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Showing 61 to 80 of 1677 Records
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2016 (9) TMI 1623
Seeking stay of invocation of the bank guarantees issued for securing the mobilization advance - whether ARIO has made out the necessary grounds for grant of interim stay on invocation of the Mobilization BG? - HELD THAT:- There is also a dispute as to whether ARIO had mobilised the necessary resources at site as is claimed by ARIO. According to GGL, ARIO had merely drawn the resources from another contract/site that was being executed by ARIO at the material time - Although there are disputes between the parties as to which party is in breach of the terms of the LMC Contract, there is no dispute that the mobilization advance provided to ARIO has not been recovered. This is so because only a small fraction of the work as contracted has been completed and, therefore, ARIO has been unable to raise bills and, consequently, GGL has been unable to adjust the mobilization advance from the running bills as agreed.
Whether GGL should be interdicted from invoking the mobilization BG only on the basis of the aforesaid disputes between the parties? - HELD THAT:- The mobilization advance provided were in the nature of loan and, admittedly, GGL is entitled to recover the same.
Whether ARIO is entitled to retain the advances and adjust the same against its claim is the subject matter of disputes between the parties? - HELD THAT:- The terms of the Mobilization BG make it amply clear that GGL is entitled to recover the same notwithstanding the disputes between the parties. Indisputably, the purpose of Mobilization BG is to secure GGL in recovery of mobilization advance. The entire purpose for securing the mobilization advance by a bank guarantee would be frustrated if the invocation of the bank guarantee is interdicted till the adjudication of the disputes.
In the present case, the bank guarantee in question expressly provides that "we undertake to pay you, upon your first written demand declaring the Contractor to be in default under the contract and without caveat or argument, any sum or sums within the limits of (amount of guarantee) as aforesaid, without your needing to prove or show grounds or reasons for your demand or the sum specified therein." Thus, the bank guarantee in the present case is clearly an unconditional one. And, in terms of the bank guarantee, GGL is not required to provide any reasons or to show that ARIO is in breach of the terms of the contract.
The invocation of Mobilization BG cannot be interdicted. The petition is disposed of.
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2016 (9) TMI 1622
Proper officer - Juridiction to issue Show Cause Notice - Constitutional validity and effect of Section 28(11) of the Customs Act, 1962 - HELD THAT:- Exemption from filing c/c of the impugned judgment and permission to file lengthy list of dates granted.
There shall be a stay of operation of the impugned judgment and order dated 3rd May, 2016 passed by the High Court of Delhi.
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2016 (9) TMI 1621
Misuse of declaration form ST-17A - bogus / non genuine firms - requirement under declaration ST-17 are mandatory in nature or not - relaxation in concessional rate beyond the provision of law or not - HELD THAT:- It may be that M/s Arvind Traders and M/s Nakoda Traders, Kota, have been found to be non genuine or bogus by the Revenue Authorities, but at a later point of time, which is admitted in the instant case. The fact remains that the transaction of purchase/sale is prior to 31.3.2002, at that point of time both the firms were having valid registration certificate. Therefore, the AO was not justified in holding or observing about misuse of declaration form.
Admittedly, both the Appellate Authorities have come to a finding of fact that the registration was in force upto the period ended on 31.3.2002. Not only that, all the transactions have been found to be recorded in the books of account and both the Appellate Authorities have come to a concurrent finding that not only the transactions were recorded but all the payments were by account payee cheques, though it may not be relevant and may not be sacrosanct, but this finding is sufficient to hold in favour of the assessee that atleast in the instant case the registration was valid and in force and cancelled much later than the transactions having taken place in the instant case.
The claim of assessee was just and proper and even in the instant case there is no finding that the cancellation of registration is from a retrospective date, prior to the transactions having been effected - the question of law is answered in favour of the assessee and against the Revenue, and the petitions being devoid of merits, are dismissed.
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2016 (9) TMI 1620
Application before the Income Tax Settlement Commission offering additional income - HELD THAT:- As appellant – revenue has tendered memo of withdrawal.
Permission is granted. Writ Appeals are disposed of as withdrawn.
