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Showing 61 to 80 of 1750 Records
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2018 (1) TMI 1695
Levying penalty u/s.271(1)(b) - non-compliance of the 'notice u/s.142(1) - assessment orders in the present case have been framed u/s.143(3) r.w.s.153A - HELD THAT:- From the penalty order, we observe that the penalty has been imposed on account of non-compliance of the 'notice u/s.142(1) and assessment orders have been framed subsequently on 29.12.2014.
We are of the view that undisputedly, the assessee is having health issues and residing about 60 to 70 kms away from Surat. The all assessment orders have been framed in presence of assessee's representative u/s.143(3) r.w.s. 153A of the and merely because the assessee could not comply with the notice for single hearing due to bonafide reasons as noted above, the penalty u/s. 27(1)(b) cannot be imposed on the assessee for such bonafide default due the reasons beyond his control. Therefore, we reached to conclusion that the Assessing Officer was not right incorrectly confirmed by the ld. CIT(A) Hence, we direct the AO to delete the impugned penalty. Accordingly, the grounds of the assessee in all the appeals are allowed.
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2018 (1) TMI 1694
Rectification of mistake u/s 254 - AO is not empowered to re-compute the tax payable by the assessee as per clause (b) of section 143(1) - HELD THAT:- As rightly contended by the ld. D.R., the issue on which rectification was sought by the assessee in intimation issued by the Assessing Officer under section 143(1)(a) was beyond the scope of adjustment permissible under section 143(1)(a) and the application of the assessee filed under section 154 for such rectification was rightly rejected by the AO. Moreover, the said issue being highly debatable one at the relevant time was beyond the scope of rectification permissible under section 154. As a matter of fact, there was a mistake in the return of income filed by the assessee in computing the tax payable on the income returned and adjustment for the same, therefore, was made by the Assessing Officer as per clause (b) of section 143(1).
As rightly contended by the ld. D.R., all these aspects were duly taken into consideration by the Tribunal while dismissing the appeal of the assessee vide its order dated September 27, 2017 and there is no mistake much less a mistake apparent from record in the said order of the Tribunal. What the assessee is seeking by way of present Miscellaneous Application is nothing but a review of the decision taken by the Tribunal - Miscellaneous Application filed by the assessee is dismissed.
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2018 (1) TMI 1693
Dishonor of Cheque - blank cheque signed and obtained by petitioner as a security - rebuttal of presumption - it was contended that the said cheque was not passed for repayment of any existing liability - section 138 of NI Act - HELD THAT:- The respondent No. 1 has neither issued any reply to the notice nor has entered into the witness box in his defence. The application for referring the subject cheque to the Handwriting Expert was filed on 13/04/2015 and shortly thereafter, the respondent No. 1 closed his side on 15/04/2015. The application does not mention as to under which provision, the same is filed. During the course of arguments at bar, the learned Counsel for the respondent No. 1 submitted that it is filed under Section 243(2) of Cr.P.C. Section 243 of Cr.P.C. speaks about the evidence for defence. Subsection (2) of Section 243 of Cr.P.C. provides that if the accused, "after he had entered upon his defence" applies to the Magistrate to issue any process for compelling the attendance of the witness for the purpose of examination or cross-examination or the production of any document or the other thing, the Magistrate shall issue such process unless he considers that such an application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such a ground shall be recorded by the Magistrate in writing. It can, thus, be seen that under subsection (2) of Section 243 of Cr.P.C., the accused can apply for issuance of process for compelling the attendance of any witness for the purpose as envisaged in the said section. In the present case, as noticed earlier, the respondent No. 1 had not entered into the witness box.
This Court, in the case of Prakash Vora [2011 (1) TMI 1577 - BOMBAY HIGH COURT], after taking a survey of the various decisions holding the field and in an identical factual situation, has upheld the order rejecting the application for referring the cheque to the Handwriting Expert. This Court has found that when the application is made in a case of the present nature, for sending the cheque to the Handwriting Expert, the same has to be considered in the facts and circumstances of each case. On one hand, the accused has to be given fair opportunity to rebut the presumption, which is raised under Section 118 and Section 139 of the Act, however, on the other hand, it is the duty of the Magistrate to ensure that by filing frivolous application, the accused does not protract the trial.
