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Showing 61 to 80 of 1733 Records

• 2019 (6) TMI 1676
  

  Seeking restoration of name of the company in the Register of Companies maintained by the Registrar of Companies, Pune - failure to file Financial Statements and Annual Returns for the period of 5 years i.e. 2011-12 to 2015-16 - Section 248 (5) of the Companies Act, 2013 - HELD THAT:- Upon analysis of the Balance Sheet, Profit and Loss Account of the Company, it is observed that the company did not generate any Income/Revenue since incorporation. Further it is also noted that Revenue From Operations Nil, other income Nil, Employee Benefit Expenses Nil, Cash and Cash Equivalents is a negligible amount of Rs.14,888/-for the year ending 31.03.2017, further revenue from Operations Nil, for the financial years 2016-17 as per the documents submitted by the petitioner company. All these Nil figures indicates that the company currently exists only on paper, not carrying on any business or operation which substantiates the criteria as laid down in section 248 of the Companies Act 2013, therefore, the action taken by ROC is justified and the Bench did not feel any ground to interfere with action of striking off the name of the company by ROC.

  The Bench is also of the considered view that these type of companies only put burden on the system, Government/ROC, by way of record keeping, ensuring compliance by these companies and at times these companies may be used for various purposes other than the purpose/object for which the company was originally incorporated. It also puts burden on the company to comply with various regulatory/statutory compliances.

  The Bench has not found any justifiable/ reasonable grounds to interfere with the action taken by the Government of India/ROC in striking off names of Lakhs of companies including the Petitioner Company - Appeal seeking restoration of the company’s name in the Register of company maintained by the ROC, Pune is dismissed.

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• 2019 (6) TMI 1675
  

  Addition u/s 56(2)(viib) - unquoted equity shares were sold by the assessee at price more than Fare Market Value - shares were sold by the assessee at Rs. 100 per share as against its Fare Market Value of Rs. 98/-. - provision of round off the valuation of shares at the next rupee - assessee has submitted that the fair market value of the unquoted equity shares sold by the assessee was Rs. 98.61 per share and the same was rounded off by the assessee to Rs. 100/-. He has contended that even if the valuation so rounded off at Rs. 100/- may not be acceptable, the value as rounded off of to next rupee that is Rs. 99 should be adopted - HELD THAT:- Even the learned counsel for the assessee has not been able to point out any provision in the Act or in the Rules which permits such rounding off of the valuation to the next rupee. This makes it clear that the valuation taken by the AO at Rs. 98/- instead of Rs. 98.61 while computing the amount to be added u/s 56(2)(viib) is also not correct - therefore, direct the AO to recompute the addition u/s 56(2)(viib) by taking the of valuation at Rs. 98.61 after necessary verification.Appeal of the assessee is partly allowed.

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• 2019 (6) TMI 1674
  

  Disallowance u/s 14A r.w.r. 8D - as argued no exempt income earned by assessee - CIT-A deleted the addition - HELD THAT:- It is an undisputed fact that during this Assessment Year assessee did not receive any exempt income. When no exempt income is received by the assessee, whether there can be any disallowance u/s. 14A has been considered by the Coordinate Benches of this Tribunal and it has been consistently holding that if there is no exempt income there should not be any disallowance u/s. 14A of the Act - See M/s. Ballarpur Industries Limited [2016 (10) TMI 1039 - BOMBAY HIGH COURT] as held that the provisions of Section 14A of the Income Tax Act, 1961 would not apply to the facts of this case as no exempt income was received or receivable during the relevant previous year. It is not the case of the Assessing Officer that any actual income was received by the assessee and the same was includible in the total income. In the facts of the case, the Authorities held that since the investments made by the assessee in the sister concerns were not the actual income received by the assessee, they could not have been included in the total income.

  It is not in dispute that the assessee has not earned any exempt income during this Assessment Year, therefore in the absence of any exempt income there shall not be any disallowance u/s. 14A - Decided in favour of assessee.

