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Showing 81 to 100 of 1440 Records
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2023 (5) TMI 1360
Disallowance for late deposit of contribution to PF/ESI u/s 36(1)(va) - HELD THAT:- As per decision taken by the Hon’ble Supreme Court in the case of Checkmate Services (P) Ltd [2022 (10) TMI 617 - SUPREME COURT] PCIT vs Strides Arcolab Ltd. [2023 (1) TMI 729 - SC ORDER] and also the decision of ITAT Delhi Bench in the case of Savleen Kaur [2023 (2) TMI 51 - ITAT DELHI] the Bench sustains the addition confirmed by the ld. CIT(A) and Ground No 1 & 2 of appeal of the assessee is dismissed.
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2023 (5) TMI 1359
Disallowance u/s. 36(1)(va) - delay in payment of employees' contribution to PF and ESI - HELD THAT:- No disallowance can be made u/s. 143(1)(a) of the Act towards employees contribution to EPF and ESI is concerned, we find that this issue is settled in the case of AA520 Veerappampalayam Primary Agricultural Cooperative Credit Society Ltd [2021 (4) TMI 1169 - MADRAS HIGH COURT] -The contention of the assessee that no disallowance could be made u/s. 143(1)(a) of the Act towards employees contribution to EPF and ESI is rejected.
Disallowance for the month of August 2017 & Sept. 2017 - assessee submitted that these payments were made in the following months, therefore the date of payment of salary should be considered the month in which the salary has been paid because the employee cannot contribute in the EPF/ESI without the payments made by the employer - In view of the above, we remit this issue to the AO with a direction to examine and decide the issue in the light of the above judgment. Accordingly this issue is allowed for statistical purpose.
Employees contribution to EPF & ESI - submission of the assessee is that these remittances were within the due date for filing return u/s. 139(1) though they were belated payments under the respective Acts and hence no disallowance is called for - This issue is settled in Checkmate Services (P.) Ltd.[2022 (10) TMI 617 - SUPREME COURT] wherein it is held that that Section 43B(b) does not cover employees' contributions to PF, ESI etc. deducted by employer from salaries of employees and that employees contribution has to be deposited within the due date u/s 36(1)(va) i.e. due dates under the relevant employee welfare legislation like PF Act, ESI Act etc. failing which the same would be treated as income in the hands of the employer u/s.2(24)(x). Respectfully following this judgment, we sustain the disallowance towards belated remittances towards employees contribution to EPF & ESI under the respective Acts.
Appeal by the assessee is partly allowed for statistical purposes.
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2023 (5) TMI 1358
Non pronouncement of final orders - Disposal of appeal within a period of one year from the end of the financial year in which such an appeal is filed - HELD THAT:- Considering the object and purpose for the aforementioned Section, we feel that the period of one year has since elapsed and much beyond that. Be that as it may, the writ petition is disposed of with a direction to the Appellate Authority to decide the appeal preferably within a period of six months from today.
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2023 (5) TMI 1357
Denial of deduction u/s. 80P(2)(d) - interest received from the investment with a Co-operative Bank - HELD THAT:- Admittedly, the appellant-assessee is a Co-operative Society and not a Co-operative Bank. The appellantassessee being a Co-operative Society, it is eligible for exemption on its entire interest income received from the investment with a Co-operative Bank as deductible u/s 80P(2)(d) of the Income Tax Act.
Respectfully fallowing the case of “Mumbai v. M/s Annasaheb Patil Mathadi Kamgar Sahakari”, [2019 (10) TMI 1557 - BOMBAY HIGH COURT] and Khaira Majja Cooperative Agricultural Multipurpose Society Ltd. [2019 (9) TMI 48 - ITAT AMRITSAR] we hold that since, appellant society being a cooperative society and investment in FDR’s was made in another cooperative Society and hence, it is eligible for deduction u/s u/s 80P(2)(d) of the Income Tax Act.
Thus, we accept the grievance of the assessee as genuine. The impugned order is set aside and the Addition is deleted, accordingly. Assessee appeal allowed.
