|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1478 Records
-
2016 (3) TMI 1429
Seeking expunction of certain offending/objectionable remarks in the judgment - inherent power and jurisdiction of this Court to expunge the adverse remarks made by a subordinate Court and considerations involved in expunging those remarks - HELD THAT:- A careful perusal of the extracts of the judgment would show that learned Additional Sessions Judge in its judgment not only criticized the conduct of the petitioner for not making just and fair investigation by making sweeping remarks against him, but also recommended further action against him and upon enquiry and relying upon the said observation/finding, the Sub-Divisional Officer (Police) has issued show-cause notice to the petitioner for initiating departmental/disciplinary action which has given cause of action to the petitioner to file the instant writ petition claiming expunction of above-stated adverse remarks and seeking quashment of impugned notice proposing to take action against the petitioner.
In the matter of MANISH DIXIT AND ORS. VERSUS STATE OF RAJASTHAN [2000 (10) TMI 970 - SUPREME COURT], it has been held by the Supreme Court that castigating remarks against any person should not be made and the Court is required to give opportunity of being heard in the matter in respect of the proposed remarks or strictures and the same is basic requirement, otherwise offending remarks would be in violation of the principles of natural justice.
The petitioner as a investigating officer has investigated the offence in question and charge-sheeted the accused persons and they were tried for the charge-sheeted offences and eventually they were convicted by the judgment rendered by learned Sessions Judge. Certain discrepancies have been pointed out by learned Sessions Judge in the investigation while delivering the judgment and reached to the conclusion that the petitioner tried to save the accused persons and further held that the counter case to S.T. No. 21/2014 was also investigated by the petitioner, whereas, it ought to have been investigated by other police officer and on that basis learned Additional Sessions Judge made offending and adverse remarks against the petitioner and also recorded that the inquiry be conducted against the petitioner and thereafter further action be taken against him.
In the present case, the offending remarks made by learned Additional Sessions Judge in judgment being unmerited and undeserving deserves to be expunged in the ends of justice - adverse remarks made by the learned Second Additional Sessions Judge, Sakti, against the petitioner are hereby expunged - petition allowed.
-
2016 (3) TMI 1428
Maintainability of appeal - low tax effect - HELD THAT:- This is an appeal filed by the Revenue. Admittedly the tax effect in this appeal by the Revenue is less than ₹ 10 lakhs.
In terms of CBDT Circular No.21/2015 dated 10th December,2015, F.No. 279/Misc./142/2007-ITJ(Pt.) read with S.268 A of the Income Tax Act 1961, this appeal by the Revenue should have been withdrawn or should not be pressed by the Revenue. In view of the above this appeal by the Revenue is dismissed in limini.
-
2016 (3) TMI 1427
Seeking suspension of sentence during the pendency of the revision petition - applicability of Section 353 (6) Cr.P.C. would apply as envisaged by Section 387 Cr.P.C. - HELD THAT:- There are no ground for suspending the sentence awarded to the applicant. Even otherwise, the plea that convict can resort to remedy of revision without any necessity to surrender in compliance with the judgment delivered by the appellate court, is unacceptable - Even Section 397 leaves no room for doubt that while exercising revisional jurisdiction, this court may direct that execution of any sentence or order qua the accused be suspended and the accused if in confinement would be released on bail.
This court has no hesitation in holding that petitioner, who does not abide by the order of the lower appellate court and fails to surrender, his prayer in revisional jurisdiction for suspension of execution of the sentence would merit outright rejection - Application dismissed.
-
2016 (3) TMI 1426
Validity of detention order - Smuggling - Gold - dutiable/contraband goods - profit sharing statements found from examination of laptop - HELD THAT:- There was compliance of the requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act, since the compact discs were supplied to the detenu on the date of his arrest and they were played in front of him within a period of fifteen days.
There are no substance in the contention raised by the petitioner that the laptop as such should have been produced by the sponsoring authority before the detaining authority and that the subjective satisfaction arrived at by the detaining authority without perusing the entire contents in the laptop is vitiated. The laptop in question may contain several details unconnected with the case. The sponsoring authority has no duty to produce irrelevant materials before the detaining authority. The detaining authority is not required to refer to or rely upon irrelevant materials. Sometimes certain facts or materials may have to be referred to by the detaining authority - The requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act would be satisfied if copies of the relied upon documents are furnished to the detenu. All the contents in the laptop were not produced by the sponsoring authority before the detaining authority since they were not necessary. The Court cannot sit in judgment over the discretion exercised by the sponsoring authority in respect of the same. It is stated in the grounds of detention that the laptop was seized from the possession of the petitioner.