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2016 (9) TMI 1619
Restraint from invoking unconditional bank guarantee - breach of the covenants between the Appellant and the first Respondent - Whether the High Court is justified in exercising its discretionary jurisdiction Under Article 226 of the Constitution of India for restraining the Appellant from invoking an unconditional bank guarantee executed by the first Respondent? - HELD THAT:- It is contended on behalf of the first Respondent that the invocation of Bank Guarantee depends on the cancellation of the contract and once the cancellation of the contract is not justified, the invocation of Bank Guarantee also is not justified - We are afraid that the contention cannot be appreciated. The bank guarantee is a separate contact and is not qualified by the contract on performance of the obligations. No doubt, in terms of the bank guarantee also, the invocation is only against a breach of the conditions. But between the Appellant and the bank, it has been stipulated that the decision of the Appellant as to the breach shall be absolute and binding on the bank.
An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned - Between the Appellant and the first Respondent, in the event of failure to perform the obligations under the LoI dated 06.02.2008, the Appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first Respondent has failed to perform its obligations as covenanted, the Appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first Respondent justifying its inability to perform its obligations under the LoI, etc., are not within the purview of an inquiry Under Article 226 of the Constitution of India. Between the bank and the Appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the Appellant and the first Respondent, as satisfied by the Appellant, the bank is bound to honour the payment under the guarantee.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1618
Validity of order passed by CIT-A - assessee contended that the order of the CIT(A) suffers from a pertinent infirmity as it has been passed without affording the assessee full and proper opportunity of being heard - As per assessee CIT(A) has passed an ex-parte order inspite of the fact that assessee did appear on various dates and indeed the matter was finally adjourned for 22/01/2010, whereas the CIT(A) has passed the order on an anterior date i.e. 19/01/2010 itself - HELD THAT:- CIT(A) has passed an ex-parte order inspite of the fact that assessee did appear on various dates and indeed the matter was finally adjourned for 22/01/2010, whereas the CIT(A) has passed the order on an anterior date i.e. 19/01/2010 itself. Considering the fact position and the circumstances explained before us, we deem it fit and proper to set aside the order of the CIT(A) and restore the matter back to his file for adjudication afresh in accordance with law after allowing the assessee a reasonable opportunity of being heard. It is clarified that our decision to remand the matter back to the file of the CIT(A) shall not be construed as any reflection on the merits of the various issues raised by the assessee, which shall be dealt with by the CIT(A) as per law. Aappeal of the assessee is allowed for statistical purposes
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2016 (9) TMI 1617
Depreciation on computer softwares - forming part of the block of assets of computers at the rate of 25% OR rate of 60% claimed by the appellant - restricting the claim of depreciation on computer softwares forming part of the block of assets - HELD THAT:- ‘Software’ consists of the programs and application that run on computers, and computer including computer software on which rate of depreciation has been prescribed as 60%. And the said rates are effective from Assessment Year 2003-04 wherein the “Computer Software” has already been included in the category of “Computer” for the purpose of allowing depreciation at the higher rate of 60%. As per the provisions of Income Tax Act are considering up to Assessment Year 2002-03 “ computers” were eligible for depreciation @ 60% from Assessment Year 2003-04, benefit of such enhanced depreciation rate has been extended also to “Computer Software”. In this respect our attention was drawn to note no. 7 to Appendix I as applicable from Assessment Year 2003-04 which defines “Computer Software to mean any computer programme recorded on any disc, type, perforated media or other information storage device. Thus for Income Tax purposes “software” has to be shown under the block of assets ‘computers including computer software’.
We are also of the view that “Computer Software” cannot work in isolation and also working on computer system, without a software would be futile and even computer software which is installed on computer system separates the computer hardware and being on integral part is eligible for depreciation.
Amway India [2008 (2) TMI 454 - ITAT DELHI-C] wherein it has observed that ‘computer’ and ‘computer software’ are two different item of assets. With effect from 1st April, 2003. ‘computer software’ has been classified as a tangible asset under the heading “Plant” in Appendix I to the IT Rules entitled to depreciation at 60% from 1st April 2003.
Thus we allow this ground raised by the assessee, and AO is directed to re-compute assessment by giving depreciation @ 60% to the assessee. - Decided in favour of assessee.