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2023 (5) TMI 1356
Assessment u/s 153A - completed assessment/un-abated assessment - incriminating material found during the course of search under section 132 or not? - HELD THAT:- As in Abhisar Buildwell P. Ltd [2023 (4) TMI 1056 - SUPREME COURT] confirmed the view taken by this court in Saumya Construction [2016 (7) TMI 911 - GUJARAT HIGH COURT] as well as that of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] which were in favour of the assessee. The supreme court held that no addition can be made in respect of completed/ unabated assessment in absence of any incriminating material. Decided in favour of assessee.
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2023 (5) TMI 1355
Assessment u/s 153A - completed assessment/un-abated assessment - incriminating material found during the course of search u/s 132 or not? - HELD THAT:- As in Abhisar Buildwell P. Ltd [2023 (4) TMI 1056 - SUPREME COURT] confirmed the view taken by this court in Saumya Construction [2016 (7) TMI 911 - GUJARAT HIGH COURT] as well as that of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] which were in favour of the assessee. The supreme court held that no addition can be made in respect of completed/ unabated assessment in absence of any incriminating material. Decided in favour of assessee.
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2023 (5) TMI 1354
Disallowance u/s 14A r.w.r. 8D - proportionate disallowance under Rule 8D(2)(ii) - year of availability of the interest free funds with the assessee - HELD THAT:- We are of opinion that availability of the fund has to be examined at the time of investment in assets eligible for yielding exempted income and not subsequently. Assessee submitted that if issue is restored back to the file of AO, the assessee will file details of availability of funds at the time of making investment in mutual funds from year to year. In view of undertaking by assessee and interest of substantial justice, we set aside the finding of the DRP or finding of the AO in the final assessment order pursuant to the Ld. DRP, and restore the matter back to the AO for providing one more opportunity to the assessee for submitting the documentary evidence in support of availability of interest free funds at the time of making investment in assets eligible for yielding exempted income. The ground of the appeal of the assessee is accordingly allowed for statistical purposes.
Disallowance u/s 14A r.w.r. 8D while computing book profit u/s 115JB - HELD THAT:- The issue in dispute is covered by the decision of the Special Bench of the Tribunal in the case of Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] and the Ld. DRP has retained the addition only on the ground that DRP is not for appellate proceedings and continuation of the assessment proceedings. However, the issue in dispute being covered by the binding precedent in the case of Vireet Investment Pvt. Ltd. (supra). The addition made by the Assessing Officer is directed to be deleted the ground of appeal of the assessee is accordingly allowed.
Nature of expenses - Disallowance of expenses on employee stock option - According to the Assessing Officer these expenses were in the nature of capital expenditure and being contingent in nature, samewere not allowable in the year under consideration - HELD THAT:- As decided by HC Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] assessee has incurred a definite legal liability and on following the mercantile system of accounting, the discount on ESOPs has rightly been debited as expenditure in the books of accounts. Assessing Officer has permitted the deduction of ESOP expenses and in view of law laid down by Supreme Court in Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT], the revenue cannot be permitted to take a different stand with regard to the Assessment Year in question.
Rejection of additional claim by DRP as not authorized to admit such otherwise then by revised return of income - Claim of discount of ESOP (difference between market price at the time of exercise and market price at time of grant of option) - HELD THAT:- We admit this claim of the assessee relying on the decision of Pruthvi Brokers & Shareholders [2012 (7) TMI 158 - BOMBAY HIGH COURT] and restore the matter back to the file of AO for examining the claim in accordance with law after verifying the documentary evidence submitted by the assessee. The ground No. 4 of the assessee is accordingly allowed for statistical purposes.
Refund of excess of dividend distribution tax - HELD THAT:-Assessee fairly conceded that this issue is covered against the assessee by the decision of Total Oil India P Ltd [2023 (4) TMI 988 - ITAT MUMBAI (SB)]
Levy of Interest u/s 234B is concerned same is consequential and therefore, grounds realted to the same is dismissed as infructuous.