The impugned judgment and order passed by the learned Sessions Judge is hereby set aside - Petition allowed.
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2018 (1) TMI 1692
Works Contract - seeking time to get the RUDs and connected documents - Revenue prayed, as a last chance, an adjournment to make an attempt to get all the documents and agrees that the case can be taken for decision in the next hearing even if he could not produce the documents - HELD THAT:- Noting the prayer of the ld. AR, the case to 28.02.2018 is adjourned.
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2018 (1) TMI 1691
Grant of probate to the petitioners in respect of the last Will and Testament of late Satteppa Hanchinamani dated 20.06.2001 - Whether the petition filed under Section 276 of the Indian Succession Act seeking probate of the aforesaid Will dated 20.06.2001 is in accordance with the provisions of the Indian Succession Act? - HELD THAT:- The probate ordered by the Court below is defective in form and substance and is contrary to the specific provisions of the Act and therefore cannot be sustained - A conjoint reading of Sections 222 and 232 of the Act, makes it abundantly clear that probate could be granted only to an executor appointed under the Will either expressly or by implication. All other persons who claim under the Will as legatees or beneficiaries including an universal legatee or residuary legatee are entitled only for grant of Letters of Administration with Will annexed. A universal legatee is one to whom the whole of the estate of the testator is disposed under the Will; whereas a residuary legatee is a person to whom the surplus or residuary of the property is bequeathed under the Will. But in the absence of any express or implied appointment of a person as executor, merely on the basis of the bequests made in their favour as legatees or beneficiaries, they do not derive a right to grant of probate.
In addition to all other requirements prescribed therein the petitioner is also required to state the family or the other relatives of the deceased and their respective residences in the petition. In the instant case, except making the appellant herein as the sole respondent, the other legal heirs of the deceased are not arraigned as parties to the petition. In this context, it may be necessary to refer to Section 263 of the Act which provides for revocation or annulment of probate or letters of administration for just cause - In the instant case, undisputedly the testator had left behind five sons and three daughters. Even in the petition, the petitioners have given the genealogy, wherein the names of other legal heirs find place. But the petitioners have not made all the legal heirs of the testator parties to the proceedings nor have they taken any citation to the legal heirs of the deceased. It is also noticed that even general citation has not been issued calling upon the interested persons to see the proceeding or to appose the grant.
Once the proceedings become contentious, it is not open for the Court to proceed with the matter in a summary way and allow the parties to prove the will in common form. The Section provides that the proceedings shall take as nearly as possible form of a regular suit. The Section does not require that when the petition becomes contentious, it should be registered as a suit - In the instant case, the respondent having specifically disputed the execution of the Will and the mental capacity of the deceased, the Court below was required to convert the petition into a regular suit and therefore deal with the matter by framing issues and pronouncing the Judgment as provided under Code of Civil Procedure. The Court below has failed to follow these mandatory legal and procedural requirements which has vitiated the grant.
The defects are not mere procedural irregularities but blatant violations of substantive law - Appeal allowed.
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2018 (1) TMI 1690
Waiver of demand of reversal of Cenvat Credit - manufacture of cement - captive consumption - two units having separate Central Excise registrations known as unit I and II are owned by a common owner - HELD THAT:- Hon’ble Supreme Court in the case of MADRAS CEMENTS LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [2010 (7) TMI 179 - SC ORDER] has held that As regards the Modvat/Cenvat credit on capital, goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee.
Further, the Tribunal in the assesee’s own case MAIHAR CEMENT UNIT NO. 2 VERSUS COMMISSIONER OF CENTRAL EXCISE, BHOPAL [2012 (8) TMI 840 - CESTAT NEW DELHI] has held that As such the mines which were allotted to Maihar Cement at the time of its incorporation and subsequently allowed to be used by the second entity, i.e., Maihar Cement Unit No. 2 has to be treated as captive mines for both the units.
