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Showing 61 to 80 of 2028 Records

• 2019 (7) TMI 1969 - ORISSA HIGH COURT
  

  Suo motu proceedings for revision - time limitation - interpretation of statute - Section 23(4)(a) of O.S.T.Act read with Rule 80 of the O.S.T.Rules - HELD THAT:- The case of the petitioner will be governed by the decision of this Court in the case of M/S. SAGARMAL AGARWALLA VERSUS COMMISSIONER OF SALES TAX, ORISSA, CUTTACK AND 2 OTHERS [2018 (1) TMI 868 - ORISSA HIGH COURT] where it was held that we are of the opinion that passing of the order dated 05.09.1996 in Annexure-3 which was beyond the period of three years from the date of the order sought to be revised, is liable to be quashed as also the order of the Commissioner dated 05.06.1999 in Annexure-4.

  Petition allowed.

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• 2019 (7) TMI 1968 - ITAT CUTTACK
  

  Unsecured loan - CIT(A) also confirmed the action of the AO as the assessee failed to comply with the direction of the Tribunal to produce all the loan creditor - HELD THAT:- At the time of hearing, when asked by the Bench, why the direction of the Tribunal was not complied with by the assessee, assessee did not give any satisfactory reply.

  We find that in the first round of proceedings, Tribunal has directed the assessee to produce all the creditors before the AO to confirm with the evidences that the amount has been repaid. Assessee has failed to produce all the creditors before the AO, therefore, the addition was again confirmed and was upheld by the CIT(A). We see no reason to interfere with the order of the CIT(A) and dismiss the ground of appeal of the assessee.

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• 2019 (7) TMI 1967 - DELHI HIGH COURT
  

  Validity of notification dated 13th December 2018 issued by the Commissioner of Value Added Tax (CVAT) under Rule 5 (13) of the Central Sales Tax (Delhi) Rules, 2005 - “C‟ Form issued by M/s. Mahaveer Traders in favour of the present Petitioner, declared obsolete and invalid for all purposes, with effect from the date of issuance of such forms.

  Whether there was any justification for the CVAT in New Delhi to retrospectively declare the “C‟ Form which had already been acted upon by the authority in Jammu and Kashmir as “obsolete”?

  HELD THAT:- A collective reading of sub-rules 5 (13) and 5 (14) of the CST Delhi Rules makes it clear that once the form that has been issued is utilized, the question of subsequently declaring such used forms as obsolete would not arise. Rule 5 (14) makes the requirement of surrender of the “unused forms‟ of the series design or colour that have been rendered obsolete clear and provides that only for such unused forms would new forms be issued. It is, therefore, plain that the rules do not permit the CVAT to declare forms that have already been issued and acted upon as obsolete.

  The impugned notification 13th December, 2018 issued by the CVAT is hereby quashed - Petition allowed.

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• 2019 (7) TMI 1966 - GUJARAT HIGH COURT
  

  Absolute Confiscation - Seeking immediate release of seized Diamonds - levy of penalty under Section 112(b) of Customs Act - HELD THAT:- A Co-ordinate Bench of this Court, vide order dated 8.5.2019 [2019 (5) TMI 984 - GUJARAT HIGH COURT], disposed of the Civil Application preferred by the Commissioner of Customs with directions.

  Pursuant to the order passed by this Court referred to above, the bank guarantee, as well as 10% redemption fine has also been deposited along with 1% penalty. The applicant has discharged all the obligations as imposed by this Court in the order. However, till this date the seized diamonds have not been returned to the applicant. Prima facie, the concerned authority is in contempt.

  Let Notice be issued to the respondent, returnable on 1.8.2019.

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• 2019 (7) TMI 1965 - ITAT DELHI
  

  TP Adjustment - comparable selection - Accentia Technologies Ltd inclusion/inclusion - HELD THAT:- Regarding the business model, while the assessee company is in HMT model, the comparable in question depends mostly on outsourcing of business processes. The audit report clearly mentions that no segmental data has been prepared and company has only one segment of activity which is HRCM segment. Hence, keeping in view the factors viz. dissimilar business model, non-comparable turnover, extraordinary events of merger and acquisitions leading to higher profits and non-availability of the segmental data and considering the order of the Tribunal in the assessee’s own case for the assessment year 2009-10, we hereby hold that the ld. CIT(A) has rightly excluded the company “Accentia Technologies Ltd.” from the final list of comparables.

