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Showing 61 to 80 of 1439 Records
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2015 (7) TMI 1386
Allowable business expenditure - contribution made to ‘Sparsh Trust’ - disallowance of claim as assessee failed to prove direct business nexus and it is not an allowable expenditure u/s 37(1) - CIT (A) allowed the claim of the payments to “Sparsh Trust” relying on ITAT’s order in assessee’s own case [2012 (3) TMI 586 - ITAT JAIPUR]. HELD THAT:- Since the issue in question is squarely covered in favour of the assessee by the ITAT judgment in its own case, especially following the same, we uphold the order of ld. CIT (A). Thus Revenue’s appeal is dismissed.
Disallowance being contribution made to rehabilitation fund - HELD THAT:- We fund merit in the alternative contention of ld. Counsel for the assessee. In view of the fact that assessee created a separate Rehabilitation Trust which is registered under section 12AA of the IT Act and in the case of RCDF on these facts the claim has been allowed in A.Y. 2010-11, we set aside the matter to decide the same afresh in accordance with law after giving assessee an opportunity of being heard.
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2015 (7) TMI 1385
Benami transaction - benami ownership of the plaintiff over the suit property taken by the defendant in his written statement - right of coparcener in the Hindu Undivided Family - suit for permanent and mandatory injunction and mesne profits in the year 2010 against Mr. Anil Gulati (brother of her late husband) in respect of suit property - as pleaded in the plaint that the plaintiff is the absolute owner of the suit property by virtue of a registered Gift Deed dated September 03, 1984 executed by her father Late Sh.K.B.Midha - HELD THAT:- The exception contained in Section 4(3)(a) of the Act restricts its benefit only to property held by a "coparcener in a Hindu Undivided Family" as opposed to any "Member" of such family. It is so, because coparceners are recognized by law to jointly by birth inherit rights in the joint property of the family property and in the event such property stands in one of their names for the benefit of others, the Benami Act is declared to not come in the way. Such benefit however cannot be extended to all/any members of such family who do not have any vested right in the property and to whom such property devolves in their independent/separate capacity by way of intestate succession under the Hindu Succession Act.
We repeat, the plaintiff, being the daughter-in-law of the family is not a coparcener in the Hindu Undivided Family of Late Sh.Krishan Lal Gulati. In view of the fact that requisite (ii) noted above is not fulfilled, exception contained in Section 4(3)(a) of the Act has no application in the instant case.
Plea of benami ownership contained in Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 - The pleadings made in the written statement by the defendant have been noted by us in great extenso in the foregoing paragraphs. There is not even a whisper in the entire written statement that the "plaintiff in whose name the suit property is held is a trustee or was otherwise standing in a fiduciary capacity towards the defendant and suit property was held by the plaintiff for benefit of defendant for whom she is the trustee or towards whom she stands in a fiduciary capacity".
In view of the fact that there are no averments in the written statement to bring the defence raised by the defendant within the exception provided by clause (b) of sub-Section 3 of Section 4 of Benami Transactions (Prohibition) Act, 1988, we concur with the view taken by the learned Single Judge that Section 4(3)(b) of Benami Transactions (Prohibition) Act, 1988 does not save the defence raised by the defendant from being barred in law.
Revisiting the averments made in the written statement, we find that the defendant pleads that his father (father-in-law of the plaintiff) had purchased the plot over which the suit property is constructed from the father of the plaintiff and thereafter raised construction over the plot from his own funds and that of joint family business. The defendant further pleads that various decisions were taken regarding distribution of joint family properties between the members of family, one such decision being that Amrit Gulati, the husband of the plaintiff, through his wife i.e. the plaintiff shall be the owner of the ground floor of the suit property while the defendant shall be the owner of the first and second floors of the suit property.
Who took the decisions: All the family members or only some? Where were the decisions taken? On what day, month or year were the decisions taken? Nothing has been pleaded. The averments in the written statement are as vague as vagueness can be.
The written statement filed by the defendant lacks in material particulars and it has to be held that the so-called pleadings relating to an oral family settlement being arrived at between the parties contained in the written statement are no pleadings in the eyes of law. From the afore-noted decisions, it can be safely culled out that a vague plea, sans the particulars thereof, would be no plea in the eyes of law and no issue can be settled between the parties in relation thereto and no trial is warranted - Instant appeal is held to be devoid of any merit and is thus dismissed with costs against the appellant and in favour of the respondent.