There are no reason to interfere with the impugned order passed by the Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1689
Benefit of area based exemption - gold and silver unit (purchased by respondent) - N/N. 50/2003 dated 10.6.2003 - Departmental view is that area based exemption was never granted to the respondent and was never availed by the respondent. On the other hand, the respondent claim that it was availed and production was continued - HELD THAT:- It appears that the existing unit who is availing the area based exemption is entitled to add the new plant for the production of new products - In the instant case, the new product is the gold and silver bar. So, it is according to law - Further, the Board’s Circular No. 960/03/2012 dated 17.2.2012, is stating that the change of ownership or change of the factory premises does not de bar the unit to avail the area based exemption, that will continue.
The change of the ownership and change of the plot does not matter. The core issue is whether the gold unit which was purchased by the respondent was availing the area based exemption or not. Only for this limited purpose, the matter is remanded to the adjudicating authority to verify the same and decide the issue, by providing the reasonable opportunity to the appellant.
The appeal is allowed by way of remand.
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2018 (1) TMI 1688
Income accrued in India - Nature of gain - gains arising to the Assessee on the transfer of Compulsorily Convertible Debentures (‘CCDs’) - capital gain or interest income - Whether taxable in India under Article 11 of DTAA between India and Mauritius? - HELD THAT:- Service is complete. Ld.counsel for the parties have not filed the statement of case within the statutory period. However, statement of case is not mandatory as per amended Supreme Court Rules,2013. Viewed thus, the matter shall be processed for listing before the Hon'ble Court as per rules.
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2018 (1) TMI 1687
Jurisdiction - proper officer to issue SCN - Whether DRI/SIIB is not competent to issue show-cause notice? - HELD THAT:- From the record, it appears that the preliminary issue which emerges in the present appeal is regarding the jurisdiction of the DRI to issue the show-cause notice under the Customs Act. The assessee-Respondent has taken a stand that in terms of the Hon’ble Apex Court decision in the case of COMMISSIONER OF CUSTOMS VERSUS SAYED ALI [2011 (2) TMI 5 - SUPREME COURT], the DRI officers were not proper officers in terms of section 2(34) of the Customs Act, 1962 - It is also seen that after the declaration of law by the Hon’ble Supreme Court (Supra), the provisions of section 28 of the Customs Act, 1962 were amended with effect from 08.04.2011 vide Finance Act, 2011.
It is also noticed that in order to overcome the situation created by the judgment of Hon’ble Supreme Court in the case of Sayed Ali, Notification No.44/2011-Cus (NT), dated July 6, 2011 was issued by the CBEC, assigning the functions of the proper officer to various officers (including Additional Director General, DRI) mentioned in the notification, for the purposes of Section 28 of the Act. Thus, w.e.f. July 6, 2011, the Additional Director General, DRI was prospectively appointed as ‘proper officer’ for the purpose of Section 28 of the Customs Act. Hence, from 06.07.2011 ADG-DRI has been empowered to issue demand notice under Section 28 - Subsequently, sub-section 11 was inserted under section 28 of the Customs (Amendment and Validation) Act, 2011 dated 16.9.2011, assigning the functions of proper officers to various DRI officers with retrospective effect.
Being conflicting decisions of various High Courts, finally the matter reached to Hon’ble Supreme Court who on 07.10.2016 granted the stay of operation of the judgment passed by the High Court of Delhi. Thus the issue is subjudice before the Hon’ble Supreme Court in UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER].
The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority to decide the issue afresh after the judgment of the Hon’ble Supreme Court in the case of Mangli Impex.
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2018 (1) TMI 1686
Eligibility for simultaneous benefit under N/N. 30/2004 and N/N. 29/2004 (now 7/2012) - manufacturer and exporter of the cotton fabrics and cotton yarn - sold in the domestic market without payment of excise duty - period of dispute is October, 2014 to September, 2016 - HELD THAT:- Notification No. 29/2004 providing the concessional rate of duty and there is no condition prescribed in Notification No. 30/2004. The goods were fully exempted provided that no credit was taken on the input. The Notification No. 30/2004 is mainly applicable to the domestic sale. On the other hand, Notification No. 29/2004 is mainly related to the export.
