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2016 (12) TMI 1907
Principles of Legitimate expectation and promissory estoppel - Levy of EDC - Scope and extent of exemptions claimed to have been granted under the Industrial Policy, 2003 - amount paid in lieu of EDC and cess - Refund sought on the premise that the petitioner has been exempted from such levies under the Industrial Policy, 2003 - requirement to obtain NDC from GMADA as a pre-condition for approval of Layout and Zoning Plans - prayer for grant of extension of time towards completion of the project on account of delays having been caused by the respondents.
Whether the phrase ‘cost of infrastructure development’ as contained in para 5 (iv)(q) of the Agreement dated 11.10.2006 is synonymous to the expression ‘External Development Works’ as defined in Section 2(p) of PAPRA, 1995? - If so, whether the petitioner is exempted from payment of External Development Charges/Cost of Infrastructure Development in view of para 5(iv)(j) of the Agreement dated 11.10.2006 whereunder its project has been exempted from PAPRA, 1995? - HELD THAT:- The petitioner’s contention that there is no statutory backup to levy the cost of infrastructure development, for there is no such provision in the PAPRA, 1995, is wholly misconceived. Once the petitioner’s project is exempted from PAPRA, 1995, the affairs of the parties shall be governed by the terms and conditions of the Agreement dated 11.10.2006. Further, since the External Development Works stand included in the infrastructure development works, there can be no escape but to hold that the petitioner is liable to pay such charges as per the binding contract read with Section 5 of the PAPRA, 1995. It is clarified that since the exemption from PAPRA, 1995 granted to the petitioner was subject to its liability to pay proportionate cost towards infrastructure development works, hence, there was no exemption to it in legal parlance from the levy of ‘external development charges’ as defined in Section 2(p) read with Section 5 of PAPRA, 1995.
What is the effect of para-6 of the Agreement dated 11.10.2006 on the petitioner’s claim for exemption from payment of EDC and other charges? - Whether the time prescribed for completion of the project is the essence of contract, and if so, whether it would have any adverse effect on the petitioner’s claims after the expiry of the extended period? - HELD THAT:- It is undeniable that as per para (6) of the Agreement dated 11.10.2006 if the petitioner-company was unable to comply with provisions of para 5(i), 5(ii) and 5(iii) within the stipulated period of three years commencing from 29.03.2006 (which was later on extended upto 28.03.2012, with a further renewal offer under the new policy decision dated 06.02.2015), the concessions enumerated in para 5(iv) were liable to be automatically withdrawn - Since it is viewed that the petitioner is liable to pay the proportionate costs towards infrastructure development works which include the ‘External Development Works’ within the meaning of Section 5 of PAPRA, 1995, it is not necessary to dwell upon the implications of petitioner’s failure to make an investment of ₹ 952 crore within the initially agreed and/or subsequently extended period.
Since the respondents themselves are not keen to adhere to the time schedule, we hold that GMADA has no authority to assume the role of State Government or to invoke Para 6 of the Agreement to say that the petitioner has lost its right to claim concessions due to the ‘expiry’ of time period, within which the project was required to be completed.
Whether the respondents are bound by the principles of ‘legitimate expectation’ and ‘promissory estoppel’ and consequently are debarred from levying EDC on the petitioner? - HELD THAT:- The State Government while granting special package of incentives on 05.05.2006, expressly informed the petitioner of its liability towards proportionate cost of infrastructure development and it was thereafter that both the parties knowing fully well the implications of such clause, entered into the Agreement dated 11.10.2006. The petitioner having agreed with open eyes to pay the proportionate cost of infrastructure development cannot turn around and invoke the principle of ‘promissory estoppel’ against the respondents as what the petitioner has been asked to pay is necessarily a component of the cost towards infrastructure development works only. So long as the respondents have not withdrawn the exemption from PAPRA, 1995 which might result into levy of other statutory charges on the petitioner, it cannot be said that the respondents have acted contrary to their promise. Similarly, the petitioner cannot be heard to say that it ‘legitimately expected’ not to pay the proportionate cost of infrastructure development works even after it agreed to share such liability while entering into agreement. We thus do not find any merit in this contention as well.
Whether the action of the respondents in levying EDC/CLU/licence fee etc. is discriminatory, based upon arbitrary and irrational considerations? - HELD THAT:- The petitioner is liable to pay proportionate cost towards infrastructure development works and all the ‘External Development Works’ as defined in PAPRA, 1995 are by implication included in the infrastructure development works. The inescapable consequence would be that the impugned recovery notices served on the petitioner are fully justified.
The respondents may be right to an extent in contending that the petitioner lacks the financial capability to fulfill the promise for which it entered into the Agreement or that it has consistently failed to honour the commitment towards payment of due charges. At the same time, it has to be kept in view that the petitioner has already invested more than ₹ 150 crores. If all the doors are closed for the petitioner on a hyper-technical plea that the time limit extended under the policy dated 06.02.2015 already stands expired, the drastic consequence would be that the petitioner’s project would suffer hammer blow. It serves no one’s purpose.
The petitioner has also laid challenge to the acquisition of a small part of its land, by way of a miscellaneous application in the second case. Since such acquisition is a subsequent event, no views expressed on its merits and the petitioner’s application is disposed off with liberty to initiate appropriate separate proceedings in that regard, if so advised.
Petition disposed off.