Levy of interest u/s 234C - We direct the AO to verify the levy of interest u/s 234C of the Act in accordance with law after providing adequate opportunity of being heard to the assessee.
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2023 (5) TMI 1353
NP estimation - income disclosed in survey proceedings - HELD THAT:- In the absence of regular books of accounts of the assessee, the assessments as per survey report are very high. The ld. CIT(A) has allowed some relief as proposed by the Assessing Officer in his second remand report, which has no basis for arriving such higher figures.
Considering the previous years’ comparison, we are of the considered opinion that the net profit ratio at 18.40%, which was highest among the three previous years, would be very reasonable to meet the ends of natural justice. Accordingly, we direct the Assessing Officer to recompute the income of the assessee by adopting the net profit ratio at 18.40% for all three assessment years under appeal.
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2023 (5) TMI 1352
TP Adjustment - comparable selection - Adjustment towards the royalty for use of technology - non determining the comparable transaction in the public domain as prescribed under the Act and Rules - HELD THAT:- We are of the opinion that similar issue came for consideration before this Tribunal in assessee’s own case in assessment year 2017-18 [2023 (3) TMI 1507 - ITAT BANGALORE]TPO repeated what he has done on earlier occasion without considering the direction of the Tribunal where the Tribunal given a direction that in case comparable is not found in respect of payment of royalty by the assessee, then the TPO/AO may consider the royalty payment on part of the international transaction under trading segment and determine the ALP by considering the royalty as part of operating cost for the purpose of computing the margin in the trading segment.
Before us, A.R. submitted that if it is considered as operating cost, then the margin of the assessee is higher than the margin of comparable i.e. M/s. Advance Micronic Devices Ltd. In our opinion, the AO has to consider this royalty payment as an operating cost and has to verify whether the margin of assessee is higher than the margin declared by the comparable company i.e. M/s. Advance Micronic Devices Ltd. and decide accordingly. In view of this, the issue in dispute is set aside to the file of AO/TPO for the limited purpose for comparison of margins with the comparable company and decide accordingly.
Deselection of companies as functionally dissimilar.
Companies having turnover less than Rs. 200 crores and more than Rs. 2000 crores should be eliminated from the list of comparables as the assessee’s turnover is Rs. 937.19 crores.
Working capital adjustment to be allowed on actual basis.
TP Adjustment in SWD segment - As assessee’s margin for the SWD segment is 10.72% and the margins of the comparable companies i.e, 11.37% (before working capital adjustment) which is within the tolerance range of 3% and in view of the above submissions, the transaction is at arm’s length and therefore we direct the ld. DRP to delete the TP adjustment made in the interest of justice.
Interest on delayed receivables - As we are of the opinion that similar issue came for consideration before this Tribunal in the case of ISG Novasoft Technologies Ltd [2021 (3) TMI 828 - ITAT BANGALORE] we remit this issue to the file of AO/TPO for fresh consideration and interest should be charged on net amount of receivables/payables only.
Disallowance of lease payments on financial lease u/s 37 - assessee has followed the Accounting standard -19-Leases issued by the ICAI - HELD THAT:- As we are of the opinion that this expenditure has been disallowed since the assessee has not produced the details of the expenditure inspite of giving sufficient opportunity to the assessee. Before us, the assessee prayed for remitting the issue to the file of AO to examine the issue in the light of earlier decision in assessment year 2017-18 in assessee’s own case. [2023 (3) TMI 1507 - ITAT BANGALORE] thus we remit the issue in dispute to the file of AO/TPO on similar directions.
Disallowance u/s 37 under the head “Any other amount allowable as deduction” - HELD THAT:- The assessee has not produced entire documentary evidence in support of claim of expenditure. In view of this, we remit the entire issue to the file of AO/TPO for fresh consideration after giving opportunity of hearing to the assessee.
Denial of TDS credit - HELD THAT:- We remit the issue to the file of AO/TPO to give TDS credit in accordance with law after verifying the records.