From the Board’s Circular No. 795/28/2004-CX., dated 28-6-2004, it is clarified that the simultaneous benefit under the Notification Nos. 29 & 30/2004 can be availed provided the manufacturer is maintaining the separate books of account for goods availing for each notification. Further, the Circular No. 845/03/2007-CX. dated 10-2-2007 has clarified that in order to facilitate simultaneous availment of the two notifications, such manufacturers may be advised not to take credit initially and can take only proportionate input credit on input used in the manufacture of finished goods cleared by him on payment of duty.
It is clear that the appellant can avail the benefit of both the notifications simultaneously provided the condition laid down in each notification is satisfied.
Matter remanded to the original authority to see whether the assessee has satisfied the condition of each notification if so then simultaneous benefit may be allowed to the appellant but by providing an opportunity to the appellant - appeal is allowed by way of remand.
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2018 (1) TMI 1685
TDS u/s 194A - Addition u/s.40(a)(ia) - assessee not deducted TDS in respect of payment to NBFCs - HELD THAT:- Contention of ld A.R. that the assessee is having certificate of C.A. issued in respect of TDS and demonstrated before us in paper book at page 1 to 4 explaining Form No.27A issued by the C.A. On this issue, ld D.R. submitted that this information was not available with the Assessing Officer. Considering the overall aspect of the fact that NBCSs have offered its income, the matter has to be verified by the Assessing officer. Accordingly, we remit this issue to the Assessing Officer to verify the claim of the assessee and pass order as per law.
Disallowance on truck running and transportation expenses - HELD THAT:- As assessee is maintaining books of account and having vouchers. Assessing Officer has not specified any particular voucher which is not verifiable and making adhoc disallowance. The Assessing Officer has not specified that the bills are not genuine. Assessing officer has not doubted the genuineness of the said vouchers but made the adhoc disallowance. Looking into the facts and circumstances of the case, we remit this issue to the file of the Assessing officer. The assessee is directed to submit all the details and the Assessing officer is directed to pass the order.
Adhoc disallowance which is 1/6th out of conveyance expenses, car expenses, office expenses and telephone expenses the findings of the CIT(A) is in order. Hence, we confirm the same
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2018 (1) TMI 1684
Addition towards unpaid service tax u/s 43B - HELD THAT:- As assessee has not claimed the amount as expenditure during the year. When no expenditure has been claimed, the question of disallowance u/s 43B of the Act, does not arise as held in the case of A.W. Figgis And Co. Ltd. [2002 (4) TMI 40 - CALCUTTA HIGH COURT] Thus, this addition is deleted.
Addition on account of unexplained sundry creditors u/s 68 - HELD THAT:- For first amount in dispute is liability payable to Shri Ananta Das, which is a carry forward balance from the earlier year. As the credit did not arise during the year, no addition u/s 68 of the Act, can be made in this year. Hence the same is deleted.
The other addition is of an amount being purchases on credit from M/s Calcutta Anodizing Works. Section 68 of the Act cannot be attracted when the fact of purchase is not in dispute and when the trading results have been accepted by the Assessing Officer. In the result, this addition is also deleted - Appeal of assessee allowed.
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2018 (1) TMI 1683
Disallowance of interest on Non Performing Assets - additions on account of provision of interest on Non Performing Assets - disallowance of provisions against standard assets - HELD THAT:- We find that the Assessing Officer has disallowed the provisions which the assessee has made on standard assets and has also made addition on account of interest on Non Performing Assets which the assessee had not taken into account. We find that these issues are squarely covered in favour of the assessee by the orders of the Tribunal in the case of M/s Punjab Gramin Bank [2017 (3) TMI 1781 - ITAT AMRITSAR] and also in the case of Moga Central Cooperative Bank [2017 (10) TMI 1605 - ITAT AMRITSAR] - Decided in favour of assessee.