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2016 (12) TMI 1906
Dishonour of Cheque - acquittal of accused - mistakenly typing of the cheque number - discharge of debt/liability - HELD THAT:- As far as the present case is concerned, in the complaint, the Appellant/Complainant, at paragraph 8 and 12 had mentioned the number of the cheque as '361868' dated 22.03.2013, but at paragraph 9 of the complaint, the cheque number was mentioned as '361838'. In fact, in Ex. R1 - Legal Notice dated 17.04.2013 (issued to the Respondent/Accused), the cheque number was mentioned as '361868' but at paragraph 5 of the said notice, the cheque that was deposited on 22.03.2013, described as '361838'. Even though incorrect mentioning of the Cheque number in Ex. R1 - Legal Notice dated 17.04.2013 is a mistake or ancillary or incidental one, since the transaction between the Appellant/Accused viz., supply of chickens, the evidence of P.W.1 indicates that the Respondent/Accused had issued the cheque in favour of the Appellant/Complainant towards security for the outstanding amount. At this stage, this Court aptly points out that if the cheques were issued not for discharge of any debt or liability, but they were issued by way of security, the Applicant could not be held liable under Section 138 of the Negotiable Instruments Act.
An entry in an account is a self serving one as it is an admission by the maker thereof, in his favour. The crucial test would be whether the entries in a particular account are honest or otherwise. An account book is to be established by a person who had written it and if he is alive or by some other person who is competent to speak about its veracity/genuineness. It cannot be gainsaid that before an extract from 'Account Book' is admitted in evidence, it must be legally proved.
In the instant case, even though the Appellant/Complainant, at paragraphs 8 & 12, in the complaint, had mentioned the cheque number as '361868' and mentioned the cheque number incorrectly as '361838' in Ex. P3 - Notice, this Court is of the considered view that there is no mist or cloud or shroud or any manner of simmering doubt in regard to the language employed in Section 138 of the Negotiable Instruments Act. Admittedly, notice will have to be read in entirety. In the present case, there was no correction notice communicated/issued on behalf of the Appellant/Complainant to the Respondent/Accused - the incorrect mentioning of the cheque in Ex. P3 - Notice is not fulfilling the requirement under Section 138(b) of the Negotiable Instruments Act. In as much as Ex. P3 - Notice is not in conformity with Ex. P1 - Cheque, as a logical corollary, the complaint filed by the Appellant/Complainant is per se not maintainable in Law.
This Court comes to a consequent conclusion that the Appellant/Complainant had not established his case beyond all reasonable doubt. Therefore, the resultant view taken by the trial Court in finding the Respondent/Accused not guilty and acquitting him under Section 255(1) Cr.P.C. is free from any flaw. Consequently, the Criminal Appeal fails.
Appeal dismissed.
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2016 (12) TMI 1905
Violation of principles of natural justice - Termination of service - entitlement to service benefits except back wages which were limited to 50 per cent, from the date of termination to the date of superannuation - HELD THAT:- On facts, it is clear that the High Court has gone wrong in holding that the Labour Court did not follow the procedure. It is seen from the award that the management had not sought for an opportunity for leading evidence. And despite granting an opportunity, no evidence was adduced after the Labour Court held that the findings of the inquiry officer were perverse. Therefore, the Labour Court cannot be faulted for answering the Reference in favour of the Appellant.
The Labour Court, on the available materials on record, found that the termination was unjustified on the basis of a perverse finding entered by the inquiry officer. There was no attempt on the part of the management before the Labour Court to establish otherwise - It appears that the High Court itself has granted compensation since the Court felt that the termination was unjustified and since reinstatement was not possible on account of superannuation. In case, the High Court was of the view that termination was justified, it could not have ordered for payment of any compensation.
In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude.
The judgment of the High Court cannot be sustained - Appeal allowed.
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2016 (12) TMI 1904
Petition posted for orders on this day, for not having represented the batta with petition - HELD THAT:- This Court having granted time till 23-12-2016 as condition precedent and the said Advocate not having complied with the said direction of this Court, it is ordered that this petition do stand dismissed against the respondent.
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2016 (12) TMI 1903
Deemed dividend under section 2(22)(e) - assessee is registered and also beneficial shareholder and also Director of MCPL(a private limited company in which public are not substantially interested) holding 50% shares of MCPL, as well the assessee is partner in partnership firm MRED having 50% share in the profits of the afore-said partnership firm - HELD THAT:- As partners of MRED who are also the registered and beneficial shareholders of MCPL holding 50% shares each had not benefited out of the funds transferred by MCPL to MRED will be an fallacious argument and is hereby rejected keeping in view facts and circumstances of this case as set out above in preceding para’s. It is one of the direct case whereby the partners of the firm MRED has benefited out of the huge interest-free advances being given by MCPL to MRED and hence it is thus, the direct infringement / violation of the provisions of section 2(22)(e) of the Act. In our considered view , the AO has rightly invoked the provisions of Section 2(22)(e) of the Act and has brought to tax the said loans and advances granted by MCPL to MRED, within the deeming fiction of Section 2(22)(e) of the Act by terming the same as deemed dividend in the hands of the partners of the firm MRED i.e. Mr. Peter Vaz and Mr.Edgar Braz Afonso who are registered as well beneficial shareholder of MCPL and being beneficiaries of the amount advanced by MCPL to MRED as set out above , on substantive basis keeping in view the decision of Hon’ble Bombay High Court in the case of CIT v. Universal Medicare Private Limited [2010 (3) TMI 323 - BOMBAY HIGH COURT]
Assessee could not prove the business nexus and business purpose for advancing huge amount of loan and advances by MCPL to MRED to the tune of Rs. 50.99 crores from assessment year 2006-07 to assessment year 2012-13 and in any case the Assessing Officer has given set off / credit for all the inter-se transactions between MCPL and MRED wherein business nexus was established / proved by the assessee and also the AO has duly taken note of restricting the additions u/s 2(22)(e) of the Act keeping in view accumulated profits held by MCPL as per mandate of Section 2(22)(e) of the Act .
