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Showing 81 to 100 of 2041 Records
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2017 (9) TMI 1966
Non perusal of appeal by assessee - HELD THAT:- Notice of hearing was sent through RPAD post, but the same was returned by the postal authorities with the remark “not known,” which is placed on record. The assessee has also not filed any application for adjournment of the case. Therefore, it is presumed that the assessee is not interested in pursuing with its appeal before the Tribunal, therefore, following order of the ITAT, Delhi Bench in the case of CIT Vs. Multiplan India Pvt. Ltd [1991 (5) TMI 120 - ITAT DELHI-D] we dismiss the appeal of the assessee in limine for want of prosecution. - Decided against assessee.
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2017 (9) TMI 1965
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - financial debt or not - existence of debt and dispute or not - HELD THAT:- The amount claimed in this case, according to the Applicant, is for allotment of shares of the Respondent Company. In fact, 5,25,000 shares of the Respondent Company were allotted to the Applicant Company but the allotment of such shares was held to be illegal and the allotment was set aside by an order of Company Law Board - It appears that the only property of the Respondent Company was sold with the permission of the Applicant Company and the amount is lying in the National Company Law Tribunal. There is no order from the National Company Law Tribunal that Applicant is entitled for the amount invested by it for the shares allotted to it and that were cancelled. Therefore, it cannot be said that any amount is due to the Applicant from the 1st Respondent Company as a debt much less as a financial debt.
Application disposed off.
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2017 (9) TMI 1964
Maintainability of the claim qua advances written off - advances as found by AO are to related parties - HELD THAT:- Explanations/details, among others, would be readily available with the assessee if the transactions have actually arisen in the normal course of its business, to which surprisingly no reference has at all been made, even in passing, by the assessee while pleading its’ case. The facts/incidents referred to are only to enable definite findings of fact in the conspectus of the case. We, accordingly, only consider it proper to restore the matter back to the file of the AO to allow the assessee, in the interest of justice, another opportunity to prove its claims, which could be so on various counts and per a number of supporting documents and corroborative circumstances. Needless to add, he shall decide per a speaking order. The burden to prove its claims being on the assessee, an inability on its part to do so shall entitle the AO to draw inference(s) as may be proper under the circumstances. Reference here may be made to the decision in Kapurchand Shrimal [1981 (8) TMI 2 - SUPREME COURT].
Disallowance of personnel and administration expenses - extent of expenditure incurred for or attributable to the property income, which constitutes the principal receipt and, correspondingly, the principal activity during the year - HELD THAT:- It was upon the assessee to show that the expenditure incurred in relation thereto is lower in proportion to that obtaining on the basis of the proportionate receipt in the total turnover - both before the AO as well as the ld. CIT(A) no explanation, muchless materials, stand furnished by the assessee toward the same. The position continues to be the same before us. How, therefore, we wonder, can the AO’s estimate, who is entitled to make the same on the basis of the material and the information on record, be faulted with (refer Consolidate Coffee Ltd. v. State of Karnataka [2000 (11) TMI 136 - SUPREME COURT] - AO is entitled to make a reasonable estimate is well settled. The reasonability of the estimate apart, personnel and administrative expenditure is inadmissible u/ss. 23 & 24, so that the AO has in fact, in allowing proportionate expenditure thereon, been liberal. Under the circumstances, we find no infirmity in the impugned order and, accordingly, confirm the disallowance.
Disallowance u/s. 14A in respect of dividend income - HELD THAT:- Almost, the entire disallowance u/s. 14A is qua direct interest expenditure, implying an examination of accounts, as well as of the extent to which the investment has been financed by interest bearing funds.