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• 2019 (6) TMI 1673
  

  TP Adjustment - Comparable selection - application of turnover filter - HELD THAT:- We find that various aspects of application of turnover filter, was considered by this Tribunal in the case of Autodesk India Pvt. Ltd [2018 (7) TMI 1862 - ITAT BANGALORE] and it was held that turnover is a relevant criteria for deciding comparability of companies and that a company with huge turnover cannot be compared with a company with small turnover. The turnover criteria was based on classification of companies with turnover upto Rs. 200 Crores falling within one category and companies with turnover of Rs. 200 crores to Rs. 500 crores falling in another category and so on.

  We hold that it would be appropriate while choosing comparable companies to exclude companies by application of turnover filter. We also observe that the TPO has himself applied lower turnover filter of excluding companies with turnover of less than Rs. 1 Crore and in such circumstances, there is no reason as to why he should not apply the higher turnover limit.

  We, therefore, direct the AO to re-compute ALP by excluding above six companies from the list of comparable companies by applying the turnover filter. No other arguments were advanced on the determination of ALP.

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• 2019 (6) TMI 1672
  

  Recovery of CENVAT credit that was erroneously - availment of CENVAT credit against documents evidencing duties paid upon procurement of ‘base oil’ and ‘other lubricating oils’ in bulk but not reversed to the extent of actual receipt at the premises of the appellant - HELD THAT:- The issue is settled based on earlier orders of the Tribunal in their own matter. Likewise the decision of Tribunal in NEERA ENTERPRISES VERSUS COLLECTOR OF CENTRAL EXCISE, CHANDIGARH. [1998 (5) TMI 119 - CEGAT, NEW DELHI], COMMISSIONER OF C. EX., RAJKOT VERSUS BOMBAY DYEING & MFG. CO. LTD. [1997 (10) TMI 141 - CEGAT, MUMBAI] and host of others on similar lines preclude the recovery of duty in consequence of difference between quantity paid for and actual ascertainment on receipt.

  Appeal allowed - decided in favor of appellant.

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• 2019 (6) TMI 1671
  

  Criminal Conspiracy - fabrication of documents by obtaining invoices from various firms in order to pass off the said iron ore to show that the same has been procured from legal sources - HELD THAT:- It is well settled law that once first information report is registered, the accused can always approach this Court by filing a petition under Section 482 of the Code of Criminal Procedure. A Two Judge Bench of this Court in the case of ‘STATE OF HARYANA AND ORS VS CH. BHAJAN LAL AND ORS’, [1990 (11) TMI 386 - SUPREME COURT] after taking note of the decisions in the cases of HAZARI LAL GUPTA VS RAMESHWAR PRASHAD & ANR [1971 (12) TMI 125 - SUPREME COURT], dealt with the contour of exercise of inherent powers of the High Court under Section 482 of the Code. The view taken by the Supreme Court has been reiterated in the case of BHAJAN LAL.

  From the material available on record, it is evident that the petitioner herein being partner of M/s. S.B.Logistics in conspiracy with accused Nos.4, 5, 10, 11 and 16 supplied 20,000 metric tones of illegal iron ore to M/s SMSPL during the year 2009-10. The principal allegation against the petitioner is that he had supplied iron ore without possessing valid permits issued by authorized Government agency. The activities of the petitioner in conspiracy and connivance with the other accused persons have caused wrongful loss of more than 90 crores to the Government exchequer and corresponding wrongful gain to the accused persons including the petitioner - The petitioner admittedly has filed an application under Section 239 of the Code for his discharge, which has been rejected by an order dated 03.10.2018. However, in the instant case, there is ample material on record against the petitioner.

  Thus, it is evident that the charges against the petitioner are not the same. Therefore, the contention that the second charge sheet has been filed for the same offence also does not deserve acceptance - no case for exercise of inherent powers under Section 482 of the Code is made out - petition dismissed.

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• 2019 (6) TMI 1670
  

  TP Adjustment - comparability analysis - determination of Arm’s Length Price (ALP) in respect of an international transaction of rendering Software Development Services (SWD services) by the Assessee to its Associated Enterprise (AE) i.e., its holding company Verisign Inc., US and Versign SARL - comparable selection - HELD THAT:- Infosys Ltd., Larsen & Toubro Infotech Ltd. and Persistent Systems Ltd. need to be deslected from comparable list when compared to assessee providing SWD services to its AE as relying on AGILIS INFORMATION TECHNOLOGIES INDIA PVT. LTD. (NOW KNOWN AS INFOGIX INTERNATIONAL PVT. LTD.) [2017 (11) TMI 908 - ITAT DELHI]

  Companies as functionally dissimilar with that of assessee as involved in providing SWD services to its AE need to be deselected from final list.

