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Showing 81 to 100 of 2075 Records
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2019 (3) TMI 2002
TP Adjustment - marketing and marketing development function carried out for the AE - bench mark-ng is carried out on protective basis - AMP adjustment without applying BLT - HELD THAT:- On identical set of facts the coordinate bench in A. Y. 2013-14 [2017 (11) TMI 1783 - ITAT DELHI] has deleted the addition made on protective basis.
ALP adjustment, in respect of AMP expenses by applying the bright line test (BLT), which is now decided in favour of the assessee. While learned Departmental Representative did not really address on all these aspects, he fairly agreed to our suggestion that the matter is required to be examined afresh by the AO in the light of outcome of the appellate proceedings for the other assessment years as also by way of a speaking order dealing with the specific contentions of the assessee. In the light of this undisputed position within a narrow compass of material facts, we remit the matter to the file of the Assessing Officer for fresh adjudication in the light of our above observations.
Adjustment on account of provision of coordination and other support services - adjustment is the absence of segmental data and satisfactorily allocation of expenses in the segment - HELD THAT:- We have carefully perused the application under rule 29 and the audit certificate filed. In our considered view since now the audited segmental data are available the TPO must examine the same and decide the issue afresh after giving a reasonable opportunity of being heard to the assessee.
We accordingly restored this issue to the files of the TPO with a direction to consider and examine the audited segmental data and decide the issue accordingly. The assessee is directed to furnish relevant data before the TPO. Ground No.4 is treated as allowed for statistical purpose.
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2019 (3) TMI 2001
Reopening of assessment u/s 147 - Assessment u/s 153A - original assessment was not completed u/s. 143(3) - HELD THAT:- Admittedly, in these cases, the original assessments were completed u/s.153A r.w.s. 143(3) - At the time of completion of the assessments, the authorized representative of the assesses appeared and filed copy of bank statements, partners current account as appearing in the books of accounts of the assessee. AO, after being satisfied with the reply given by the assessee completed the assessments u/s. 153A r.w.s. 143(3) - In this situation, it cannot be said that the assessees had failed to disclose all material facts fully and truly required for the assessment. AO, after going through the books of account and other documents filed before him had completed the assessments and chose not to make addition on the issues raised in the reasons recorded for re-opening of the assessments. Therefore, we are of the opinion that there is no negligence on the part of the assessee in furnishing the required details for completing the assessments.
We are of the opinion that the ratio laid down by the Tribunal in the case of Cordial Company [2013 (11) TMI 1801 - ITAT COCHIN] is squarely applicable to the facts of the assessees cases. Taking a consistent view with the Tribunal, we vacate the findings of the CIT(A) and allow the appeals of the assesses herein. Appeals of the assesses are allowed.
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2019 (3) TMI 2000
Pay fixation as per the recommendation of the 6th Pay Commission not resolved - delayed transfer of his RTI application from the Head Office to Zonal Accounts Office, Shimla/ Patiala - circular issued by Ministry of Finance / DOE dated 30.08.2008 had not been furnished fully - HELD THAT:- The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, [2012 (2) TMI 723 - CENTRAL INFORMATION COMMISSION], Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow [2012 (9) TMI 1229 - CENTRAL INFORMATION COMMISSION], Mr. H. K. Bansal vs. CPIO & GM (OP), [2013 (1) TMI 1043 - CENTRAL INFORMATION COMMISSION] had held that RTI Act was not the proper law for redressal of grievances/disputes.
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. However, a copy of the OM issued by the MoF dated 30.08.2008 be furnished to the Appellant within a period of 15 days from the date of receipt of this order, free of cost. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
Appeal disposed off.
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2019 (3) TMI 1999
TP Adjustment - interest by treating the investment made by the assessee in the share capital of Associated Enterprises - HELD THAT:- It is clear from a reading of para 'e' of the Cabinet Press release that, computation of ALP will arise income arises from an International transaction between AEs. It does not warrant determination or re-computation of a consideration received / given on capital account. Thus, going by the above, the transaction of investment in shares being payment on capital account falls outside the purview.
The aforesaid decision rendered for A.Y. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] has subsequently been followed by the Tribunal in A.Y. 2011-12 & 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] to decide the similar issue in favour of the assesese.
