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Showing 61 to 80 of 2184 Records
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2018 (5) TMI 2130
Non appearance on behalf of assessee on the date of hearing - HELD THAT:- We find that the reasons stated in the Misc. Application regarding non appearance on behalf of assessee on the date of hearing i.e 23-08-2017 are reasonable and beyond the control of assessee. Therefore, taking into consideration the submissions of the ld.AR, facts of the case and in the interest of justice, we deem it fit and proper to recall the ex parte order dt. 23 08- 2017 by allowing these Misc. Applications filed by the assessee. The Registry is directed to fix the case afresh on 04-06-2018. Since the order is pronounced in the presence of both the parties in the court, therefore, no notices will be issued.
Misc. applications filed by the Assessee are allowed.
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2018 (5) TMI 2129
Addition u/s 68 - Unexplained loan - unexplained cash credit - assessee failed to prove the identity and creditworthiness of the lender - CIT- A deleted the addition - HELD THAT:- In this case assessing officer has despite noting that there were overwhelming evidence that the amount of loan claimed by the assessee was received from bogus entity floated by Bhanwarlal Jain group did not bother to issue any notice whatsoever to the lender in this case. Thereafter, after committing this fatal error, the assessing officer proceeded to refer to the case of Bhanwarlal Jain group and reject the assessee's contention.
Upon assessee's appeal, CIT (Appeals) has referred to all the evidences regarding the loan submitted by the assessee which included confirmation from the lender. Thereafter the ld. Commissioner of Income Tax (Appeals) has also referred to Hon’ble Bombay High Court decision in this regard.
When all the relevant details and evidences were filed by the assessee and the assessing officer has made no effort whatsoever to examine the lender, there is no infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Accordingly, we confirm the same. Appeal by the Revenue stands dismissed.
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2018 (5) TMI 2128
Scope of Judicial Review - Withdrawal of a Request of Proposal issued by the Union Ministry of Defence (MoD), for procurement of forty-five (45) Bird Detection and Monitoring Radar Systems - Accrual of enforceable rights - HELD THAT:- A long line of decisions of this Court settles the scope of judicial review in matters relating to award of contracts by the State and its instrumentalities. The Supreme Court, in TATA CELLULAR VERSUS UNION OF INDIA [1994 (7) TMI 307 - SUPREME COURT] reviewed the law on award of public contracts and held that The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free arbitrariness not affected by bias or actuated by mala fides.
Again, in Master Marine Services Pvt. Ltd. v. Metcalfe and Hodgkinson Pvt. Ltd., [2005 (4) TMI 579 - SUPREME COURT], it was stated that the role of the Court is not to review or oversee the award of contract, on the merits of the decision, but rather consider whether the decision making was regular, legal, procedurally fair and untainted by mala fides.
On reading of the above judgments, it is clear that the courts can review a tender process or tender stipulation, on grounds of proven procedural irregularity. In judicial review, a court under Article 226 of the Constitution reviews the decision-making process, its legality and procedural regularity and not the merits of the decision of the executive agency. The principal decision maker is the administrative or public agency - the uniform judicial view has been that public law review of tender matters ought to be exercised, judiciously. Such judicial review must be restrained to ensure that the choice or decision is made "lawfully" and not to exercise oversight over whether choice or decision is "sound". The state cannot be compelled to enter into a contract with any entity and ultimately even in tender related cases, commercial considerations ought to be paramount.
In the present case, the Petitioner’ petition premised on its contention that it is the lowest bidder and therefore the Union MoD, should be directed to enter into a contract with it. This court is of the view however, that it is a settled principle of law that no vested right accrues on the lowest bidder and the government has the right to withdraw the bid with valid reasons - the MoD’ contentions that the Petitioner’ bid, if allowed to stand would have resulted in unfairness to other Indian bidders, because all of them tendered in Indian currency, whereas the Petitioner tendered in a manner that allowed it to hedge in foreign currency. This, according to MoD resulted in an unequal playing field, which compelled it to cancel and withdraw the bid.