There is, in fact, another, equally relevant aspect of the matter. The investment in shares and units does not form part of the assessee’s business. The bulk (.56.66 lacs) of the expenditure disallowed u/s. 14A is interest expenditure, of which .56.16 lacs is by way of direct interest cost. Now, inasmuch as holding investments or otherwise dealing in shares/units is not the assessee’s business, the interest expenditure, to the extent the same stands apportioned to investments, cannot be regarded as for the purposes of its’ business, or even in respect of property income. The same would therefore stand to be disallowed, either u/s. 36(1)(iii) or u/s. 24(b), as well. A similar argument would apply to the administrative expenditure admissible u/s. 37(1); the expenditure disallowed u/r. 8D(2)(iii) being only that relatable to the tax-exempt income, i.e., that can be said to be expended toward earning the same - Therefore, a disallowance in the impugned sum arises in the computation of the assessee’s total income. We decide accordingly.
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2017 (9) TMI 1963
Suit for recovery of khas possession and for mesne profit - continuation of proceedings during moratorium period - Prayer for stay of all further proceedings on the ground that an insolvency proceeding has started under Section 10 of the Insolvency and Bankruptcy Code, 2016 - whether the present suit should be allowed to continue or not? - HELD THAT:- If an adjudicating authority is satisfied that the subject matter of the case is such that the Corporate Insolvency Resolution Process cannot be completed within 180 days it may, by order, extend the duration of such process beyond 180 days of such further period as it thinks fit, but not exceeding 90 days. The proviso to sub-section (3) further says that any extension of the period of Corporate Insolvency Resolution Process under the said execution shall not be granted more than once. Therefore, on a conjoint reading of the sub Sections under Section 12 it appears that the resolution process has to be completed within 180 days and further 90 days of extension (once only). If the provisions of the Code are compared with its object, it gives a logical conclusion that the Courts are prohibited from proceeding with the suits and proceedings which has direct nexus with the provisions of Section 14 of the said Code.
Admittedly, the defendant is a corporate debtor. Admittedly, in a proceeding under Section 10 a moratorium has been declared, an Insolvency Resolution Professional has been appointed on and from the date of the order under Section 10 of the said code, i.e., 01.05.2017. We are now in September 2017. Therefore, it is expected that within the timeframe mentioned in Section 12 the Insolvency Proceeding will be completed and it is prudent to hold that the trial of the suit will be stayed for the present for a period of four months from date with liberty to the plaintiff to bring it to the notice of the Court with regard to further development in the Insolvency Proceeding.
The proceedings of the suit is stayed only for a period of four months for the present with liberty to the parties to pray for extension if situation so demands - application disposed off.
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2017 (9) TMI 1962
Attachment of Bank Account of petitioner - order issued by the Securities and Exchange Board of India - alternative remedy available to petitioner or not - HELD THAT:- It appears that the Securities and Exchange Board of India in exercise of powers under Sections 28A((1), 11(2)(ia) of the Securities and Exchange Board of India Act, 1992 read with Section 226 and the Second Schedule of the Income Tax Act, 1961 has attached the Bank account of the petitioner. The petitioner has statutory alternative remedy available.
Petition disposed off.
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2017 (9) TMI 1961
Penalty u/s 271(1)(c) - Notice challenged in the absence of any specific mention in the show-cause notices issued under section 274 - whether the assessee is guilty of having “furnished inaccurate particulars of income” or of having “concealed particulars of such income”, the initiation of penalty proceedings - HELD THAT:- If the notice issued under section 274 is issued by the Assessing Officer in the standard printed proforma without striking out the irrelevant clause like in the present case, the same, in our opinion, cannot convey to the assessee as to which of the charges he has to respond and such notice issued by the Assessing Officer without application of mind is liable to treated as vague on the basis of which no penalty can be imposed on the assessee as held by the Hon’ble Karnataka High Court, inter alia, in the case of SSA’s Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] and Manjunatha Cotton & Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT].
As in the view that the notices issued by the Assessing Officer under section 274 in the present case for both the years under consideration not being in accordance with law, the penalty orders passed by him in pursuance thereof are liable to be cancelled being invalid. We accordingly uphold the impugned orders of the ld. CIT(Appeals) cancelling the penalties imposed by the Assessing Officer under section 271(1)(c) for both the years under consideration although on different grounds.
