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Showing 81 to 100 of 1861 Records
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2018 (6) TMI 1783
TP Adjustment - substantial question of law or fact - Maintainability of appeal in High court - whether tribunal was right in holding that RPT filters should be 15% and not 25%, taken by the TPO? - HELD THAT:- This Court in a recent judgment in M/s. Softbrands India Pvt. Ltd [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellants, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable. No substantial question of law arises in the present case also
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2018 (6) TMI 1782
Correct test of human probabilities - whether Tribunal justified in not allowing the orders of the coordinate Benches, on identical fact situation that the coordinate Benches did not apply the correct test of human probabilities? - HELD THAT:- Registry is directed to communicate copy of this order to the Tribunal. This would enable the Tribunal to keep papers and proceedings relating to the present appeal available, to be produced when sought for by the Court.
Mr. Suresh Kumar, learned Counsel waives service for the Respondent.
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2018 (6) TMI 1781
Income from House Property u/s 22 - calculating notional ALV of the vacant units - adding the ALV of the unsold units which constitutes stock in trade - HELD THAT:- As in case of Chennai Property [2015 (5) TMI 46 - SUPREME COURT] held that when the company is primarily engaged in business of construction and development, which is the main object of the assessee, the income derived by assessee would be “Income from Business”.
On the same analogy in the case in hand, the assessee is engaged in the business of construction and development, which is the main business of the assessee, the units which could not be sold at the end of the year and were shown as ‘stock-in-trade’, estimating rental income on notional ALV was not justified - when, there is no evidence on record that these units were either given on rent or that the assessee has intention to let out those units. The Units which are not sold are stock-in-trade and the income arising of its sale is liable to be taxed as Business Income, therefore, we do not find any justification in calculating notional ALV of the vacant units. Therefore, we direct the Assessing Officer to delete the addition made on estimate basis - Decided in favour of assessee.
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2018 (6) TMI 1780
Addition u/s 40A(2)(b) - interest ranging from 12% to 15% - restriction of payment of interest to 12% instead of interest at the rate of 15% paid by the assessee to the persons covered under section 40A(2)(b) - HELD THAT:- Rate of interest charged and received by the assessee is justifiable and in commensurate with prevailing market rate - assessee contended that the bank interest was in the range of 15% and in respect thereof, the assessee was required to produce security against such loans, whereas the loans availed by the assessee were unsecured loans. By taking of loans from related persons, it could avoid a lot of formalities.
We are of the view that the payment of interest at a little higher rate to the persons even if covered under section 40A(2)(b) cannot be termed as exorbitant when the prevalent market rate of interest is being looked into, and there is no question of undue benefit being given to the related persons. We find no justifiable reasons to restrict the interest rate at 12% by the Revenue authorities. Accordingly, disallowance made by the Revenue is deleted, and the ground of appeal of the assessee is allowed.
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2018 (6) TMI 1779
Deduction u/s 80IA - interest earned on fixed deposits for the performances of bank guarantee for carrying on the business for providing performance guarantee - AO held that the interest income earned on FDRs and misc. income cannot be considered as profit derived from the business of developing, operating or maintaining infrastructural facilities and thereby not eligible for deduction u/s 80IA - HELD THAT:- Hon'ble Supreme Court in case of Conventional Fastners [2018 (5) TMI 1866 - SC ORDER] made it clear that interest earned on fixed deposit maintained with bank for obtaining bank guarantee is not derived from business, hence not entitle to deduction. The decision of the Apex Court is applicable in the present case which also considered the decision relied by the Ld. AR i.e. Pandian Chemicals [1997 (4) TMI 38 - MADRAS HIGH COURT]. The decision relied upon by the Ld. AR are factually different and are not applicable in the present case while the decision of the Apex Court passed in Conventional Fastners is more apt in the present case. Therefore, the order of the CIT(A) is set aside and appeal of the Revenue is allowed.
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2018 (6) TMI 1778
Disallowance of notional loss on account of foreign exchange fluctuation loss - claim on account of Mark to Market basis - HELD THAT:- As in the case of very assessee in SUZLON ENERGY LIMITED [2018 (2) TMI 1789 - GUJARAT HIGH COURT] the Division Bench of this Court has held in favour of the assessee and against the Revenue. Following the decision of the Division Bench of this Court in the case of very assessee in present appeal qua proposed question no. 2(A) is hereby dismissed.