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2016 (9) TMI 1616
Revision u/s 263 by CIT - service tax amount has not been paid on or before filing the IT return as mandated under the provision of Sec. 43B of the Act and secondly, the AO at the time of assessment has allowed the depreciation @ 100% on the hoarding structure - HELD THAT:- As per the Service Tax Law, Service Tax is payable as and when the payment /fees for underlying service provided are realized. As the appellant firm has not received the sum till the end of the financial year i.e. 2007-08, the question of paying the same did not arise at all. As already stated the fact of non-realization of fees is disputed by the AO in his order. If for any reason the payment for services rendered is not realized (bad debts), there was no liability as to payment of service tax - service tax law stands on a different footing as compared to other laws like Central Excise or VAT. As per the provisions of section 145A taxes and duties should form part of the Gross Receipts but it as application is restricted to purchase and sale of goods only, and does not extend to service contracts. Thus, the liability of the service tax dos not also arise as per section 145A .
As in respect of valuation of purchase and sale of goods and inventory and not to service contracts. Therefore the action of the Assessing Officer in invoking provisions of section 145A of the Act and adding Service Tax to Gross Receipts is incorrect in as much as against the very basic principles of section 145A. Apart from the above, we find that the payment for services rendered was not received in the financial year under consideration.
Similarly for the issue raised for the depreciation claimed @ 100% on the hoarding structure, we find that the hoarding structures are temporary in nature and they cannot be equated with the building for the reason that the temporary structures are raised in temporary location which are taken on lease – once the structures are removed the value becomes almost nil and cannot be used again. - Decided in favour of assessee.
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2016 (9) TMI 1615
Deduction u/s 80IB(10) - “commencement” of the housing project for the purpose of section 80IB(10) - Assessee not obtained completion certificate from local authority before 31.3.2008 which is mandatory as per Explanation (ii) to section 80IB(10) - Whether the approval of the local authority was obtained on 28.11.1992, ie much before 1.10.1998, the date on or after which the project approved were eligible for deduction u/s 80IB(10) ? - HELD THAT:- This issue stands covered in favour of the assessee in assessee‟s own case by virtue of the order of the Tribunal for the earlier assessment years [2014 (6) TMI 1060 - ITAT MUMBAI] no infirmity in the finding recorded by the Ld CIT (A) that the AO was wrong in holding that the housing project of the assessee had commenced before 1.10.1998. We uphold his order. Since, the facts and circumstances in all the three cases are identical, all the appeals filed by the Revenue are dismissed.
Date of completion of the project - It is the finding of the CIT (A) that the project in question was approved prior to the amendment and therefore, the provisions relating to the “due date‟ fixed in the Statute are inapplicable. However, notwithstanding the same, it is the argument of the Ld Counsel for the assessee that the housing project consists of “seven‟ buildings (A to G) and the buildings “A, B and C‟ were completed on 18.2.2006; buildings “D, E and F‟ were completed on 3.2.2007 and finally, the building “G‟ was completed on 29.3.2008 ie on or before the due date of 31.3.2008. In this regard, he brought our attention to the copies of the completion certificates enclosed to the note provided by the Ld AR dated 7.9.2016.
We find, the decision given by the CIT (A) vide para 3.4 of his order is fair and reasonable and therefore, it does not call for any interference. Accordingly, Ground no.2 raised by the Revenue is dismissed.
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2016 (9) TMI 1614
Validity of reopening of assessment u/s 147 - balcony coverage charges known as balcony premium paid to the Surat Municipal Corporation - HELD THAT:- It appears that the reasons for which reopening is contemplated is with respect to balcony premium to the extent of ₹ 79.95 lakhs (rounded off). The material on record indicates that the said issue during the process of assessment had been gone into. The learned counsel has referred to a communication dated 25.7.2007 in which the query was put up came to be answered and it has been stated by the assessee that the said amount has been paid to the Surat Municipal Corporation and the copy of acknowledgment of the said balcony premium is also attached to the communication dated 25.7.2007. It is further emerging from the record that the account with respect to M/s. Shanti Enterprise i.e. assessee has also indicated in it the very amount of balcony premium fee which is evident from page 15 of the compilation of the petition. Even the said figure is also reflected from the other relevant documents.
Issue relating to the balcony premium was the subject matter of assessment proceedings and, therefore, reopening on this issue, if permitted, the same would be based upon the change of opinion which is impermissible and, therefore, it also appears to us that the impugned notice is not valid.