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• 2019 (6) TMI 1669
  

  TDS liability of Insurance company - Taxability of certain income - provision requiring the Insurance Company to deduct the TDS after spreading over the interest in number of years from the date of filing of the claim petition - HELD THAT:- This Court is of the considered opinion, that the Insurance Company is liable to deduct TDS on the interest paid by it as per the provisions of Section 194-A (3)(ix)(ix-a) of the Income Tax Act, and if the assessee is of the view, that the tax has been deducted in excess, then he can always claim refund of the same from the Income Tax Department.

  Accordingly, this Court is of the considered opinion that the Executing Claims Tribunal, committed material illegality by holding that the Insurance Company is not liable to deduct the TDS.

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• 2019 (6) TMI 1668
  

  Income accrued in India - determination of a PE in India - scope of business connection in India as per the provisions of section 9(1)(i) - India-Germany tax treaty - dependent PE in India - assessee pointed out that the activities of the Indian subsidiary do not involve any actuarial or underwriting services, but it is providing only administrative support services in relation to the actuarial and underwriting functions carried out by the assessee thus contended that the Assessing Officer has grossly misunderstood the use of Electronic Underwriting Software by the Indian subsidiary - scope of operations of the Indian subsidiary, which have indeed been carried out from India - HELD THAT:- Factually as well as on point of law, we do not find any merit in the stand of the Revenue that the activities of the LO of assessee generate any scope for treating it as a PE of assessee in India or a ‘business connection’ in India. We say so for the reason that the conditions under which the LO has been allowed to operate clearly bring out that the activities were preparatory or auxiliary in nature and the same cannot lead to determination of a PE in India, considering the provisions of Article 5(4)(e) of the India-Germany Tax Treaty. As per the statement made by the learned representative at the Bar, the LO has complied with the conditions imposed by IRDA and there is no adverse view determined by IRDA. Thus, on facts we do not find any force in the plea of the Revenue; and, even on the point of law, as has been brought out by the Hon'ble Delhi High Court in the case of National Petroleum Construction Co. [2016 (2) TMI 47 - DELHI HIGH COURT] LO merely acts as a channel of communication between the Head office and the parties in India and cannot undertake any commercial, trading or industrial activity, and thus, the activities of the LO cannot give rise to a ‘business connection’ within the meaning of Sec. 9(1)(i) of the Act or a PE of the assessee in India, considering that the activities are compliant with the approval granted by IRDA.

  Whether the operations of the Indian subsidiary, which have indeed been carried out from India, can be construed as enabling invoking of ‘business connection’ of the assessee as envisaged under Section 9(1)(i) of the Act or whether the Indian subsidiary constitutes a PE of assessee in India? - There is no factual support for the stand of the Assessing Officer, as there is nothing either as per the Service agreement or any material to say that the Indian subsidiary has provided actuarial and risk underwriting services, which are core and crucial activities of the reinsurance business. Even the use of ‘Electronic Underwriting Software’ by the Indian subsidiary is a misnomer. The software is a standard tool which is used by global entities of the group for entering the data in respect of the reinsurance transactions of the assessee. The software is owned by the assessee and not the Indian subsidiary, and the software is used by the Indian subsidiary to enter the data of the Indian insurance companies, but no further recommendations are made by the Indian subsidiary. It is only the assessee through its own personnel who examines the proposal and negotiates the terms and conditions of the reinsurance contracts. There is nothing to dispute the assertions of the assessee that the infrastructure, personnel and approvals to carry out reinsurance activities are from outside India. Thus, there is nothing to suggest that the core activities of the reinsurance business of the assessee are carried out in or from India by the Indian subsidiary.

  Moreover, in the context of Article 5(1) of the India-Germany Tax Treaty, what is essential is to examine whether there exists an assessee’s fixed place of business in India or not. Factually or legally speaking, the place of business of Indian subsidiary per-se can in no way be equated to mean the fixed place of business of the assessee in India - the mere rendering of support services in connection with actuarial or underwriting services cannot be a ground to say that there exists a fixed place or a PE of the assessee in India. Therefore, on parity of reasoning which prevailed with the Hon'ble Supreme Court in the case of E funds IT Solution Inc [2017 (10) TMI 1011 - SUPREME COURT] in the present case too, the arguments of the Revenue do not deserve any indulgence. Accordingly, the same are rejected.