Fresh claim of the assessee in respect of Revenue expenditures for issue of debenture of LIC of India when such claim was never made by Assessee in its return of income in contradiction to in the case of Goetze (India) Ltd [2006 (3) TMI 75 - SUPREME COURT] - Tribunal has erred in law and on facts in remanding the issue of relief under Section 90 to the file of AO - HELD THAT:- Tribunal has remitted the matter back to the AO to consider the said claim. The only grievance on behalf of the Revenue is that without filing revised return, the same ought not to have been permitted. However, the said issue is concluded against the Revenue in view of the decision of this Court in the case of Commissioner of Income Tax vs. Woodward Government India P. Ltd [2009 (4) TMI 4 - SUPREME COURT]. Under the circumstances, present appeal qua proposed question nos. 2(C) and 2 (E) is hereby dismissed.
Present Tax Appeal is admitted for consideration of following substantial question of law:
B. Whether the Appellate Tribunal has erred in law and on facts in deleting upward adjustment made on account interest charged on the loans granted to the Associated Enterprises, at discounted rate to the prevailing Market rate ?
D. Whether the Appellate Tribunal has erred in law and on facts in holding that disallowance under Section 14 A cannot be added to book profit while working out tax liability under the provisions of MAT as the said section has no applicability beyond chapter IV, while computing the book profit under Section 115JB of the Act ?
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2018 (6) TMI 1777
Rectification u/s 154 - whether the amount brought forward as unabsorbed depreciation as claimed by the assessee is correct or not? - HELD THAT:- This was the claim of the assessee that the profits of the assessment year 1999-2000 were set off against the carried forward losses of the previous year which were more than 15 crores rupees and even after absorbing the entire profits of the year 1999- 2000, against the carried forward losses, losses still remained unabsorbed and the unabsorbed depreciation was not even touched. The claim in the present case is also similar.
This was the claim of the revenue before Hon’ble Delhi High Court that that in Assessment Year 1999-2000, profit as per P&L account of ₹ 58.98 lakhs was adjusted against unabsorbed depreciation and brought forward business loss and therefore, the AO took that figure for adjustment against book profit u/s. 115JB in the order passed by him u/s. 154 of IT Act as in the present case. But it was held by Hon’ble Delhi High Court in Eli Lilly and Co. India P. Ltd. [2011 (3) TMI 267 - DELHI HIGH COURT] that under these facts, it cannot be said that there was an apparent mistake which could be rectified by invoking the provisions of section 154 of IT Act. Hence, by respectfully following this judgement of Hon’ble Delhi High Court, we decide the issue in favour of the assessee.
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2018 (6) TMI 1776
Disallowance u/s 36(1)(iii) - HELD THAT:- As recorded by the Ld. CIT (A) that the investment in the partnership firm was made exclusively for the purpose of the business. It has also been noted by the Ld. CIT (A) that the advances recoverable and forward-cover receivable included in the advances are business advances and have been given to suppliers with whom regular business transactions are under taken. Similarly with respect to the advance given to DLF Ltd., CIT (A) has noted that the same has also been given for the purpose of business. The Ld. CIT (A) has also noted that apart from these advances, there were other advances also but on which interest has duly been charged by the assessee.
CIT (A) has also placed reliance on the judgment of the Hon’ble Apex Court in the case of S.A. Builders Ltd. [2006 (12) TMI 82 - SUPREME COURT] wherein as held that an expenditure may not have been incurred under any legal objection but yet it is allowable as a business expenditure if it was incurred on the grounds of commercial expediency. We note that the Hon’ble Apex Court has also observed that the expression “commercial expediency” is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business.
CIT (A) has also referred to the judgment of Hon’ble Delhi High Court in the case of CIT vs. Dalmia Cement (Pvt.) Ltd. [2001 (9) TMI 48 - DELHI HIGH COURT] wherein it had been held that once it was established that there was a nexus between the expenditure and the purpose of business, the revenue cannot justifiably claim to put itself in the armchair of the businessman and take up the role to decide as to how much is reasonable expenditure having regard to the circumstances of the case.
CIT (A) has given a categorical finding that in the instant case the loans and advances have been given on account of commercial expediency. DR could not point out any factual inaccuracy in the findings of the CIT (A) nor could she point out how the impugned order was not legally sustainable. Accordingly, we find no reason to interfere with the findings of the CIT (A) on this issue and we dismiss the grounds raised by the department.
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2018 (6) TMI 1775
Condonation of delay of 106 days in filing the appeal - delay on account of inconvenience caused to the consultant and also the fact that the wife of the consultant had met with an accident - sufficient explanation for delay or not - HELD THAT:- The delay of 106 days cannot be construed to be an inordinate delay especially when the first respondent does not allege that the petitioner had purposely not filed the appeal in time and had filed the appeal with delay only to drag on the proceedings. The inconvenience caused to the consultant and the submission that the consultant's wife met with an accident have not been shown to be a wrong statement. Ordinarily, a person does not stand to benefit by lodging an appeal belatedly.
