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Showing 501 to 520 of 2364 Records
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2018 (7) TMI 1865
Revision u/s 263 - proceedings u/s. 147 for the purpose of bringing into tax the capital gain on the information received from the Sub-Registrar about the sale deed - Held that:- It cannot be held that AO did not carry out any enquiry or verification which should have been done. Since the proceedings itself were initiated u/s. 147 for the purpose of bringing into tax the capital gain on the information received from the Sub-Registrar about the sale deed, AO did enquire and accepted the contentions of assessee that the transaction was in-dispute and ultimately was settled in September, 2013 before the Lok Adalat.
AO has accepted the explanation and did not consider it fit enough to bring capital gains to tax in AY. 2009-10. Thus, AO has taken a plausible view on the facts and circumstances of the case. Even though Ld.CIT has drawn certain inferences about the legal provisions, yet it can be seen that they are debatable in nature. For this, CIT had not brought any material on record either making further enquiries or by verifications to substantiate his inferences. It is observed that CIT has undertaken the revisional proceedings only to substitute his views of taxability in the impugned year over the view of the AO, who accepted that it is not taxable in the impugned assessment year. Thus, the CIT was not justified in law in holding that the impugned order is erroneous. - Decided in favour of assessee.
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2018 (7) TMI 1864
Restoration of appeal - applicant has contended that the present appeal was dismissed ex-parte, as on the date of dismissal of appeal by the Tribunal, the appellant was absent - Held that:- The Tribunal decided the appeal on merit at the first instance vide the abovementioned order in detail after considering over-all facts and circumstances of the case. The points now raised by the ld.Counsel for the appellant, are perfectly irrelevanthe Tribunal decided the appeal on merit at the first instance vide the abovementioned order in detail after considering over-all facts and circumstances of the case. The points now raised by the ld.Counsel for the appellant, are perfectly irrelevant.
There is no reason to recall the Final order of the Tribunal in the present case - application for restoration of appeal rejected.
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2018 (7) TMI 1863
Unexplained cash credit u/s 68 - Share capital and share premium as unexplained - Held that:- As held by the Hon’ble Delhi High Court in the case of Usha Stud Agricultural Farms Ltd. (2008 (3) TMI 91 - DELHI HIGH COURT) and Parmeshwar Bohra (2007 (1) TMI 105 - RAJASTHAN HIGH COURT), the amount received by the assessee in the earlier year and not in the year under consideration and duly credited in the books of account of the assessee for such earlier year cannot be added under section 68 as unexplained cash credit for the year under consideration.
CIT(A) was fully justified in deleting the addition made by the A.O. under section 68 during the year under consideration by treating the amount in question towards share capital and share premium which was received by the assessee company in the earlier year and not in the year under consideration. - Decided against revenue
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2018 (7) TMI 1862
TPA - Comparable selection - Held that:- Assessee rendered software development (technical support) to its AEs - Held that:- The decisions cited by the learned DR before us cannot be the basis to hold that high turnover is not relevant criteria for deciding on comparability of companies in determination of ALP under the Transfer Pricing regulations under the Act. For the reasons given above, we uphold the order of the CIT(A) on the issue of application of turnover filter and his action in excluding companies by following the ratio laid down in the case of Genisys Integrating (2011 (8) TMI 952 - ITAT BANGALORE).
Assessee is engaged in the business of providing software development (technical support) services and marketing support services to its overseas Associated Enterprises ('AE'). Being a captive service provider, the Assessee assumes less than normal risks and all significant business and entrepreneurial risks are borne by the AEs thus companies functionally deselected from final list. with that of assessee need to be deselected from final list.
As uncontroverted fact regarding another company amalgamating with this company and consequent abnormal profit of this company, company was rightly directed to be excluded by the CIT(A). We find no grounds to interfere with the order of CIT(A) in this regard.
TPO/AO is directed to compute the ALP on the basis of directions given above and if the Assessee is found eligible for the benefit of tolerance limit as per the second proviso to Sec.92CA(2) of the Act, allow the said benefit and compute ALP.