  Consider foreign exchange gain/loss as non-operative while calculating the operating profit margin of the Assessee and the comparable companies - HELD THAT:- The foreign exchange emanating from international transaction is a part of business receipt and hence any loss or gain on foreign exchange fluctuation invariably is a part of operational income. Further, owing to the judgments of FISERV India Pvt. Ltd. [2016 (1) TMI 1276 - DELHI HIGH COURT] and in the case of PCIT Vs BC Management Services Pvt. Ltd. [2017 (12) TMI 255 - DELHI HIGH COURT] wherein it was held that even the Safe Harbor Rules come into force from 2013 and hence is not applicable to the instant year, we hereby direct the Revenue to treat the foreign exchange gains or losses under operating revenues.

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• 2019 (7) TMI 1964 - ITAT MUMBAI
  

  Deduction u/s 80P(2)(i) - AO disallowed deduction as held that (i) the assessee is a Co-operative Bank other than a primary agricultural credit society or a primary cooperative agricultural and rural development bank, (ii) the assessee fulfils the condition laid down in section 56(c)(ccv) of Part V of the Banking Regulation Act, 1949 for being a Co-operative Bank - HELD THAT:- As decided in assessee own case [2014 (10) TMI 1063 - ITAT MUMBAI] as held we cannot entertain the Revenue’s contention that section 80P(4) would exclude not only the co-operative banks other than those fulfilling the description contained therein but also credit societies, which are not co-operative banks. In the present case, respondent assessee is admittedly not a credit co-operative bank but a credit co-operative society. Exclusion clause of sub-section (4) of section 80P, therefore, would not apply. In the result, Tax Appeals are dismissed.’

  Similar view is taken by the Tribunal’s Mumbai Bench in the case of M/s. Mumbai Teleworkers Co-op. Credit Society Ltd. [2014 (7) TMI 1057 - ITAT MUMBAI] and in the case of M/s. Kulswami Co-op. Credit Society Ltd. [2014 (4) TMI 355 - ITAT MUMBAI] - Decided against revenue.

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• 2019 (7) TMI 1963 - DELHI HIGH COURT
  

  TP Adjustment - International transactions/activities in respect of one of the services rendered to its associated enterprises i.e. (AE) - Assessee was engaged in knowledge management systems - Whether ITAT erred in concluding that for the AYs in question, the Assessee had rendered Knowledge Process Outsourcing (KPO) services to its Associated Enterprises which according to the Assessee was contrary to the documents on record? - Revenue on the other hand points out that for these very AYs, on the question of exclusion of comparables, the Revenue's appeals against the impugned order of the ITAT have been dismissed by this Court - HELD THAT:- In view of the above submission, it is considered appropriate to direct that the impugned order of the ITAT returning the above finding qua the activity of the Assessee for the AYs in question will not constitute a precedent if such issue were to arise in future in the Assessee's cases.

  In other words, the question framed by the Court for consideration in these appeals is left open for decision in an appropriate case.

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• 2019 (7) TMI 1962 - TELANGANA HIGH COURT
  

  Directing the petitioner to vacate the premises - statutory license expired - HELD THAT:- In this case, it is to be seen that the relationship between the petitioner and the 1st respondent is purely licensee and licensor and the obligations are arise under the agreement entered between the petitioner and the 1st respondent and admittedly the said agreement provides for arbitration and the reasons cited for the non-renewal is due to extension of activity of the 1st respondent, they are not in a position to grant renewal.

  This Court is of the opinion that it is not a fit case to grant interim orders when the petitioner's license fee admittedly expired In view of the same I have not find any reason to grant any interim order - Application dismissed.

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• 2019 (7) TMI 1961 - ITAT SURAT
  

  Capital gain - valuation of FMV as on 01.04.1981 - CIT rejecting Government Approved Valuer report for computing fair market value as on 01.04.1981 @ 250 per sq. meter for the land situated at Village Karadva and @ 200 for the land situated at Sania Kande Surat by adopting rim Reverse Index Method and by adopting against the same the fair market value @ 30 per sq. meter for both lands - HELD THAT:- We find that the Government Registered Valuer has considered the rate of land at village Karadva @250 per sq. meter and for land at village Sania Kande @200 per sq. meter as against which the DVO has adopted the rate @ 14.18 and 5.59 per sq. meter respectively. Whereas Ld. CIT (A) has considered the rate for both land @ 30 per sq. meter.

  Considering, the variation in three authorities, and considering the facts of the case, we are of the considered opinion that it would be fair, reasonable and logic if the average rate of adopted by the Government Registered Valuer of the assessee and DVO and Ld. CIT (A) is considered for average valuation of FMV as on 01.04.1981 considering the ratio laid down in the case of the case Vijay Kumar M Shah [2009 (2) TMI 501 - ITAT MUMBAI] as cited both Ld. CIT (A) as well as the learned counsel for the assessee. Accordingly, the arriving rate comes to Rs.99.95 rounded to Rs. 100 per sq. meter i.e. [250+200+30] for both land under consideration. Accordingly, the AO is directed to worked out long-term capital gain by taking arrive rate @ 100 as FMV as on 01.04.1981 for both impugned the land under consideration. In view of this matter, Ground No. 1 to 4 of the appeal are therefore, partly allowed.

