, he has furnished inaccurate particulars of such income.
As in the case of CIT vs. Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] has held that a person who is accused of conditions mentioned in Section 271 should be made known about the grounds on which the Department is imposing penalty, as Section 274 makes it clear that the assessee has right to contest such proceedings and should have full opportunity to meet the case of the Department and show that conditions stipulates in Section 271(1)(c) did not exist and is not liable to pay the penalty.
Mere sending of printed form with all the grounds mentioned is not sufficient compliance of law. The aforesaid principle and ratio laid down by the Hon'ble Karnataka High Court would also apply in the present case, because here in this case the AO while issuing a show cause notice u/s.274 r.w.s. 271 in printed format has not specified the grounds as to under which limb he is proposing to initiate and levy a penalty u/s. 271(1)(c). Thus, we hold that impugned penalty levied by the Assessing Officer is not valid and same is not sustainable. On this ground the entire penalty is deleted. - Decided in favour of assessee.
-
2019 (4) TMI 1659
TP Adjustment - Advertisement & Sales Promotion (AMP) expenses - whether advertisement and sales promotion expenses incurred by the assessee being an importer and distributor of wine and spirits in India in the forms of gifts, display at retail outlets, discount schemes, custom duty charged on POSM, etc. are revenue in nature as contended by the assessee? - HELD THAT:- When we examine the facts and circumstances of the case in the light of the ratio of Monto Motors Ltd. [2011 (12) TMI 50 - DELHI HIGH COURT] it is proved on record that the assessee has incurred periodical expenses on account of advertisement and sales promotion which is to increase the sales of products in order to remind the customer from time to time so that they do not forget the products and its qualities. Hon’ble High Court has held that when the advertisement expenses are incurred to increase the sale of the products, the same are treated as revenue expenditure because the memory of purchasers or customers is short-lived.
So, in the instant case, the Revenue has not brought on record any material to prove that advertisement and sales promotion expenses have created long lasting benefits to the assessee, because advertisement and sales promotion are generally made in order to increase the sales and their impact is limited and felt for a short duration by the customers. Also see EMPIRE JUTE COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1980 (5) TMI 1 - SUPREME COURT]
So, in this case, assessee has undisputedly incurred advertisement and sales promotion expenses periodically, and not at once just to refresh the product and quality to be sold in the memory of its customers. So, it cannot be held to be in the nature of enduring benefit for a trader - advertisement and sales promotion expenses have been incurred by the assessee just to enhance its sales and profit and cannot be treated as capital in nature. - Decided in favour of assessee.
Addition u/s 40A (ia) - scope of Notification No.56/2012 dated 31.12.2012 issued by the CBDT - disallowance of an amount debited by the assessee in P&L account on account of bank guarantee commission - assessee has made certain payments to scheduled banks qua bank guarantee provided by the banks on which TDS was not deducted - AO as well as CIT (A) have accepted the proposition put forth by the assessee that bank guarantee commission does not cover under the definition of “interest”, hence section 194A is not applicable to such payment - HELD THAT:- It is settled principle of law that in case of bank guarantee commission, section 194H of the Act, where principal agent relationship are not there, is also not applicable. Reliance in this regard is placed on the decision rendered by the coordinate Bench of the Tribunal in Kotak Securities Ltd. vs. DCIT – [2012 (2) TMI 77 - ITAT MUMBAI]
Bare perusal of the Notification in the instant case goes to prove that this Notification is clarificatory in nature. Applicability of the aforesaid Notification to a period prior to the period of its issue has been examined by Hon’ble Delhi High Court in case of Pr.CIT vs. Make My Trip India Pvt. Ltd. [2019 (3) TMI 1359 - DELHI HIGH COURT].
Furthermore, as per Second Proviso to section 40A (ia) of the Act, disallowance cannot be made because bank guarantee commission paid by the assessee to scheduled banks has been duly included in the total income of the banks as they are tax resident of India and they have duly paid the tax on such guarantee commission. So, under Second Proviso to section 40A (ia), no disallowance can be made. So, disallowance of ₹ 9,81,336/- made by the AO and restricted by the ld. CIT (A) to ₹ 7,92,680/- is not sustainable in the eyes of law, hence ordered to be deleted. - Decided in favour of the assessee.
-
2019 (4) TMI 1658
TPA - appropriate method adopted by the assessee for benchmarking in international transaction in the form of export sales to its AE - HELD THAT:- CIT(A) had made an observation that the assessee had not filed the statement of facts before him while filing the appeal in form No.35. But from the perusal of the documents placed on record, we find that the assessee had indeed enclosed statement of facts and grounds of appeal in brief before the CIT(A). CIT(A) had not issued any defect memo in this regard to the assessee. Hence, the observation of CIT(A) in this regard is totally unwarranted.
We find from the perusal of the assessment order that there is no mention about examination of most appropriate method adopted by the assessee for benchmarking its international transaction in the form of export sales to its AE.
We deem it fit and appropriate, in the interest of justice and fair play, to remand this appeal to the file of the ld. AO for denovo adjudication for determination of arm’s length price in respect of international transaction in the form of export sales made to AE by the assessee, in accordance with law. The assessee is at liberty to furnish additional evidences, if any, either in the form of transfer pricing study report or any other evidences, if they so desire, in support of its contentions. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.
-
2019 (4) TMI 1657
Gain on sale of property - LTCG OR STCG - Whether Date of allotment of property could be reckoned as a specified date as against date of possession / registration of the property for the purpose of determining the period of holding of property? - benefit of exemption u/s.54F - HELD THAT:- As decided in VEMBU VAIDYANATHAN [2019 (1) TMI 1361 - BOMBAY HIGH COURT] the date of allotment would be the date on which the purchaser of a residential unit can be stated to have acquired the property.
There is nothing on record to suggest that the allotment in construction scheme promised by the builder in the present case was materially different from the terms of allotment and construction by D.D.A.. In that view of the matter, CIT appeals of the Tribunal correctly held that the assessee had acquired the property in question on 31st December, 2004 on which the allotment letter was issued. Respectfully, following the same, we confirm the stand of first appellate authority to the extent that the resultant gains were Long-Term Capital Gains in nature.
Eligibility to claim deduction u/s 54F - the assessee has made the payment within stipulated time as envisaged by Section 54F and the allotment in a specific property has been obtained by the assessee on 14/04/2012 which is evident from allotment letter as placed. Therefore, since all the conditions of Section 54F was fulfilled by the assessee, there could be no occasion to deny the benefit of deduction to the assessee - Decided against revenue
............
|
9911796707
Advanced Search 