Thus, in the absence of mala fides on the part of the assessee in belatedly filing the appeal, this Court is of the view that liberal approach is to be adopted - the delay of 106 days in filing the appeal is condoned and the first respondent CESTAT is directed to proceed further in accordance with law - petition allowed.
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2018 (6) TMI 1774
Exemption u/s 11 - Charitable activity u/s 2(15) - assessee is rendering services and charging fees for it and generating surplus - HELD THAT:- The assessee claims to be engaged in the maintaining of national/international youth centres at suitable centres in India for the benefit of foreign students and youth delegates as well as individuals visiting India - As decided in own case [2016 (12) TMI 1860 - DELHI HIGH COURT] mere circumstance of collection of such amounts did not result in the assessee's losing their essential character of being established for charitable purposes - Decided in favour of assessee.
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2018 (6) TMI 1773
Seeking grant of leave to the Applicant to auction and sell the immovable property - exclusive charge over the properties or not - pari passu charge - Section 446 r/w. Section 537 of the Companies Act, 1956 - HELD THAT:- The control of the Company Judge and the Official Liquidator, if authorized, can be only to ensure that the purpose of Section 529A is effectively achieved i.e. only to a limited extent and for the limited purpose of securing the right of the workers for distribution of their wages as pari passu charge.
Learned advocate for the applicant has fairly stated before the Court that the Official Liquidator could be associated with the applicant in sale of the properties and that the applicant has no objection or reluctance in depositing the sale proceeds on completion of the sale of the mortgaged properties with the official liquidator reserving its right to claim that except the pari passu charge of the works for recovery of their dues from the sale proceeds, the applicant shall have the exclusive right to the sale proceeds.
The applicant being Financial Corporation and entitled to exercise the power under Section 29 of the Act could be granted permission to auction and sale the properties mentioned in schedule at Annexure A, however, with certain directions to safeguard the interest of the workers of the company, if any - applicant is permitted to auction and sell the properties mentioned in the schedule at Annexure A in exercise of the power under Section 29 of the Act - Application disposed off.
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2018 (6) TMI 1772
Defective appeal - Dy. Commissioner of Income Tax, Circle 8(1), New Delhi while filing the appeal before the Tribunal has not signed the grounds of appeal, which is contrary to the provisions of section 253(2) - HELD THAT:- We are of the view that the Appeal is defective and is not maintainable in the eyes of law, hence, we dismiss the present appeal filed by the Revenue, being 'Defective'. But in the interest of justice, we are giving the liberty to the Revenue to file the Application for recall of this order, as per Rules, after rectifying the defect. Decided against revenue.
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2018 (6) TMI 1771
TP Adjustment - Comparable selection - exclude M/s. Acropetal Technologies Ltd. - HELD THAT:- The average operating margin of M/s. Acropetal Technologies Ltd., is 57.66 which is significantly high and not consistent with the other comparables. Therefore we find merit in the submission of the Ld.AR that the statement of accounts of M/s. Acropetal Technologies Ltd., during the relevant assessment year cannot be relied upon and even if it is relied upon the profit of the company is abnormally high during the relevant assessment year. Hence, we are of the considered view that for the relevant assessment year M/s. Acropetal Technologies Ltd., cannot be adopted as a comparable company. Therefore we hereby direct the Ld.AO to exclude M/s. Acropetal Technologies Ltd., while determining the ALP of the assessee.
Disallowance of Research & Development Expenditure - nature of expenditure - HELD THAT:- AR submitted before us that the assessee had rendered Research & Development services to its related party against which the assessee has earned revenue income. AR further pleaded that the matter may be remitted back to the file of Ld.AO for fresh examination of the facts. DR strongly objected to the submission of the Ld.AR. After hearing both the parties, considering the strong arguments advanced by the Ld.AR, we are of the considered view that in the interest of justice, the entire issue has to be examined afresh. Therefore this ground raised by the assessee is remitted back to the file of Ld.AO for de-nova consideration.