Provisions against the standard assets - HELD THAT:- Issue covered in favour of assessee by the order of the Hon'ble Tribunal in the case of Punjab Gramin Cooperative Bank [2017 (3) TMI 1781 - ITAT AMRITSAR].The deduction under section 36(1)(viia) of the Act is allowed only in respect of certain specific categories of assessee mentioned in the clause like banks, financial institutions, etc. who are in business of lending money. It is not allowed even to non-banking financial institutions since they are not included in this clause. It is seen that though section 36(1) (vii) states that deduction for provision is allowable in respect of provision for bad and doubtful debts, the computation of such deduction is made with reference to total income of the specified Banks based upon quantum of average advances. The deduction of the provisions is neither limited to the quantum of bad debts in the books nor is computed with reference to the quantum of standard assets. The deduction in this clause refers to allowable provisions of anticipated default on the loans and advances made in respect of total assets including standard assets and the claim of the assessee does not fall into the proviso to section 36(1) (viia) as the proviso deals with further deduction for provisions on bad and doubtful debts. The claim of the assessee is covered in the main provisions of section 36(1)(viia) of the Act. The Ld. CIT(A) has passed a very exhaustive and speaking order and we do not find any infirmity in the same. - Decided against revenue.
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2018 (1) TMI 1682
Addition u/s 68 - Addition based on rough papers - HELD THAT:- These are rough papers kept by employees for their personal reference. Therefore, there cannot be addition u/s.68 of the Income Tax Act. Assessee has explained the nature of transaction in these papers. The gross value of transactions in these papers were more than Rs.5.00 crores, Rs.17.00 crores and Rs.90 lakhs in Asstt.Years 2003-04, 2004-05 and 2005-06 respectively. The discrepancy in terms of percentage of gross value is 0.31%, 2.16% and 0.68% in Asstt.Years 2003-04, 2004-05 and 2005- 06. Thus, in two years discrepancy comes out after reconciliation was less than 1% of gross value. This was the result of time gap between the recording of entries and explanation sought. Some of the employees’ who have noted these entries must have left the job also. Thus, we find that the ld.CIT(A) has rightly appreciated controversy and rightly deleted the additions. We do not find any merit in the grounds of appeal raised by the Revenue.
Un-reconciled entries - HELD THAT:- Only element of profit involved in them is to be taxed. In Asstt.Year 2004-05, theld.CIT(A) has confirmed the addition of 42 lacs on an estimation basis. But even for estimation there should be some logic for working out the quantum. The ld.CIT(A) has taken the un-reconciled entries of Rs.38,77,759/- for estimation of profit. But this is the gross value of some transaction. Corresponding expenses were also there in those entries. Therefore, gross entries cannot be taken as income of the assessee. Therefore, we modify the direction of the ld.CIT(A). The ld.AO shall calculate the profit at the rate assessee has shown on the basis of regular books in these years and accepted by AO. In other words only element of profit is to be included in the taxable income out of the un-reconciled entries worked out by the ld.CIT(A) and not the gross receipt.
Addition under the heading “Disclosure made before the DDIT(Investigation)-2, Rajkot.” - CIT(A) has deleted addition in Asstt.Year 2005-06 which is discernible from details filed by the assessee in para-5 of this order. The assessee has impugned only retention of addition of Rs.3.00 lakhs by the ld.CIT(A) in this assessment year. She has pointed out that this Rs.3.00 lakhs is a gross income and only profit element of Rs.3.00 lakhs be added in her income. Revenue in the Asstt.Year 2005-06 has impugned deletion of Rs.51,33,219/- meaning thereby an amount of Rs.36,50,978/- retained by the ld.CIT(A) has not been challenged by the assessee in the Asstt.Year 2005-06. Thus, this amount has been added twice by the AO. It is also stand of the assessee that this amount was included in the peak balance for the Asstt.Year 2005-06. It cannot be assessed in the Asstt.Year 2003-04 also. The ld.CIT(A) has rightly deleted from the Asstt.Year 2003-04 and we do not find any merit in this ground of appeal. It is rejected.