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2015 (7) TMI 1384
Vacation of order of attachment - property which the petitioner has purchased in auction under the proceedings under SARFAESI Act - refusal on the part of the Village Officer to effect mutation of the property - attachments were subsequent to the date of mortgage - HELD THAT:- The case put forward by the petitioner squarely falls within the law laid down by the learned Single Judge of this Court in Madhan v. Sub Registrar [2014 (1) TMI 1905 - KERALA HIGH COURT] where it was held that The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext.P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner.
The appellants are entitled for a similar order - the attachments effected by the Munsiff Court, Thrissur after the date of mortgage are declared invalid and there will be a direction to the Sub Registrar and the Village Officer to efface the attachments effected after 08/07/2008 in their registers.
Appeal allowed.
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2015 (7) TMI 1383
Deemed dividend u/s 2(22)(e) - Loan or advance received - as per HC no loan or advance was granted to the assessee, since the amount had actually been defalcated and was not reflected in the book of account of the assessee - The fact that there was defalcation had been accepted since this amount was allowed as business loss - Even assuming that it was a dividend, it would have to be taxed not in the hand of the assessee but in the hands of the shareholder - HELD THAT:- Leave grated.
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2015 (7) TMI 1382
Levy of Differential charges - change in the constitution of the company or not - petitioner claims the change to be Formal Transfer - HELD THAT:- Since in the instant matter, transfer of share holding to the extent of more than 51% does not amount to formal transfer, MIDC is entitled to claim differential premium. If petitioner is not willing to deposit differential premium and does not abide by the notice, MIDC may take appropriate steps as deemed fit in consonance with the lease agreement and relevant rules and regulations.
Reliance is placed on judgment in the matter of UP. STATE INDUSTRIAL DEV. CORPN. LTD. VERSUS MONSANTO MANUFACTURES (P.) LTD. & ANR. [2015 (4) TMI 846 - SUPREME COURT]. The matter was taken up to the Supreme Court in identical circumstances whereunder U.P. State Industrial Development Corporation directed levy of amount on account of transfer of interest in the property by the lessee in favour of different company.
No interference is called for in the instant matter - Writ petition is devoid of substance hence stands dismissed.
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2015 (7) TMI 1381
Additions u/s 68 on account of unsecured loan - HELD THAT:- In the case of loan from Champa Lal Baid, the assessee has filed a copy of the acknowledgment of return, copy of the bank statement of assessee as well as affidavit. The TDS on interest has also been deducted. This person has issued a cheque from the bank account. The immediate source of cheque is receipt of cheques stated to be receipt of loan from another party - Thus this sum cannot be added to the income of the assessee because the depositor is a regular Income-tax assessee. The money was deposited in cheques in his bank and the Revenue cannot investigate the source of source.
The second loan was taken from Shri Parkash Joshi onus to prove the creditworthiness of depositor was on the assessee which has not been properly discharged. In this background, in our opinion, the loan from Shri Parkash Joshi cannot be accepted.
Similarly in respect of loan from Shri Chandra Kanta Joshi, if the loan of ₹ 5 lakhs from Shri Champa Lal Baid should have been accepted and other two loans are required to be added to the income of the assessee. We uphold the order of Ld. CIT(A) in respect of Parkash Joshi and Shri Chandra Kanta Joshi and confirm the addition on account of loan for ₹ 2,50,000/- each. However, we set aside the order of Ld. CIT(A) partly by deleing the addition in the case of Champa Lal Baid. Assessee appeal is partly allowed.
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2015 (7) TMI 1380
Maintainability of appeal - non-compliance with regard to pre-deposit under Section 35F of the Central Excise Act, 1944 - Commission Agent - HELD THAT:- If the Appellant was a Commission Agent and for that reason it had been granted complete waiver of pre-deposit on similar allegations, there had to be some justification for differential treatment in the order dated 22-1-2014. This was a fundamental aspect for justice not only to be done but also to appear to have been done.
The matter is remanded to the Tribunal for consideration both on the issue of undue hardship pleaded and also the aspect for complete waiver of pre-deposit granted to it in similar circumstances considering its status as a Commission Agent - appeal allowed by way of remand.