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2018 (7) TMI 1861
Power to cancel the registration of C-Forms - Central Sales Tax (Registration & Turnover) Rules, 1957 - Central Sales Tax Act, 1956 - Held that:- The issue is covered in the case of JAIN MANUFACTURING (INDIA) PVT. LTD. VERSUS THE COMMISSIONER VALUE ADDED TAX & ANR. [2016 (6) TMI 304 - DELHI HIGH COURT], where it was held that Where the cancellation of the registration and, consequently of the C-Form is sought to be done retrospectively, it would adversely affect the rights of bonafide sellers in other states who proceeded on the basis of the existence of valid CST registration of the purchasing dealer on the date of the inter-se sale. That outcome is not contemplated by the CST Act and the Rules thereunder.
The orders cancelling C-forms retrospectively are hereby quashed and set aside - petition allowed in part.
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2018 (7) TMI 1860
Quietus from litigation - the cheque amount has already been paid and it is acknowledged by the respondent - Section 138 of the Negotiable Instruments Act, 1881 - Held that:- For doing complete justice the whole litigation should be given a quietus, subject to appropriate terms - the conviction and sentence imposed on the appellant is set aside - appeal allowed.
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2018 (7) TMI 1859
Disallowance of bogus purchases - Held that:- Assessee furnished the purchase bills and the evidences for payment to the suppliers through banking channels. Copies of the bank statements are evident in the records. Nowhere it is mentioned that the assessee failed to prove the trail of goods to the premises of the assessee.
It is not the case of mere buying the accommodation entries through the entry operators but there is an undisputed fact of buying the equivalent purchases from the grey market. Therefore, it is a case of not offering the relevant profits properly in the return of income. Therefore, the CIT(A)’s decision in restricting the disallowance to 15% on account of such purchases, despite the books results are already offered by the assessee, is fair and reasonable. Accordingly, the grounds raised by the assessee are dismissed.
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2018 (7) TMI 1858
Winding up order recalled - the petition was advertised on or about September 14, 2015, but, according to principal respondent State Bank of India, the company petition did not appear in the list on the returnable date as indicated in the advertisements - Held that:- By the order impugned, the company Court perceived that in the peculiar circumstances that the petition did not appear on the returnable date indicated in the advertisements and the matter remained adjourned for a substantial period of time, a fresh advertisement should have been directed to be published before the matter was considered at the post-advertisement stage. The company Judge cannot be faulted for such perception, since creditors of a company have a say at the post-advertisement stage and the company Judge has the discretion to not wind up the company despite its proven indebtedness to the petitioning-creditor if other creditors demonstrate that the company should not be wound up. On the point of principle, the order impugned cannot be questioned.
In the meantime, the appellant herein preferred the present appeal. The date July 9, 2018 indicated in the order impugned by the company Court for fresh directions to be issued as to the advertisements could not adhered to, primarily, on account of the pendency of this appeal.
The order impugned does not call for any interference. Since the date for directing fresh advertisements to be published has passed, such directions are issued hereby. The petitioning-creditor will cause advertisements to be published in the same newspapers in which the original advertisements had been published, indicating that the company petition will appear before the company Court on the first available working day two weeks after the date of the publication. The publication of the advertisements has to be simultaneous in the newspapers on a date within two weeks from today.
The department is directed to ensure that the company petition appears in the list on the returnable date.
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2018 (7) TMI 1857
Disallowance u/ 14A - Held that:- Issue notice to the respondent, returnable on 22.10.2018, when ITA No.721/2018, The Pr. Commissioner of Income Tax-4 v. GVK Project & Technical Services Ltd. [2018 (11) TMI 561 - DELHI HIGH COURT] in which the question of deduction under Section 14A of the Income Tax Act, 1961 arises is listed.