Section 138C of the Customs Act is in Chapter XVI under the heading 'offences and prosecutions' - In the present case, the document in question, namely Ext. P5, was made available before the detaining authority by the sponsoring authority. The proceeding before the detaining authority is not a proceeding under the Customs Act. The proceeding before the detaining authority is a proceeding under the COFEPOSA Act. Therefore, neither Section 65B of the Evidence Act nor Sections 138C of the Customs Act would be applicable to the proceedings before the detaining authority for the purpose of arriving at the subjective satisfaction and in passing an order of detention.
There are no ground to hold that the order of detention against the petitioner is vitiated or the continued detention of the petitioner is illegal - petition dismissed.
-
2016 (3) TMI 1425
Revision u/s 263 by CIT - assessee firm was beneficiary of hawala transactions - lack of proper enquiry or case of lack of enquiry - case of the assessee was picked up for scrutiny - As per CIT AO had failed to verify the transactions and had accepted the books of account and the financial results at face value - HELD THAT:- AO issued a questionnaire to the assessee to furnish complete details in respect of purchases made by the assessee. In reply, the assessee not only filed date-wise details of purchases, but also filed confirmations from the parties from whom the said purchases were made. The said details include purchases made from Sampark Steels, Prayan Trading Co., Vitarag Trading Co. and Siddhivinayak Steel. The relevant details and information is filed by the assessee in the Paper Book - perusal of assessment order reflects that the AO had made elaborate enquiries in respect of transportation of purchases, where the Assessing Officer had considered all the particulars filed before him and had also noted the various aspects of transactions i.e. the transport of the goods purchased by the assessee and had also enhanced income in the hands of assessee. Merely because elaborate discussion has not been made by the Assessing Officer on this aspect does not make the order passed by the Assessing Officer as being accepting transactions at face value.
AO had made enquiries in the case and had discussed the aspect of transportation of goods in the assessment order elaborately, but had not discussed the information and details filed by the assessee with regard to purchases, does not make the order passed by the Assessing Officer to be a prima facie case of assumption of incorrect computation of income or under assessment of income. We find support from the ratio laid down by the Hon’ble Bombay High Court in CIT Vs. Gabriel India Ltd.[1993 (4) TMI 55 - BOMBAY HIGH COURT]
The order passed by the AO cannot be said to be erroneous or passed on assumption of incorrect computation of income on the ground that the Assessing Officer had failed to carry out the exercise of verification of transactions with the said four parties involving purchases.assessee himself has filed the confirmations from the said parties, which are available on record. Further, evidence of transportation of the goods also have been filed which have been taken note by the Assessing Officer and elaborately recorded the same in the assessment order. May be, it can be the case of lack of proper enquiry, but it is not the case of lack of enquiry and once enquiry has been made by the Assessing Officer and he has taken one view, the same cannot be set-aside by the Commissioner since he does not agree that the view taken by the Assessing Officer was a possible view. - Decided in favour of assessee.
-
2016 (3) TMI 1424
Non-appearance before the Tribunal on the date of hearing - HELD THAT:- At the time of hearing of this appeal none appeared on behalf of the assessee though the notice was sent through RPAD. The notice has been sent on the address given on Form No.36. The assessee has not intimated change of address, if any, to the Tribunal. There is not even an adjournment petition received from the assessee. In the circumstances, it appears that the assessee is not interested in pursuing the appeal, and no useful purpose would be served by adjourning the hearing. Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of Multiplan India,[1991 (5) TMI 120 - ITAT DELHI-D] and in view of the decision Estate of Late Tukoji Rao Holkar [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT], we dismiss the appeal in limine. Appeal of assessee dismissed.