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2015 (7) TMI 1379
Dishonor of Cheque - maintainability of petition in the absence of notice under Section 138 of the Negotiable Instruments Act to the petitioner - HELD THAT:- Making of a demand by giving a notice is sina-qua-non and it is only thereafter that the complainant can be maintained, that too after it is proved that the notice of such demand was served or deemed to have been served upon the sendee.
Offences by the company has been separately dealt with under Section 141 of the "Act", which essentially means that the offences committed by the company is different from the once which have been committed by its employees. In such situation the company is deemed to be the principal offender and the remaining persons are made offenders by virtue of legal fiction created by the legislature as per the Section, hence the actual offence should have been committed by the company. If that was so, then the notice as mandatorily required under Section 138 ought to have been served upon the company, but in the instant case undisputedly the notice has been served only upon its incharge and authorized signatory Sh. Vijay Kumar.
The learned trial Magistrate has failed to take into consideration this distinction, which vitiate the entire proceedings as the Company can only be tried, in case there is a notice served upon it, that too after satisfying the provisions of Section 141(1) of the Act, but the Company in no event can be prosecuted in absence of a legal and valid notice to this effect as envisaged under the Act - the proceedings initiated by the learned Magistrate on the basis of complaint case under NIA Act is quashed for want of legal and valid notice.
Petition allowed.
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2015 (7) TMI 1378
Dismissing or discharging the workman from her service - entitlement to rbe einstated with full back wages and benefits or not - HELD THAT:- The reference has been answered in favour of the petitioner by holding her dismissal to be illegal and directing her reinstatement. Petitioner wants higher wages to be paid to her by the management. The reference was made to the learned Labour Court on two issues, firstly, whether management was justified in dismissing the workman and secondly, if it was not held to be so then whether the workman was entitled to be reinstated with full back wages. It goes without saying that the Labour Court while deciding a reference has to confine its adjudication to the issues referred to it by the appropriate Govt. It cannot deviate from the issues referred to and decide an issue, which is not referred to it for adjudication. It cannot enlarge the scope of the reference. Claim of higher wages by the petitioner was not an issue referred to for adjudication before the learned Labour Court by the appropriate Govt.
It cannot be said by any stretch of imagination that if such a decision is given effect to, it will be inexpedient on public grounds affecting national economy or social justice. Therefore, on this ground, the claim of the petitioner cannot be entertained.
The prayer made by the petitioner seeking a direction to the appropriate Govt. to modify the award by exercising the power under section 17A of the Act is wholly untenable inasmuch as the said provision has been held to be unconstitutional and unenforceable - Petition dismissed.
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2015 (7) TMI 1377
Liability to Income tax under Article 289 of the Constitution of India - Appeal admitted on the following substantial questions of law:
“(a) Whether on the facts and in the circumstances of the cases and in law, the Tribunal was right in its interpretation of Articles 289(1)(2)(3) of the Constitution in coming to the conclusion that the company was not exigible to tax?
(b) Whether on the facts and in the circumstances of the cases and in law, the Tribunal is justified in coming to the conclusion that the company was an agent of government and therefore not exigible to tax?
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2015 (7) TMI 1376
Disallowance u/s 40(a)(ia) - shortfall in deduction of tax at source - HELD THAT:- Respectfully following the decision of the Hon'ble High Court of Calcutta in the case of S.K. Tekriwal [2011 (10) TMI 10 - ITAT, KOLKATA] which is factually similar to the case on hand, we hold that no disallowance can be made by invoking the provisions of Section 40(a)(ia) of the Act if there was any shortfall in deduction of tax at source due to any difference of understanding or opinion as to the taxability of any item or the nature of payments falling under various TDS provisions and therefore reverse the findings of the authorities below and allow the assessee's appeal.