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2018 (7) TMI 1856
Rectification of mistake - imposition of penalty based that one Sh. Pradeep Kumar Bansal had provided accommodation entries and that the credit claimed was not genuine - Held that:- This Court has considered the overall circumstances of the case. On merits, the petitioner was unsuccessful before the three statutory authorities. Therefore, as far as the appreciation of facts and application of law is concerned, there is no question of interference under Article 226 of the Constitution. In any event, the narrow compass within which this Court is called upon to exercise jurisdiction under Article 226 is to consider whether the ITAT’s refusal to rectify its previous order (which was based upon the merits of the matter, including the allegation of denial of natural justice), was illegal.
The Court is of the opinion that having regard to the extremely circumscribed jurisdiction of the ITAT while considering the rectification application, its view cannot be considered unreasonable.
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2018 (7) TMI 1855
Corporate insolvency resolution process - appellant treated as a ‘related party’ - Held that:- The appellant has disbursed the amount of ₹ 240 Crores in favour of Corporate Debtor in consideration of time value of money as the Corporate Debtor borrowed the loan amount for its business is not in dispute. Thereby, status of the appellant as a ‘financial creditor’ has not been disputed. But mainly on the ground that he is a ‘related party’ as defined under Section 24, he has not been allowed to be member of the Committee of Creditors.
The findings of Resolution Professional and the Adjudicating Authority being not based on the records of the Corporate Debtor and as it has been found that even after the date of triggering of Corporate Insolvency Resolution Process, the amount of ₹ 20 Crores out of ₹ 240/- Crores investment has not been legally approved as equity share nor recognised by the competent authority that is the Registrar of Companies and the stock exchange, we hold that the appellant cannot be treated to be a ‘related party’ in relation to Corporate Debtor as defined under Section 24.
The Adjudicating Authority has failed to take into consideration the aforesaid facts and wrongly held that the appellant is a ‘related party’ in relation to the Corporate Debtor, we set aside the impugned order dated 16th November 2017.
The Resolution Professional, the members of the ‘Committee of Creditors’ and the Adjudicating Authority are directed to treat the appellant as one of the member of the ‘Committee of Creditors’. We further direct to call for a meeting of the ‘Committee of Creditors’ after intimating the appellant and to consider the Resolution Plan in accordance with Section 30(4). The Resolution Plan, if earlier approved in absence of appellant – ‘financial creditor’, being illegal is to be ignored.
The appellant will take part in the meeting of the ‘Committee of Creditors’ but will not raise unnecessarily any objection, if resolution plan already approved by the ‘Committee of Creditors’. For the purpose of counting the total period of ‘corporate insolvency resolution process’, the period of pendency of the appeal i.e. from 11th December 2017 till the date of this judgement be excluded. Once one or other resolution plan is approved, Resolution Professional will place the same before the Adjudicating Authority for its order under Section 31.
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2018 (7) TMI 1854
Corporate insolvency process - prayer for supply of copy of Resolution Plan to the intervener so that he can properly assist this Tribunal - Held that:- So far as the right of intervention by the applicant i.e. Promotor-Director of the suspend ed Board of Directors of the Corporate Debtor is concerned, it should not be denied in view of the scheme of the Code especially when the version of the applicant is that his investment in above corporate debtor by the Promoter-Director of the suspended Board of Directors is about ₹25 crores. If the member of the suspended Board of Directors have a right to participate in the meeting of Committee of Creditors, the right to be heard in the proceedings under the Code on the approval of Plan till these are concluded, should not be denied.
The record of the case shows that the Resolution Professional has filed CA for challenging the preferential/under-valued transactions etc. In this application, notice has been issued to the Promotor- Director of the Company and Mr. Muneesh Malhotra, Advocate is already representing him as is evident from the order dated 22.05.2018 passed by this Tribunal. In the said order the Promotor-Director has been directed to supply addresses of the persons named in the application of the Resolution Professional. So the applicant, herein, is already participating in the proceedings pending before this Tribunal.