-
2016 (3) TMI 1423
Procurement of coal for the thermal power projects of KPCL in the State of Karnataka - tri-partite agreement - price adjustments - HELD THAT:- The fuel supply agreement contemplated for price adjustments based on the variance in the properties of coal supplied compared to the guaranteed values specified in the contract. In other words, price adjustments were to be undertaken based on the variance in cross calorific value, ash content, size, moisture content etc. - there has not been any stipulation either in the joint venture agreement or the fuel supply agreement that deductions could be made based on other activities. In the joint venture agreement and in the fuel supply agreement there has been no indication that ₹ 90/- (Rupees ninety) only per MT could be attributable towards washing charges nor the contracts provided any deductions from the coal price payable on the basis that the coals have not been washed in the washery.
The fuel supply agreement does not stipulate a particular process for washing of coal. It was neither suggested that coal washing should be necessarily water-washing nor it was provided that dry-washed coal could not be accepted as washed coal - there are no stipulation in the joint venture agreement or the letter of award, which mandates that coal should, necessarily, be washed through the process of water-washing at washeries. Our understanding of the coal defined in those documents is that the coal would mean washed coal that meets certain stipulated parameters irrespective of the process that may be adopted in mining and washing such coal.
It is the settled law that when an action of the State is arbitrary or discriminatory and, thus, is violative of Article 14 of the Constitution of India, a writ petition is certainly maintainable, although ordinarily in the writ jurisdiction the High Court does not enforce the terms of a contract qua contract.
The Supreme Court of India in DWARKADAS MARFATIA & SONS VERSUS BOARD OF TRUSTEES OF THE PORT OF BOMBAY [1989 (4) TMI 315 - SUPREME COURT] held that every action of the authority must be subject to rule of law and must be informed by reason. If the State action, even in contractual matters, fails to satisfy the tests of reasonableness, it would be unconstitutional.
The agreement between the KPCL, EMTA and KEMTA is tripartite and an agreement of multiple contracts in the form of the joint venture agreement, the fuel supply agreement and the mining operation agreement - the coal supplied by the writ petitioner to KPCL met the parameters stipulated in the fuel supply agreement and such coal has been utilised in the thermal power stations of KPCL. It was not felt proper for KPCL to unilaterally effect deduction of ₹ 90/- (Rupees ninety) only, per MT towards washing charge against KEMTA. No adjudication has been undertaken by a competent judicial authority. In the absence of adjudication, it is impermissible for KPCL to unilaterally effect such withhold and deductions.
The report of CAG cannot be the sole basis for any liability being caused or for that matter the sole basis for the prosecution to be launched. However, mere drawing up of FIR by the CBI against unknown officials of KPCL, EMTA and KEMTA cannot provide legal basis or impetus for unilateral demand by KPCL for recovery of ₹ 52,37,00,000/- only. Such action is arbitrary and unsustainable in law.
The communications dated November 23, 2013 (Annexure-A) and January 29, 2014 (Annexure-B) notifying deduction of a sum of ₹ 90/-(Rupees ninety) only, per MT of coal are quashed - Petition allowed.
-
2016 (3) TMI 1422
Bribery - Validity of continuation of the proceedings against the petitioner - legal evidence to prove the charges levelled against the petitioner or not - submission of petitioner is that the registration of second FIR in respect of very same transaction is in violation of Article 14, 20 and 21 of the Constitution of India - HELD THAT:- It is impermissible and consequently there can be no fresh investigation on receipt of subsequent information in respect of the same cognizable offence or same occurrence or incident giving rise to one or more cognizable offences. If we look at the FIR in Cr. Nos. 42/2010, 43/2010, 46/2010 and 57/2010, the offences alleged are one and the same. It discloses that accused Nos. 1, 2 and 3 hatched conspiracy to acquire 325 acres of land in Bandi kodigehalli village for the establishment of Special Economic Zone by M/s. ITASCA Software Development Pvt. Limited, of which, the petitioner is the Managing Director and in furtherance of the said conspiracy, all the accused acquired the lands through consent award without payment of the compensation to the land owners by forging the signatures and by giving bribe to accused Nos. 1 and 2. That is the only conspiracy set up by the prosecution even in Cr. Nos. 42, 43 and 46/2010. The offences alleged in FIR pertaining to Cr. No. 57/2010 are the same offences and conspiracy or part of the same conspiracy.