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• 2019 (7) TMI 1960 - ITAT AHMEDABAD
  

  Validity of reopening of assessment u/s 147 - as argued notice u/s 143(2) of the Act was issued beyond the prescribed time - Whether it is compulsory to make an application in writing to invoke the provisions of rule 27 of ITAT rules? - HELD THAT:- We note that the dispute regarding the non-issuance of notice under section 143(2) of the Act was very much in the notice of the Ld. DR as evident from the order sheet entries maintained by the registry office of the ITAT who sought times to revert on the issue raised under rule 27 of ITAT Rules on the reasoning that he will take the report from the office of the AO. Therefore, there remains no ambiguity that the affected party was duly given the opportunity - we are of the view the issue raised under rule 27 of ITAT rules was very much in the knowledge of the Ld. DR. As such the case was fixed for hearing on several occasions as part heard, meaning thereby the Ld. DR was very familiar with the issue as discussed above.

  We also note that the assessee has also made an application under rule 27 of ITAT rules vide letter dated 13-03-2019. The relevant extract of the application has already been extracted in the preceding paragraph.

  The above application was also supplied to the Ld. DR as well and the matter was heard up to 30th April 2019. Therefore it is clear that the other party was well-informed about the invocation of the issue under the rule 27 of ITAT Rules. Therefore we conclude that the Ld. AR has rightly invoked the provisions of rule 27 of ITAT rules.

  Non-adjudication of the issue by CIT - Notice issued u/s 143(2) was time-barred - whether the non-adjudication of the issue raised by the assessee before the Ld. CIT (A) amounts to deemed rejection the ground of appeal of the assessee? - HELD THAT:- CIT (A) decided the technical issue in favor of the assessee on other reasons except for the issue on hand, i.e., nonissuance of the statutory notice. Thus the question arises whether the assessee was aggrieved because of non-adjudication of the ground of appeal by the Ld. CIT(A). The answer is certainly in affirmative. But the assessee chose not to appeal as it succeeded on other reasons/ contentions raised before the ld. CIT(A). Accordingly, the Revenue filed an appeal before us on those points which were decided by the Ld. CIT (A) in favor of the assessee. Now the controversy arises whether the assessee can raise the issue not decided by the Ld.CIT (A) under rule 27 of ITAT rules before us. In our considered view, the assessee was very much entitled to raise the issue under rule 27 of ITAT Rules which was not decided by the Ld. CIT (A) as the point of contention of the assessee relates to the same issue raised by the Revenue.

  Non-issuance of notice u/s 143(2) - We conclude that there was not issued the statutory notice under section 143(2) of the Act within the prescribed time. Thus in the absence of the statutory notice, the assessment framed under section 143(3)/147 of the Act is not sustainable. Hence the ground raised by the assessee in the application under rule 27 is allowed.

  Reopening based on revenue audit objection - CIT(A) has passed a speaking order, which is self-explanatory and reproduced herein above. Thus,we are in agreement with the finding of the ld. CIT-A that the reopening of the assessment under section 147 of Act based on revenue audit objection is not permissible. Therefore we concur with the finding of the learned CIT(A) after placing the reliance on the judgment in the case of CIT Vs. K.Y. Pilliah And Sons [1966 (10) TMI 35 - SUPREME COURT] - Decided against revenue.

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• 2019 (7) TMI 1959 - CHHATTISGARH HIGH COURT
  

  Maintainability of petition - availability of alternative remedy - Arbitrable dispute or not - clause 13A of conditions of contract - forfeiture of earnest money deposited - Article 226 of the Constitution of India - HELD THAT:- Clause 13A of conditions of contract provides settlement of disputes through arbitration under the provisions of the Act of 1996 as amended by the Act of 2015. Undoubtedly, the dispute is arbitrable and the petitioner has remedy of arbitration under the Act of 1996.

  It is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of alternative remedy, this Court may still exercise its writ jurisdiction at least in three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged - the writ petition is entertained to the extent of examining and finding out as to whether forfeiture of earnest money to the tune of ₹ 50,00,000/- is legal and proper or it suffers from vice of arbitrariness leaving rest of dispute with regard to cancellation of contract, blacklisting and fresh tender for the said work and risk and cost to be raised by the petitioner by way of arbitration as provided in clause 13A of the conditions of contract, as such, the writ petition is entertained only to that extent indicated hereinabove leaving rest of the dispute to be adjudicated by way of arbitration, if any, to be invoked by the petitioner or avail any other remedy available to him under the law.