Voluntary declaration of his foreign Bank account before the Income Tax Department - As declaration made by the assessee surrendering his undisclosed income representing the amount lying in the overseas Bank account with HSBC Switzerland on 26.09.2011 without initiation of any action or issuance of any notice issued by the Income Tax Department was voluntary showing the bonafide of the assessee
The contention as raised by the ld. counsel for the assessee in this regard is that any assessee as per the said Act thus could get away by paying tax @60% on the value of an undisclosed asset located outside India in the year 2015, while the assessee in the present case even after declaring his undisclosed asset located outside India in the year 2011 itself and finally paying tax on such value along with interest thereon, as the corresponding income was ultimately charged to tax in his hands in A.Ys. 2006-07 and 2007-08 could not avail the immunity provided in the said Act introduced in 2015. He has contended that the assessee having declared the income on account of undisclosed asset located outside India voluntarily in the year 2011 itself and having paid tax thereon along with interest thus is put in an adverse position as compared to the other assessees who did not make such declaration and finally got the benefit of the Act introduced in 2015. He has contended that going by the spirit of Rule of Equality before law, the benefit of immunity provided in the 2015 Act thus should be extended to the assessee and the orders of the ld. CIT(Appeals) cancelling the penalties imposed under section 271(1)(c) are liable to be upheld on this ground also. - Decided against revenue.
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2017 (9) TMI 1960
Excess stock of iron ore - Investment in excess stock - unexplained investment - survey under section 133A - valuer has made a professional survey of the stock of iron ore at the mines of the assessee and submitted valuation report on 18.03.2008 - HELD THAT:- Since the excess stock of iron ore was found, the onus is upon the assessee to explain the source of the expenditure incurred in mining such excess ore. The valuation of excess ore was done by the valuer and the same was also confronted to the assessee and the assessee has not disputed the method of valuation done by the valuer while offering the additional income on 31.03.2008. It is not the case where the income was offered or surrendered by the assessee under duress or pressure. Search was conducted on 07.03.2007 and additional income was offered through statement on 31.03.2008.
Even after making statement, the assessee did not come forward to retract the statement on a plea that the statement was recorded under duress or in pressure. The retraction statement comes through letter dated 10.09.2009, almost after a year. Therefore it cannot be said that retraction is valid and there is no value of the statement recorded by the Revenue authorities. Moreover, sufficient opportunity was given to the assessee during the course of assessment proceedings to explain the source of expenditure incurred in extracting the ore but no satisfactory explanations were furnished by the assessee. He simply made a general/legal objections which were duly dealt with by the AO.
Valuation of excess stock was done properly and the assessee was suppose to explain the source of expenditure incurred in mining the said ore and when he failed to do so, the AO has rightly made the additions on account of unexplained investment, which were latter confirmed by the CIT(A). We therefore find no merit in the assessee’s appeal.
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2017 (9) TMI 1959
Dishonor of Cheque - proclaimed offender or not - attachment of property - HELD THAT:- The scope of Section 83 Cr.P.C is to attach the property of a person who is absconding or concealing himself defying warrant against him. Once proclamation is issued against such person, his property can be attached as per Section 82 Cr.P.C. Under Section 85 (1) Cr.P.C., the proclaimed person shall appear within the time specified in the proclamation order and on his appearance, the Court shall make an order to release the property from attachment.
On perusal of the impugned order indicates that the trial Court is on the impression that after a lapse of two years from the date of attachment, it has no power to consider the request to lift the attachment which is not legally correct. The spirit of Sections 83, 84 and 85 in Cr.P.C is to procure an absconding accused and to proclaim an offender who is absconding or concealing himself from criminal prosecution. As a plenary measure, his property is liable to be attached for defying the warrant issued by the criminal Court.
This Court could not find particulars about the date of proclamation, attachment and subsequent arrest. To some extent, the order of the trial Court is correct that de hors of the outcome of the criminal proceedings, proclamation for absconding or concealing is an independent cause of action. At the same time, if reasonable cause shown the attachment made consequent to the proclamation can be raised. The two years period referred for lifting the attachment cannot be read literally to say the belated application are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking relief of raising the attachment after two years.