Transfer Pricing Adjustment made on account of Guarantee fees - Since the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Ys. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] 2011-12 and 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] we respectfully follow the orders of the Coordinate Bench of this Tribunal and delete the addition relating to the Transfer Pricing Adjustment made on account of Guarantee fees charged to the Associated Enterprises. Ground No. 3 of the assessee’s appeal is accordingly allowed.
Disallowance u/s 14A - HELD THAT:- Disallowance under section 14A is also covered by the order of the Tribunal [2017 (11) TMI 1901 - ITAT KOLKATA] wherein the disallowance made under section 14A was deleted by the Tribunal on the ground that there was no exempt income actually earned by the assessee during the relevant previous year. To arrive at this conclusion, the Tribunal relied on the decision of Cheminvest Limited [2009 (8) TMI 126 - ITAT DELHI-B] As submitted by the ld. Counsel for the assessee, no exempt income was earned by the assessee even during the year under consideration and keeping in view this undisputed factual position, we delete the disallowance made by the Assessing Officer under section 14A by following the decision of the Tribunal in assessee’s own case Ground No. 4 is accordingly dismissed.
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2019 (3) TMI 1998
Classification of imported goods - removable or exchangeable disc drives - classifiable under heading no. 84717020 of the First Schedule to Customs Tariff Act, 1975 to was revised to heading no. 84717030 of First Schedule to Customs Tariff Act, 1975? - N/N. 06/2006-CE dated 1st March 2006 and N/N. 12/2012-CE dated 17th March 2012 - demand of differential duty - HELD THAT:- It was held in the case of COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS SUPERTRON ELECTRONICS P. LTD. [2017 (1) TMI 1529 - CESTAT NEW DELHI] that Admittedly, the imported items are hard disk drive and are meant for external use with computer or lap-top as plug-in device. They are portable hard disk drive. The contention of the Revenue that they are only removable or exchangeable disk drive, is not factually or technically correct.
The classification of the impugned goods as in SUPERTRON ELECTRONICS P. LTD. decided in cannot be deviated from - Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1997
Preventive Detention order - illegal business of money lending - dangerous person within the meaning of Section 2(b1) of the MPDA - infringement of fundamental right guaranteed under Article 22(5) of the Constitution of India - HELD THAT:- Admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu’s right to make his representation at the earliest for its expeditious consideration.
The representation made to the State Government dated 15/11/2018 was received by the State Government on 17/11/2018 and it was kept pending till the receipt of the report of the Advisory Board which was received only on 04/12/2018. The representation, thereafter, was rejected on 04/12/2018 as on the same day, the order of detention was also confirmed - One of the major requirements of Article 22(5) is that the detenu must be afforded the earliest opportunity of making a representation against the order. This requirement will not be effective if such a representation is not decided at the earliest. Affording the detenu the earliest opportunity of making a representation is meaningless unless such representation is considered and decided at the earliest.
In the instant case, admittedly, the representation was received by the State Government on 17/11/2018 and was decided only on 04/12/2018. It was kept pending for receipt of report of the Advisory Board. This course of inaction was directly contrary to the letter and spirit of Article 22(5) of the Constitution of India. In the instant case, there is clear violation of the constitutional rights of the Petitioner - the detention order is liable to be set aside.
The detention order passed by the Respondent No.1 and confirmed by the Respondent No.2, is set aside - The Petitioner be released from his detention forthwith, if he is not required in any other case.
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2019 (3) TMI 1996
Validity of assessment passed by raising an extra demand to be illegal, without jurisdiction and violative of natural justice - notice issued by Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar - HELD THAT:- As established that the jurisdiction is with the Commissioner of Income Tax (OSD) (Exemption). Therefore, the notice under Annexure-13 issued by the Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar, is without jurisdiction. However, we are not expressing our opinion on Annexures-1 and 2, since those are appealable orders.
Accordingly, the notice under Annexure-13 is quashed/set aside. Further, it is open for the competent authority to issue appropriate notice to the petitioner in accordance with law. The writ petition is allowed to the extent indicated above.