Offences covered by FIR in Crime No. 57/2010 is part of the same conspiracy, which culminated into the same series of acts forming the same transactions in which the offences alleged in the previous FIR were committed, wherein, the petitioner was summoned by issuance of notice under Section 160 Cr.P.C. on number of occasions and the documents were seized and necessary information was secured. The transactions in Cr. No. 57/2010 is same or part of the same transaction in Cr. Nos. 42/2010, 43/2010 and 46/2010 i.e., part of the same conspiracy to grab the lands of private persons without payment of compensation by forging consent letters of the land owners. There is no second conspiracy other than the above conspiracy.
Regarding the merits, as admitted, no Government money was involved for acquisition of land. The application of M/s. ITASCA Software Development Pvt. Limited was placed before the State High Level Clearance Committee by Karnataka Udyog Mitra headed by Chief Minister in the meeting of the committee and the application was approved. M/s. ITASCA Software Development Pvt. Limited was permitted to start Special Economic Zone in an area of 325 acres of land in Bandi kodigehalli village. The amount to be paid to the land owners was deposited by United Telecom Limited. - The case of the Lokayukta is that the amount deposited with M/s. Indu Builders and Developers to make ex gratia payment has been misused by accused Nos. 1 and 2, since M/s. Indu Builders and Developers is a benami company of accused Nos. 1 and 2. Accused Nos. 1 and 2 said to have received bribe to approve the application submitted by M/s. ITASCA Software Development Pvt. Limited. Nobody questioned the integrity of the petitioner for all these days. The consent award was passed through KIADB a Government agency. Not a single complaint cropped up with regard to acquisition of land and payment of compensation. For all these reasons, the continuation of proceedings against the petitioner is nothing but abuse of power and abuse of process of Court. As such, proceedings as against the petitioner are liable to be quashed.
Petition allowed.
-
2016 (3) TMI 1421
Rectification of mistake u/s 254 - whether the findings in case of M/s. Madhucon Sino Hydro J.V. [2014 (2) TMI 138 - ITAT HYDERABAD] are ‘directions’ or ‘observations’? - HELD THAT:- This finding of ITAT was considered by Assessing Officer as direction of the ITAT and without following the due procedure as prescribed under the law initiated proceedings u/s. 163 and 147 of the IT Act. The ITAT in the impugned order ha s held that the same are null and void. While deciding, the ITAT elaborately discussed why the same cannot be considered as ‘direction’ in para 9 and even if it is considered as ‘direction’, why the same cannot be considered as legal.
Deficiencies in not recording a satisfaction, not taking approval from the prescribed authority and limitation of time in initiating proceedings were clearly discussed. Since the findings in the order are after due consideration and elaborate discussion, the same cannot come within the purview of ‘mistake apparent from record’. If there is any error of judgment, the same has to be challenged in a higher forum. The application clearly suggests that the decision taken require ‘review’ which is not within the purview of the provisions of Section 254(2). As rightly held in the case of Ramesh Electric Trading Co Ltd.[1992 (11) TMI 32 - BOMBAY HIGH COURT], the power of review of its own order is not with ITAT and so the application made is not maintainable.
-
2016 (3) TMI 1420
TP Adjustment - deemed interest on delayed sale proceeds - scope of definition of international transaction under Section 92B - interest for delay of 16, 7 and 7 days in respect of these delays (180 days was taken as the benchmark of reasonable period for realization of debts) by computing interest @ 18.816% - impact of amendment in section 92B, by the virtue of Finance Act 2012 - HELD THAT:- As decided in RUSABH DIAMONDS [2016 (4) TMI 400 - ITAT MUMBAI] no ALP adjustments can be made, on the facts of this case, in respect of delay in realization of sale proceeds.
The amendment in Section 92B, at least to the extent it dealt with the question of issuance of corporate guarantees, is effective from 1st April 2012. The assessment year before us being an assessment year prior to that date, the amended provisions of Section 92 B have no application in the matter. - Decided in favour of assessee
-
2016 (3) TMI 1418
Addition u/s 68, 69 and 69C - assessee failed to offer an explanation regarding the source credited in its Books of account as WIP - during the course of Survey u/s.133A of the I.T.Act on 13.03.2008, the partners of the assessee firm accepted ₹ 3,00,00,000/- as the receipt of the firm from undisclosed sources - As per AO unaccounted income offered by the assessee during the course of survey, no expenses can be claimed in any manner whatsoever, viz. by debiting corresponding expenses account and transferring it to work-in-progress account as done by the assessee - CIT-A deleted the addition - HELD THAT:- Both types of receipts, i.e. receipt through cheques and receipt through cash as “on-money” will arise as income to the assessee as soon as transfer of immovable property is executed and not before, or possession thereof is handed over and for this it is necessary that such immovable property should be in existence. Therefore, the Coordinate Bench in the case of M/s. D.R. Construction [2011 (4) TMI 1343 - ITAT AHMEDABAD] was of the considered view that “on-money” received by the assessee did not have the character of income but was only an advance like the one received through cheque. Both will become part of the sale consideration to the assessee simultaneously on either handling over the possession of the flats or on execution of transfer-deed whichever happens earlier. In the instant case, during the course of survey, the partners of the assessee-firm had stated that the amounts so disclosed was the business receipts. The Revenue has not brought on record any contrary material to controvert such statement. - Decided against revenue.