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2015 (7) TMI 1375
Forfeiture of property - petitioner's only ground of challenge is that on the materials on record the Tribunal had not found it to be established that the properties ordered to be forfeited were the properties held by the petitioner on behalf of the detenue as his associate - HELD THAT:- It is found that the said Court in SMT. KESAR DEVI VERSUS UNION OF INDIA & ORS [2003 (7) TMI 650 - SUPREME COURT] had interpreted the law declared in ATTORNEY GENERAL FOR INDIA VERSUS AMRATLAL PRAJIVANDAS [1994 (5) TMI 235 - SUPREME COURT]. The Division Bench of the Supreme Court while delivering that interpretation, took note of the judgment in FATIMA MOHD. AMIN VERSUS UOI. [2003 (1) TMI 657 - SUPREME COURT] delivered by a Larger Bench of the said Court. This Court finds in Fatima Mohd. Amin there does not appear to be any exercise made in interpreting the law declared in Amratlal Prajivandas. Since the interpretation was made subsequently by the Division Bench of the Supreme Court in the manner reproduced above, this Court is bound by such interpretation in following COMMISSIONER OF INCOME-TAX, WEST BENGAL-III VERSUS M/S. OBEROI HOTELS(P) LTD. [2011 (3) TMI 596 - CALCUTTA HIGH COURT] and therefore cannot interfere with the order upholding the order of forfeiture made by the competent Authority on the ground that no link or nexus was found to have been established to show that the properties sought to be forfeited were the properties of the detenu, held by the associate, the petitioner.
After the order was made Mr. Chakraborty submitted that he had further points of challenge regarding the impugned order being perverse on the ground that the petitioner is not the associate. Such argument made at belated stage after the order has been dictated pursuant to point of challenge raised as recorded in earlier order dated 15th July, 2015, cannot be considered - Prayer dismissed.
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2015 (7) TMI 1374
Disallowance u/s 40(a)(ia) - payment of operation and management charges AND reimbursement of expenses - CIT-A not applying the provisions of Section 40(a)(ia) of the Act in view of his findings that the above referred payments were Revenue in nature, being fees or rent paid for uses of infrastructural facilities and Brand - HELD THAT:- As a look at the agreement between the assessee and the Adarsh Foundation Trust clearly reveals, the payment of 40% of profits each year - whichever is less, is paid by the assessee for grant of operation and management rights under clause 4.1 of the agreement. This is not for acquiring a brand but for use of a brand. The benefit is clearly in the revenue field since the benefit of this payment is on year to year basis and does not result in any enduring or lasting benefit beyond the relevant assessment year - CIT(A) was thus quite justified in holding that the expenses are revenue expenses in nature as these expenses are incurred to earn profits for the year.
As regards the Assessing Officer’s grievance that the CIT(A) ought to have disallowed the amount under section 40(a)(ia), it was never the case of the Assessing Officer. In any event, in view of the fact that second proviso to Section 40(a)(ia) has been held to be retrospective in effect, in the case of decision of Rajeev Kumar Agarwal [2014 (6) TMI 79 - ITAT AGRA]
It is an undisputed position that the Adarsh Foundation has duly accounted for these payments in computation of its taxable income, section 40(a)(ia) does not come into play on the facts of this case. DR has not pointed out any infirmity in the same. In view of these discussions, and bearing in mind entirety of the case, we approve the conclusions arrived at by the CIT(A) and decline to interfere in the matter. - Decided against revenue.
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2015 (7) TMI 1373
Dishonor of cheque - time limitation - cheque was issued towards discharge of a legally enforceable debt or not.
Time Limitation - what should be the date of 'receipt of the notice' in a case where there is a deemed service, in which the drawer has either refused or the notice is returned as unclaimed. Whether it would be the actual date of the refusal or the date on which the drawer has unclaimed the envelope or it would be the date of intimation of such refusal to the payee? - HELD THAT:- In the case of a service by post, the same shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document and unless the contrary is proved, it will be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post - it would be the date on which the drawer has actually refused or has unclaimed the envelope, which will have to be reckoned as the date of deemed service and not the date on which the intimation of refusal is received by the payee.
The provisions contained under Section 138 of the Act being penal in nature and moreso providing for a reverse onus, have to be strictly complied and when the Legislature has purposely used the term "from receipt of the notice", it would not be possible to read into it the date of receipt of the intimation of the refusal, as the relevant date (in a case of deemed service/refusal of the notice by the accused). That, in my humble view, would be, doing violence to the language, which is otherwise plain and explicit. I also find that the possible prejudice, if any or the disadvantage caused to the complainant on account of the delayed receipt of an intimation of refusal can be adequately taken care of by the provisions permitting condonation of delay in filing the complaint. This is not to suggest that in every case this would be a sufficient ground for condonation of delay - the learned Magistrate has rightly come to conclusion that the complaint was not filed within time as the date of refusal has to be reckoned as 24/05/2011 and the complaint is filed on 13/07/2011. The learned Magistrate has also noticed that there was no prayer for condonation of delay. Even in the appeal or arguments advanced at the bar, it was not urged that the delay, if any, may be condoned. The appellant all along claimed that the complaint is filed within time. Be that as it may, in the result, the point No. 1 is answered in the negative.