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2019 (3) TMI 1995
Preventive detention - HELD THAT:- The lethargy in approaching this Court has made this position practically infructuous though we would have some reservations on the principles sought to be pronounced vide the impugned order - this special leave petition not entertained, but it is made clear that the impugned judgment would not be treated as a precedent setting out any proposition of law.
SLP disposed off.
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2019 (3) TMI 1994
Refund of amount paid in a real estate project - HELD THAT:- The matter is being disposed of today as it is clear that the appellant is an allottee in the real estate project of the Respondent No.3. As an allottee, it has either a right to get possession of the flat or to claim refund. It has been argued before us that the appellant has been offered possession but has declined.
In this event, it is clear that the appellant is entitled to refund of monies that it has paid. This refund will be made by Respondent No.3 within a period of four weeks from today with 10.7% interest - It is made clear that this order is not to be treated as a precedent.
Appeal disposed off.
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2019 (3) TMI 1993
Addition on account of Client Code punching error - CIT-A deleted the addition - as per the investigation carried by Directorate I & CI Mumbai and by Directorate of Investigation Ahmedabad it was found that fictitious profits and losses were created by some brokers by misusing the client code modification facility in F&O segment on National Stock Exchange (NSE) - HELD THAT:- The facts for the year consideration are an identical to the fact for A.Y. 2009-10 and the AO has selected only those transactions which would result shifting the profit from the account of the assessee and ignored the other instances of mistakes of client code where the loss is shifted from the account of the assessee. Following the earlier order of this Tribunal and having regard to the facts that the error in the client code modification is only 0.11% for this year in comparison to permissible error of 5% we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Disallowance u/s 14A - addition restricted by the ld. CIT(A) to @ 0.5% of the average investment - HELD THAT:- It is a clear that the ld. CIT(A) has applied correct rate as applicable for the year under consideration whereas the AO has applied amended rule which was not applicable for the year under consideration. Accordingly, in view of the facts that as per the formula given in Rule 8Dthe disallowance @ 0.5% of the average investment was to be calculated on account of administrative expenditure. Hence, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Reopening of assessment u/s 147 - HELD THAT:- The report of the investigation received by the AO in respect of the alleged misuse of client code modification facility for shifting of profit along with the order passed U/s 143(3) r.w.s. 147 for the assessment year 2009-10 constitute a tangible material for forming the belief that income assessable to tax has escaped assessment. We further note that the Assessing Officer had already passed the order U/s 143(3) r.w.s. 147 of the Act for the assessment year 2009-10 and concluded that the assessee has shifted profit in the garb of client code modification facility. Thus, the reassessment order passed for the A.Y. 2009-10 constitutes a tangible material for the AO to form the belief that the income assessable to tax has escaped assessment for the year under consideration and accordingly, the AO issued a notice U/s 148 of the Act on 15.03.2017. Hence, in view of the facts that reopening in the case of the assessee is after the reassessment order passed by the AO for the A.Y. 2009-10 the reopening cannot be held to be based on change of opinion or borrowed satisfaction. Further, the proviso to Section 147 of the Act cannot be invoked for the year under consideration when there is no original assessment U/s 143(3) of the Act. Accordingly, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Addition u/s 14A r.w.r. 8D - HELD THAT:- AO noted that the assessee has made huge investment and earned exempt income. It is not a case of isolated instance of investment made by the assessee but the assessee is involved in regular activity of investment and therefore, indirect administrative expenditure for earning the exempt income has to be computed as per Rule 8D of the Income Tax Rules. The assessee is otherwise engaged in the regular activity of trading in the NSE and therefore, the investment made by the assessee necessarily involved its managerial establishment, clerical staff etc. Accordingly, we do not find any merits or substance in the addition of the assessee when the AO has specifically pointed out that the huge expenditure incurred by the assessee in respect of his office staff. Accordingly, the addition sustained by the ld. CIT(A) is upheld.
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2019 (3) TMI 1992
CENVAT Credit - input services - sales commission paid to their sale agents - difference of opinion of different courts on the issue - HELD THAT:- The Hon’ble High Court Gujarat in ASTIK DYESTUFF PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS [2014 (1) TMI 776 - GUJARAT HIGH COURT] has relied upon COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] however Hon’ble High Court of Punjab and Haryana in the case COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT] had given a contradictory decision - It is thereafter that the matter was referred to Hon’ble Supreme Court. Subsequent thereto there has been a CBEC Circular No. 934/4/2011 dated 29.04.2011 vide which the scope of sales promotion activities as mentioned in explanation to Rule 2(l) of Cenvat Credit Rules, 2004 (as was inserted vide Notification No. 2/2016 dated 03.02.2016) was considered.