The right to participate cannot be extended to the extent of a direction to the Resolution Professional to supply copy of the Resolution Plan. Since the applicant has been allowed to participate, he can inspect the records for the purpose of assisting this Tribunal.
The application is partly allowed permitting the applicant to intervene whereas the prayer for a direction to the Resolution Professional to supply him a copy of the Resolution Plan is declined with liberty to the applicant to have inspection of the record having been allowed to intervene.
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2018 (7) TMI 1853
Stay of demand - payment of 20% of the demand made under Section 68 - Co-operative Banks claiming impecunious circumstances and the possibility of imminent close-down, if such huge amounts are directed to be paid - Held that:- As noticing the fact that the assessee are Institutions in the Co-operative sector and taking note of its members who are from the general public as also from the marginalised sections, we are of the opinion that an opportunity could be afforded to the assessee to produce the details of deposits.
To avoid any recalcitrant attitude by the assesses, we directed the learned Counsel to file an affidavit of undertaking, which has been done by the respective Secretaries in the three appeals before us. The affidavit categorically undertakes to produce the details of the deposits before the First Appellate Authority. The assessees would also produce any further details required by the First Appellate Authority or AO on a report being called for by the First Appellate Authority. The same shall be done within the time stipulated by the First Appellate Authority or the Assessing Officer on directions of the First Appellate Authority. In any event, we do not think that a blanket stay can be granted.
Failure of the assessee to produce the details at the first stage, we are of the opinion that the assessees will have to make a deposit of 1% of the tax addition made under Section 68 of the Act within a period of one month from the date of receipt of a certified copy of this judgment.
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2018 (7) TMI 1852
TDS u/s 194H - non-deduction of tax at source on the commission payment made by assessee as wholesaler of SIM cards / mobile phones etc to retailers / sub-dealers - Held that:- We note that the Coordinate Bench of this Tribunal in case of M/s Chocopack Enterprises vs. ITO (2018 (2) TMI 424 - ITAT JAIPUR) has dealt with this issue of disallowance U/s 40(a)(ia) for want of deduction of TDS U/s 194H in respect of the commission paid to the retailer/sub-dealer wherein held The determination of sale price of recharge coupons is in the sole domain of the service provider and the assessee is no role in determining the retail price at which the retailer is selling the recharge coupons to the customer or end user of the service.
Accordingly, when the assessee is not directly and indirectly in deciding the quantum of alleged commission/discount as well as determining the retail price at which the recharge coupons is sold to the customer then the provisions of section 194H cannot be applied on the assessee. - Decided in favour of assessee.
Disallowance made on account of under reporting of commission by the assessee - difference of more than ₹ 10 lacs in the commission receipt credited in the profit and loss account and commission payment shown by the mobile/cellular operating companies - Held that:- Now we find that the assessee has explained the difference in the amount due to service tax reimbursement and commission directly paid to the retailer by the companies.
The amount of commission as shown in show notice ₹ 55,73,370/- Excess commission shown by us ₹ 7,531/-. Since, these details and relevant recorded have not been examined by the AO, therefore, we remit this issue to the record of the Assessing officer for verification and considering the reconciliation furnished by the assessee. - Decided in favour of assessee for statistical purposes.
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2018 (7) TMI 1851
Maintainability of petition - principles of natural justice - Department disputes the nature of the substance imported - Held that:- This Court, under Article 226 of the Constitution of India, will not adjudicate on disputed questions of fact. But the petitioner's grievance remains that he had no opportunity of hearing before the 2nd respondent passed Ext.P15 order.
True, the order refers to hearing the petitioner. In reply, Sri Mathew explains it away: the petitioner's representative was incidentally present when the matter was taken up. The representative’s presence, however, cannot be a substitute to procedural safeguard provided in the Act. The petitioner ought to have asked to show cause.
Petition disposed off setting aside Ext.P15. Consequently, 2nd respondent will issue a notice within one week to the petitioner and, then, the petitioner may submit its reply. Eventually, the 2nd respondent will consider the issue within one week after his receiving the petitioner’s reply.