We are of the considered view that under S.2(22)(e) of the Act liability to tax attaches to any amount taken as loan and advance by the share holder from a controlled company to the extent it possesses accumulated profits at the moment the loan is borrowed and it is immaterial whether the loan is repaid before the end of the accounting year , as was held by Hon’ble Apex Court in the case of Smt Tanulata Shyam [1977 (4) TMI 3 - Supreme Court].Decided against assessee.
Additions have been made in the case of Model Real Estate Developers on the protective basis , while substantive additions have been made in the hands of Mr Peter Vaz and Mr Edgar Braz Afonso and their spouse, wherein we have confirmed the substantive additions made by Revenue in the hands of Mr Peter Vaz and Mr Edgar Braz Afonso and their spouse with respect to loans and advances granted by MCPL to MRED, as per detailed discussions and reasoning as set out in preceding paras’ of this orders. Since, we have confirmed substantive additions the protective additions made by Revenue on the identical issue in the hands of MRED shall not survive w.r.t. to loans and advances granted by MCPL to MRED. Thus, we order deletion of additions made on protective basis in the hands of MRED for the assessment years 2007-08 to 2012-13
Transfer of funds to the assessee by SIPL - As per AO huge amounts have been advanced by the said company SIPL to the assessee without any business purposes/nexus and hence is clearly hit by deeming fiction created u/s 2(22)(e) of the Act to be treated as deemed dividend - HELD THAT:- We do not find any infirmity in the order of the AO as the AO has rightly brought to the tax said advances which are in the nature of loan and advances being given out of the accumulated profits by the company SIPL for the individual benefit of its registered cum beneficial share holder Mr. Edgar Braz Afsono’ i.e. the assessee, which loans and advances were disbursed by SIPL to the assessee-shareholder instead of declaring dividends out of accumulated profits and hence dividend distribution tax is evaded to be paid to the Government had the said amount of advances would have been distributed by SIPL as dividend to its shareholders. We have also observed that the appellate order of the learned CIT(A) does not hold merit and hence cannot be upheld as learned CIT(A) merely accepted the contentions of the assessee without any evidences , which in-fact pained us after reading the appellate orders of the learned CIT(A). We, therefore , order that the appellate order of learned CIT(A) be set aside as the same is not sustainable at law as the learned CIT(A) merely accepted the contentions of the assessee without any evidences and has not brought on record material to disprove the contentions of the AO , while on the other hand the AO has elaborately explained with cogent reasons in his assessment order as to why the provisions of Section 2(22)(e) of the Act are applicable in this instant case of the assessee and how the said loans and the advances which were given without any business purposes by SIPL to the assessee out of its accumulated profits will be hit by the Section 2(22)(e) of the Act to be brought to tax as deemed dividend, and hence we set aside the order of the ld.CIT(A) and uphold/affirm the assessment order of the AO and since Mr. Edgar Braz Afonso is the registered and beneficial share holder of the company SIPL holding substantial interest in the said company SIPL holding 50% of shares of SIPL (a company in which public are not substantially interested) , the ratio of the decision of t.Universal Medicare Private Limited [2010 (3) TMI 323 - BOMBAY HIGH COURT] is directly applicable to the instant case and hence the AO has rightly brought to tax the said amount of loans and advances granted by SIPL in favour of the assessee without any business purposes and nexus, within the ambit of section 2(22)(e) of the Act by bringing to tax the same as deemed dividend , to the extent SIPL possessed accumulated profits, which assessment order of the Assessing Officer we confirm and sustain. Decided against assessee.
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2016 (12) TMI 1902
Levy of penalty u/s. 271(1)(c) - addition on account of purchase of NSC and saving bank interest - Defective notice u/s 274 - non specification of clear charge - HELD THAT:- A show cause notice u/s. 274 of the Act was issued. The Assessing officer has not stated specifically whether the show cause is for concealment of income by the assessee or furnishing of inaccurate particulars of income. Therefore, following case of Suvaprasanna Bhatracharya [2015 (12) TMI 43 - ITAT KOLKATA], thus hold that the order imposing penalty is invalid and consequently the imposition of penalty is deleted. Decided in favour of assessee.
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2016 (12) TMI 1901
Revision u/s 263 - validity of assessment was framed u/s 143(3) - HELD THAT:- As in Tribunals order [2016 (12) TMI 863 - ITAT MUMBAI] whereby the order of CIT-8, Mumbai for the A.Y. 2006-07 was quashed stating the record of proposal to take action by the AO u/s 154 of the Act was before the CIT before issuing notice u/s 263 and hence the order of the AO cannot be termed as erroneous so far as prejudicial to the interest of Revenue as the word ‘records’ used in Section 263 of the Act shall also contemplate including the record pertaining to proceedings u/s 154 arising subsequently out of the assessment order passed by the AO u/s 143(3) of the Act and such record was before ld CIT before he issued notice u/s 263 on 11.03.2011.
Thus, in our considered view, the assessment order dated 23.12.2008 passed by the A.O. u/s 143(3) of the Act is neither erroneous nor it is prejudicial to the interest of Revenue, and the CIT has not correctly invoked the provisions of section 263 hence, the order of the CIT in our considered view is not sustainable in law and is hereby ordered to be quashed.