  Since the Letter of Intent has been cancelled and consequently, earnest money deposit has been forfeited and that being realm of contract, writ petition under Article 226 of the Constitution of India is not maintainable? - HELD THAT:- It is quite well settled law that where the State or State authorities which is State within the meaning of Article 12 of the Constitution of India behaves arbitrarily, even in the realm of contract, this Court can interfere under Article 226 of the Constitution of India. Admittedly, the respondent-SECL comes under “other authorities” within the meaning of Article 12 of the Constitution of India and therefore, it has an obligation to act fairly not arbitrarily even in contractual matter.

  It is the case of the petitioner that on 11.6.2018, 19.6.2018 and 20.6.2018 the petitioner demanded possession of subject land to commence the work as even in inspection carried out by the team of CMPDI, hindrance was caused by the villagers and inspection of work could not be completed. The respondents in para-8 of their return have also admitted that though the subject land on which work was to be executed was under their possession, but there was some obstruction by villagers agitation due to which there was little delay in handing over the site, but the fact remains that no document has been brought on record by the respondent-SECL that after vesting of land under Section 11 of the Act of 1957, possession of subject land was handed over to SECL before issuance of Letter of Intent and SECL, in turn, has placed the petitioner in possession to initiate the work awarded to him by Letter of Intent dated 2.5.2018.

  The petitioner/contractor had reasonable cause or valid reason in not commencing the execution of work within the stipulated time in terms of clause 6.1 of conditions of contract and therefore, forfeiture of earnest money deposit on account of non-execution work within the stipulated time and consequently, forfeiture of earnest money deposit to the extent of ₹ 50,00,000/- suffers from vice of arbitrariness and smacks total non-application of mind, which is violative of Article 14 of the Constitution of India and consequently, the impugned order to that extent deserves to be struck down.

  The impugned order dated 26.2.2019 (Annexure P/1) passed by respondent No.3 to the extent of forfeiture of earnest money deposit i.e. ₹ 50,00,000/- is set aside - The respondents are directed to make payment of the aforesaid amount to the petitioner within a period of four weeks from today. However, with regard to cancellation of subject work and other related disputes, parties are left to invoke clause 13 and clause 13A of conditions of contract relating to settlement of dispute by way of arbitration, if any.

  The writ petition is allowed.

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• 2019 (7) TMI 1958 - MADRAS HIGH COURT
  

  Assessment of trust - SCN calling upon the petitioner to show cause as to why the registration u/s 12(A)(a) of the Income Tax Act, 1961, should not be canceled - HELD THAT:- As in the instant case, though the petitioner has sought for information way back in the year 2008, such a representation was not considered till the year 2010, which had prompted the petitioner to file the present writ petition. As such, it would be justifiable for this Court to interfere into the Show Cause Notice and grant further time for the respondent to act on such a request made by the petitioner pursuant to the Show Cause notice.

  Respondent submitted that if the details and information sought for by the petitioner touches upon confidential matters of investigation or the like, it may not be permissible under law for them to furnish such documents. Nevertheless, such information and documents which are permissible in law will be considered, if the petitioner approaches the respondent.

  The petitioner is granted liberty to file an additional reply to the Show Cause Notice dated 21.07.2008, seeking for details and information required by them and on receipt of such an information, the respondent shall consider the same on its own merits and take necessary action.

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• 2019 (7) TMI 1957 - SUPREME COURT
  

  Jurisdiction of NGT - Whether orders passed by the National Green Tribunal are without jurisdiction being beyond the purview of Sections 14, 15 and 16 of the National Green Tribunal Act, 2010? - HELD THAT:- Whether NGT has jurisdiction to entertain a particular cause is a question which depends on the facts of each case. To find out as to whether NGT has jurisdiction to entertain a case, the case set up before the Tribunal has to be looked into to answer the question - the submission of the learned Counsel for the State that the Tribunal exceeded its jurisdiction Under Sections 14 and 15 in entertaining the application O.A. No. 73 of 2014 is rejected.

  Whether provisions of Mines and Minerals Development Regulation Act, 1957 are applicable in Tribal areas within the State of Meghalaya, included in Sixth Schedule of the Constitution? - HELD THAT:- When under a Parliamentary enactment, State has been given some statutory obligations, there is no lack of jurisdiction in the State to frame policy to give effect to or implement the jurisdictions conferred on the State by Parliamentary enactments. It is true that Mining Policy to be framed by the State has to confine to the jurisdiction conferred on it as per the MMDR Act, 1957 and the Rules framed thereunder - A perusal of the entire Policy documents indicate that Policy has been framed by the State as per the Act, 1957 and Minerals (Concession) Rules, 1960.