Whether the cheque was passed in discharge of a legally enforceable debt or liability, would fall into insignificance as the finding on the point No. 2 one way or other would not change the ultimate result of dismissal of the complaint? - HELD THAT:- In a case, where the accused admits the signature on the cheque, a presumption arises under Section 139 of the Act in favour of the complainant. It is now well settled that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can prove his defence or rebut the presumption as is available to the complainant under Section 139 of the Act, on mere preponderance of probability - The presumption under Section 139 of the Act is a statutory presumption, which is evident from employment of the word 'shall'. Thus, the Court is obliged to raise such a presumption once the facts necessary for raising of such presumption are established. It is further well settled that for rebuttal of such presumption, it is not necessary as a rule that the accused shall enter into the witness box or should lead independent evidence.
There were certain aspects about the envelope exhibit PW1/20 put to the witness, in which he has admitted that the word 'refused' on the envelope is cancelled and there is some scribbling there. He does not know as to who has done the said scribbling. He also admitted that the envelope was in torn condition. It was suggested to him that he has refused the legal notice, which was denied. He stated that he is not aware if the respondent is in the business of developing plots. On consideration of the evidence, it is found that non-production of the Income Tax Returns, particularly in the wake of the fact that the appellant had admitted that the amount is reflected in the same, would be sufficient to raise an adverse inference - The presumption stood rebutted - answered in the negative.
Appeal dismissed - decided against appellant.
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2015 (7) TMI 1372
Nature of land sold - capital asset u/s 2(14) or agricultural land - Addition on sale of land by treating the same as agricultural land - whether the distance of 8 kms. is to be taken from TMC [Thane Municipal Corporation] or NMMC [Navi Mumbai Municipal Corporation] - whether CIT (A) was justified in not appreciating the provisions of section 2(14)(iii)(b) of the Act correctly in as much as he held that the capital gain on the sale of land, even though situated within 5 Kms. of Navi Mumbai Municipal Corporation will not be taxable? - HELD THAT:- What is intended to be covered in the term "capital asset" is agricultural land comprised within the jurisdiction of a municipality and within the specified distance from the local limits of municipality or other local bodies mentioned therein a specified in the notification. As undisputed that the land in question is within the specified distance from the Panchkula municipality which falls in the State of Haryana while the land is in the State of Punjab. Thus, the land is urban land for the purpose of definition of "capital asset" under section 2(14).
The concept of municipality as a unit of State or the fact that a State has no jurisdiction to make law beyond its territory have no relevance for the purpose of determining whether a particular Land was "capital asset'" or not for the purpose of taxing capital gains. If the land is adjacent to a municipality and is urban land covered under section 2(14), even if municipality and the land fall in different States, the land will continue to be urban land. If such land is excluded from the definition of “ capital asset", the purpose of the statutory scheme will not be achieved.
We find that the judgments of Anjana Sehgal [2011 (3) TMI 695 - PUNJAB AND HARYANA HIGH COURT]and Khazan Singh [2014 (6) TMI 261 - PUNJAB & HARYANA HIGH COURT] were delivered on 01. 03. 2011 and on 20. 02.14 whereas the decisions of various benches of the Tribunal, relied upon by the AR, are of the year 2009, 2010 and 2012. Clearly, the Benches of the Tribunal did not have the benefit of the order of the Hon'ble High Court. Hon'ble Court has decided the issue against the assessee. Judicial decision and proprietary stipulate that in such matter the wisdom of higher forum should prevail. So following the decisions of the Hon'ble P& H High Court we are reversing the decisions of the FAA. - Decided in favour of revenue.
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2015 (7) TMI 1371
Contempt proceedings - Appellants have deliberately and willfully violated the ex parte interim order - HELD THAT:- When admittedly the order dated 06.08.2013 was an ex parte one then in such circumstances, no sooner the Defendants (Appellants) entered appearance in the civil suit and filed their pleadings in reply to the Notice of Motion, the Court which is seized of the main case should have made sincere endeavour to dispose of the Notice of Motion on merits in the light of the mandate contained in Order XXXIX Rule 3A of the Code which in clear terms provides that the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted - It was not done by the Court may be due to myriad reasons despite the Appellants (Defendants) entering appearance as back as 21.08.2013 in the main suit and completing their pleadings on 05.09.2013. As a result, the ex parte ad-interim order dated 06.08.2013 remains in operation.