Disallowance of proportionate interest expenditure for the respective assessment years - HELD THAT:- We do not find any error in the order of the ld.CIT(A) because interest expenditure could be disallowed if interest bearing funds were used by the assessee for the purpose of granting loan without charging interest. The assessee has demonstrated that she has more interest free funds during the year than the interest free advance, and therefore there could not be any attribution of interest expenditure on such interest free loans. These grounds of appeal are rejected in all these assessment years.
Estimated disallowance of expenses of out of vehicle expenses, telephone and travelling expenses at 20% by the AO which were restricted by the ld.CIT(A) at 10% of total expenses - HELD THAT:- We find that the AO has estimated impugned expenditures for disallowance at 20% for want of necessary supporting materials. However, the ld.CIT(A) after considering the size of business and quantum of transactions carried out by the assessee restricted disallowance to 10% of the total expenses, which we find to be reasonable and justifiable. Therefore, we are not inclined to disturb the order of the ld.CIT(A) on this issue. It is confirmed. The ground taken by both the sides in appeals/cross-objection are rejected.
Disallowance of bad debts - AO has disallowed the claim of the assessee on the ground that the assessee failed to demonstrate the efforts made by her for recovery of the outstanding amount - HELD THAT:- CIT(A) has deleted the disallowance by following judgment of the Hon’ble Supreme Court in the case of TRF Ltd. [2010 (2) TMI 211 - SUPREME COURT] According to the ld.CIT(A) after 1.4.1989 the assessee was not supposed to bring demonstrative evidence on record to show that debts have actually become bad. It is sufficient if these amounts have been written off in its accounts. After considering the finding of the ld.CIT(A) we do not find any merit in this ground of appeal. It is rejected.
Addition of low household withdrawal - HELD THAT:- It is quite difficult to determine household expenditure of any individual. It is a very subjective area. The AO must have considered his local knowledge about the assessee and their status of living in the society. The assessee has been carrying out voluminous business in ticket booking. She has earned commission of crores of rupees. Looking into their background, it appears that they must have living a good life and the AO must have considered that aspect while estimating the household expenses. Two Revenue authorities have exercised their discretion in estimating household expenditure. Therefore, without there being anything on record that such opinion was formed by the Revenue authorities for extraneous reasons, we do not wish to replace those opinions by a third-one, which is also based on estimation. We do not find any merit in these grounds of appeal.
Disallowance in respect of discount u/s.40(a)(ia) - tickets which were to be booked in the name of the assessee were to be sold to the agents at discounted price. The alleged travel agents made payment of concessional price and assumed role of customer of the assessee. The AO treated such travel agents as agents of the assessee and observed that the discounted rate on which tickets were sold to the customers is to be construed as commission paid - HELD THAT:- There is no agency between the assessee and the alleged travel agents. Agency has been assumed by the AO with the help of section 194H of the Income Tax Act, 1961. The AO was of the opinion that since the assessee has parted with her volume of commission amongst travel agents, then it should be construed that those agents were acting on behalf of the assessee while booking international air-tickets.
In the light of the above interpretation of section 194H if the facts of the present case are looked into then it would reveal that the assessee has just given a trade discount out of commission earned by her from the airlines. She has not appointed any travel agents for acting on her behalf. Thus, there was no relationship of principal and agent. We further find that almost in an identical condition, ITAT Mumbai Bench [2010 (9) TMI 536 - ITAT, MUMBAI] has considered this issue and observed that intermediaries were booking tickets from the assessee and intermediaries were not working as agents of the assessee for doing the assessee's business rather the intermediaries were bringing the business to the assessee as recorded by AO and the assessee was passing out some handling charges. Thus, the assessee was, in fact, giving some discount to the intermediaries for getting business. It was not a transaction between the principal and agent but it was as transaction between the principal and principal.
Respectfully following judgment of the Hon’ble Gujarat High Court [2002 (6) TMI 32 - GUJARAT HIGH COURT] and order of the ITAT, Mumbai Bench we are of the view that disallowance made by the AO and confirmed by the ld.CIT(A) with help of section 40(a)(ia) of the Act on account of non-deduction of TDS deserves to be deleted. We accordingly delete the disallowance. This ground of appeal is allowed.