  Dependent PE in India - We have perused the order of the Assessing Officer as well as of the DRP and find that the assertions of the assessee in this regard have been completely brushed aside. The income-tax authorities have not referred to any particular arrangement or agreement or any other piece of evidence to show that the Indian subsidiary could enter into contracts or was authorised to enter into any business in India on behalf of the assessee. Considering that it was imperative for the Revenue to bring out instances where the Indian subsidiary had concluded contract or secured orders on behalf of the assessee, we find that such burden has not been discharged by the Revenue. In fact, at the time of hearing, the learned representative for the assessee referred to an illustrative agreement placed at pages 28 to 102 of the Paper Book, which is a reinsurance arrangement with SBI Group Life, which has been entered into by assessee and the Indian insurance company, i.e. SBI Group Life directly. Therefore, factually also, we find no support for the case of the Revenue that the Indian subsidiary constitutes a dependent PE of assessee in India.

  Thus the income-tax authorities have erred in holding that there exists a ‘business connection’ in India under Section 9(1)(i) of the Act and also that there exists a PE in India within the meaning of Article 5(1) and/or 5(4) of the India-Germany Tax Treaty. In view of the aforesaid discussion, we hereby set-aside the order of Assessing Officer and uphold the stand of the assessee. As a consequence, so far as Ground of appeal nos. 1 to 4 are concerned, the same are treated as allowed.

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• 2019 (6) TMI 1667
  

  Income deemed to accrue or arise in India - PE in India - DTAA between India and UAE (DTAA) - As per CIT -A profits attributable to the assessee’s PE at 3.56% of its offshore supply segment and 14.69% of its onshore service segment, were not taxable in India - HELD THAT:- It is pertinent to note that for assessment years 2007-09 [2012 (10) TMI 257 - ITAT DELHI] and 2008-09 [2013 (10) TMI 753 - ITAT DELHI] the Tribunal held that there is no PE in India during the relevant assessment year which was confirmed by the Hon’ble High Court. In the present assessment year as well the issues are common and the facts remain identical to that of the earlier assessment year. The CIT(A) while deciding this issue, relied upon the decision of the Hon’ble High Court as well as the Tribunal and after taking cognizance of the decisions of judicial forums decided the appeal in favour of the assessee. There is no need to interfere with the findings of the CIT(A) as the matter is covered in favour of the assessee in assessee’s own case for earlier assessment years. Decided in favour of assessee.

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• 2019 (6) TMI 1666
  

  Estimation of income - bogus purchases - confirmation of disallowance to the tune of 12.5% of the alleged bogus purchases - HELD THAT:- CIT(A) has correctly held that entire purchases could not be added to the income of the assessee and that only profit element in the said purchases have to be brought to tax however we are not in agreement with the rate applied on the alleged purchases.

  In this case, we observe that the assessee has already accounted for these purchases in the books of accounts and have returned the profits on these purchases. Under these circumstances, in our view, the only savings which the assessee may have made by purchasing the goods from the grey market have to be brought to tax. In the present case, the assessee is a dealer in iron and steel items and the applicable VAT rate is 4%. Under these circumstances, we are of the view that the purchases which are stated to be bogus should be brought to tax @ 5%. Accordingly, we set aside the order of Ld. CIT(A) and direct the AO to apply a rate of 5% on these bogus purchases.

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• 2019 (6) TMI 1665
  

  Validity of SCN - non-satisfaction of the license fee - main ground of the challenge is that the license fee is forming part of the revenue to be generated by the sale, and hence, it cannot be taxed - HELD THAT:- It may have to be considered whether it is so or does it occupy a different pedestal. This is more so since, even when a license is issued to a party, subject to satisfaction of the license fee, it may not be logically correct to say that there will always be a sale. In other words, although license is issued and the shop is established, there need not be any sale at all, for various reasons like, objection as to the location, raised by the nearby inhabitants or because of the quality of liquour that is being supplied, the price at which the commodity is sold and such other aspects, by virtue of which, no revenue may be generated, despite the license issued. In such circumstance, it may not be corrrect to say that license fee is part of the revenue generated by sale. However, we do not express any opinion with regard to the said aspects.