The petitioner is given liberty to file fresh petition before the trial Court stating out all the facts with details and reasons for non appearance despite proclamation and the reason for not filing petition to lift the attachment within the time prescribed under Section 85 (3) of Cr.P.C. - Petition ordered.
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2017 (9) TMI 1958
Grant of default bail - Seeking modification of conditional order directing the petitioner to deposit a sum of ₹ 15 lakhs - HELD THAT:- Section 167(2) of Cr.P.C.is an indefeasible right and such a right cannot be extinguished by imposition of onerous conditions.
The condition No.1 alone in the order stands deleted - Petition disposed off.
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2017 (9) TMI 1957
Refund of service tax paid - full price to be borne by appellant or some part to be recoverable from the buyers - denial of refund on the ground of unjust enrichment - HELD THAT:- In this case, it is a fact on record that price of sugar is fixed, therefore, whatever duty is payable by the appellant, the same is borne by appellant and no part of duty is recoverable from the buyers as the price of sugar is includible in all taxes in the fixed price of sugar. In these circumstances, bar of unjust enrichment is not applicable.
Appeal allowed - decided in favor of appellant.
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2017 (9) TMI 1956
Reopening of assessment u/s 147 - reason to belive - information received from the DGIT(Inv), Mumbai - assessee availed the accommodation/fictitious bills from the 13 parties - HELD THAT:- The case of the assessee was reopened u/s 147 of the Act after finding the information from DGIT(Inv), Mumbai dated 13.03.2014 in which it was conveyed that the assessee has availed the accommodation/fictitious bills from the 13 parties.
Prima facie there is reason to believe that the income chargeable to tax has escaped assessment. The CIT(A) relied upon the case law title as Raymond Woollen Mills Ltd. [1997 (12) TMI 12 - SUPREME COURT] - this issue was not under consideration at the time of assessment therefore, there is no question of change of opinion. The present case is in connection of availing of accommodation/fictitious bills entries by the assessee which was not on record at the time of the assessment of the assessee. These facts are totally new facts which came into notice before the AO through the letter dated 13.03.2014 received from the DGIT(Inv), Mumbai. Accordingly, we are of the view that the CIT(A) has rightly upheld the reopening of the proceedings u/s 147 of the I.T. Act. - Decided in favour of the revenue.
Estimation of income - bogus purchases - addition of the profit element to the extent of 0.25% on the bogus purchase of 13 parties - contention of the assessee is that the addition should not be more than 1% specifically in view of the nature of the business of diamond of the assessee - HELD THAT:- As per CIT-A purchase of cut and polished diamond from the open market was made mainly to save 1% vet levied thereon and in addition the buyer get the benefit of lower rate/ cash discount. In the said circumstances, the CIT(A) was of the view that the addition of extra profit @ 7.3% of purchases was not held to be justified and reduced the profit embedded in the transaction @ of 2% of purchase value record in the books of accounts. No distinguishable material has been placed on record even after service of the notice to assessee to the contradict the finding of the CIT(A) on record. Nothing came into notice that the assessee produced some material earlier which was not considered by the CIT(A). Taking into account all the facts and circumstances we are of the view that the CIT(A) has rightly estimated the profit @ 2% on gross profit of the purchase value - CIT(A) has passed the order judiciously and correctly which is not liable to be interfere with at this appellate stage. Decided in favour of the Revenue.
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2017 (9) TMI 1955
Nature of expenditure - expenditure in relation to soil cultivation, planting and making sheds - capital or revenue expenditure - whether no expenditure was incurred in the extension/ expansion of plantation? - HELD THAT:- As that there was no expansion in the area of plantation therefore the principle laid down in the case of Tasah Tea Company Ltd. [2003 (2) TMI 42 - CALCUTTA HIGH COURT] is squarely applicable in this case wherein held that iis not an investment of fresh capital unless it is utilized for the purpose of expanding the plantation - Decided against revenue.