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2023 (5) TMI 1351
Violation of provisions of notification No.64/2008-Customs dated 09.05.2008, in terms of the show cause proceedings or not, for deciding on the issue of legality of the impugned order - confiscation of goods - imposition of redemption fine - demand of customs duty and interest - HELD THAT:- The issues arising out of the case and allegations raised in the show cause notice have not been discussed with respect to available documents and case records, various submissions made by the appellants before the original authority, by the learned Commissioner of Customs (Export) in the impugned order, to arrive at the conclusion whether the conditions of the Notification No.64/2008-Customs dated 09.05.2008 have been fulfilled or these have been violated by the appellants.
The impugned order lacks appreciation of facts on record and the documents submitted by the appellants which are relevant to the issues of the case, for arriving at a proper decision. There is no discussion or not even a mention of the document produced by the appellants in respect of installation certificate dated 05.04.2009. Thus, the impugned order has not considered all relevant aspects of the case and ignored crucial documents.
The matter needs to be looked into afresh by the original authority for determining the correct position of law in this case - appeal allowed by way of remand.
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2023 (5) TMI 1350
Dismissal of application filed under Section 7 of IBC by the Financial Creditor - barred by Section 10A or not - determination of date of deault - HELD THAT:- The Hon’ble Supreme Court in Ramesh Kymal versus Siemens Games Renewable Power Private Ltd. [2021 (2) TMI 394 - SUPREME COURT] had noticed the objects and purpose of enactment of Section 10A. In the case before the Hon’ble Supreme Court in Ramesh Kymal versus Siemens Games Renewable Power Private Ltd., the application under Section 9 was filed by the Operational Creditor on 11.05.2020. An ordinance was passed on 05.06.2020 by which Section 10A was inserted in the I&B Code. The Corporate Debtor sought dismissal of Section 9 application by filing an application which was allowed by the Adjudicating Authority which order was also affirmed in appeal. Appellant’s case in appeal before the Hon’ble Supreme Court was that since the application was filed on 11.05.2020 i.e. before insertion of Section 10A on 05.06.2020, the application is not hit by Section 10A, although the default was dated 30.04.2020.
Present is a case where date of default is claimed as 31.03.2021 in Part IV of the application and the application is filed including the default amount as per the Debenture Trust Deed, Schedule V, the default from 31.03.2021 onwards - What is prohibited by Section 10A is that no application shall ever be filed for the default which occurred during the period of Section 10A i.e. from 25th March, 2020 to 25th March, 2021. Section 10A has no application when an action is initiated for default which occurred subsequent to 10A period. Section 7 application as well as Reply filed to I.A. No. 34/2022 clearly indicate that Section 7 application which was filed by the Financial Creditor wad confined to the default committed by the Appellant on 31.03.2021 and thereafter.
The judgment of this Tribunal in M/s Next Education India Pvt. Ltd. vs. M/s K12 Techno Services Pvt. Ltd. [2021 (3) TMI 767 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], was a case where Section 9 application was rejected on the ground of pre-existing dispute and being time barred - In the above case, the question which was up for consideration was question of limitation as to regarding payments within three years from the date when the right to apply accrues. In the present case, there is no issue pertaining to limitation in Section 7 application raised, hence, judgment of this Tribunal in M/s Next Education India Pvt. Ltd. vs. M/s K12 Techno Services Pvt. Ltd. has no relevance while considering the claim of the Appellant on the basis of Section 10A.
The Adjudicating Authority did not commit any error in rejecting the application - the application under Section 7 filed by the Financial Creditor was not hit by Section 10A - appeal dismissed.
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2023 (5) TMI 1349
Extension of grant of ad-interim stay of the outstanding demand - HELD THAT:- As assessee has submitted that the appeal was fixed for hearing but the same could not be heard either due to the reason that Bench did not function on the said date or the ld. D/R sought adjournment. Assessee has also filed a rectification application before the ld. Dispute Resolution Panel (DRP) which is still pending, outcome of which will have a bearing on the merits of the present case.
We deem it appropriate to extend the grant of the stay for six months or till the disposal of the main appeal before the Tribunal, whichever is earlier.