Assessee stated that the consequential assessment framed u/s 143(3) r. w. s. 263 dated 30-08-2011 will not survive and accordingly, the order of CIT(A) will not survive. We find from the above that the Tribunal has quashed the revision order of CIT-8, Mumbai dated 30-03-2011 and once the basic order is quashed, the consequential orders will not survive. Accordingly, we set aside the orders of the lower authorities and allow the appeal of the assessee.
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2016 (12) TMI 1900
Income taxable in India - attributed 15% of the assessee’s income to India by Tribunal - applicability of the Galileo rule - Assessee, a Delaware, USA based limited partnership concern and a tax resident of the USA, provides online airline booking services - HELD THAT:- A reference was made to the observations of the ITAT recording that the parties were in broad agreement as to the applicability of the Galileo rule, both with respect to the PE question as well as the rule of attribution.
In the present case, the AO had based his conclusions and determined the income based upon figures furnished by the assessee, as is apparent from a plain reading of the order. In the circumstances, the ITAT, in our opinion, ought not to have disturbed that order, without a finding.
This Court has also in its order [2017 (1) TMI 1160 - DELHI HIGH COURT] between the same parties. Accordingly, the present appeal is disposed off with a direction to the ITAT to render specific findings on the questions urged after hearing both the parties.
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2016 (12) TMI 1899
Denial of benefit of House rent allowance (HRA) to both husband and wife - recovery from the leave encashment to be paid to the petitioner of house rent was for the period from February 1986 up to March 2014, when the petitioner retired - both the petitioner and his wife have been residing in the same house belonging to the late father of the petitioner, but house rent allowance has been paid to the wife of the petitioner from February 1986 as well as to the petitioner too - whether wife was an employee of Oriental Bank of Commerce and was receiving house rent allowance? - HELD THAT:- It is not in dispute that the wife of the petitioner was an employee of Oriental Bank of Commerce from February 1986 and that she has been receiving the house rent allowance - both the petitioner and his wife have been residing in the same accommodation.
Government Order specifically provides that if both the husband and wife are in government service and if they are residing in the same accommodation, then house rent allowance can be claimed only by one of them. Also provides that the same conditions would apply if the spouse was employed in Local Bodies, Educational Institutions, Universities, Public Enterprises, Corporations etc, etc. The same condition was reiterated in the Government Order dated 28 April 2000.
The wife of the petitioner was an employee of the Oriental Bank of Commerce. This is an enterprise of the Central Government. It cannot, therefore, be contended that the conditions set out in the Government Order dated 28 February 1984 would not apply to the petitioner. This is what has also been observed by the Appellate Authority.
The Government Order on which reliance has been placed by the learned counsel for the petitioner will not come to the aid of the petitioner. It is only in relation to the government servants and provides that house rent allowance will be payable to both husband and wife, even if they are government servants and reside in the same house. As clarifies that earlier cases will not be reopened. The wife of the petitioner was not in government service. The communication dated 11 February 2015 will not, therefore, help the petitioner in any manner. The case of the petitioner would be covered by the Government Order dated 28 February 1984.
As not possible for us to accept the contention advanced by petitioner that opportunity was not provided to the petitioner. In view of the complaint, a notice was sent to the petitioner to submit his reply and on consideration of the reply submitted by the petitioner, the order for recovery of the amount was passed against the petitioner. Even otherwise, it is an admitted fact that the wife of the petitioner was in service in the Oriental Bank of Commerce and she was receiving house rent allowance from February 1986 upto March 2014. Thus, no prejudice has been caused to the petitioner at all. WP dismissed.
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2016 (12) TMI 1898
Reassessment u/s. 148 - addition by estimating the income of the assessee @ 4% in place of 2.2% shown by the assessee - HELD THAT:- As find from the reassessment order framed by the AO that no addition was made by him on the ground of the above reasons recorded but the addition was made by the AO by estimating the income of the assessee @ 4% in place of 2.2% shown by the assessee. Therefore, the decision in the case of Mohd Juned Dadani [2013 (2) TMI 292 - GUJARAT HIGH COURT] & case of jet Airways (I) Ltd. [2010 (4) TMI 431 - HIGH COURT OF BOMBAY] clearly apply to the facts of the assessee’s case.
Thus assuming jurisdiction to frame an assessment u/s. 147 of the Act, what is essential is a valid reopening of a previously closed assessment. If the very foundation of the reopening is knocked out, any further proceedings in respect to such assessment naturally would not survive. Decided in favour of assessee.
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2016 (12) TMI 1897
Re-assessment/deemed assessment - power of re-assessment - change of opinion or not - reasons to believe - Classification of goods - composite pack of mobile phone along with mobile charger and other accessories - taxable at the rate specified for Entry 68 of Part 1 of Schedule-III read with Entry 14 of Part-II of the said Schedule or not - HELD THAT:- It is evident from the provisions of Section 31 of the Bihar VAT Act that sub-section (1) of Section 31 although not very happily worded, but is on the same lines as the earlier provisions of the Income-tax Act, 1961 prior to its amendment in 1987. Taking into account the said Section as a whole including sub-section (2), it is evident that two types of cases are envisaged therein; in both type of cases the prescribed authority must be satisfied that reasonable grounds exist to believe that there has been under assessment or escaped assessment or assessment to tax at a lower rate or any deduction has been wrongly made therein or an input tax credit has been wrongly claimed, in which cases within the statutory period of four years it can make an assessment or reassessment of the tax payable by such dealer - In the first category, such reassessment can be made irrespective of whether the dealer has concealed, omitted or failed to disclose full and correct particulars of such sale or purchase or input tax credit, whereas in the second category there has been such a failure to disclose on the part of the dealer. The same would flow from the harmonious reading of the provisions of sub-section (1) with sub-section (2) of Section 31 of the Act, which obliges the prescribed authority in the second category of cases to impose by way of penalty the sum equal to three times of the amount of tax which is or may be assessed on the turnover of sale or purchase which escaped assessment, whereas in the first category there would be a mere reassessment of the under-assessed or escaped tax, etc.