The said clarificatory Circular was issued by the Department with a view to resolve the confusion prevalent due to the different views of the different High Courts - It was clarified therein that an explanation inserted in a Section/ Rule is generally to explain the meaning and intendments of the said Section/ Rule. Sometimes when the explanation is inserted to clarify a doubtful point of law it would be effectively retrospective in nature. While relying upon the said Circular, this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD] case has held the Commission paid to the agents is a sales promotion activity.
Keeping in view the same and the fact that the matter is still subjudice before the Apex Court, due to the contrary decisions from two different High Courts, but that the Department has subsequently tried to resolve the confusion, Order is hereby set aside - Appeal dismissed.
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2019 (3) TMI 1991
Admissibility of appeal in High court - Question of law or question of fact - commission of accommodation entries - HELD THAT:- As in the present case the assessee itself offered profit rate at 0.26%, accepted by the revenue for the A.Y. 2011-12 and which is more than in the case of M/s. Mercantile Pvt. Ltd., which was also related to Badalia Group of cases. In view of the same, we find that the CIT-A was correct in directing the AO to reduce the addition - peal of the revenue is dismissed - no reason to admit the appeal.
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2019 (3) TMI 1990
Applicability of provisions of section 115 JC - assessee claimed deduction u/s 80IB - As argued housing project undertaken by the assessee has been approved prior to the date of introduction of the provisions of section 115 JC and also completion of the project - HELD THAT:- The housing project undertaken by the assessee was approved by the competent authority and accordingly, assessee claimed deduction under section 80IB of the Act of 100% of the profit from the housing project. We noted that Chapter XII BA i.e. special provisions relating to certain persons other than a company was introduced by the Finance Act 2011 w.e.f. 1.4.2012 and made applicable for and from A.Y. 2012-13 in respect of limited liability partnerships. This provision was made applicable to other categories of persons other than a company with effect from 1.4.2013 by the Finance Act, 2012.
Accordingly, the provisions of section 115JC of the Act was made applicable to profit from housing projects deductible under section.80IB(10) of the Act only in respect of housing projects approved by the competent authority on or after 1.4.2013. Similar case was dealt with by co-ordinate bench of this Tribunal in the case of Neha Home Builders Pvt Ltd. [2018 (4) TMI 860 - ITAT MUMBAI], wherein, it is held that the assessee was entitled to claim of deduction under section,80IB(10) of the Act while computing book profit u/s.115JB of the Act in respect to the profit of the housing project.
As gone through the case law of Hon’ble Supreme Court in the case of Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] wherein, Hon’ble Supreme court has considered the provisions of section 6 of General clauses Act 1897 and also considered the saving provisions in the repealing statute which is not exhaustive of the rights and which are saved or which survive the repeal of the statute under which such right had accrued.
Hon’ble Supreme Court has considered whatever rights are expressly saved by the saving provisions stand saved but that does not mean rights which are not saved by the saving provisions are extinguished or stand ipso facto terminated by the mere fact that a new statue repealing the old statute is enacted. Even Hon’ble Supreme Court in the case of Vatika Township P Ltd [2014 (9) TMI 576 - SUPREME COURT] has considered the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. One principle of law is known as lex prospicit non respicit law looks forward not backward - a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
The provisions of section 115JC of the Act as brought in the statute by the Finance Act (No.2) w.e.f. 1.4.13 will apply prospectively and to the projects claiming deduction under section 80IB(10) of the Act, which have come or approved on or after that date. Accordingly, this provision cannot be applied to the projects completed or approved retrospectively upto 31.3.2012. Hence, we allow the appeal of the assessee
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2019 (3) TMI 1989
Disallowance of Employees Stock Option Plan (‘ESOP’) - HELD THAT:- As pointed out by Assessee that the issue stands covered in favour of the Assessee and against the Revenue by the order of this Court in Commissioner of Income Tax v. Lemon Tree Hotels [2015 (11) TMI 404 - DELHI HIGH COURT] - The Court had affirmed the order of the ITAT in M/S. BIOCON LIMITED [2013 (8) TMI 629 - ITAT BANGALORE] deciding the issue in favour of the Assessee in the said case where the addition made by the AO by way of disallowance of the expenses debited as cost of ESOP in profit and loss account was deleted by the ITAT.