Disallowance of proportionate interest expenditure - HELD THAT:- We have already held that the assessee was able to demonstrate that if she has more interest free funds than the advance then on notional basis interest cannot be computed for disallowance. We do not find any error in the order of the ld.CIT(A). This ground is rejected.
Addition u/s 69C - HELD THAT:- We are of the view that entries in the books of third person could not be given weightage over and above entries in the books of the assessee. The AO ought to have collected more evidence for establishing that the alleged payment was made. He has not recorded statement of the creditors showing that they have received such payment. Therefore, the ld.CIT(A) has rightly deleted the addition, and this ground is also rejected.
TDS credit - HELD THAT:- CIT(A) has recorded a finding of fact that the assessee has duly credited commission receipts on which TDS deducted by the payer and she has claimed the credit of the TDS. Considering the finding of the ld.CIT(A), we do not find any merit in this ground. It is rejected
Penalty u/s 271(1)(c) - HELD THAT:- The income of the assessee has been determined on an estimate basis. By way of present order, we have changed that estimation. We have held that un-reconciled entries be considered only for working out element of profit involved in it. Gross receipt cannot be added. Similarly, we have observed that profit is to be estimated in these assessment years according to the rate of profit disclosed by the assessee on the basis of regular books of accounts. Thus, there cannot be any element of concealment of income. The assessee has explained papers found during the course of survey. As observed in the quantum appeals, discrepancy in explaining these papers was ultimately determined at 2.6% of the gross value of the transaction considered by the AO on the basis of entries in these papers. In other words, the gross value of the transaction was Rs.17.92 crores worked out by the AO in the Asstt.Year 2004-05 and unreconciled entries were of only Rs.38,77,759/-. It was explained by the assessee that some of the employees must have left job and it was quite difficult to keep track of all entries noted by the employees. In this situation, the ld.CIT(A) has rightly deleted penalty. We do not find any error in both the orders of the ld.CIT(A). They are upheld and both appeals of the Revenue are dismissed.
Unexplained advances and probable interest thereon - HELD THAT:- CIT(A) has rightly appreciated facts and circumstances leading to addition made by the AO. The ld.CIT(A) has observed that Smt. Mansihaben Mashru, during the assessment proceedings has admitted and owned up the amount found in the papers impounded during the survey. She accordingly offered the same for taxation on the basis of peak value. Even otherwise also, there is no material with the Revenue to prove that the money was in fact belonging to the assessee and to suggest that any unrecorded advance was made to Smt.Mansihaben Mashru by the assessee. Therefore, we do not find any error in finding of the ld.CIT(A) on this issue, this ground is accordingly dismissed.
Unexplained investment in shares - HELD THAT:- CIT(A) has considered material facts on record and observed that impugned investment was recorded in the books of accounts and that sufficient funds is available with the assessee for making the investment. Though the assessee had submitted books of accounts during the assessment proceedings, the same was not considered at the end of the AO. Therefore, there is no merit in this ground of appeal of the Revenue. It is dismissed.
Low household withdraw - HELD THAT:- On considering orders of the Revenue authorities, we do not find any justification to take a different view than the one taken by the Revenue authorities on this issue. Looking to the quantum and size of the business carried out by the assessee and life their style both the authorities estimated low household withdrawals. There is nothing on record to show that estimation based on some opinion made by both the authorities below is unjustified, and therefore, we do not wish to replace the estimation of the Revenue authorities with a third estimation. We do not find any merit in this ground.
Disallowance of fictitious liability - HELD THAT:- CIT(A) who deleted the addition on the ground that rough papers found from the premises of wife of the assessee were mere notebooks and diaries and not books of accounts of the assessee. Besides, he observed that wife of the assessee has owned up the noting in the rough diary and taxed accordingly. The ld.CIT(A) has also observed that there is no documents or material evidence with the Revenue to link flow of unrecorded transactions with the assessee. Since there is no contrary material brought before us by the Revenue to convince us to take a different view, we do not find any merit in this ground of appeal. It is dismissed.