-
2016 (3) TMI 1417
Reopening of assessment u/s 147 - Addition u/s. 68 - identity and credit worthiness of the subscribers to the share application money and genuineness of transaction, were not established satisfactorily - HELD THAT:- As reasons recorded by the AO/DCIT, Circle 17(1), New Delhi for reopening and the approval thereof by the Ld. Addl. CIT, Range-17, New Delhi, we are of the view that AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law.
AO has mechanically issued notice u/s.148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. As applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of assessee.
-
2016 (3) TMI 1416
Provisional attachment of goods - refusal to decide the preliminary objections/contentions regarding lack of jurisdiction - refusal to direct the respondent No.2 to place on record the entire material collected during the course of investigation - refusal to grant cross examination of the officers of the ED, transporters and the competent officers - violation of principles of natural justice - HELD THAT:- The present petition is disposed of and the learned authority, respondent no.3 herein, shall give opportunity of being heard to the petitioners and pass appropriate orders. It goes without saying that the learned authority, respondent no.3 herein, shall follow Adjudicating Authority (Procedure) Regulations, 2013.
Petition disposed off.
-
2016 (3) TMI 1415
Removal of office objections - HELD THAT:- This matter was listed on board on 28.8.2014. At that time, it was noticed by this Court in its order dated 28.8.2014 that the Appellant had not bothered to remove the office objections and have the Appeal numbered. In the above view, this Court by order dated 28.8.2014 directed the Appellant to remove office objections within four weeks. However, we find that in spite of specific direction, the Appellant has not removed office objections till date. Appeal is dismissed.
-
2016 (3) TMI 1414
Sanction of the Scheme of Amalgamation - section 391 and 394 of Companies Act - HELD THAT:- In view of the approval accorded to the scheme by the shareholders, secured and unsecured creditors of the petitioners and, given the fact, that the RD and the OL have not articulated any objections qua the scheme, as indicated above, in my opinion, there appears to be no impediment in the grant of sanction to the scheme. Consequently, sanction is granted to the scheme in terms of Section 391 and 394 of the Act. The petitioners will, however, comply with all statutory requirements, as mandated in law.
It is directed that the petitioners will comply with all provisions of the scheme - Petition allowed.
-
2016 (3) TMI 1413
Deduction u/s.10B - ‘manufacture’ defined u/s.2(29BA) - manufacture and usage of conversion of granite block into monuments - HELD THAT:- The main requirement of product is activity should be in manufacturing items and should result in transformation of the object or article or thing into a new and distinct object with different character. The granite raw block is mounted and with the process of cutting, clipping and polishing into a monument has distinct character and usage.
As considering the apparent facts, definitions, usage and the process of manufacturing, and assessee’s own case on the nature of business of manufacturing of monuments and the process of conversion of raw material into finished product is identified and saleable and we rely on Apex Court decision of Arihant Tiles & Marbles (P) Ltd [2009 (12) TMI 1 - SUPREME COURT] were the lordship has considered conversion of marble block into polished slabs and tiles constitutes manufacture and same analogy apply for process of granite block. Therefore, we are not inclined to interfere with the order of Commissioner of Income Tax (Appeals) who has dealt the issue in detail viz-a-viz the explanations of the assessee and we uphold the order of the Commissioner of Income Tax (Appeals) and dismiss the Revenue appeal.