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2018 (6) TMI 1770
Computation of income for the purposes of allowing deduction u/s.36(1)(viia) - HELD THAT:- As decided in CANARA BANK VERSUS JOINT CIT, LTU, BANGALORE. [2016 (4) TMI 429 - ITAT BANGALORE] the amount of deduction is to be calculated with reference to income computed under the head 'profits and gains of business or profession'. The provisions governing the brought forward and set-off business loss are not part of the provisions governing the computation of profits under the head 'profits and gains of business' - the method of calculation adopted by the AO is in accordance with the provisions of the Act and the reasoning adopted by the CIT(A) is also in consonance with the clear provisions of the Act. Hence, we confirm the addition made by the AO. The grounds of appeal raised by the assessee on this issue are dismissed.
Additions made while computing the book profit which are not covered by the Explanation 1 to section 115JB(2) - HELD THAT:- Admittedly, as per the decision of the CIT (A) the provisions of Section 115JB are not applicable to the assessee bank as the issue was decided in favour of the assessee by a decision of the coordinate bench in the assessee’s own case. As , the decision of the CIT (A) was based on the decision rendered in the assessee’s own case by the Tribunal in earlier years, therefore the assessee had preferred the appeal before us.
If the decision is rendered by the superior court in the earlier appeal for AY 2007-08 [2015 (4) TMI 727 - ITAT BANGALORE], thereby reversing the decision of the Tribunal for AY 2007-08, in that eventuality in the opinion of the bench, this issue will be required to be decided by the CIT (A), as no decision was rendered by the CIT (A) or by the Tribunal. In our view, it is for the assessee to move an appropriate application for seeking a direction from the Tribunal for adjudication of these issues namely, ground nos.8 to 15, in case the decision is reversed by the superior court in earlier appeal and sought appropriate direction for adjudication of these grounds on merit by the CIT(A) . At this stage, we do not find any error in the decision recorded by the CIT (A). Therefore this ground of the assessee is decided in terms of the above said observation, against the assessee.
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2018 (6) TMI 1769
Levy of Service Tax - “Watch and Ward“ services provided to Metro Railways - security agency or not - period March 01 to May 05 - HELD THAT:- The Appellant have been providing services related to security, manpower supply for cleaning, washing, sweeping, gardening, upkeep, watch and guard, grass cutting, checking, watch and ward, mechanized cleaning, driving , office assistance etc. The services provided by the said appellant are classifiable under two categories viz. “Security Agency Service” and “Manpower Recruitment or Supply Agency’s service.” They are rendering “security service” to their clients. The service was made taxable under the category of “security Agency” w.e.f. 16.10.98 vide clause 94 of Section 65 of chapter v of the Finance Act, 1994.
It is found from the impugned order that the Adjudicating Authority has observed that their functions cannot be restricted to checking of tickets of the passengers only. The personnel deployed by them must have done the overall supervision of passengers including watching the property of Metro Railway and watching that any passenger cannot make any damage to any property. The personnel deployed must have under taken the job related to security of Metro property. They are also to ensure smooth movement of passengers in the Metro Station - the services provided by the appellant to Metro Railway, Kolkata surely falls under the category of “Security Agency Service.
The appellant has argued that for non-taxable services, section 11D of Central Excise Act, 1944 has no application. They have also mentioned that Section 73A of the Finance Act, 1994 has been introduced w.e.f 18.04.06 and that according to sub-section(2) of Section 73A, service tax collected on non–taxable service is demandable/payable to Government exchequer. This provision is only applicable w.e.f 18.04.06.During the material period the provision of Section 11D of the Central Excise Act, 1944 was applicable.
Appeal dismissed - decided against appellant.
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2018 (6) TMI 1768
Refund of excess duty paid on FOB value - Requirement to challenge the assessment of Bill of Entry in order to claim refund of excess duty paid - exports of Pig Iron and Iron Ore Fine - Board Circular No.18/2008 dated 10.11.2008 - HELD THAT:- There is no dispute on the eligibility of the exemption notification which holds the position that there is no lis between the assessee and the revenue. The appellant is therefore not required to challenge the assessment of Bill of Entry for claiming the refund of excess duty paid.
From the judgment of the Hon’ble High Court of Delhi in AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT], it is seen that if the duty is paid and borne by the assessee, refund is admissible without challenging the Bill of Entry - In the present case also the excess duty was paid and borne by the appellant.
Thus, if the excess duty is paid in excess under self-assessment of bill of entry and borne by the appellant for claiming of refund of excess duty paid, the appellant was not required to challenge the self assessed bill of entry - appeal allowed - decided in favor of appellant.