The decision to award a public contract is not based merely on factors such asfulfilment of technical qualifications and financial viability of the offer of a given bidder but much more. The vital public interest is a necessary condition, which invariably informs every decision of the executive authority or agency that is to award the contract - this Court is satisfied that the withdrawal of the RFP dated 30.04.2012 is not arbitrary and fresh RFP issued dated 31.08.2016 does not call for any interference - petition dismissed.
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2018 (5) TMI 2127
Time Limitation - Provisional assessment - goods have been released but the bank guarantee to the extent of 100% of the value of the goods is retained - HELD THAT:- The goods have been released but the bank guarantee to the extent of 100% of the value of the goods is retained - the interest of justice would be served, if this writ petition is disposed off with a direction to the respondents to finalize the assessment within eight weeks from the date of receipt of a copy of this order.
The writ petition is disposed off.
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2018 (5) TMI 2126
Addition u/s 14A r.w.r. 8D - exempt income necessarily be earned in the AY in question for the applicability of the said provision - whether the disallowance of the expenditure will be made even where the investment has not resulted in any exempt income during the AY in question but where potential exists for exempt income being earned in later AYs? - HELD THAT:- Mr. Sandeep Sethi, learned Additional Solicitor General, submits that though at page (C) of the List of Dates in the petition, it is mentioned that identical issue is pending in some of the other cases particulars whereof are given therein, this case has no bearing with those petitions and has to be heard on its own merits.
List the matter in the first week of August, 2018.
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2018 (5) TMI 2125
Penalty u/s 271(1)(c) - assessee was providing accommodation entries - HELD THAT:- As assessee was providing accommodation entries, therefore, the addition was sustained.The conditions under Section 271(1)(c) must exist before the penalty is imposed. There can be no dispute that everything would depend upon the return filed by the assessee because that is the only document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise.
We are not concerned in the present case with the mens rea. However, we have to only see as to whether in this case, as a matter of fact, the assessee has given inaccurate particulars.
We have already seen the meaning of the word "particulars" in the earlier part of this order. Reading the words in conjunction, they must mean the details supplied in the Return, which are not accurate, not exact or correct, not according to truth or erroneous. We must hasten to add here that in these cases, there is finding that the details filed by the assessee are incorrect and the assessee knowingly furnished inaccurate particulars of income and was very much aware that he was involved in Hawala entries. In these appeals, the penalty was levied/confirmed on the basis of involvement of the assessee as discussed in the earlier paras of this order. Thus, there is clear cut case of concealment of income/furnishing of inaccurate particular of such income, that being the case, we find no infirmity in imposing/confirming the penalty.
Considering the provision of the Act and the foregoing discussion, order of the Tribunal on quantum addition, material facts available on record, it can be concluded that it was a conscious act of the assessee to hide something from the Department.
As in the case of the present assessee, the quantum addition has been confirmed. However, in principle, the penalty levied by the Assessing Officer in respect of additions confirmed by the Tribunal should be sustained. However, by a later development, the co-ordinate Bench of the Tribunal in the case of Varun Industries Ltd. [2017 (4) TMI 1593 - ITAT MUMBAI] simply setaside the matter to the file of the Ld. Commissioner of Income Tax (Appeal), to decide the issue afresh after taking into account additions made in the hands of the brokers. The Ld. Assessing Officer is directed to ascertain the facts as to in whose hands the substantive/protective addition has to be made and then decide the issue of levy of penalty u/s 271(1)(c) of the Act on such additions. In the light of the aforesaid decision of the Tribunal, in the case of Varun Industries Ltd., we are forced to send these penalty appeals to the file of the ld. Assessing Officer to decide in accordance with law as the same will be dependent upon the outcome of the additions to be made in the hands of Varun industries Ltd. or the present assessee or any other related persons. Resultantly, these penalty appeals are also set-aside to the file of the ld. Assessing Officer. Appeal of assessee are allowed for statistical purposes only.
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2018 (5) TMI 2124
Territorial jurisdiction - Maintainability of petition - availability of alternative remedy of appeal - HELD THAT:- The territorial jurisdiction over this matter is with the NCLT-Adjudicating Authority Chandigarh. Let this petition be filed before the jurisdictional Bench.
The petitioner is relegated to the remedy available. The petition stands disposed of with liberty to file before jurisdictional bench, i.e. NCLT-Adjudicatory Authority Chandigarh.