-
2016 (3) TMI 1412
Stay of the recovery of the impugned balance/tax amount and interest - As stated that the impugned demand has been made by the AO taking into consideration the expected profits from his business of distributorship of Sony Channels estimated for seven years whereas the assessee has actually acquired the ownership rights of the channels after 4 years - as stated that if the demand raised by the AO on estimation basis for 7 years is considered for 4 years as the assessee has obtained the ownership rights of the channels after 4 years, in that event, the resultant figure will result into refund due to the assessee - HELD THAT:- We find that there is a prima-facie case in favour of the assessee. We therefore stay the recovery of the balance taxes including interest etc. relevant to the assessment year under consideration for a period of six months or till the disposal of the appeal of the assessee on merits, whichever is earlier.
The appeal is fixed for an early hearing on 14.06.16 - assessee will not contribute in delaying the hearing of the appeal and will not take any unnecessary adjournments in default, the stay will be deemed to be vacated. Our above observations will not have any bearing on merits of the case at the time of its final disposal.
-
2016 (3) TMI 1411
Validity of reopening of assessment u/s 147 - notice beyond the period of four years - assessee had claimed deduction by way of carry forward of unabsorbed depreciation beyond the period of eight years - HELD THAT:- We do not find it necessary to interfere with the orders of the CIT (A) because it came to the notice of the AO that the assessee had claimed the benefit of carry forward of unabsorbed depreciation beyond the period of eight years which was not permissible during the intervening few assessment years. AO had a valid reason to believe that income had escaped to be taxed in the hands of the assessee. Hence, we uphold the decision of the Revenue on this issue.
Withdrawing the benefit of set off of unabsorbed depreciation beyond the period of eight years - HELD THAT:- As relying on M/S. BEST & CROMPTON ENGINEERING LTD. [2015 (3) TMI 977 - ITAT CHENNAI] hereby direct the learned Assessing Officer to allow the benefit of carry forward unabsorbed depreciation beyond the period of eight years.
-
2016 (3) TMI 1410
Estimation of expenses incurred for capital work-in-progress - CIT-A restricting addition made by the AO towards the estimate of 5% instead of 10% of expenses - HELD THAT:- Since there is no change into the facts in the present case and the Revenue has not brought any contrary-material on record, we have no other different view than taken in assessee’s own case for AY 2008-09 [2015 (12) TMI 1550 - ITAT AHMEDABAD] - we direct the AO to adopt the disallowance towards employee cost @ 1% and the administrative and other expenses @ 1% as adopted in AY 2008-09 and compute the disallowance in the light of the above decision of the Coordinate Bench.
Disallowance u/s 14A - suo motu disallowance made by the assessee - HELD THAT:- As decided in own case [2015 (12) TMI 1550 - ITAT AHMEDABAD] restricted the disallowance as were made by the assessee. In the present case, facts are identical, as the AO has not recorded as to how the expenditure as claimed by the assessee is not satisfactory, which is a condition precedent before applying the Rule 8D of the Income Tax Rules, 1962. Under these facts, we hereby delete the disallowance as were made by the AO. Thus, this ground of assessee’s appeal is allowed.
-
2016 (3) TMI 1409
Addition on account of unconfirmed unsecured loans - Addition u/s 68 - HELD THAT:- As assessee during the course of proceedings had filed necessary information in respect of companies and had filed confirmations also and therefore, the additions sustained by learned CIT(A) is not as per provisions of law because of the fact that amount of ₹ 35,00,000/- was not found credited during the year as it is was only the opening balance carried forwarded from earlier years. In view of the judidical precedents relied upon by learned AR and in view of the facts and circumstances of the case, we allow Ground No.2. As regards argument of learned DR that section 68 was not applicable and rather it was taxable u/s 41(1) of the Act we do no agree with the arguments of learned DR as even addition u/s 41(1) cannot be made as assessee had not written back the amount during the year and had declared the same as debt of the company in its balance sheet.
Addition being an amount reimbursed to M/s Goetze (India) Ltd., M/s Gossini Fashions Ltd. and M/s Akme Projects Ltd.- HELD THAT:- We find that this argument was taken before us and learned CIT(A) also had obtained remand report from AO and during remand proceedings the AO had made adverse comments in this respect and in response to remand report the assessee vide letter dated 21.02.2014 had again submitted that nature of expenses and details of cheques and bank account details of payee of each and every item of expenditure was submitted and as regards vouchers and nature of expenses the assessee had submitted that they were carried to Jammu but AO unfortunately was on tour, therefore, this could not be produced before him, therefore, in the interest of justice we restore this ground to the Office of Assessing Officer who on the basis of vouchers and nature of expenses should decide the issue afresh. The Assessing Officer should also examine the claim of the learned AR that a part of expenses was not debited to P&L Account and was taken to balance sheet. In view of the Ground No.3 is allowed for statistical purposes.