Addition on account of delayed deposited in employees P.F account - CIT(A) submitted that employees’ contribution to PF account was deposited after the due date but before furnishing the income tax return as specified u/s. 139 - CIT-A allowed the claim - HELD THAT:- There is no distinction between employees' and employer contribution to PF, and if the total contribution is deposited on or before the due date of furnishing return of income u/s 139(1) of the Act, then no disallowance can be made towards employees' contribution to provident fund. Hence, we are inclined not to interfere in the order of ld. CIT-A. Hence the ground of appeal filed by the Revenue is dismissed.
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2017 (9) TMI 1954
Addition on account of project expenses - Nature of expenses - whether capital or revenue in nature? - AO treated the claimed expenditure as capital in nature keeping in mind that the purpose of business of the assessee society is trading of fertilizers, which is not correct rather the assets created namely forest on waste land, check dams ponds etc. became the property of the villages managed through village community and the assessee society only provided expertise and funding to them - HELD THAT:- As decided in own case CIT(Appeals) has rightly hold that the Assessing Officer was not correct in holding that expenditure were not incurred wholly and exclusively for the purpose of the business and that alternatively it was capital in nature. We thus do not find infirmity in the first appellate order on the issue also because in earlier assessment years 2004-05 to 2007-08 when assessments were framed under sec. 143(3) of the Act similar expenditure have been accepted. Similar are the facts of the case in the assessment year 2009-10. The finding of the Ld. CIT( Appeals) is thus upheld. - Decided in favour of assessee.
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2017 (9) TMI 1953
Principles of natural justice - saving account being seized without affording any opportunity of hearing - HELD THAT:- Issue notice to the respondents. Additionally, a copy of petition be served in the office of Mr. R.D. Rastogi, Addl. Solicitor General for the respondent Nos.1 & 2. His name be shown in the cause list. Notices be given ‘dasti’, if prayed.
List the matter on 24.10.2017 as prayed.
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2017 (9) TMI 1952
Benefit of depreciation u/s 32 on the machineries not put to use before the end of the previous year i.e. 31.3.2001 - HELD THAT:- Assessee has furnished the fabrication charges bill, certificate from AGM, production and bill of fuel consumption and quantitative details of work in progress and in such circumstances, there is no reason to hold that the machine is not put to use during the year prior to 31.3.2001.
Tribunal being the last fact finding authority, it will not be proper for us to reverse the finding in favour of the department.Therefore, the first issue is answered in favour of the assessee and against the department.
Excessive wastage under Section 145(3) - HELD THAT:- The issue is required to be answered in favour of the assessee against the Department. All the issues are answered in favour of the assessee and against the department.
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2017 (9) TMI 1951
Waiver of the requirement in respect of right to apply to the Tribunal under Section 241 of the Act - Section 244 read with Section 241 of Companies Act, 2013 - HELD THAT:- Admittedly, the applicant is not a member. Therefore, the applicant cannot seek waiver of any of the conditions specified in clauses (a) and (b) of Section 244 (1). The proviso also clearly stipulates that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) and (b) so as to enable the members to apply under Section 241. Thus, it is clear that the Tribunal can waive all or any of the conditions to enable the members to apply under Section 241. Thus, waiver can be granted by the Tribunal only on the application filed by a member or members, but, not by a third party.
A plain reading of Section 244(1) of Companies Act, 2013 provides that members of a company have a right to apply under Section 241 of the Act. The very opening of Section 244 provides that members of a company have a right to apply under Section 241. A non-member, therefore, cannot apply for waiver under Section 244. The proviso also provides that waiver can be ordered on the application made to the Tribunal by a Member - the contention of the learned counsel for applicant that the proviso to Section 244(1) empowers a non-member to seek waiver since the applicant is a non-member, it cannot maintain this application under Section 244 of Companies Act, 2013, cannot be agreed upon.
Application dismissed.