  The Government of Meghalaya has also made a request to the Government of India in the year 2015 for issuance of Presidential notification under Para 12A(b) of Sixth Schedule for exempting State of Meghalaya from certain provisions of the MMDR Act, 1957. After several deliberations, the Union of India has communicated through its O.M. dated 12.03.2019 that it is not possible to accede to the request of the Government of Meghalaya for issuance of Presidential notification under Para 12A(b) of Sixth Schedule - there is nothing in Sixth Schedule of the Constitution which in any manner exclude the applicability of Act, 1957 in the Tribal areas of Hills District of State of Meghalaya.

  Whether for mining the minerals from privately owned/community owned land in hills districts of Meghalaya, obtaining a mining lease is a statutory requirement under the MMDR Act, 1957 and the Mineral Concession Rules, 1960? - HELD THAT:- In exercise of the power Under Section 57 of Mines Act, 1952 a new set of regulations has been framed, namely, Coal Mines Regulations, 2017. Regulation 2(r) defines "District Magistrate". The Regulations contain various regulatory provisions with regard to mines. Chapter II deals with returns, notices and records. Chapter IV deals with Inspectors and Mine Officials. The Regulations contain several regulatory provisions which need to be followed while working a mine by the owner or his agent. The enforcement of Mines Act, 1952 and the Regulations, 2017 have to be ensured in the public interest by the state of Meghalaya - A notification dated 14.09.2006 was issued by the Ministry of Environment and Forests in exercise of power Under Section 3(3) of the Environment Protection Act, 1986. Section 3 of the Act, 1986 which provided for requirements of prior environmental clearance with regard to projects enumerates therein. Schedule to the notification listed the projects or activities requiring prior environmental clearance. "Mining of minerals" included at Item No. 1(a) but even for mining project requirement of minimum 5 hectares area was required for applicability of the project.

  While implementing statutory regime for carrying mining operations in the Hills District of the State of Meghalaya, the State of Meghalaya has to ensure compliance of not only MMDR Act, 1957 but Mines Act, 1952 as well as Environment (Protection) Act, 1986.

  Whether under the MMDR Act, 1957 and Mineral Concession Rules, 1960, it is the State Government, who is to grant lease for mining of minerals in privately owned/community owned land or it is the owner of the minerals, who is to grant lease for carrying out mining operations? - HELD THAT:- As per the statutory provisions contained in Rules, 1960 especially Chapter V, a mining lease for minerals, which belongs to a private owner or a community owner, it is not the State Government, which is entitled to receive any application or grant any mining lease, but it is the private owner or community owner, who is entitled to grant a lease for mining minerals owned by them.

  Whether the State of Meghalaya has any statutory control over the mining of coal from privately owned/community owned land in hills districts of State of Meghalaya? - HELD THAT:- The State is well aware of its statutory obligation which is reflected in Mining Policy of 2012 and Draft Guidelines, 2015 but still before this Court their contention that no mining lease is to be obtained for privately owned/community owned land in Hills District of State of Meghalaya is unacceptable and not in a good spirit. Our country being governed by the Constitution of India all the States are to implement Parliamentary Acts in true spirit and in the present case the State having been advised time and again by Comptroller and Auditor General and being well aware of its statutory obligation as noticed above it comes ill from the State to contend before this Court that there is no requirement of mining lease for winning the minerals - the State of Meghalaya has jurisdiction and power to ensure that no mining of coal should take place except when a mining lease granted under Mineral Concession Rules, 1960, Chapter V.

  Whether the power to allot land for mining purposes is vested in Autonomous District Councils? - HELD THAT:- Para 9(1) confines to the licences or leases of minerals granted by government of the State. Schedule VI which constitute the District Councils and Regional Councils enumerates their powers. Para 9 refers to licences or leases for extraction of minerals granted by the Government of the State. Para 9 only deals with share of the royalties to District Councils as agreed upon between the Government of the State and the District Councils - paragraph 12(A)(a) itself contemplates that any law made by District Council or Regional Council which is repugnant to any law of the State shall be void. Thus, the status of law made by District Council or Regional councils has to give way to the law made by the State. There can be no doubt that District Council and Regional Council cannot make any law which may be repugnant to the provisions of the Parliamentary Act.

  District Council does not have any power to make any law with regard to grant of mining lease. The mining leases for winning the major minerals has to be granted in accordance with 1957 Act and Mineral Concession Rules, 1960.