Disallowance of 75% of Foreign Traveling Expenses of Directors - HELD THAT:- We find that there is no doubt about the proposition that foreign traveling expenses are allowable as a deduction if the expenses are incurred for the purposes of business. We also agree that expenditure on Foreign Travel may not result into increase in new agreements for business but the fact remains that the assessee has to first prove that expenses were incurred for the purposes of business. In respect of claim of such expenses the assessee could have filed some correspondence with the persons of visited country with whom they had explored further business opportunities or it could have filed the details of meetings and discussions with the persons with whom such business opportunity was discussed. No such details has been filed before the authorities below during original/or remand proceedings nor an argument has been made before us that the assessee can file these details before the authorities below. The assessee did not file any evidence to substantiate its claim other than break up of traveling expenses. Moreover, the learned CIT(A) has made a finding of fact that there is no business of the company in the visited countries and expenditure also included expenses on personal attendants of Directors. Therefore, we do not find force in the argument of learned AR that the expenses were incurred for the purposes of business. In view of the above, Ground No.4 is dismissed.
Disallowance of legal and profession - HELD THAT:- As CIT(A) obtained remand report from Assessing Officer. In this respect, the Assessing Officer could find evidence in respect of only ₹ 7,60,724/- during remand proceedings and for the remaining amount of ₹ 10,61,949/- no documents/evidence was provided during original as well as remand proceedings - AR in his submissions has submitted that when vouchers were carried to Jammu for verification by AO, he was found to be on tour therefore, in the interest of justice this ground is restored to the office of Assessing Officer who will consider the allowability of same after verification of vouchers. In view of the above, Ground No.5 is allowed for statistical purpose.
100% disallowance of Telephone expenses and telegram expenses - HELD THAT:- We find that there is no dispute that no bill was in the name of assessee’s company or its employees, however, it is also a fact that no office can be run without incurrence of these expenses. The learned CIT(A) has upheld the addition in the absence of valid evidence in respect of these expense - AR during appellant proceedings before us had submitted that bills were in the name of M/s Goetze India and a part of expenses were charged to assessee company. Therefore, we restore this ground of appeal to Assessing Officer who should decide the issue afresh after taking into account the basis of charging of these bills to the assessee. He can arrive at the decision after taking into account the practice of assessee in allocation of these expenses in earlier years. In view of the above, Ground No.6 is allowed for statistical purposes.
Deemed dividend u/s 2(22)(e) - ICD v/s loan - HELD THAT:- As the amount of ₹ 18.75 crores received by it was a not an ICD but was a loan. We find that ICD means inter-corporate deposits which term is used for making or accepting deposits between two companies. ICD as the name also suggest that it is a part of broader term deposits and therefore, it cannot be distinguished from the deposits as argued by learned AR. The case laws relied by AR relates to distinction between loans and deposits and none of the case laws relates to distinction between deposits and ICD, therefore, case laws as relied up by learned AR are not applicable to the facts and circumstances of the case. Therefore, we hold that ICD is a part of deposits and is not different from broader definition of deposits and therefore, we do not find any force in the argument of learned AR that ICD are different than loans or deposits and in fact it is part of deposits.
Deemed dividend addition - HELD THAT:- Provisions of section 2(22)(e) are not applicable to the assessee as it was not a shareholder in the lending company. In view of the above, Ground No. 1 of Revenue’s Appeal is dismissed.
Notional interest on interest free advances - HELD THAT:- We find that that AO in his remand report has reported that most of the amount represented charges receivable from parties and amount receivable were in the nature of debtors and did not represent cash advances. The Assessing Officer also mentioned that out of advances ₹ 60,00,000/- was for purchase of vehicles and ₹ 26,40,560/- was on account of amount embezzled by an employee, therefore, learned CIT(A) has rightly deleted the addition and we do not find any infirmity in the same, therefore, Ground No.4 is also dismissed.
........
|
9911796707