The application for extension of stay is disposed of with the above terms.
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2023 (5) TMI 1348
Maintainability of petition - availability of alternative remedy - Seeking quashing of the seizure order - HELD THAT:- The petitioner cites difficulty. He states the petitioner is a petty unregistered dealer and that user ID and password has not been issued to him. Thus, he has been disabled from filing appeal - the State submits, if such user ID and password have not been made available to the petitioner, the same would be communicated to the petitioner at his address disclosed in this petition within a week.
Subject to above, if the petitioner files appropriate appeal against the order dated 01.06.2022 within four weeks from today, the same may be entertained on merits - Petition disposed off.
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2023 (5) TMI 1347
Contravention of Rule 8(3A) of the Central Excise Rules, 2002 - utilization of Cenvat credit during the period of default which provision has been declared ultra vires/invalid by Court - HELD THAT:- The issue is no more res integra and is squarely covered by the judgement of the Hon’ble Calcutta High Court in the case of M/S. GOYAL MG GASES PVT. LTD VERSUS UNION OF INDIA & OTHERS [2017 (8) TMI 1515 - CALCUTTA HIGH COURT], wherein it is categorically held that when Rule 8 (3A) is declared ultra vires by the different High Courts then the Revenue cannot take a different stand contrary to the said judgements. The Hon’ble Court further declared Rule 8(3A) as invalid which is not stayed by the Hon’ble Supreme Court.
The Hon’ble Gujarat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] has declared the words “without utilizing Cenvat Credit” under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing Cenvat Credit which is what exactly has been done in the instant case by the Appellant.
The demand in the instant case has been raised for contravention of Rule 8(3A) ibid restricting utilization of Cenvat credit during the period of default which provision has been declared ultra vires/invalid by Court, hence the demand cannot be sustained and the Appeal, thus, succeed on this count.
Appeal allowed.
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2023 (5) TMI 1346
Reopening of assessment - Estimation of income - bogus purchases - AO has made the addition to the income which was already declared by the Appellant in Income Disclosure Scheme, 2016 - HELD THAT:- Assessee had not been able to substantiate the authenticity of the purchase transactions in question to the satisfaction of the A.O. Apart from that, we find substance in the observation of the AO that now when the assessee had come forth with a disclosure under IDS, 2016 which, inter alia, was made towards purchases made from one of the aforementioned parties i.e. Shri Laxmi Agrotech therefore, the said fact in itself substantiates the in genuineness/unverifiability of the purchases claimed by the assessee to have been made from the said party. Considering the aforesaid factual position, we concur with view taken by the A.O that as the books of accounts of the assessee did not inspire much of confidence as regards its correctness, therefore, the same were liable to be rejected u/s 145(3) of the Act.
As further given a thoughtful consideration to the claim of the Ld. AR, that as the assessee had declared part of the bogus purchases/gross profit of his regular business transactions in the IDS, 2016, therefore, the same could not have been once again subjected to tax by the A.O. At the same time, we are unable to concur with him that Section 189 of the Finance Act, 2016 places an embargo on the A.O to reopen a case where a declaration under IDS, 2016 was issued.
Adverting to the quantification of the addition made by the A.O, a strong conviction that now when the assessee had failed to substantiate the authenticity of the purchase transactions in question, then it can safely be concluded that he had made the purchases not from the abovementioned two parties but had procured the goods at a discounted value from the open/grey market. In so far the working out of the disallowance by the A.O on an ad-hoc rate of 25% of the value of the impugned purchases is concerned, we are unable to fathom as to on what basis he had adopted the same without giving any cogent reason.
Admittedly, the addition in the hands of the assessee is liable to be restricted only to the extent of the profit which he would have made by procuring the goods at a discounted value from the open/grey market as against the inflated value at which the same were booked on the basis of the bogus bills in his books of account. In so far the issue of quantification of the profit which the assessee would have made by procuring the goods in question from the open/grey market is concerned, we find that in the case of M/s. Mohhomad Haji Adam & Company [2019 (2) TMI 1632 - BOMBAY HIGH COURT] while upholding the order of the Tribunal, had observed, that the addition in the hands of the assessee as regards the bogus/unproved purchases was to be made to the extent of bringing the G.P rate of such purchases at the same rate as those of other genuine purchases.