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2018 (5) TMI 2123
Assessment u/s 153A - proof of any incriminating material found in search or not? - HELD THAT:- As assessee’s name nowhere appears, and seized materials are in case of Sh.Mahesh Mehta, M/s. Mahesh Wood Products Pvt. Ltd - as the statement recorded under section 133 (4) of Sh.Mahesh Mehta do not refer to any seized material relating to share application money received by assessee for the year under consideration. See KABUL CHAWLA [2015 (9) TMI 80 - DELHI HIGH COURT]. - Decided in favour of assessee.
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2018 (5) TMI 2122
TP Adjustment - comparable selection - HELD THAT:- As noticed that the ITAT Delhi Bench ‘I’, New Delhi in the case of M/s Mercer Consulting (India) (P.) Ltd. [2014 (7) TMI 715 - ITAT DELHI] directed to exclude the Coral Hub Ltd. Also we direct the AP/TPO to exclude M/s Coral Hub Ltd., Cosmic Global and eClerx Services from the list of the comparable while determining the OP/OC for the purposes of arm’s length price.
Computation of operating profit margins of the comparables - HELD THAT:- We deem it appropriate to remand this issue back to the file of the AO/TPO to be adjudicated after considering the submissions and the relevant material furnished by the assessee.
Disallowance u/s 14A of the Act r.w. Rule 8D - As submitted no investment was made by the assessee for the year under consideration and this vital fact was not considered by the TPO/AO while making the disallowance u/s 14A - HELD THAT:- We are of the view that this issue also requires verification/adjudication at the level of the TPO/AO. Accordingly, this issue is also restored back to the file of the AO/TPO to be adjudicated in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
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2018 (5) TMI 2121
Rejection of application of the Petitioners for registration and allocation of quota for the Hajj 2016 - rejection on the ground that they have not complied with certain clauses of the policy for the Private Tour Operators (PTOs) - HELD THAT:- The passage of time has made certain reliefs infructuous. The time period for conducting Hajj tours for 2016 as well as 2017 is over. Thus, even the alternative relief prayed for 2017 has become infructuous - The Petitioners cannot be left remediless. The mindless action of the Respondents in rejecting the eligibility of the Petitioners for the year 2016 on the very grounds on which they were exempted necessitates that the Petitioners should be entitled to damages in public law so that they are compensated, at least, to some extent for not having been able to carry on with their business on account of illegal action of the Respondents.
The principles of damages in public law have to, however, satisfy certain tests. In NILABATI BEHERA @ LALITA BEHERA VERSUS STATE OF ORISSA [1993 (3) TMI 355 - SUPREME COURT], it was observed that public law proceedings serve a different purpose than private law proceedings.
In the facts of the present case, the arbitrariness and illegality of the action of the authority is writ large. The Petitioners have been deprived of their right to secure the quota on a patently wrongful order passed for reasons, which did not apply to them and for conditions, which had been specifically exempted. What could be a greater arbitrariness and illegality? Where there is such patent arbitrariness and illegality, there is consequent violation of the principles enshrined Under Article 14 of the Constitution of India. The facts of the present case are, thus, undoubtedly giving rise to the satisfaction of parameters as a fit case for grant of compensation.
The amount for each of the Petitioners be remitted by the Respondents within two months from the date of this order failing which the amount would carry interest @ 15 per cent per annum apart from any other remedy available to the Petitioners - Petition allowed.
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2018 (5) TMI 2120
Rectification of mistake u/s 254 - HELD THAT:- Supreme Court in the case of CIT vs. Karam Chand Thapar & Bros. Pvt. Ltd. [1989 (2) TMI 5 - SUPREME COURT] wherein it was held that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal.
Since in the present case, we have already dealt with all the grounds raised by the assessee in the main appeal, therefore after considering the grounds raised in para no. 2(a) to (d), the same are mis-conceived and we are of the view that no glaring, obvious or patent mistake has been pointed out by the assessee which is apparent from the record, therefore we are inclined to dismiss these grounds i.e. 2(a) to (d) filed by the assessee in all misc. applications.