In the present matter, it is not in dispute at all that there has been no concealment, omission or failure to disclose full and correct particulars by the petitioners. Thus, the only issue is as to whether the assessing officer was justified in making reassessment under Section 31 of the Act with regard to the periods in issue - the provisions of the Act are on similar lines as the unamended provisions of Section 147 of the Income Tax Act and that they provide for two categories of cases; but even the provisions of Section 147 of the Income-tax Act amended in the year 1989 make it clear that there must be reason to believe that there has been under-assessment or escaped assessment, etc. and as has been held in the case of COMMISSIONER OF INCOME TAX, DELHI VERSUS M/S. KELVINATOR OF INDIA LIMITED [2010 (1) TMI 11 - SUPREME COURT] by the Apex Court, it should not be a mere change of opinion, otherwise it would amount to arbitrary exercise of power by the assessing officer to reopen the assessment - The said law emphatically laid down by the Supreme Court in Kelvinator's case is squarely applicable in the present matter also and it has to be held that reassessment cannot be made on a mere change of opinion.
Whether the decision of the Supreme Court subsequent to the assessments can be considered a mere change of opinion? - HELD THAT:- The law on this point is also very much clear, as held in the several decisions cited including that of DY. COMMISSIONER OF INCOME TAX & ORS. VERSUS M/S. SIMPLEX CONCRETE PILES (INDIA) LIMITED [2012 (9) TMI 516 - SC ORDER], a subsequent reversal of legal position by the judgment of the Supreme Court does not authorize the Department to reopen the assessment which stood closed on the basis of law at the relevant time.
It is evident that in the first category of 8 writ petitions assessment/reassessment had been made earlier under the provisions of Section 31 and/or Section 33 of the Act. It is also evident from the notice issued under Section 31 of the Act that the sole reason for initiation of proceedings under Section 31 of the Act is the decision of the Supreme Court in the case of STATE OF PUNJAB & OTHERS VERSUS NOKIA INDIA PVT. LTD. [2014 (12) TMI 836 - SUPREME COURT] - There was no other material which has come into the possession of the Department which was already not known to it. The fact that there had been earlier assessment/reassessment under Section 31 or Section 33 of the Act goes to show that any further issuance of notice under Section 31 of the Act in such matters without anything more, except the decision of the Supreme Court in Nokia's case would, on the same materials, amount to a mere change of opinion by the prescribed authority in the matter. Thus, any action on the said basis would clearly be without jurisdiction and therefore without authority of law.
So far as the remaining eight matters are concerned, admittedly they are cases of deemed assessments on the basis of the provisions of Section 26 of the Act or assessment under Section 27. No doubt under Section 25 of the Act, the prescribed authority is required to look into and scrutinize the return filed under Section 24 (1) and (3) of the Act but that is not the same thing as making a proper assessment. If the assessing authority had no occasion to form an opinion during the course of such deemed assessment of the returns filed by the petitioner, and subsequently a notice was issued under Section 31 (1) of the Act, or assessment made under Section 27, albeit on the ground of decision rendered by the Supreme Court, it could not be said that there has been any change of opinion - so far as the remaining eight cases are concerned, the plea of the petitioners regarding change of opinion is not applicable.
That being the position, considering the fact that various issues of facts, etc. will have to be dealt with before the question of liability can be decided, the writ jurisdiction does not appear to be a proper one to deal with such issues of fact which must be thrashed before the statutory authorities up to the Tribunal - no interference is called for in such cases where that has been no previous assessment/reassessment under Section 31 or Section 33 of the Act - Application allowed.
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2016 (12) TMI 1896
Scope of Service Providers - Whether the Ex-Secretary or the Ex-President or other office bearers of any Cooperative Credit Society fall within the category of the service providers? - HELD THAT:- Section 43 of Delhi Cooperative Societies Act, 2003 and Section 36 of Maharashtra Cooperative Societies Act 1960 which are para materia to section 30 of Punjab Cooperative Societies Act are perused - On bare reading of the above, it is clear that a cooperative society on registration is a rendered body corporate, meaning thereby that it acquires an identity distinct from its member shareholders or the office bearers. Therefore, if a consumer has availed of services of the cooperative credit society for consideration, the cooperative credit society alone would be service provider qua that consumer and the office bearers of the said society who by virtue of being elected to the said position to manage the affairs of the society would have no privity of contract with the consumer and could not be termed as service provider.
Thus, ordinarily Ex-Secretary or the Ex-President or office bearers of any Cooperative Credit Society will not fall within the category of service providers in respect of any contract between the consumer and the cooperative society as they have the identity distinct from the duly registered cooperative credit society. However, there can be cases in which certain individuals may indulge in unfair trade practice or defrauding of the gullible depositors under the cloak of cooperative society - it is clear that if the Ex-Secretary or the Ex-President or office bearers of any Cooperative Credit Society have indulged in misfeasance and fraudulent practice to defraud the people in order to get material gains under the garb of corporate veil they shall also be treated as service providers to the depositors / complainants and held personally responsible for the deficiency in service, if any.
Reference disposed off.