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2017 (9) TMI 1950
Royalty receipt - Income taxable in India or not - existence of PE in India - centralised services fee received by the appellant from rendering various services such as sales and marketing, loyalty programs, reservation service, technological services, operational services and training programs etc to customers in India - fees for technical services amounted to royalty under Article 12 of India – US DTAA - HELD THAT:-Revenue does not dispute the fact of the Hon’ble jurisdictional High Court in assessee’s own case reported in Director of Income Tax vs. Sheraton International Inc [2009 (1) TMI 27 - DELHI HIGH COURT] we are of the considered view that the revenue received by the assessee for providing centralized services is not in the nature of Fee for Technical Services (FTS) u/s 9(1)(vi) Explanation 2, but it is a business income. Since the assessee is not having any PE in India, its business income earned is not taxable in India. - Decided against revenue.
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2017 (9) TMI 1949
Deduction u/s.54F - claim on ‘purchase’ or ‘construction’ of a residential house and not for ‘purchase & further construction/alteration’ of a residential house - whether alteration and additional construction of the residential house attracts deduction u/s 54F - as argued residential house purchased was not in a habitable condition - AO has noted that the assessee is not entitled to the deduction u/s.54F for the alteration / renovation carried out by him to the purchased unit, as also to the construction of the third floor - HELD THAT:- The word used ‘purchased’ is required to be restricted only to actual purchase and if any addition, alteration or demolition of the property is carried out by the assessee for the purposes of reconstruction after the demolition and for making it convenient for his use, then the cost incurred by the assessee for that purpose would not be eligible for deduction u/s.54F, is against the very purpose of providing this deduction in the statute book.
Our reading of the provision makes it abundantly clear that the purchase do not include a purchase which is not a purchase of an asset which is not incapable of being used by the assessee. The assets for the purpose of Section of 54F should be an asset purchased by the assessee and if an assessee incurs a cost for making it useful and convenient after taking approval from the competent authority, as in the present case, then the assessee is entitled to deduction u/s.54F - there is no irregularity or illegality in the order passed by the CIT (A). - Decided in favour of assessee.
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2017 (9) TMI 1948
Capital gain computation - provisions of section 50C - additional ground raised to adopt the rate invoking provisions of Sec.50C as on the date of agreement - HELD THAT:- Assessee has received part of the sale consideration much prior to the execution of the sale deed, is supported by the Bank statement - we are inclined to admit the additional evidence filed by the assessee. Since the payments are by way of cheques, it has to be presumed that there was an oral agreement of sale between assessee and the vendees, pursuant to which, they have paid some amount to the assessee by cheques.
The oral agreement has been acted upon and therefore, the provisions of section 50C as on the date of oral agreement have to be considered as held by us in the case of Smt. Mumtaz Begum [2015 (11) TMI 1515 - ITAT HYDERABAD]. In the case before us, there is no date of oral agreement and therefore, the payment of advance on 1.7.2011 should be considered as the date of oral agreement. Further, the Legislature had amended the provisions of section 50C w.e.f. 1.4.2017 and in the case of Smt. Chalasani Naga Ratna Kumari [2016 (12) TMI 1406 - ITAT VISAKHAPATNAM] has held the said amendment to be applicable retrospectively - we deem it fit and proper to admit the additional ground of appeal and also the additional evidence and remand the same to the file of the AO for verification and consideration in accordance with law. Assessee’s appeal is treated as allowed for statistical purposes.
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2017 (9) TMI 1947
Revenue expenditure allowance - Interest payable in EDC charges terming the same as penal in nature - allowable expenditure u/s 37 or penal in nature as interest has been charged by concerned authority for delay - HELD THAT:- We are of the considered view that the facts and circumstances of the case of the assessee’s case is exactly the similar and identical to the decision of the Hon’ble High Court in the case of CIT vs. Enchante Jewellery Ltd. [2012 (12) TMI 169 - DELHI HIGH COURT ] - Therefore, addition confirmed by the Ld. CIT(A) out of interest payable in EDC charges terming the same as penal in nature is hereby deleted and the ground of appeal raised by the assessee is allowed.
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