It is not correct to say that the representative of assessee has not pressed the issues in relation to the Sec. 153A before Ld. CIT(A) - We find that since we have already given a categorical finding in para no. 32 of the order dated 09.11.17, wherein it has been categorically mentioned that assessee had not taken any such ground nor had raised the issue earlier and even Ld. Counsel of the assessee did not press the matter further.
Nevertheless, if this part of misc. application is allowed and the appeal of the assessee is restored qua this portion to be decided afresh, then in our view, no prejudice would be caused to the interest of the revenue, whereas if the contrary view is taken, then the rights of the assessee would be prejudiced.
Be that as it may, considering the facts of the present case, we are of the view that ends of justice would be met in case, we restore ground No. 3(a) to (c) raised by the assessee to be heard on merits qua this portion, by regular bench. Therefore, we recall our finding in para no. 32 of the order dated 09.11.17 and restore this portion of the appeals to be decided afresh. Hence the present M.A’s qua recalling this portion of the order dated 09.11.17 stands partly allowed. Therefore, registry is directed to fix the present appeals before regular bench and issue notices to both the parties for deciding these grounds on merits.
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2018 (5) TMI 2119
Exemption u/s 54 - AO found that the assessee had not deposited the sale proceeds of the properties sold in the Capital Gains Accounts Scheme (CGAS) - assessee submitted that the main intention of law is to grant exemption of the capital gains arising out of sale of a house property to the extent of amount invested in the new residential property - HELD THAT:- As relying on Rajesh Kumar Jalan [2006 (8) TMI 126 - GAUHATI HIGH COURT] and Kishore H. Galaiya [2012 (9) TMI 40 - ITAT, MUMBAI] Under sub-section (4) of section 139 of the Income-tax Act any person who has not furnished a return within the time allowed to him under sub-section (1) of section 142 may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment year whichever is earlier - since the assessee had invested the whole amount which was within the extended period of filing the return of income u/s 139(4) therefore, the assessee was entitled to claim exemption u/s 54(F). The assessee had thus utilized the amount which was more than capital gain earned towards construction of new residential house within extended period u/s 139 (4) and therefore the there was no default in not depositing the amount under the capital gain account scheme. Therefore, the claim made by assessee cannot be denied - Decided in favour of assessee.
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2018 (5) TMI 2118
Addition u/s 14A r.w.r. 8D - CIT(A) upheld the disallowance made by the AO rejecting the contention of assessee that in view of non-recording of satisfaction by the Assessing Officer, there was no merit in the disallowance made - HELD THAT:- The requirement of section 14A(1) of the Act is that in case where the assessee has earned exempt income which is not taxable in the hands of assessee, then the Assessing Officer has to record satisfaction as per sub-section (2) of section 14A of the Act to come to a finding as to the applicability of provisions of section 14A(1) of the Act. In the absence of recording requisite satisfaction by the AO, no disallowance can be made under section 14A of the Act.
We find that similar issue has been considered by the Tribunal in the case of KPIT Technologies Ltd [2018 (4) TMI 863 - ITAT PUNE], wherein reliance was placed on the ratio laid down by the Hon'ble Supreme Court in Godrej & Boyce Manufacturing Company Ltd. (supra) and also in Maxopp Investment Ltd. [2017 (5) TMI 403 - SUPREME COURT]
In the facts of the present case, where the AO has failed to record satisfaction before invoking the provisions of section 14A(1) of the Act, we find no merit in the disallowance worked out by the Assessing Officer and we reverse the same. The disallowance made by the Assessing Officer in this regard, is thus deleted. Assessee appeal allowed.
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2018 (5) TMI 2117
Provisional release of goods - whether DRI can impose new conditions for provisional release of goods, without following the directions given? - HELD THAT:- The learned Adjudicating Authority is not bound to follow the conditions issued by the DRI in Para – 5 of the letter dated 23/11/2017 by passing order for provisional release of goods. The aforesaid order is appealable.
Instead of entertaining this writ petition, the petitioner is permitted to file a statutory appeal before the learned Appellate Authority, in accordance with law - petition disposed off.