The contention of the Revenue that the impugned action is within the period of four years and, therefore, it is always open for the authority to reopen the assessment cannot be accepted. Simply because the action is within the period of four years would not give a leverage to the authority to just go on repeating the exercise of examining the issue which has already been gone into. There appears to be no tangible material distinct from what was made a part of the assessment proceedings and, therefore, reopening of the assessment is not permissible. The proposition of law is aptly clear, as stated above and, therefore, in our opinion, permitting the authority to reopen the assessment would not be valid. We cannot shut our eyes over the aforesaid circumstance simply because it is within the period of four years and having regard to the decisions of Apex Court which propounded that the Courts would be failing to perform their duty, if reliefs were refused without adequate reasons, we see that the action on the part of the respondent authority is impermissible in view of aforesaid set of circumstance.
We are of the opinion that the action of reopening of assessment is invalid and not permissible in view of settled position of law and, therefore, relief sought deserves to be granted by quashing and setting the notice for reopening and, therefore, is hereby quashed and set aside.
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2016 (9) TMI 1613
Amendment of the plaint to enhance the valuation of the suit for the purposes of pecuniary jurisdiction - HELD THAT:- Though the plaintiff is the dominus litis and has the prerogative to choose the remedy, and the forum, as also put appropriate valuation to the relief (if so permitted in law as in the case of declaration and injunction), the discretion to be exercised cannot be arbitrary or capricious and the same is open to objections by the opposite party and, therefore, subject to judicial scrutiny. The continuation in, or retention before, the forum whose jurisdiction initially may have been properly invoked, is not a vested right and the same is subject to the requirements of justice, amenable to the jurisdiction of the competent courts to order the transfer of such lis, as indeed subject to legislative mandate by amendment of law reflecting public policy.
The right of a party to the proceedings in a civil suit to amend the pleadings is qualified by the consideration of its necessity for just determination of the real question in controversy. The discretion given by the law to put an appropriate valuation to the reliefs in the nature of declaration and injunction at the threshold may generally be not open to question but the move to make amendments in such valuation would have to pass the same test as is applied in the case of amendments of pleadings and, thus, must be bonafide and not arbitrary or capricious or irreparably prejudicial to the defendant - Permissibility of amendment to the pleadings as proposed by a party to the civil suit is an issue to be determined by the court which has the requisite jurisdiction to deal with the matter in which such issues arise. There is no "inherent jurisdiction" to deal with the matter concerning which the law confers no jurisdiction.
The question of over-valuation or under- valuation has to be dealt with as per the terms of the said Section and not otherwise for when a judgment is rendered on merits, it should not be reversed purely on technical grounds, unless it has resulted in the failure of justice. Even on the question of subject-matter jurisdiction, some dent has been made by incorporation of Explanation VIII to Section 11 CPC, which pertains to res judicata and binding force on a judgment even of a court of limited jurisdiction, provided it is competent to decide the issue of jurisdiction. In that event, an unsuccessful party cannot initiate collateral proceedings notwithstanding that the court of limited jurisdiction was not competent to try such proceeding or issues. It is difficult to accept and approve that a contesting losing side/defendant can file a suit to declare a decree as a nullity for want of pecuniary jurisdiction. Collateral separate proceedings would not lie and would be rejected.
The Original Side of the High Court being in seisin of the matter, would have the jurisdiction to determine whether the suit should be transferred and the jurisdiction would include the power to decide an application for amendment, which if allowed, would mean that the suit is not to be transferred. When the jurisdiction is established, it would be not correct to hold that the procedural laws have been violated - the question referred and answered is in the context in question i.e. the suit was validly instituted as per Section 15 of the Code read with the Delhi High Court Act, Sections 4 and 5 of the Amending Act of 2015, the notification dated 24th November, 2015 and the suit is pending in the High Court.
Final order - HELD THAT:- In view of the majority opinion, the question of law, in the context and matrix in question, is answered in the affirmative, holding that the Original Side of the High Court can decide the application to amend the plaint and increase the pecuniary valuation of the suit, where if the application is allowed, it would result in the suit not being transferred - The amendment application would be listed before Judge of the Original Side of the High Court on 21st September, 2016.
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2016 (9) TMI 1612
Auction - execution of an order of the Assistant Registrar of Cooperative Societies - Section 76 of the Multi State Cooperative Societies Act, 1984 - HELD THAT:- The scheme of the 2002 Act which replaces the 1984 Act is a little different. Section 84 of the 2002 Act corresponds to Section 74 and 76 of the 1984 Act. With this difference-that disputes that have been referred to arbitration are now to be settled or decided by the Arbitrator to be appointed by the Central Registrar, and the provisions, therefore, of the 1996 Arbitration and Conciliation Act shall apply to such arbitration as if the proceedings for arbitration were referred for settlement or decision under the provisions of the said Act.