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2016 (12) TMI 1895
Cancellation of result of the examination and debarring him from appearing in any University examination till the end of the Second Semester of the Academic Year 2015-16 and penalty imposed - alleged commission of unfair means in the M.B.B.S. Part 2 examination held in January, 2016 - HELD THAT:- The decision of the Supreme Court in Siddharth Ashvinbhai Parekh [2016 (7) TMI 1674 - GUJARAT HIGH COURT] directly and squarely comes into play. As was noticed from the facts of that case, the said petitioner and the present petitioner, both appeared in the same M.B.B.S. examination in the same paper in the same language. The notice regarding unfair means was given to both on the same day. Both were called by communication dated 15th February, 2016 before the Unfair Means Committee to remain present on 24th February, 2016. The case of the petitioners were considered in the same meeting and in the minutes, present petitioner's case was decided under agenda No. 18 whereas petitioner of Siddharth Ashvinbhai Parekh was under agenda No. 17. The impugned order is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revilement were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage.
There was no gainsaying that the case of the present petitioner and case of Siddharth Ashvinbhai Parekh had similar and parallel facts and both the petitioners were virtually identically situated. In Siddharth Ashvinbhai Parekh, the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph 13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of 'no evidence'.
Pausing at this stage, the statement recorded on the same day of the present petitioner, if considered (Annexure C, Page 19), it was stated by the petitioner that providing a margin on the right hand side and mentioning page number was his way of writing. He explained that he had done that so that he could see the pages of the entire paper in serially within no time in the concluding moments of the examination time. He stated that it was done to ensure that no question is left untouched. It was stated that he had no intention to commit any unfair means and had not misconducted in any way but it was only his way of presentation the answers. He specifically denied the allegation about he having intention of committing misconduct or revealing identity thereby. Learned advocate for the petitioner struggled in vain, to contend that the facts of both the cases were different. In all respects ranging from nature of allegations to the nature of defence and the statement given by the petitioner, the facts were parallel and went hand-in-hand. It could be successfully submitted that therefore the petitioner being similarly situated, was entitled to the benefit of decision in Siddharth Ashvinbhai Parekh.
By comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of 'no evidence' and the attended reasoning supplied by the Division Bench apply to the present case with equal force.
When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it would be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh.
The impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner forthwith - petition allowed.
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2016 (12) TMI 1894
TP Adjustment - inclusion of reimbursed expenses in the cost base for the purpose of mark-up - Comparable - HELD THAT:- Comparable i.e. whether Lotus Labs's RPT is significant or not deserved to be examined properly for this ay and hence this issue needs to be remitted back to the TPO. As already mentioned, the assessee found that the TPO while recomputing the ALP has wrongly considered recovery of expenses as part of the cost base and hence it sought a rectification u/s 154 but did not get any response from the TPO/AO.
On its objections before the DRP, the DRP directed the TPO/AO to examine the factual position & if the assessee's averments are correct, then to re-compute the mark-up suitably and to dispose the petition u/s 154 within 15 days of receipt of its order. It appears that the TPO/AO has not given effect to the directions of the DRP. In the facts and circumstances, this issue also needs to be remitted back to the TPO for proper examination and due adjudication. Thus, both these issues remitted to the TPO who after affording due opportunity to the assessee would decide them in accordance with law. To this extent, the appeal grounds are treated as allowed.
Expenses by pharma companies - AO has disallowed the impugned claims in the light of the prohibition imposed by Medical Council of India (MCI)I the CBDT Circular dated 1st August 2012 and held that such expenses being prohibited by MCI is not an admissible deduction under section 37(1) - HELD THAT:- The CBDT circular is issued to clarify the allowability of expenses on medical freebies which are prohibited by MCI. Expenses incurred and claimed by an assessee but prohibited by law, cannot be allowed as deduction neither under section 37(1) nor under any other provisions of Act. The CBDT circular only reiterates and clarifies the allowability of expenses prohibited under MCI guidelines. Therefore, CSDT circular is clarificatory and hence it is retrospective in operation. however, the CBDT circular has no application for a period in which the MCI guidelines are not operative.
AO has not disputed the genuineness of the expenses claimed. The only reason for the disallowance is that the impugned expenses are prohibited by MCI guidelines and therefore they are illegitimate. Therefore, the deduction claimed by the assessee other than the cost of samples distributed for the period prior to MC! guidelines, is an admissible deduction and accordingly, the AO is directed to allow them. As held by the DRP in the assessee's own case for a y 2010-11 and ay 2011-12 , the cost of samples distributed is also an allowable claim based on the rationale of the decision of Eskayef [2000 (7) TMI 1 - SUPREME COURT] and accordingly the AO is directed to allow it too. In the result, the grounds of appeal on these issues are allowed.
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2016 (12) TMI 1893
Conspiracy - Unlawful Assembly - training in making and usage of weapons and explosives in order to retaliate against the alleged tortures faced by muslims in India from the other religions, especially from Hindus, the accused formed themselves into an unlawful assembly - HELD THAT:- It is provided under Section 25 (1B) (a) that, whoever acquires or has in possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine. In the case at hand, evidence adduced by the prosecution would clearly establish that the accused were having possession of th ammunition (Bombs) in contravention of Section 3. Therefore this court is of the opinion that accused 1 to 21 are guilty of offence under Section 25 (1B) (a) of the Arms Act, 1959. Hence we alter the conviction and sentence imposed by the court below under Section 5 (1) (a) read with Section 27 of the Arms Act to one under Section 25 (1B) (a) of the Arms Act.