The Notice of Motion is finally decided on merits in accordance with law one way or the other then the parties to the Lis can always work out their rights by taking recourse to legal remedies available to them for pursuing their grievance to higher fora either in appeal or revision, as the case may be, and may also prosecute the contempt proceedings arising out of the main case, if need arises -
It is always in the larger interest of the parties to the Lis to get the main case (Lis) decided first on its merits as far as possible rather than to pursue their off-shoot proceedings on merits by keeping the main case undecided. It is more so when any decision rendered in the main case has a bearing over the pending off-shoot proceedings.
The Defendant in such case has a right to point out in the Notice of Motion, that the Plaintiff has neither any prima facie case in their favour nor there is any likelihood of Plaintiff to suffer any irreparable loss/injury in relation to subject matter of the suit, if injunction is declined to the Plaintiff and that no balance of convenience lies in the Plaintiff's favour and, therefore, the Court should not have granted ex parte injunction to the Plaintiff and even if it has granted then it should now be either recalled or modified, as the case may be - Appeal disposed off.
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2015 (7) TMI 1370
Correct head of income - treating the interest on FDRs as income from other sources - assessee has taken up a project of NHAI for broadening of section of National Highway 22 but during the year under consideration the company has not commenced any commercial activity as the project was under construction - HELD THAT:- The issue is squarely covered against the assessee by the judgment of the Hon'ble Supreme Court in the case of Tuticorin Alkali Chemicals & Fertilizers Ltd. Vs. CIT [1997 (7) TMI 4 - SUPREME COURT] as well as by the order of the I.T.A.T. Chandigarh Bench in the case of M/s. HP Corporation Ltd. [2014 (6) TMI 1050 - ITAT CHANDIGARH] - We, therefore, do not find any error in the order of the learned CIT (Appeals) in holding that the interest income earned by the assessee company is taxable as "income from other sources". The appeal of the assessee has no merit and the same is accordingly, dismissed.
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2015 (7) TMI 1369
Capital gain computation - Correctness of valuation report of D.V.O. - allowability of 25% of DM Circle Rate - for working out this value, the D.V.O. has considered and accepted two demerits i.e. availability of no parking space and having graveyard on one side of the property and has allowed rebate of 10% as against DM Circle rate - HELD THAT:- The difference between the value declared by the assessee at ₹ 49.397 lac and as determined by D.V.O. at ₹ 57.036 lac, the difference is only ₹ 8.639 lac which works out to 15.15%.
This is also to be noted that as per the judgment in the case of Bimla Singh [2008 (10) TMI 62 - PATNA HIGH COURT] as held that difference between cost of construction shown by the assessee and as determined by the Assessing Officer being less than 15%, same is to be ignored for the purpose of addition. Hence, if it is accepted that the rebate allowed by D.V.O. on account of demerits is less, such rebate should be 25% as against 10% allowed by the D.V.O., there will be no difference between the value declared by the assessee and value as per D.V.O. Since the rebate allowed by D.V.O. is estimated rebate without any basis indicated by D.V.O. in his report, we feel it proper that in the facts of the present case, such rebate should be 25% of DM Circle Rate and as a result, there is no difference between the value as per D.V.O. and value as per the assessee and as a result, no addition survives. - Decided in favour of assessee.
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2015 (7) TMI 1368
Nature of receipt - Compensation received - difference of compensation received and the compensation and brokerage paid for alternate accommodation - Amount received from the Developers for agreeing to the redevelopment, for alleviating hardship of shifting/reshifting and agreeing to share the common area with more persons after redevelopment - Capital gain or Income from other sources - HELD THAT:- In “Paranugraha Co-op. Housing Society Ltd.” [2014 (2) TMI 688 - ITAT MUMBAI] it has been held that the TDR is embedded in the land for the purposes of addition made by the owner or lessee; that this TDR, in the form of additional FSI, is negotiable by the owner to the buyer/developer, only for prospective development; that there is no element of cost to the owner and no capital gain is exigible. The other decisions relied on by the assessee are to the same effect. They have been rendered by co-ordinate Benches of the Mumbai Tribunal.