As the assessee had declared under IDS, 2016 an amount which comprises of, viz. (i) peak bogus purchases claimed by the assessee to have been made from Shri Laxmi Agrotech and (ii) towards gross profit of his overall trading transactions during the year therefore, the same would have a strong bearing while quantifying the addition that would be called for in the hands of the assessee in terms of my aforesaid observations.
Apart from that, as the assessee had already declared a gross profit for the year under consideration i.e. A.Y.2012- 13 in his declaration under IDS, 2016, therefore, the addition, if any, that would be worked out by the A.O as regards the profit which the assessee would have made by procuring the goods in question at a discounted value from the open/grey market, as against the value booked in his books of accounts, i.e by restricting the addition to the extent of the difference between the gross profit of genuine purchases transactions and gross profit of bogus purchases transactions [excluding purchase] would be reduced on a pro-rata basis, i.e to the extent such gross profit is attributable to bogus/unverified purchase transactions vis-à-vis total purchases made during the year.
Accordingly, on the basis of my aforesaid observations the matter is restored to the file of the A.O. Before parting, may herein clarify that the A.O shall in the course of the set-aside assessment proceedings remain at a liberty to verify the authenticity/correctness of the details furnished by the assessee - Grounds of appeal raised by the assessee are allowed for statistical purposes.
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2023 (5) TMI 1345
Disallowance of 50% of additional depreciation - depreciable assets which were installed less than 180 days - claim of 10% (50% of 20%) in the first year and balance 10% in the second year - new machineries were purchased and installed in financial year 2007-08 pertaining to assessment year 2008-09, thus CIT(A) deleted addition - HELD THAT:- Only dispute is as regards to additional depreciation claimed by assessee u/s. 32(1)(iia) of the Act, which was substituted w.e.f. 01.04.2006. No contrary decision was given during the hearing and the issue seems covered by the decision of Rittal India Pvt. Ltd. [2016 (1) TMI 81 - KARNATAKA HIGH COURT] as held The word "shall" used in the said Clause is very significant. The benefit which is to be granted is 20% additional depreciation. By virtue of the proviso referred to above, only 10% can be claimed in one year, if plant and machinery is put to use for less than 180 days in the said financial year. This would necessarily mean that the balance 10% additional deduction can be availed in the subsequent assessment year, otherwise the very purpose of insertion of Clause (iia) would be defeated because it provides for 20% deduction which shall be allowed.
Thus we dismiss this issue of Revenue’s appeal. The appeal of the Revenue is dismissed.
Characterization of income - notional exchange gain on reinstatement of foreign currency loan - addition made by AO treating the same as revenue income as against claimed by assessee as capital in nature - HELD THAT:- We noted that now the assessee has filed complete details and tried to prove that this foreign currency gain is arising out of Mill Development Plan which is an expansion project of the assessee company. The AO needs to verify all these details and for this purpose, matter has to go back to the file of the AO. Needless to say, that the assessee will file complete details before AO as to how the foreign currency loans were utilized for the purpose of expansion of project of mill development and for not any other purpose. In term of the above, we remit this issue back to the file of the AO.
Disallowance u/s 14A r.w.r.8D - disallowance in regard to expenses claimed against the exempt income - HELD THAT:- We noted that the AO has made disallowance under Rule 8D(2)(iii) i.e., average value of investment of Rs. 4,57,368/- and the CIT(A) enhanced the disallowance to the extent of exempt income i.e., dividend income earned by assessee i.e., Rs. 18,28,080/-. The issue is now covered by the decision of Cheminvest Ltd.[2015 (9) TMI 238 - DELHI HIGH COURT] wherein it is held that disallowance u/s. 14A r.w. rule 8D can be made to the extent of exempt income earned by the assessee. CIT(A) has simply followed the decision of Hon’ble Delhi High Court and for which he has not committed any infirmity, hence we affirm the order of CIT(A) and accordingly, this issue of assessee is dismissed.