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2018 (7) TMI 1850
Disallowance u/s 40(1)(ia) - non deduction of TDS on payment made for job works - retrospectivity of the second proviso to Section 40(a)(ia) - whether the second proviso to Section 40(a)(ia) has a retrospective effect and is applicable to the applicant for the relevant assessment year whereas the said provisions of Section 40(a)(i)? - default u/s 201 - Held that:- From legal analysis of first Proviso to Section 201(1) and second Proviso to Section 40(a)(ia) of the Act, it is discernible that according to both the provisos, where the payee/resident has filed its return of income disclosing the payment received by it or receivable by it, and has also paid tax on such income, the assessee would not be treated to be a person in default and presumption would arise in his favour as noted.
Whether the insertion of Second Proviso to Section 40(a)(ia) of the Act with effect from Ist April 2013 will apply to assessment year 2012-13 being retrospective? - Held that:- We are in agreement with the view of the Delhi High Court in Ansal Land Mark Township Pvt. Limited’s case [2015 (9) TMI 79 - DELHI HIGH COURT] holding the rationale behind the insertion of the second Proviso to Section 40(a)(ia) of the Act and that it is merely declaratory and curative and thus, applicable retrospectively with effect from 1st April, 2005.
CIT(A) after considering the submissions of the assessee and going through the evidence on record found that the assessee had filed confirmation from the party that the payment made by him to M/s Jhandu Construction Company had been reflected in its return of income. Thus, the CIT(A) rightly decided the issue in favour of the assessee which has been upheld by the Tribunal. - Decided against revenue
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2018 (7) TMI 1849
Disallowance u/s.14A - additions of average investments - Held that:- The perusal of Balance Sheet, prima-facie, reveal that the assessee’s year end current investments and non-current investments aggregate to ₹ 787.43 Crores which is approx. 76% of total assets i.e. ₹ 1037.69 Crores as reflected in the Balance Sheet. The same reveal that the assessee is pre-dominantly an investment company. At this juncture, we find that we stood benefitted by the recent judgment in Maxopp Investment Ltd. Vs. CIT [2018 (3) TMI 805 - SUPREME COURT OF INDIA] wherein it has categorically been held that the objective of holding the investments was immaterial and the disallowance was to be applied in all cases irrespective of the fact whether the same are held as stock-in-trade or as an investments.
Therefore, keeping in view the recent judgment of Hon’ble Apex Court as cited above, we deem it fit to restore the matter back to the file of Ld. AO for re-adjudication in the light of statutory provisions as well as in the light of ratio of cited judgment of Hon’ble Supreme Court. The assessee, in turn, is directed to substantiate his claim with supporting evidences in this regard failing which Ld. AO shall be at liberty to decide the issue on the basis of material available on record.
MAT - adjustment of disallowance u/s 14A in computation of book profit u/s 115JB is concerned, we find that the matter stood squarely in assessee’s favour rendered in ACIT Vs. Vireet Investment (P.) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] hold that adjustment of disallowance u/s 14A was not required to be made in Book Profits for the purpose of Section 115JB. The ground of assessee’s appeal stands allowed to that extent.
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2018 (7) TMI 1848
Transfer Pricing - Arm’s Length Price - TNM Method - computation of ALP at the entity/enterprise level - Held that:- in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable - Appeal dismissed.
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2018 (7) TMI 1847
Transfer Pricing analysis - combined transaction approach - treatment of the provision for warranty costs as non-operating expenditure for the purpose of determining arm’s length price - in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable.
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2018 (7) TMI 1846
Application for Stay of judgement M/S MMTC LTD. RAJENDRA PRASAD GM, DK SETH DGM, ASHWANI KAPOOR GM, SANJAY ANAND VERSUS CCE, DELHI I [2018 (1) TMI 624 - CESTAT NEW DELHI] - Held that:- Issue notice.
Until further orders, there shall be stay of Impugned Judgment.
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