It can be seen that Section 84(4) and (5) of the new Act provide for a different scheme. Equally, Section 94 which provides for execution of certain decisions and orders made under the 2002 Act, mentions various Sections, but Section 84 is conspicuous by its absence. This is obviously for the reason that the entire proceedings have now to be conducted under the 1996 Act, including execution of the arbitration Award made under the said Act. The question before the High Court was whether proceedings initiated under the old Act could continue under the said Act.
The proceeding in execution initiated Under Section 85(c) of 1984 Act and pending before the authorities under the said Act prior to 19th August, 2002, would continue unhindered by the repeal of the 1984 Act by the 2002 Act.
The opportunity to have the sale certificate set aside under Rule 37(13) has not been availed. Ground V of the Writ Petition is in reality a ground relatable to Rule 37(14), as, according to the Petitioner, there is a material irregularity in conducting the sale. For the Petitioner to make out such a ground, he has first to apply to the recovery officer within 30 days from the date of sale. And further, the Appellant has to make out a case that he has sustained substantial injury by reason of such irregularity. Ground V of the Writ Petition does not even refer to substantial injury for the reason that is not the appellant's case that the property has been sold at a gross undervalue. No relief can be given in the Writ Petition so as to circumvent the statutory provisions contained in Rule 37(13) and (14). Ground VI is totally vague and lacking in particulars. A charge of malafides has to be made out with great clarity and particularity. Also, the Appellant cannot claim to be in the dark as every auction sale was publicly advertised in newspapers.
Application allowed.
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2016 (9) TMI 1611
Levy of VAT - sale of “repossessed” cars owned by Bank - quantum of penalty - HELD THAT:- It could not be said that the point was not debatable; undoubtedly it was. The levy of 200% penalty, therefore, is not sustainable; this court, at the same time, opines that it would not be appropriate to act as an adjudicating authority as to the proportionateness of the penalty to be imposed having regard to the fact that the issue was debatable. The matter is accordingly remitted to the Tribunal on the limited question of extent of penalty to be properly levied under these circumstances.
The appeals are accordingly partly allowed on the question of penalty.
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2016 (9) TMI 1610
Maintainability of intra-court appeal - Enforcement of the Award before the District Judge - Expressing disinclination to entertain the Civil Miscellaneous Application (Review) - Sections 47 and 49 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- On a careful reading of the aforesaid provision, it is limpid that appeal can lie if an order is passed refusing to refer the parties to arbitration as engrafted Under Section 45 of the 1996 Act or to enforce a foreign award as envisaged Under Section 48 of the said Act.
In the case at hand, the proceeding was initiated before the learned District Judge. During the pendency of the proceeding, the Explanation of Sub-section (2) of Section 47 of the 1996 Act was amended - In spite of the amendment, the learned District Judge passed an order. However, the Respondent moved the High Court and it was accepted by both the parties before the learned Single Judge that the District Judge had no jurisdiction and thereafter the learned Single Judge took up the matter and passed the order.
The impugned judgment of the learned Single Judge Under Section 50(1)(b) of the 1996 Act is passed in the original side of the High Court. Be that as it may, Under Section 13 of the Act, the single Judge has taken the decision. Section 13 bars an appeal under Letters Patent unless an appeal is provided under the 1996 Act. Such an appeal is provided Under Section 5 of the Act. The Letters Patent Appeal could not have been invoked if Section 50 of the 1996 Act would not have provided for an appeal. But it does provide for an appeal. A conspectus reading of Sections 5 and 13 of the Act and Section 50 of the 1996 Act which has remained unamended leads to the irresistible conclusion that a Letters Patent Appeal is maintainable before the Division Bench. It has to be treated as an appeal Under Section 50(1) (b) of the 1996 Act and has to be adjudicated within the said parameters.
The judgment of the High Court is affirmed, though for different reasons - appeal dismissed.