Disallowance of forward premium treating the same as capital expenditure by applying the provisions of section 43A - HELD THAT:- We do not agree with the contention of the assessee for the reason that the provisions of section 43A of the Act specifically provides that the amount of increase or decrease in the liability due to fluctuation in exchange rate should be adjusted against the actual cost of the capital expenditure or the cost of acquisition of capital asset. When the terms of Section 43A of the Act are fulfilled, it is mandatory to take the actual cost, capital expenditure or the cost of acquisition at a higher or lower figure for the purposes of depreciation allowance irrespective of whatever might have been the position de hors the provision.
This provision has been interpreted in the case of CIT vs. Elgi Rubber Products Ltd., [1995 (2) TMI 4 - MADRAS HIGH COURT] wherein it has been held that having regard to the provisions of section 43A of the Act, the additional amount paid to the ICICI due to fluctuation in exchange rate was capital in nature and not revenue. Similarly, in the case of CIT vs. South India Viscose Ltd., [1996 (11) TMI 32 - MADRAS HIGH COURT] held a similar view that the amount paid as difference in exchange value resulting in higher installment paid due to exchange fluctuation in respect of loans taken from foreign banks for purchase of machinery, is capital in nature. In view of the above, we are of the view that the AO and CIT(A) has rightly disallowed the expenditure claimed by assessee and we affirm the same. Therefore, the appeal of the assessee is dismissed.
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2023 (5) TMI 1344
Seeking grant of anticipatory bail - sale of car by the petitiners, which was received as dowry - HELD THAT:- For Section 445 CrPC, the Legislature does not distinguish officers from Courts. Further, even the Legislature had made fleeing from justice a penal offense under section 174-A of IPC.
In anticipatory bail, the surety bail bonds have to be to the satisfaction of the Investigator/Arresting Officer. In regular bail and suspension of sentence applications, the surety bonds must satisfy the concerned court, the trial court, or the available Ilaqua Magistrate. In appeals and revisions, the higher Courts ask a convict or an accused to furnish bonds under sections 389, 390, and 397 CrPC. The provisions contained in Chapter XXXIII of CrPC apply to all bails and bonds. Thus, S. 445 CrPC applies to all bails, including those granted under sections 389, 390, 397, 436, 437, 438, and 439 CrPC - section 445 CrPC provides for depositing a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior.
There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of the surety amount by penalty is not equivalent to producing the accused to face trial.
There needs to be more assurance or likelihood of the refund of money taken by a stock surety. Whenever there is a possibility of the accused evading the trial, or is a potential flight risk, or the accused has a history of fleeing from justice, then in such cases, the concerned court can direct imposition of appropriate conditions that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
The petitioner is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
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2023 (5) TMI 1343
Validity of Reopening of assessment u/s 147 - sanction from JCIT u/s 151 not recorded his satisfaction and merely approved the proposal of the AO in a mechanical manner without application of mind - compliance with provisions of section 151 or not? - HELD THAT:- We clearly observe that the CIT(A) noted that the additional CIT(A) has mentioned a word “approved” on the proposal of the AO for issuance notice u/s 151 - He has not recorded his satisfaction towards reasons recorded by the AO therefore, in view of the judgment in the case United Electrical Co. (P) Ltd [2002 (10) TMI 86 - DELHI HIGH COURT] wherein, it was held that the power vested to the Commissioner/ Additional CIT as in the case of the present assessee to grant or not to grant approval is couple with a duty.
Their lordship further observed that such duty cannot be exercised casually and in a routine manner and he has required to apply his mind to the proposal put up to him for approval in the light of the material relied upon the AO. CIT(A) also noted that similar view has been expressed by the coordinate bench of Delhi in case of ITO Vs. NC Cables Ltd (Delhi) [2014 (11) TMI 593 - ITAT DELHI] wherein, it was held that the commissioner did not record his satisfaction as contemplated u/s 151 rather approved the proposal by stating “approved” and putting his signature then the approval is invalid for the reason that ACIT has not recorded his satisfaction as required under the law in the light of the material relied upon by the AO. We are unable to see any infirmity, perversity or any other reason to interfere with the findings recorded by the CIT(A) on this count.