  Whether the order of National Green Tribunal dated 17.04.2014 directing for complete ban on mining is unsustainable? - Whether the complete ban on mining of coal in the State of Meghalaya as directed by NGT deserved to be vacated/modified in the interest of State and Tribunals? - HELD THAT:- The manner in which the mining is being carried out by the tribals cannot be approved which is clearly in violation of statutory regime under 1957 Act and 1960 Rules but in event the mining is carried out by tribals or their assignees as per the provisions of 1957 Act and 1960 Rules, there can be no objections in carrying such mining under the Regulation and control of State of Meghalaya. We thus clarify that in event mining operations are undertaken by the tribals or other owners of hills districts of Meghalaya in accordance with mining lease obtained from the State of Meghalaya as per 1957 Act and Mineral Concessions Rule, 1960, the ban order dated 17.04.2014 of the tribunal shall not come in its way of carrying mining operations. The ban order is for the illegal coal mining which was rampant in the State of Meghalaya and the ban order cannot be extended to valid and legal mining as per 1957 Act and 1960 Rules.

  Whether NGT had any jurisdiction to constitute committees to submit reports, to implement the orders of NGT, to monitor storage/transportation; of minerals and to prepare action plan for restoration of environment? - Whether the NGT committed error in directing for constitution of fund, namely, Meghalaya Environment Protection and Restoration Fund? - HELD THAT:- NGT could have passed any order or direction to secure ends of justice which power especially conferred by Rule 24, direction to constitute Fund is thus also saved under such power.

  Whether NGT by constituting Committees has delegated essential judicial powers to the Committees and has further encroached the constitutional scheme of administration of Tribal areas Under Article 244(2) and Article 275(1) and Schedule VI of the Constitution? - HELD THAT:- The powers of the District and Regional Councils are enumerated under paragraph 3. In the directions of the Tribunal to constitute committee for transportation of extracted minerals or for preparing time bound action to deal with the restoration of environment and to ensure its implementation, there is no interference in the powers of the District or Regional Councils. Action plan for restoration of environment is consequence of Tribunal finding out that an unregulated coal mining has damaged environment and has caused the pollution including water pollution - The District and Regional Councils are free to exercise all their powers and the committee constituted by the Tribunal is only concerned with the Environmental degradation and illegal coal mining. The committees' report or direction of the Tribunal in no manner encroaches upon the administration of Tribal areas by the District and Regional Councils.

  Whether direction to deposit Rs. 100/- crores by the State of Meghalaya by order dated 04.01.2019 of NGT impugned in C.A. No. 2968 of 2019 is sustainable? - HELD THAT:- The amount, which has been directed by NGT to be deposited by State of Meghalaya is neither a penalty nor a fine imposed on the State. The amount has been directed to be deposited for carrying out steps regarding restoration of environment. We further agree with the submission of the learned Counsel for the Appellant that the said amount cannot be said to be amount of damages to be paid by the State - There are force in the submission of the learned Counsel for the Appellant that State of Meghalaya has very limited source of revenue and putting an extra burden on the State of Meghalaya to make payment of Rs. 100 Crores from its own financial resources and budgetary amount may cause great hardship to the State of Meghalaya. Ends of justice be served in modifying the direction of NGT dated 04.01.2019 to the extent that State is permitted to transfer an amount of Rs. 100 Crores from the amount lying in the MEPRF to the Central Pollution Control Board. The Central Pollution Control Board as directed by the Tribunal (NGT) shall utilise the aforesaid amount of Rs. 100 Crores only for restoration of the environment - appeal allowed in part.

  Whether NGT's order dated 31.03.2016 that after 15.05.2016 all remaining coal shall vest in the State of Meghalaya is sustainable? - HELD THAT:- The mining of coal in contravention of Section 4(1) invites penalties as enumerated in Section 21. The present is not a case where any kind of penalty has been imposed on the miners except that the amount of royalty as payable on mining of coal is being collected by the State as penalty. It is true that the State Government has power Under Section 21(5) to recover from such person the minerals so raised, or, where such material has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, but it is for the State Government to exercise its power Under Section 21(5) by way of penalty - coal extracted and lying in open after 15.05.2016 was not automatically vested in the State and the owner of the coal or the person who has mined the coal shall have the proprietary right in the mineral which shall not be lost.

  Whether assessed and unassessed coal which has already been extracted and lying in different Districts of Meghalaya be permitted to be transported and what mechanism be adopted for disposal of such coal? - HELD THAT:- The expenses of transportation shall be borne by the State of Meghalaya, Coal India Ltd. or by both, which expenses shall be deductible from the price received of the coal. The State of Meghalaya shall be entitled to royalty and payment towards MERP Fund as well as taxes out of the price of the coal. After deduction of cost of transportation, the payment of royalty and payment to MERP fund and taxes plus 10% of value of the coal to be given to Coal India Ltd. for the above exercise, balance amount shall be disbursed to the owner of the coal towards its price, which disbursement shall be the responsibility of the State. The Coal India Ltd. after taking its expenses for transportation with 10% of price of the coal shall remit the entire amount to the State and it is for the State after deducting the royalty and payment to the MERP Fund and taxes to pay back the balance of the amount to the owner.