There is merit in the contention of the assessee, that the hardship compensation received was due to the problem faced by the assessee on account of demolition of the building and this receipt is, therefore, not a taxable capital gain, there being not transfer of any capital asset involved and no cost of acquisition having been incurred.
Disallowance u/s 14A r.w.r. 8D - assessee has contended that the authorities below have wrongly applied Rule 8D of the Rules without pointing out any item of expenditure as having been incurred by the assessee to earn exempt income - HELD THAT:- The matter stands covered in favour of the assessee by the decision of the Hon’ble jurisdictional High Court in the case of “CIT vs. K. Reheja Corporation P. Limited”. [2011 (8) TMI 148 - BOMBAY HIGH COURT] as upheld the decision of the Tribunal, whereby the deletion of disallowance of interest made u/s 14A of the Act, in the absence of any material or basis to hold that the interest expenditure directly or indirectly was attributable for earning dividend income, was upheld.
In “CIT vs. Hero Cycles Ltd.” [2009 (11) TMI 33 - PUNJAB AND HARYANA HIGH COURT] as held, inter alia, that the contention of the Revenue that direct or indirect sum of expenditure is always incurred which must be disallowed u/s 14A and the impact of expenditure so incurred cannot be allowed to be set off against the business income which may nullify the mandate of section 14A, could not be accepted; and that disallowance u/s 14A requires a finding of incurrence of expenditure and where it is found that for earning exempted income, no expenditure has been incurred, disallowance u/s 14A cannot stand. - Decided in favour of assessee.
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2015 (7) TMI 1367
Benefit of Interest free Sales Tax deferral (IFST deferral) - levy of differential tax for certain turnovers for the reason that the petitioner did not file Form-C/Form-H and other declarations - HELD THAT:- It is not in dispute that the respondent has passed the assessment orders for the years CST 2001-02, 2002-03 & 2003-04 and TNGST 2002-03 & 2003-04, levying differential tax for certain turnovers on the ground that the petitioner had not filed Form- C/Form-H and other declarations as required and these assessment orders levying differential tax were not questioned by the petitioner.
The petitioner contended that as per the scheme, the petitioner is eligible for IFST deferral of full tax, subject to the ceiling specified in Eligibility Certificate, not exceeding ₹ 1725.46 lakhs and Clause 12 of the Deferral agreement excludes only the tax and penalty levied or leviable by the assessing officer on taxable turnover suppressions from IFST deferral and since the petitioner has not made any suppressions no case of non-declaration of taxable turnover in returns was made out against the petitioner and therefore, they are entitled for IFST deferral on the entire tax assessed on the taxable turnover declared in returns. This technical ground raised by the petitioner, in my opinion, is illogical and untenable for the simple reason that even without collecting the actual taxes and declaring the same in monthly returns, the petitioner cannot avail IFST scheme. The intention of the petitioner behind not declaring in the monthly returns by filing Form C and H, etc., is that if the department fails to take note of the same, the petitioner can get the benefit of the IFST scheme in respect of transactions where the actual collection of taxes was in fact not taken place.
As regards the issuance of notice before resorting to impose penal interest under Section 24(3) of the Act as per the instructions of the Special Commissioner and Commissioner for Commercial Taxes dated 20.04.2001 which insist that penalty should be imposed only after providing sufficient opportunity to the assesses is concerned, this Court finds no considerable force in the said contention. Admittedly, the respondent sent arrear notice on 30.5.2013 and thereafter, by proceedings dated 29.8.2013, the respondent once again requested the petitioner to pay the tax while clarifying the eligibility of the petitioner to avail IFST scheme and only on 28.1.2014, the respondent has invoked Section 24(3) of the Act and levied penal interest since the petitioner failed to pay the tax. Thereafter, at the instance of the petitioner, 15 days time was given for filing objections and also granted personal hearing.
It is the specific contention of the petitioner that the liability to pay interest under Section 24(3) of the Act is automatic and absolute and no notice is necessary for levying interest. In fact, a bare perusal of Section 24(3) of the Act, this Court find that there is no provision contemplated that the levy of interest should be imposed only after issuance of notice.
This Court does not find any irregularity or illegality in the impugned proceedings issued by the respondent - Petition dismissed.
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