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2016 (9) TMI 1609
TDS u/s 194H OR 194J - discounts given to collection centres - defaulter u/s. 201(1) and 201(1A) for non deduction of TDS - Short deduction of TDS - whether relationship between the assessee and collection centres is in the nature of principal to principal and not that of principal to agent? - HELD THAT:-We find that an identical issue has been decided in assessee’s own case which is reported as SRL Ranbaxy Ltd. [2011 (12) TMI 84 - ITAT DELHI] for Assessment Year 2006-07 wherein it was held that the discounts allowed by the assessee Laboratory to the collection centres is not commission and not attracted by the provisions of Sec. 194H for the reason that there is no principal agent relationship between the assessee and the collection centre and the relationship between assessee and collection centres is only principal to principal relationship therefore the provisions of Sec. 194H have no application
There was no transfer of title in the property (SIM cards) by the assessee to the distributor, it was held that the distributor acted as an agent of the assessee and the relationship between the parties was not on a principal to principal basis. It is in these circumstances that in BHARTI CELLULAR LTD. [2006 (4) TMI 50 - ITAT, KOLKATA] held the provisions of sec. 194H of the Act to be applicable to the amount which was regarded as being in the nature of commission.
The present case, on the other hand, is not one of sale of goods, but one of rendering of services. The assessee renders diagnostics services to the collections centers against payment, on which necessary tax is deducted at source u/s 194 J of the Act. There is no element of agency between the assessee and the collection centers. ‘Bharti Cellular’ (supra), therefore, has no application whatsoever to the facts of the present case”. Since facts and circumstances being identical, respectfully following the said decision, we hold that the provisions of Sec. 194H have no application for the discounts allowed by the assessee to the collection centres. Thus, we sustain the order of the Ld. CIT(A). - Decided against revenue.
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2016 (9) TMI 1608
Disallowance of "Mark to Market" loss on revaluation of forward exchange contracts which was outstanding as on the date of balance sheet, treating the same as notional loss - business to hedge against the forex loss - CIT(A) held it not notional loss and therefore allowable - assessee argued that more than 90% of the assessee’s business is deriving income from exports of diamonds and most of the purchases and sales were made in foreign currency - HELD THAT:- Considering the substantial foreign currency exposure and due to substantial fluctuation in foreign currency rates, the assessee entered into the forward contracts (FCs) with the Banks as integral part of the export import business with the aim to hedge and safeguard against the foreign exchange fluctuation of the US $ vis-à-vis the Indian currency, from time to time.
From the details filed by the assessee it is clear that there was huge volatility in exchange rate of US Dollar viz. Rupee from April 2008 to March 2009. US Dollar had registered an appreciation from ₹ 39.7650 to ₹ 51.9700 during the year as is evident from the yearly graph plotting the volatility filed before us. We find that the assessee has hedge the underlying exposure in foreign currency and as such, the forward contracts entered were for the purpose of the business to hedge against the forex loss.
Assessee has forex exposure on all limbs its business activities. The firm has not entered into the forward contracts with an intention to earn any gain due to fluctuation in foreign currency rate but it is necessary for it to enter into such forward contracts to hedge against foreign exchange rate fluctuation. This is an integral part of the business undertaken by the assessee and incidental to the export and import business. In the absence of such forward contracts, the firm may sustain huge losses.
It becomes essential for the firm to book such forward contracts as a prudent business practices. Further, we find that the assessee is engaged in the business of diamonds export and not in the business of foreign exchange. This is evident from the financial results of the firm. In view of the same, we are of the view that these contracts are nothing but an integral part of its export and import activities and the resultant hedging difference on their revaluation cannot be isolated artificially as notional loss. Hence, we confirm the order of CIT (A) and this issue of revenue’s appeal is dismissed.
Disallowance of additional claim of depreciation - AO disallowed the claim by observing that the assessee is not engaged in manufacturing or production of any article or thing - claim of the assessee is that the business of cutting and polishing of diamonds is manufacturing and production of an article or thing as required for claiming additional depreciation - HELD THAT:- Respectfully following the Coordinate Bench decision in the case of Flawless Diamond India Ltd. [2014 (9) TMI 261 - ITAT MUMBAI] we hold that cutting and polishing of diamonds amounts to manufacturing or production of article or thing as envisaged for the purpose of claiming additional depreciation u/s 32(1) (iia) of the Act. Hence, we confirm the order of the CIT (A) on this issue and dismiss the Revenue’s appeal.
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2016 (9) TMI 1607
Addition on mere statement of Assessee given during search and seizure operation - estimating sales and taking out average gross profit of Assessee firm - HELD THAT:- Statement recorded on oath during the course of search and seizure by Authorized Officer may be used in evidence in any proceeding under Act, 1961. When something can be used as an evidence, meaning thereby, it is a relevant material to support a finding to be recorded in a particular manner.