  The coal, which has been seized by the State in illegal transportation or illegal mining for which different cases have been registered by the State, is not to be dealt with as directed above. The said seized coal shall be dealt by the State in accordance with Section 21 of the Act, 1957 and on being satisfied, the State can take a decision to recover the entire quantity of coal so illegally raised without lawful authority and the said cases has to be separately dealt with in accordance with law.

  Application filed by different applicants seeking order of transportation of the different quantities stand disposed of.

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• 2019 (7) TMI 1956 - ITAT BANGALORE
  

  Disallowance of claim of expenditure on repairs and maintenance of building, plant and machinery - As per AO expenditure incurred on Office building and Hotel is capital in nature, since the same would not qualify as current repairs within the meaning of sec. 30/31 of the Income-tax Act - HELD THAT:- Having heard the rival contentions, we are of the view that this issue requires fresh examination at the end of the AO, since the nature of work carried on by the assessee would determine the character of the expenditure. If the expenditure has resulted in creations of new asset, undisputedly the same shall be treated as capital expenditure. On the contrary, if the expenditure has been incurred to maintain/replace an existing asset, then the same may be treated as revenue expenditure. We notice that the assessee has furnished the details of expenditure, but did not furnish the details of nature of expenditure, which shall determine the character of expenditure. Accordingly, as stated earlier, this issue requires to be examined at the end of AO. Accordingly, we set aside the order passed by ld CIT(A) on this issue and restore the same to the file of the AO. Since the Revenue has not challenged the decision rendered by the ld CIT(A), the relief granted by the first appellate authority shall remain intact.

  Admission of additional claim - Setting of loss suffered in passenger service fee/service component against the business income - HELD THAT:- We noticed that the claim of the assessee has not been examined by the AO, since the said claim was made for the first time before the ld CIT(A) by the assessee. Though the decision rendered by Hon’ble Supreme Court in the case of Goetze India Ltd. [2006 (3) TMI 75 - SUPREME COURT] stated that the additional claim can be made by filing a revised return only, yet the Hon’ble Supreme Court has made it clear that the same will not impinge upon the power of the Tribunal to admit additional claims. Accordingly, we admit the claim of the assessee.

  As AR submitted that, by applying the same analogy, the assessee may not be entitled for deduction of loss suffered under this head, but sought an opportunity to explain its stand before AO. Since this issue has not been examined by the AO, we deem it proper to restore it to the file of the AO for examining it afresh. Accordingly, we set aside the order passed by ld CIT(A) on this issue and restore the same to the file of the AO.

  Disallowance of Community development expenses - As submitted that these expenses were incurred on community development of nearby villages around airport area, which needs to be developed for the purpose of development of Airport business. Accordingly it was claimed that the above said expenditure was allowable u/s 37(1) - HELD THAT:- There is no dispute that this expenditure has been incurred under the head ‘corporate social responsibility’. However, we noticed from the decisions relied on by the assessee to support its claim that the Hon’ble High Court has appreciated the connection between the expenditure and the business use, i.e., those assessees were able to demonstrate the connection between the expenditure incurred and its use for the business of the assessee. In the instant case, though the assessee has furnished details of expenditure, it has not demonstrated the connection between the expenditure and the business advantage to the assessee. Further, as stated earlier, the nature of payment as well as the nature of expenditure incurred by GMR Varalaskhmi Foundation require examination.

  In the interest of natural justice, the assessee may be provided with one more opportunity to explain its case before the AO. Accordingly, we set aside the order passed by the CIT(A) on this issue and restore the same to the file of the AO for examining this issue afresh in the light of the decision rendered by Hon’ble Karnataka High Court [2013 (7) TMI 451 - KARNATAKA HIGH COURT]

  Disallowance of payment made towards delayed deposit of service tax and VAT by treating the same as penalty in nature - HELD THAT:- The issue under consideration is related to interest paid delayed payment of service tax. There is no dispute that the amount paid as service tax is allowable as deduction. Hence the decision rendered by Hon’ble Supreme Court in the case of Bharath Commerce and Industries Ltd. [1998 (3) TMI 2 - SUPREME COURT] will not apply to the facts of the present case. On the contrary, the claim of the assessee gets support from decision rendered in the case of Lakmandas Maturdas [1997 (12) TMI 16 - SUPREME COURT] and Kaypee Mechanical India Pvt. Ltd. [2014 (4) TMI 829 - GUJARAT HIGH COURT] Accordingly, we set aside the order passed by ld CIT(A) and direct the AO to delete the disallowance of interest paid on delayed remittance of service tax and VAT.