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2018 (5) TMI 2116
Delayed payment of employee’s contribution to provident fund beyond the due date stipulated under that Act - payment was deposited in the financial year itself and before the filing of return of income u/s 139(1) - HELD THAT:- There is no dispute between the parties regarding the dates of deposit of ESI and PF which clearly are beyond the prescribed date of deposit as applicable under the respective acts. However, there is no dispute between the parties that these deposits were made before the filing of return of income for the relevant assessment year. Hon'ble Allahabad High Court in the case of Sagun Foundry (P.) Ltd [2016 (12) TMI 1479 - ALLAHABAD HIGH COURT] has dealt with similar issue and after taking into account the judgment of Hon'ble Supreme Court in the case of CIT vs. Alom Extrusion Ltd. [2009 (11) TMI 27 - SUPREME COURT]and after taking into account views of different High Courts, has decided the similar issue in favour of the assessee .
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2018 (5) TMI 2115
Validity of assessment u/s 153A/153C - proof of incriminating material - assessment in case of third party - HELD THAT:- Third party assessments are to be completed in certain other proceedings has been the subject matter in several other Division Bench judgments including the judgments in the cases of ‘Commissioner of Income Tax vs. Super Malls Pvt. Ltd.’ [2016 (11) TMI 1370 - DELHI HIGH COURT], ‘Commissioner of Income Tax vs. Nau Nidh Overseas Pvt. Ltd.’,[2017 (3) TMI 108 - DELHI HIGH COURT] ‘Commissioner of Income Tax-7 vs. RRJ Securities Ltd.’, [2015 (11) TMI 19 - DELHI HIGH COURT]. and ‘ARN Infrastructures India Ltd. vs. Assistant Commissioner of Income Tax’ [2017 (4) TMI 1194 - DELHI HIGH COURT]
The Court is of the opinion that the challenge to the provisions of Section 153 of the Act has been rendered academic to an extent since these judgments have tempered in the condition of the use of statutory powers as it were. Consequently, the Revenue is directed to proceed afresh and re-determine the assessment u/s 153A/153C of the Act in accordance with law having regard to the above judgments, within six months from today. At the same time, it is clarified that the assessee is precluded from urging the bar of limitation having regard to the fact that the order had ensured and bound the parties till now. All rights and contentions of the parties are reserved.
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2018 (5) TMI 2114
Assessment u/s 153A - Deemed divided addition u/s 2(22)(e) - HELD THAT:- This Court is of the opinion that there is no infirmity with the decision of the ITAT. In Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] the Court had clearly indicated that the AO cannot arbitrarily complete the block assessment under Section 153A “without any relevance or nexus with the seized material”. The Court also held that an assessment in such circumstances has to be made under the provision only on the basis of seized material - it was held that in the absence of any incriminating material, the completed assessment can be reiterated and abetted assessment or re-assessment can be made. In the present case, the Revenue does not urge that it discovered any new material justifying the addition under Section 2(22)(e). Rather, there was no material to connect the additions made under that head. Clearly, there was no incriminating material or facts or circumstances justifying the addition - Decided in favour of assessee.
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2018 (5) TMI 2113
Exemption from GST - outward supplies made to ocean going merchant vessels on foreign run, Indian Naval Ships and Indian Coast Guard Ships - HELD THAT:- The applicant has raised a new issue for clarification, which was not placed before the Advance Ruling Authority, i.e. to decide whether the transactions are export (zero rated) or not. Hence, the Advance Ruling Authority are directed to issue necessary ruling after hearing the applicant afresh, and taking a wholistic view of the applicant's plea. The Advance Ruling Authority must decide the case within 90 days of receipt of this order.
The matter is remanded back to Advance Ruling Authority.
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2018 (5) TMI 2112
Validity of the invocation of Section 153A - Whether no incriminating material was found during the search conducted in Assessee's premises? - HELD THAT:- Tag to SLP(C) MGF AUTOMOBILES LTD [2016 (7) TMI 1448 - SC ORDER].
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2018 (5) TMI 2111
Revision u/s 263 - Period of limitation - HELD THAT:- The order passed by the CIT u/s.263 is dated 30.03.2014 and it was sent to the assessee by Speed Post on 05.04.2014, copy of receipt of the Speed Post is placed on record. AR could not file evidence that the order was passed after the said date and we rely on decision of the coordinate bench of the Tribunal in the case of Sophia Study Circle [2013 (6) TMI 355 - ITAT CUTTACK] - Decided against assessee.
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