Whether the conviction and sentence imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908, is sustainable or not? - HELD THAT:- The prosecution was successful in proving that the accused 1 to 21 were having possession and control over the material objects which were recovered from the scene. Going by the definition of 'explosive substances' contained in Section 2 (a) of the Act, it includes materials for making any explosive substances and also any material used or intended to be used in causing or aiding in causing any explosion. As per Section 4 (b) of the Act, having possession and control of any explosive substances with the intent to endanger life or to enable any other person by means thereof to endanger life or to cause serious injury to property, is punishable, despite whether any explosion does or does not takes place. Therefore the prosecution has made out a case against accused 1 to 21 making them guilty of offence punishable under Section 4 (b) (i). The prosecution had also succeeded in proving that, accused 1 to 21 were knowingly in possession and control of the explosive substances so as to give rise to a reasonable suspension that such possession and control was not for any lawful object. The accused 1 to 21 had failed to show that they had in possession and control of the explosive substance for any lawful objects - we are inclined to uphold the convictions imposed by the court below under Section 4 & 5 of the Explosive Substances Act, 1908.
Whether the conviction imposed against accused 1 to 21 under Sections 120 B, 143 read with Section 149 of IPC and also the conviction imposed against 1st accused under Sections 153 A and 153 B (1) (c) of IPC are sustainable or not? - HELD THAT:- The prosecution has not established through any convincing evidence the aims and the objectives or the activities of the organizations or regarding the motives and objectives in convening the alleged camp and in imparting training in manufacture and usage of the arms and the explosive substances. Despite the specific allegation that the accused were seen engaged in imparting training in manufacture of Bombs and in usage of arms, no cogent or convincing evidence is forthcoming with respect to any training being conducted at the premises, apart from the possession and control over the incriminating substances. Further, the prosecution has not succeeded in proving through any credible evidence their specific case that, the assembly and the alleged training was with a declared intention to protect members of the particular community from the alleged torture of the other community, especially from hindus. Under such context, this court is of the view that the conviction imposed under Section 18A of UA(P) Act cannot be sustained in any manner.
Whether there was any usage of the Bombs or the Sword for any purposes as contemplated under Section 15 of the UA(P) Act? - whether the demonstration of those materials can be considered as one to strike terror among the people or as one likely to strike terror among the people? - HELD THAT:- In the case at hand, statements given by the accused Nos.1 to 21 under Section 313 Cr.P.C. is to the effect that, at the relevant place and time they were waiting outside at the building at the place of occurrence for having a meeting of a Trust named 'Thanal', for the purpose of collecting funds for completing construction of the building which is owned by the said Trust. It is stated that, the said building was in fact remaining locked from outside at that time and the police authorities have entered the building by breaking open the lock. Even though some of the persons who were present there had left the scene on noticing the act of the police, accused Nos.1 to 18 remained there and the police have called them inside the room and taken them into custody. They have denied of having any connection with respect to the substances alleged to have recovered from the place of occurrence, and also denied the recovery of such material objects from the place.
Whether an adverse inference with respect to guilt of the accused can be drawn, because they have failed in establishing the version put forth by them through the statement made under Section 313 Cr.P.C.? - HELD THAT:- In the case at hand, the prosecution has not conducted any investigation with respect to the source or procurance of the incriminating materials. There is no evidence adduced as to who had purchased those materials or from where it was purchased. The prosecution had also failed in bringing any evidence to prove that the possession and control of the explosive substances or the arms, was intended for the purpose of striking terror or likely to strike terror based on any communal rivalry or violence. Nor they have established that the accused persons were indulging any preparatory activity to commit any terrorist act. Therefore, the trial court has not put any specific question to the accused persons in this respect - In the case at hand, provisions of the law contained in the respective statutes have adequately taken care to meet the situation and to convict the accused under the common law. We are not persuaded to accept that any offence under UA(P) Act has been established by the prosecution to sustain the conviction, in addition to those provisions of law under which conviction is imposed against the accused persons, which were already upheld by this court.
The conviction rendered by the court below with respect to the appellants in Crl.A.147/2016 (Accused Nos. 1 to 21) under Section 120B, 143 read with Sec. 149 of IPC and Sections 4 and 5 of the Explosive Substances Act, 1908, hereby confirmed - Conviction imposed by the court below under section 5 (1)(a) read with Section 27 of the Arms Act will stand altered to Section 25 (1)(B)(a) of the Arms Act, 1959. The conviction and sentence imposed against the accused under Sections 153 A, 153 B(i)(c) of IPC stand set aside. The conviction and sentence under Sections 18 and 18A of the Unlawful Activities (Prevention) Act will also stand set aside.
Application allowed in part.
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2016 (12) TMI 1892
CENVAT Credit of service tax - services not being used in the factory - power plant in the process of generating power has also generated fly ash - HELD THAT:- When the power generated in the power plant was recognized and the process generating fly ash was not ruled out by Revenue, removal of such effluents/waste incurring service tax cannot be treated to be alien to the process. Having nexus to the manufacture, appeal is allowed.
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2016 (12) TMI 1891
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- The same rule is not retrospective as it was notified on 24/03/2008 and would be applicable only from AY 2008-09. In Godrej & Boyce Mfg. Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT] it has been held that Rule 8 D is not retrospective.
In CIT vs. M/s. Godrej Agrovet Ltd [2014 (8) TMI 457 - BOMBAY HIGH COURT] has held that percentage of the exempt income can constitute a reasonable estimate for making disallowance in the years earlier to the assessment year 2008-09. In the above case it upheld the disallowance to the extent to 2% of the total exempt income. Respectfully following the above decision, we direct the AO to restrict the disallowance to 2% of the total exempt income. Thus the first and second ground are partly allowed.