  Appeal filed by the assessee is treated as allowed for statistical purposes.

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• 2019 (7) TMI 1955 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
  

  Call notice to the Petitioners to pay the final call money - HELD THAT:- When a Petition is pending and when this Bench has already dealt with the said issue, the Respondents are not expected to proceed further by giving a call notice. Whereby these Respondents are hereby directed not to proceed with in respect to the shares allotted in the year 2015 until further orders, with a peremptory direction to these respondents to file reply within 15 days hereof, failing which, this Company Petition will be decided looking at the averments and the material placed by the Petitioner.

  List this matter on 19.07.2019 for filing reply by other Respondents within 15 days thereof.

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• 2019 (7) TMI 1954 - SC ORDER
  

  Maintainability of appeal to Tribunal - Grant of CHA License - Regulations of 2004 were in force - HELD THAT:- The delay is condoned.

  Issue Notice.

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• 2019 (7) TMI 1953 - ITAT DELHI
  

  Disallowance u/s 14A r.w.r. 8D - expenses for earning dividend - HELD THAT:- As relying on Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] contention of assessee that no disallowance under section 14A of the Act can be made in respect of investment in the shares of the subsidiary for strategic investment, are rejected.

  In our opinion, there is no error in the order of the lower authorities in making disallowance under section 14A of the Act read with Rule 8D of Income Tax Rules, 1962. - Decided against assessee.

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• 2019 (7) TMI 1952 - ITAT MUMBAI
  

  Validity of reopening of assessment u/s 147 - Bogus purchases - assessee’s contention that no notice was issued u/s. 143(2) - HELD THAT:- The assessee did not file fresh return of income in response to notice u/s. 148 of the Act and the assessment was completed without issuing notice u/s.143(2) of the Act. See MS. MALVIKA ARUN SOMAIYA [2008 (9) TMI 947 - BOMBAY HIGH COURT]

  In view of the above discussion and the judicial pronouncements hold that in the absence of issue and service of notice u/s. 143(2) of the Act, the reassessment made by the Assessing Officer u/s. 143(3) r.w.s. 147 of the Act is void ab-initio and is a nullity. Thus, the reassessment order is quashed. - Decided in favour of assessee.

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• 2019 (7) TMI 1951 - ITAT SURAT
  

  Estimation of income - Bogus purchases - HELD THAT:- In the present case, it is undisputed that no notices were issued u/s 133(6) to the two parties from whom the alleged bogus purchases were made and, thus, the Assessing Officer failed to take the enquiry further. Once, the purchases are held to be genuine, no additions can be made. We note that the Ld. CIT (A) has not given any cogent reason for sustaining the disallowance to the tune of 2% except for an observation that it was a possible situation that the assessee could have purchased rough diamonds from a third party in the grey market and had ended up getting bills for purchase from M/s Dharam Impex and M/s Maniprabha Impex Pvt. Ltd. Thus, this sustenance of 2% is based only on assumptions and surmises by the Ld. CIT (A) and there is nothing on record to establish the said observation of the Ld. CIT (A). Therefore, in view of the facts of the case, we are unable to concur with the findings of the lower authorities and we deem it fit to set aside the order of the Ld. CIT (A) and direct the deletion of the sustenance of 2% of the alleged bogus purchases. Appeal of assessee allowed.

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• 2019 (7) TMI 1950 - ITAT HYDERABAD
  

  Validity of Reopening of assessment u/s 147 - default on non issue of notice on correct/new address - AO had the knowledge of change of address and also had known the correct address, but, for the reasons best known to him, the notices were sent to the old address after the period of limitation - AO has resorted to service of notice by affixture at the old address after notice u/s.148 of the Act was returned unserved on the assessee - HELD THAT:- The issuance of notice u/s.148 of the Act is a question of jurisdiction and not a procedural aspect. By issuing a valid notice within the prescribed time limit, only the Assessing Officer gets the jurisdiction to re-open the assessment. In the cases before us, the notices u/s.148 of the Act, though were issued on the last day of the relevant assessment year, were never served on the assessee.

  Even after the assessee have brought to the notice of Assessing Officer that the notices have not been served on them, no steps have been taken by the Department to rectify the said defect. Therefore,we hold that the notice u/s.148 of the Act is invalid and consequently, the assessments are also invalid. The reliance of the CIT (A) on the provisions of section 292B is also not sustainable, because the defect is not a procedural defect but is a jurisdictional one. In the result, the appeals of both the assessees are allowed.

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