Regarding a non compliance proposal rendered in the case GK Driveshaft India Ltd [2002 (11) TMI 7 - SUPREME COURT] CIT(A) concluded that the assessment proceedings as well as the remand proceedings did not reflect objection filed by the assessee to the reopening of the assessment were disposed by the AO.
CIT(A) rightly noted that the objections raised by the appellant were dealt with and disposed off by the AO in the assessment order itself and no separate order of disposing the objection of the appellant has been passed.
Therefore, we are in agreement with the conclusion drawn by the CIT(A) that the AO has failed to follow the mandatory procedure laid down in the case of GK Driveshaft (supra) in the case of present appellant which was mandatory to follow on his part. We are also in agreement with the conclusion drawn by the CIT(A) since the order of assessment was passed by the AO without disposing objections raised by the appellant against the issuance of notice u/s 148 by a separate order the same is liable to be quashed.
We are inclined to follow the order of the CIT(A) to allow in holding that notice issued u/s 148 as well as reassessment proceedings and consequent reassessment order is invalid and deserve to be annulled being bad in law and passed without following the mandatory provision of section 151 - Ground No. 1 of revenue is dismissed.
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2023 (5) TMI 1342
Appeal against judgment of acquittal u/s 138 of N.I. Act - Complainant lent money to the accused, who issued a cheque that bounced - Complainant issued demand notice and the same is returned with an endorsement as ‘not claimed’ - complainant filed a complaint seeking legal action against the accused - HELD THAT:- In the absence of any tangible evidence on record with regard to source of income through agricultural land, it cannot be accepted that complainant get income from agricultural land and given the said money to his Junior uncle-Ramanna. Out of the said saved amount, he has given loan to accused. The material evidence that has been brought on record during the cross examination of PW.1 is sufficient to create reasonable suspicion about the financial capacity of complainant to lend the money. In the present case, accused herself examined as RW.1, for the reasons best know to her did not offer herself for cross examination. Therefore, examination in chief of RW.1 cannot be looked into.
The Trial Court has rightly appreciated the material evidence placed on record and arrived at just and proper conclusion in holding that rebuttal evidence placed on record by accused during the cross examination of PW.1 would be sufficient to displace the initial presumption available in favour of complainant in terms of Sections 118 and 139 of N.I. Act. The finding recorded by the Trial Court are based on the material evidence brought on record in the cross examination of PW.1 and the same does not call for interference by this Court.
The Appeal filed by the Appellant-complainant is hereby dismissed.
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2023 (5) TMI 1341
Income from other sources u/s 56(2)(vii)(b) - difference between the stamp duty value on the date of registration and the agreement value - HELD THAT:- On perusal of the Booking Form, the Allotment Letter and the Agreement for Sale, we find that there is no change in the amount fixed for transfer of the immovable property which stood at INR 4,10,63,800/- in all the aforesaid documents. Thus, clearly there was agreement between the Appellant and the developer/seller fixing the consideration for transfer of immovable property.
It is admitted position that part-payment was made by the Appellant by way of cheque - As already noted that the Appellant had already made aggregate payment made till 30.06.2012. Thus, the conditions specified in the second proviso to Section 56(2)(vii)(b) of the Act stand fulfilled and therefore, stamp duty as on the date of agreement would have to be compared with the agreement value as per First Proviso to Section 56(2)(vii)(b) of the Act.
The Appellant has placed on record certificate showing stamp duty ready reckoner value as on the date of booking of flat and Since the stamp value as on 05.06.2012 was less than the agreement value addition made by the AO invoking the provisions of Section 56(2)(vii)(b) of the Act cannot be sustained. Accordingly, the addition made by the Assessing Officer vide Final Assessment Order is deleted - Decided in favour of assessee.
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