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2019 (3) TMI 1988
FEMA - Offences committed under the repealed Act - HELD THAT:- Section 49 of the FEMA deals with repeal and saving of the Act and the Appellate Board constituted under the Act was dissolved. Sub-section (4) of Section 49 of FEMA made a provision as to how offence committed under the repealed Act shall be governed by and in clause (b) of sub-section (5) of Section 49 a provision is made as to who would be competent to dispose of the appeals pending before the Appellate Board constituted under the Act and the pending appeals were ordered to be transferred for disposal to the Appellate Tribunal constituted under FEMA. There is no provision under Section 49 that if a person feels aggrieved by an order passed in respect of offence committed under the repealed Act, he would be entitle to file an appeal before the Appellate Tribunal constituted under FEMA. That being so, the mere fact that the Adjudicating Authority in order dated 30-3-2017 has prescribed that an appeal shall lie to the Appellate Tribunal for Foreign Exchange or an interim order has been passed by the said Tribunal staying recovery of penalty subject to payment/deposit of 20% of the amount would not enure to benefit of the appellants to assert their claim that the appeal is maintainable before the Appellate Tribunal under SAFEMA, FEMA, PMLA, NDPS, PBPT Act.
We do not find an error much less illegality in the order impugned dated 6-2-2019. So far as challenge to the order dated 30-3-2017 passed by the Deputy Director, Directorate of Enforcement Jalandhar is concerned, the same cannot be challenged before this Court by filing an appeal against first order.
In view of what has been discussed hereinbefore, finding no merit, the appeal fails and is accordingly dismissed in limine. However, nothing stated hereinbefore shall cause prejudice to the appellants to avail appropriate remedy, in accordance with law. In case the appellants prefer an appeal before a Competent Authority/Fora and law prescribes limitation for preferring such an appeal, the appellants would always be at liberty to raise a plea that as they had been pursuing their remedy before the Appellate Tribunal, delay in filing the appeal may be condoned.
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2019 (3) TMI 1987
Exemption from GST - course Executive Post Graduate Programme in Management (EPGP) - eligibility for exemption after enactment of JIM Act, 2017 notified w.e.f. 31-01-2018 - HELD THAT:- At present, Indian Institutes of Managements are providing various long duration programs (one year or more) for which they award diploma/degree certificate duly recommended by Board of Governors as per the power vested in them under the IIM Act, 2017. Therefore, it is clarified that services provided by Indian Institutes of Managements to their students- in all such long duration programs (one year or more) are exempt from levy of GST. As per information received from IIM Ahmedabad, annexure 1 to this circular provides a sample list of programmes which are of long duration (one year or more), recognized by law and are exempt from GST.
For the period from 1st July, 2017 to 30th January, 2018, IIMs were not covered by the definition of educational institutions as given in notification No. 12/2107-Central Tax (Rate) dated 28-06-2017. Thus, they were not entitled to exemption under Sl. No. 66 of the said notification - for the period from 1st July, 2017 to 30th January, 2018, GST exemption would be available only to three long duration programs.
Indian Institutes of Managements also provide various short duration/short term programs for which they award participation certificate to the executives/professional as they are considered as “participants” of the said programmes. These participation certificates are not any qualification recognized by law. Such participants are also not considered as students of Indian Institutes of Management. Services provided by IIMs as an educational institution to such participants is not exempt from GST. Such short duration executive programs attract standard rate of GST@18%.
Thus, it is crystal clear that from 31st January, 2018 onwards all long duration programs (one year or more) conferring degree/diploma as recommended by Board of Governors as per the power vested in them under the IIM Act, 2017 including one-year Post Graduate Programs for executives, are exempt from GST.