  The writ petition is dismissed without prejudice to the rights and liberty to the petitioner to raise all the contentions, both in facts as well as in law, before the Assistant Commissioner, Central Excise and Service Tax, Bilaspur, who has issued the show-cause notice to the petitioner.

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• 2019 (6) TMI 1664
  

  Levy of service tax - license fee paid by the petitioners to Indian Railways for award of license for operation, management and supply of catering services in the Trains of Indian Railways - reverse charge mechanism - suppression of facts or not - HELD THAT:- A perusal of the notice would show that preliminary submissions were made by the petitioners' representative(s) and after consideration thereof, the notice under challenge was issued. The show cause notice appears to have been issued after the initial reply. The details of notice purports that the averments of the petitioners were too considered and thereafter, they were given opportunity of hearing in person before adjudication of the case. The said notice further shows that the case is posted for hearing and the petitioners were given opportunity of being heard before any orders have been passed.

  Reading of the entire show cause notice which runs into 32 pages primarily describes the averments of the parties. The language of show cause notice would show that after preliminary consideration, the authority issuing the same came to a conclusion that the petitioners have willfully suppressed certain facts of rendering taxable services provided to them. The show cause further speaks that such facts came to fore when the investigation of records was carried out and after examination of records, the authority was of the opinion that suppression of facts exists.

  A reading of show cause notice would show that the authority issuing notice has reasonably acted upon and narrations have been made that why the authority has come to conclusion by recording such objective satisfaction of fact and has asked for the explanation by way of show cause.

  At this stage, since the petitioners have been given opportunity of hearing, the prayer to quash the show cause at the inception would amount to strangulate the issue which is yet to be adjudicated - it would not be appropriate to exercise the discretionary jurisdiction of writ and quash the show cause notice by evaluating the language of it as primarily it does not show that it is without jurisdiction.

  The petitions at this stage are premature and liable to be dismissed.

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• 2019 (6) TMI 1663
  

  Liability to pay tax - contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) as per Mines and Minerals (Development and Regulation) Act, 1957 - HELD THAT:- The activities undertaken by the trusts are under the control of the District Administration and different Government departments entrusted to it by the State Government in respect of the DMF and the Central Government in respect of the NMET respectively.

  Section 2(98) of CGST Act, 2017 stipulates regarding liability to pay tax under reverse charge, meaning therein that the liability to pay tax shall be on the recipient of goods/services rather than the supplier of goods/services - Further, Reverse Charge Mechanism is applicable for certain notified services as mentioned in Notification No, 13/2017 - Central Tax (Rate) dated 28,06.2017. As per SI. No. 5 to the said Notification, services supplied by the Central Government, State Government, Union territory or local authority to a business entity attracts GST under reverse charge basis by the recipient of such services. Thus, entry No. (5) of the said notification states that the services supplied by the Central Government/State Government to a business entity will come under Reverse Charge Mechanism.

  There appears no merit in the appeal filed by the appellant & thus the ruling of the AAR, Chhattisgarh is upheld.

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• 2019 (6) TMI 1662
  

  Benefit of the DTVSTV Scheme - HELD THAT:- On considering contents of Praecipe, time to remove office objections on aforesaid matter, if not dismissed / rejected, is further extended till 10^th August, 2019, failing the matter to stand rejected under the provision of O.S. Rule 986.

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• 2019 (6) TMI 1661
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- It is quite clear that a debt can be considered as a 'financial debt' if it is disbursed against the - consideration for the time value of money. It is also required to be noticed that under the provisions of Section 7 of IBC, 2016 the FC is entitled to initiate the CIRP against the CD when a default has occurred on the part of CD in relation to the repayment of financial debt owed to FC.

  The Respondent contends that as per section 7 of IBC read with section 3(13), no default could have been committed on the date of petition and therefore no cause of action arose on the date of filing of the petition. Further as per section 3(12) "default" means non- payment of debt/amount which has become due - In the present case the amount had not become due as it was "Long Term borrowings" and was to be returned only after 10 years. The tribunal is required to be satisfied that indeed a default has occurred in relation to a financial debt owed which has to be based on the documents produced by the petitioner, which is missing in the present case.