The exposition of law is well established that an admission is the best evidence. It is however, always open to the person making admission to explain the same but whether explanation is credible or not would depend upon the material placed by such person who endeavour to explain his admission. Mere fact that an admission was explained, does not mean that admission will loose its nature of important piece of evidence. Competent authority who has to assess evidence, for valid reasons, can prefer to rely on admission and reject explanation.
As account books having not being found maintained in ordinary course of business and supporting material was also not maintained by Assessee, the alleged explanation of Assessee has rightly been rejected by Assessing Officer and Tribunal has also rightly affirmed the same.
In the present case, Assessing Officer has not made additions merely on such statement. It was looked into the explanation, account books and other material placed before it and then made addition of certain amount which is admittedly less than the amount of disclosure under Section 132(4) of Act, 1961. Tribunal has rightly affirmed the same. - Decided against assessee.
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2016 (9) TMI 1606
Disallowance of interest on account of the loan/advances to its three Directors - Whether direct nexus between the advances given to the Directors and the assessee's own fund developed ? - HELD THAT:- The contention raised by the revenue that own fund has been utilized for the purpose of fixed assets was not accepted by the Hon'ble High Court and it was held that if there are funds available both interest free and loan then the presumption would arise that the investment would be out of interest free fund generated or available with the company if the interest free fund was sufficient to meet the investment.
We are of the view that the judgment in the case of CIT Vs. Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] is applicable in the facts of the present case. Accordingly, following the judgment of Hon'ble Bombay High Court (supra), addition made by the Assessing Officer in question is deleted. Appeal of the assessee is allowed.
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2016 (9) TMI 1605
Disallowance u/s 40(a) (ia) - non-deduction of TDS on the expenses of purchase price of computer software - HELD THAT:- The amount paid by the assessee to the supplier for supply of the computer software was neither the price of CD/DVD alone or the computer software alone nor the price of license. It was a combination of all, unless the license was permitting the end user to copy and download the software, CD/DVD, cannot be used by the individual and further relied upon the Explanation 5, inserted vide Finance Act, 2012 in section 9(1)(vi) - CIT(A) further hold that the payment for the license to use the computer software programme constitute royalty for the purpose of the Act - assessee not substantiated as to how the facts of his case are similar to the facts of cases, on which he relied. AO not discussed in its order the contention raised by assessee during the assessment. Similarly the ld CIT(A) has also not discussed in its order, the contents of various clause contained in the buyers agreements of various dates relied by assessee - we restore this ground of appeal to the file of AO to consider all the documents and various decisions of the High Courts and Tribunal and pass speaking order - this ground of appeal is allowed for statistical purpose.
Disallowance of difference of loss on non Export Oriented Unit - apportionment of expenditure incurred on account of salaries, bonus, allowance, contribution to Provided Fund and other funds for welfare of the employees - expenses are common expenses for both non-export oriented unit and export oriented unit as no allocation is for both the units provided by the assessee - HELD THAT:- We have seen that the assessee has furnished the copy of Circular for section 10B deduction in Form No. 56G along with his submission dated 11.01.2011 and further the details submission dated 13.12.2011. Neither the AO nor the CIT(A) discussed all the contention raised in both the letters as well as on the certification u/s 10(b). Moreover, one of the units of the assessee is EOU and the assessee is entitled for deduction u/s 10B. The assessee is entitled for 100% deduction in respect of business derived by him from 100% export oriented undertakings, thus the apportionment of Non-EOU is not in accordance with law, thus we restore this ground of appeal to the file of AO to give the fresh finding after considering the written submission of assessee filed before the Ld CIT(A) and pass appropriate order in accordance with law.
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2016 (9) TMI 1604
Revision u/s 263 by CIT - AO did not make any disallowance out of deduction under section 80-IC of the Act on proportionate basis - HELD THAT:- We find that the AO during assessment proceedings has duly called for information for job work done from outside and assessee had filed complete details as is apparent from PB-4, 8 & 11 and therefore, the AO did not make any disallowance out of deduction under section 80-IC of the Act on proportionate basis, as he must be in the knowledge that in earlier years similar issue had been decided in favour of the assessee, by the Amritsar Bench of the Tribunal [2011 (6) TMI 865 - ITAT AMRITSAR]
CIT has nowhere held the order to be erroneous or prejudicial to the interests of the Revenue. - Decided in favour of assessee.
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