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2019 (3) TMI 1986
Initiation of Sunset Review - ADD on Ductile Iron Pipes - import from Peoples Republic of China - Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Articles for Determination of Injury) Rules, 1995 - extension of ADD for a further period - HELD THAT:- Issue notice on the prayer for interim relief as well as Special Leave Petition, returnable on 01.04.2019.
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2019 (3) TMI 1985
Offence punishable u/s 277 - as alleged petitioner did not disclose his money lending and chit business in his returns of income and declared false statement of returns of income filed in his individual capacity and wilfully under reported the income earned by the petitioner - HELD THAT:- The concept of mens rea is integral to criminal jurisprudence and offence cannot be committed intentionally. Section 278 (E) of the Taxation Laws places burden of proving the option of mens rea upon the accused and also provides that such absence need to be proved not only to the basic threshold of “preponderance of possibility” but beyond reasonable doubt. In every prosecution case, the court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt.
In the present case, it is evident from the complaint that the petitioner did not disclose his income to the tune of Rs.35 crores for the assessment years 2009-2010, 2010-2011, 2011-12, 2012-2013, 2013- 2014 and 2014-2015. The petitioner wilfully made false statement of return of income and wilfully under reported the income earned. Therefore, the entire proceedings cannot be quashed on the grounds raised by the petitioner as stated supra. The petitioner has to prove the contrary beyond reasonable doubt before the trial court and the trial court has to enquire the complaint independently on the basis of the evidence as such these petitions are liable to be dismissed.
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2019 (3) TMI 1983
Disallowance of depreciation on buildings - scope of rule of consistency - HELD THAT:- Revenue Authorities continuously allowed depreciation on building in earlier Assessment Years 2009-10, 2010-11, 2012-13 & 2014-15 but specifically change its stand in this particular year as well as in Assessment Year 2013-14 without giving proper reasoning towards the same. Thus, following Rule of Consistency, Ground No.1 is allowed.
Depreciation on building pertaining to rental portion of buildings - HELD THAT:- As from the records it can be perused that the assessee purchased the fully constructed building i.e. industrial built up factory and not the land. Therefore, bifurcating the value of land by the Registrar does not specify the value of land and building separately. Therefore, in light of the decision in case of Oswal Agro Mills Ltd. (2010 (12) TMI 947 - DELHI HIGH COURT] wherein it is held that it is difficult to maintain the details of each assets separately in respect of the land and building constructions and the same will frustrate the very purpose of the provisions if it is done so. The Hon'ble High Court further held that it is also essential to point that the Revenue is not put to any loss by adopting such method and allowing depreciation as the same forms part of the block of assets even when that particular asset is not in use in the relevant Assessment - Ground No.2 is allowed.
Disallowance at 10% of Vehicle Maintenance - HELD THAT:- The details of expenses were given to the Assessing Officer by the assessee during the assessment proceedings which was not considered by the Assessing Officer as well as CIT(A). Besides that the CIT(A) has enhanced 5% to 10% which is not as per the specific provision prescribed u/s 37(1) of the Act.
There is no basis for enhancing the expenses and first of all the expenses were properly explained by the assessee during the assessment proceedings. Therefore, we set aside the order of the CIT(A). Ground No.3 is allowed.
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2019 (3) TMI 1982
Reopening of assessment u/s 147 - bogus purchases - information received from sales tax department about hawala transactions of purchases made by the assessee - HELD THAT:- AO does not treats the purchases as non-genuine / bogus but makes addition by treating the purchases as “URD purchases”. The addition is made only of the Gross profit on such alleged “URD purchases”.
We find in the case of Jet Airways (2010 (4) TMI 431 - HIGH COURT OF BOMBAY] has held that if after issuing notice u/s 148 of the Act, AO holds that the income which he has initially formed a reason to believe had escaped assessment has not escaped assessment, then it is not open to him to independently assess some other income.
In the present case when seen in the light of the aforesaid decision of Hon’ble Bombay High Court (supra) the reasons for reopening was on account of bogus/non genuine purchases but no addition has been made on that count but addition has been made for the reason that the purchases are “URD purchases”. As during the course of reassessment proceedings assessee had furnished the details called for to prove his contention that the purchases are genuine except for the confirmation of the parties from whom the purchases were made. Before me, no fault has been pointed out in those details submitted by the assessee - Decided in favour of assessee.
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9911796707