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2018 (1) TMI 1681
Maintainability of petition - Corporate Debtor is proceeded ex parte - Corporate Debtor is already under the CIR process - HELD THAT:- It has been submitted by the Applicant that in the event the order dated 15.01.2018 is challenged/set aside by the higher Courts, then the Applicant will be remediless. Therefore, in the event the order dated 15.01.2018 is challenged/set aside, the Applicant is given liberty to revive the Petition.
Application disposed off.
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2018 (1) TMI 1680
Recovery proceedings - U.P. Awas Evam Vikas Parishad - one time settlement scheme - HELD THAT:- Issue notice.
Waive service on respondent nos.2 and 3 since Mr. Vishwajit Singh, learned counsel, is appearing on behalf of those respondents.
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2018 (1) TMI 1679
Service of notice - time limitation - legality of action of the Customs Authorities in proceeding with hearing for extension of time, for which notice was not received by the writ petitioner within time - HELD THAT:- There are no reason to interfere with the judgment under appeal. There is no material produced on the basis of which, a conclusion can be reached, that the noticee had indulged any evasive tactics which would justify post-decisional hearing. No other cogent reason has been cited for which the notice was not sent within time.
There are no reason to interfere with the judgment under appeal - appeal dismissed.
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2018 (1) TMI 1678
Addition of advance received for supply of goods as bogus trading liability - HELD THAT:- Advance was shown as liability received by the assessee from M/s. Aditya Renewable Resources. On perusal of account of the party in the books of the assessee, it was found that ₹ 27,49,796/- has been accumulated by receiving four cheques has been considered and the invoice was raised in the financial year 2009-2010 relevant to assessment year 2010-2011. To substantiate, ld A.R. submitted the paper book disclosing copy of invoice and the calculation of the stock with documents. We are of the considered view that the assessee should be provided an opportunity to explain the details alongwith statements filed before us and the Assessing Officer has to verify whether the assessee has raised sales bills in the assessment year 2010-2011 and pass the order on merits. The Assessing Officer is directed to afford proper opportunity of hearing to the assessee before adjudicating the issue afresh.
Addition as suppressed sales - HELD THAT:- Addition being suppressed sales is also restored to the file of the Assessing officer with the same direction as give above. This issue is also allowed for statistical purposes
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2018 (1) TMI 1677
Violation of the ESOP option provided by the assessee to its employees - AO disallowed the loss claimed on the ground that it was not a crystallised liability of the assessee - HELD THAT:- CIT (A) and the ITAT by concurrent findings followed the judgment of the Madras High Court in Madras High Court in CIT v. P.V.P. Ventures Ltd. [2012 (7) TMI 696 - MADRAS HIGH COURT] as well as the decision of this Court in CIT v Oswal Agro Mills Ltd. [2015 (11) TMI 301 - DELHI HIGH COURT] and held that issue of debentures or obtaining loans are to be considered as revenue expenditure and consequently the cost of ESOP should be debited to the profit & loss account of the assessee.
These decisions were later applied in CIT v. Lemon Tree Hotels Ltd. [2015 (11) TMI 404 - DELHI HIGH COURT] In the circumstances, the view of the ITAT is reasonable and justified. No question of law arises. The appeal is, therefore, dismissed.
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2018 (1) TMI 1676
Validity of reopening of assessment u/s 147 - mandation of reasons for re opening - Tribunal setting aside the assessment on the ground of non-provision of the reasons for reopening assessment - HELD THAT:- It is an undisputed position before us that the reasons for re opening were not provided to the Respondent-Assessee in spite of the same being sought by. The impugned order of the Tribunal allowed the Respondent-Assessee's appeal by following the decision of this Court in CIT v/s. Videsh Sanchanr Nigam Ltd.. [2011 (7) TMI 715 - BOMBAY HIGH COURT]
Revenue very fairly states that the issue raised by the Revenue stands concluded against the Revenue and in favour of the Respondent-Assessee by the decisions of this Court in Videsh Sanchar Nigam (supra) as well as in CIT v/s. Trend Electronics [2015 (9) TMI 1119 - BOMBAY HIGH COURT] - No substantial question of law
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