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2018 (6) TMI 1767
Reopening of assessment u/s 147 - assessment beyond the period of 4 years from the end of the relevant assessment year - HELD THAT:- When the AO has not found any infirmity in the claim of the assessee of receiving share application money against allotment of shares to M/s. Lexus Infotech Ltd. and M/s. Vanguard Jewels Ltd. while completing the assessment under section 143(3) on 7th December, 2009 then the reopening after 4 years in the absence of failure on the part of the assessee to disclose fully and truly all material necessary for assessment is not valid.
As mandatory condition as per the proviso to section 147 that when the assessment is completed under section 143(3) then no action shall be taken under this section after expiry of 4 years from the end of the relevant assessment year until and unless income chargeable to tax has escaped assessment by the reason of failure on the part of the assessee to disclose all the material facts necessary for assessment.
When the AO himself has not made any allegation against the assessee to disclose fully and truly all material facts necessary for the assessment then the reopening after 4 years is without jurisdiction of the AO as the existence of the jurisdictional condition precedent to exercise of power to reopen the assessment beyond the period of 4 years from the end of the relevant assessment year has not been established. We hold that the reopening in the case in hand is not valid and the same is quashed. Thus the consequential reassessment order passed by the AO is set aside. - Decided in favour of assessee.
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2018 (6) TMI 1766
Failure to refund the deposit amount , which was deposited with Co-operative Societies - cheating general public/investors by misappropriation of the fund deposited - HELD THAT:- It is not in dispute that the petitioner Society is a registered Co-operative Society under KCS Act, 1959. Admittedly, the petitioner-Society is not an assisted Society under the KCS Act. Even though the petitioner Society is required to file its audit returns to the Registrar of Cooperative Societies and with respect to its accounts, it is subject to the provision and control of the Registrar of Cooperative Societies under Section 2A(6) of the KCS Act. Still it cannot be ignored of the fact that the society would have its own management to run its business and its entire management would vest in the Board constituted under Section 28A of the KCS Act.
The Society would run its activities as per the bye-law framed by it. As such, the Society will frame the bye-law though on par the model bye-law, to conduct its business in the manner recognized under the law. Its internal management and affairs will be governed and controlled by the Board of Management constituted under Section 28(A) of the KCS Act. Merely because the society is required to be registered under a particular statute or that it is required to submit its audited report to the particular Department of the Government annually, would by itself not make the society as the one under the direct control of the State.
Even though the present petitioner Society is also a Body Corporate, but under KCS Act, the final Authority of the said Society vests in the General Body of its members and under Section 28A of the KCS Act. The Societies managed by the Managing Committee constituted in terms of the bye-laws. Final Authority so far as the petitioner-Society is the general body and not the Registrar of Co-operative Societies or State Government. Therefore, merely because the petitioner-Society is regulated in its activities by the Registrar or Joint Registrar of Co-operative Societies, but the same cannot be said that the said regulatory act is by any means a direct or indirect control over the affairs of the Society bringing it within the ambit of the definition of Section 2(4) of KPID Act as the Co-operative Society controlled by the State.
There are no merits in the petition - petition dismissed.
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2018 (6) TMI 1765
Maintainability of petition - demand of 50% of the demand amount less the amount already paid by them - HELD THAT:- Though the learned counsel for the parties, assailed the correctness of that portion of the order impugned in the appeals, as stated supra and accordingly sought for reversal, having regard to the facts and circumstances of the case, we are not inclined to interfere with the interim direction issued in the year 2013, directing to pay 50% of the demand amount, as the same has not been complied with and consequently, respondents are yet to consider the application, as directed. Both the parties have not complied with the directions issued.
Appeal dismissed.
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2018 (6) TMI 1764
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Creditor has also initiated SARFAESI Proceedings against the Corporate Debtor by issuing Demand Notice - existence of debt and dispute or not - HELD THAT:- The loans were recalled and further reassigned to ARCIL vide Assignment Agreement dated 28.03.2014, and in their opinion, the Company has defaulted in repayment of its dues, the details of the principal and interest amount are also recorded in the said para of the Annexure. The Auditors' report along with its annexure is placed at pages 251 to 274 of the typed set filed with the Application. This clearly establishes that the Corporate Debtor has defaulted in making payment to the outstanding debt due to the Financial Creditor - the Counsel has admitted the liability of the Corporate Debtor with regard to the debt claimed.
However, the Counsel for the Corporate Debtor did not place any authentic document on record to substantiate her objection. Therefore, the objections raised by the Counsel for the Corporate Debtor stand rejected.
This Authority has ascertained the existence of a default on the part of the Corporate Debtor. The Financial Creditor has fulfilled all the requirements of law and has also proposed the name of IRP after obtaining his written consentin Form-2. Therefore, is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.
Application admitted - moratorium declared.
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