  Also, no resolution as passed by the corporate debtor or relevant entry in register of charges maintained by the ROC to support its claim of remittance by way of loan and tenure of the loan and interest payable by the respondent has been produced - Further the petitioner has also not placed on record the following relevant documents i.e, documents/ resolutions passed by the board for remitting the said amount, registers maintained at the company as are required under sec 186(9) of the Companies Act, 2013, balance sheet and other financial statements related to the transactions.

  There are no hesitation in dismissing this petition - petition dismissed.

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• 2019 (6) TMI 1660
  

  Seeking approval of the Resolution Plan - Sections 30(6) and 31 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The Resolution Professional filed this Application under Section 30, 31 of the IBC for approval of the Resolution Plan submitted by SMAIT. The Resolution Plan shall confirm to the requirements stated in 30 (2) of the Code. The Resolution Applicant is competent to file the Resolution Plan. The Resolution Professional has given certificate that Resolution Plan confirms to the requirements of Section 30 (2) of the IBC. The Resolution Plan is for revival of the Corporate Debtor Company. In the 200 meeting of CoC held on 10.12.2018 the Resolution Plan filed by SMAIT was taken up for consideration and e-voting window was kept open from 13.12.2018 to 21.12.2018. The Resolution Plan (originally dated 28.11.2018) submitted by SMAIT dated 11.12.2018 was approved by the CoC with 81.39% voting share. Annexure-C is the copy of voting percentage. Annexure-B (Colly) is the Resolution Plan filed by SMAIT dated 11.12.2018. The Plan to be approved by CoC with 66% voting share. However, the Plan has been approved by the members of CoC having 81.39% voting share.

  M/s Future Corporate Resources Private Limited (FCRPL) filed counter to the Application filed by the Resolution Professional for approval of the Resolution Plan. The averments in the counter are already stated. Interestingly, FCRPL is a member of CoC which voted in favour of the Resolution Plan. Having voted in favour of the Resolution Plan, FCRPL is now asking the Tribunal to delete Clause 11.28 from the Resolution Plan and related clauses with regard to waiver of guarantees and securities given by DCHL for the loan taken by subsidiary Company Aviotech Pvt Limited. It is not open to FCRPL to ask for deletion of the Clause 11.28 from the Resolution Plan because it has voted in favour of the Resolution Plan. Without going into the merits of the objections raised by FCRPL, the objection cannot be entertained on the simple ground, it has voted in favour of the Resolution Plan. Therefore, it is not open to FCRPL at this stage to direct the Resolution Applicant to delete Clause 11.28. Secondly, The Resolution Plan which is approved by members of CoC having voting share of 81.39% of which FCRPL is also one of the members of CoC. So objection raised by FCRPL cannot be considered and no reliefs can be granted as prayed by FCRPL.

  Resolution Plan submitted by Resolution Applicant M/s SREI Multiple Asset Investment Trust Vision India Fund, which is approved by members of CoC having 81.39% voting share stands approved - moratorium order passed under Section 14 shall cease to have effect from today.

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• 2019 (6) TMI 1659
  

  Addition u/s 68 - bogus STCL - Gain derived from rigging of the scrip prices in issue and involving accommodation entry in collusion with the concerned entry operators - as argued that the department has disallowed/added the impugned STCL based on circumstantial evidence unearthed after a series of search actions / investigations undertaken by the DDIT(Inv) - HELD THAT:- The fact remains that the assessee has duly placed on record the relevant contract notes, share certificate(s), detailed corroborative documentary evidence indicating purchase / sale of shares through registered brokers by banking channel, demat statements etc., Revenue’s only case as per its pleadings and both the lower authorities unanimously conclusion that there is very strong circumstantial evidence against the assessee suggesting bogus STCL accommodation entries.

  Find that there is not even a single case which could pin-point any making against these assessees which could be taken as a revenue nexus - we make it clear that the CBDT’s circular dated 10.03.2003 has itself made it clear that mere search statements in the nature of admission in absence of supportive material do not carry weight - we notice that this tribunal’s coordinate bench’s decision in Mahavir Jhanwar vs. ITO [2019 (3) TMI 210 - ITAT KOLKATA] has taken into consideration identical facts and circumstances as well as latest developments on legal side whilst deleting the similar bogus LTCG addition.

  Coupled with this, hon'ble jurisdictional high court’s other decisions in CIT vs. Rungta Properties Pvt. Ltd. [2017 (6) TMI 521 - CALCUTTA HIGH COURT], CIT vs. Shreyahi Ganguly [2012 (9) TMI 1113 - CALCUTTA HIGH COURT], M/s Classic Growers Ltd [2013 (2) TMI 825 - CALCUTTA HIGH COURT] also hold such transactions in scrips supported by the corresponding relevant evidence to be genuine.

  We adopt the above extracted reasoning mutatis mutandis therefore to delete the impugned STCL disallowance / addition. Unexplained commission expenditure disallowance, if any shall automatically follow suit as a necessary corollary. - Decided in favour of assessee.

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• 2019 (6) TMI 1658
  

  Deduction u/s 80P - whether Tribunal is correct in denying the claim for deduction u/s 80P(2)(a)(i) of the Act by following their non-existent order dated 08.06.2018? - HELD THAT:- We need not labour much to decide the substantial questions of law, as a serious error has crept in in the impugned order presumably due to oversight. The Tribunal relied upon an order for the assessment year 2014-15 and held that the appeal does not merit consideration. Unfortunately, it is the very same appeal which was to be decided by the Tribunal because, the said appeal was disposed of earlier by a single member bench vide order. This order was set aside by the jurisdictional bench of the Tribunal by order [2018 (1) TMI 1670 - ITAT CHENNAI] and accordingly, the appeal stood fixed for hearing. Unfortunately, neither the assessee’s authorised representative, nor the Department's representative brought to the notice of the Tribunal that it is the very same appeal which has to be heard on merits. On the contrary, it appears that both of them had referred to the earlier order dated 11.01.2018 in the same appeal which stood recalled by order dated 08.06.2018.

  The impugned order passed by the Tribunal has to be necessarily set aside and the appeal should be remanded to the file of the Tribunal to be heard and decided afresh.

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• 2019 (6) TMI 1657
  

  Addition on account of excess depreciation claimed - HELD THAT:- we notice that similar issue had come up for consideration before this Court in Revenue’s Income Tax Appeal in case of this very assessee for earlier assessment year. While disposing of the appeal by an order [2017 (4) TMI 1576 - BOMBAY HIGH COURT] the Court recorded that the learned counsel for the Revenue haS instructions not to press this ground. This question is, therefore, not considered.

  Capital subsidy received as excise duty reimbursement - Revenue or capital receipt - HELD THAT:- Subsidy scheme formulated by the Government of Bihar was for the purpose of attracting capital investment and to encourage setting up / expansion of existing units. Thus the object / purposes of the subsidy was for the purposes of encouraging capital investments in the State of Bihar. Consequently the impugned order holds that subsidy would be on Capital account and could not be considered to be on Revenue account.

  In fact this issue about the object/purpose of the subsidy deciding its character as revenue or capital is no longer res integra in view of the decision of the Supreme Court in CIT, Madras v/s. Ponni Sugars & Chemicals Ltd. [2008 (9) TMI 14 - SUPREME COURT]

  Addition made to the book profit on account of excess depreciation and subsidy received by way of reimbursement of commercial tax (VAT) - HELD THAT:- the question as proposed also seeks addition to book profits on account of excess depreciation along with subsidy received by the respondent - assessee. It is settled position in law as held by the Apex Court in Apollo Tyres Ltd. v/s. CIT [2002 (5) TMI 5 - SUPREME COURT] that the Assessing Officer while computing the book profit under Section 115J of the Act has only a power to examine whether the books of account have been maintained in accordance with the provisions of the Companies Act and have been duly audited. The book profits as reflected in the duly audited account have to be accepted by the Assessing Officer and the only limited power he has to increase/ decrease the book profit as arrived at by the assessee is only in terms of the Explanation to Section 115J of the Act. In the present case, the Revenue is not invoking the explanation to Section 115J of the Act to vary the book profit declared in the audited accounts of the respondent - assessee.

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