Treating advance / unearned revenues as the income of the year under consideration - Whether no right to receive the said revenues had accrued to the assessee during the year under consideration and also without appreciating that the method of accounting adopted by the assessee in recognizing revenues was in consonance with AS – 1 read with AS-9 issued by ICAI and notified by the Central Government? - HELD THAT:-There is no merit in the contention of the ld. counsel that the aforesaid advance/unearned revenue has been duly disclosed and offered to tax in the subsequent year. The assessee is free to take remedial measures permissible in law in the A.Y. 2008-09 where it has claimed to have offered the said income.
Hon'ble Supreme Court in Tuticorin Alkali Chemicals & Fertilizers Ltd [1997 (7) TMI 4 - SUPREME COURT] has held 'It is true that this court has very often referred to accounting practice for ascertainment of profit made by a company or value of the assets of a company. But when the question is whether a receipt of money is taxable or not or whether certain deductions from that receipt are permissible in law or not, the question has to be decided according to the principles of law and not in accordance with accountancy practice. Accounting practice cannot override section 56 or any other provision of the Act.
The order of the ld. CIT(A) upholding the addition made by the AO is confirmed. Therefore, the third ground of appeal filed by the assessee is dismissed.
TDS credit - HELD THAT:- We direct the AO to give TDS credit after proper verification and as per the provisions of the Act. The assessee is directed to furnish the details before the AO and the assessee shall be given a reasonable opportunity of being heard on this point. Thus ground number 5.1 is allowed for statistical purpose.
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2016 (12) TMI 1890
Addition u/s.68 - treating the STCG declared by the Assessee as being unexplained cash credits - purchase of the assessee is bogus - CIT-A deleted the addition - HELD THAT:- As gone through the relevant record and impugned order and we find that (a) assessee had purchased concerned shares through “off-market trade” however ISE, BSE and NSE informed AO that no transaction has taken place in the name of assessee. (b) Concerned shares were kept in pool account which shows that such shares were not purchased by assessee. (c) Shri Mukesh Cokshi, director of Mahasagar Securities Pvt. Ltd. (“MSPL”) had admitted in his statement recorded u/s.131 that MSPL is engaged in the business of providing bogus bills for capital gain.
When transactions are “off-market”, it is not possible for stock exchanges to provide details in respect of the same. Further, off-market transactions are not at all illegal at all and concerned share were duly purchased by assessee and it is an undisputed fact that such shares came to the demat a/c of assessee from IL&FS securities. In fact, such shares have been subsequently sold through broker “Krone Research and Brokerage Pvt.Ltd.” Therefore, question of raising doubt as to purchase of shares by assessee is not sustainable.
Shri Mukesh Chokshi stated in his statement that (MSPL) was engaged in providing accommodation entries for speculation/delivery profit. Assessee has only purchased shares from MSPL which has been doubted by AO whereas “sales” have been made through “Krone Research & Brokerage Pvt. Ltd.” which has been accepted. Had the assessee obtained accommodation entries from MSPL as to purchase of shares, concerned shares might have been even sold through MSPL which is not the case.
Assessee has neither been provided with the copy of statement of Shri Mukesh Chokshi based on which impugned addition has been made nor has the assessee been given an opportunity to cross examine Mukesh Chokshi. In absence of cross-examination, no addition could have been made based on statement of Mukesh Chokshi recorded behind assessee’s back.
Assessee has placed on record affidavit of Mukesh Chokshi so as to prove that assessee has genuinely purchased shares form MSPL which has not found to be incorrect by Ld.AO.In absence of cross-examination of deponent with reference to statement made in affidavit, it is not open to the revenue to challenge the correctness of the statement made by the deponent in the affidavit. Same has been held in the matter of “Glass Lines Equipment Co.Ltd [2001 (7) TMI 61 - GUJARAT HIGH COURT]
Shares have been purchased against payment duly supported by the contract notes and shares have been found to be credited in the assessee’s demat a/c and on sale of such shares, the same were debited from demat a/c of the assessee and assessee has received payment through banking channel and sale of shares on the floor of BSE has been found to be genuine and also found to be confirmed by the BSE.
There is nothing in record to even remotely suggest that such shares were never transferred in the name of the assessee. Had it been the case, assessee couldn’t have sold the same from his demat a/c.
Shri Mukesh Choksi himself admits in his affidavit that MSPL had acquired the concerned shares on behalf of the assessee which were later on transferred to assesse’s demat a/c and payment in respect of the same was received from the assessee and particularly the contents have not been controverter by AO, so it can be presumed that whatever have been stated therein in the affidavit of Mukesh Choksi is seems to be credited. So in our considered opinion that CIT(A) has rightly deleted the addition made by the Ld.AO.
Both the appeal of revenue are dismissed.
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2016 (12) TMI 1889
Application seeking to send the same for scientific examination through experts - case of the petitioner is that the signatures and the matter in the promissory note dated 20.2.2010 were filled up on different dates - HELD THAT:- In the absence of the scientific expert, even if the argument of the petitioner was to be considered, on account of the impracticability involved, it would be only a futile exercise. In that view of the matter, the order of the lower Court does not call for any interference. Therefore, this civil revision petition is liable to be dismissed.
This civil revision petition is dismissed.
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2016 (12) TMI 1888
Revision u/s 263 - Deduction u/s 80IB(10) - as per CIT completion of construction of the project has not been done within the stipulated period and therefore, the deduction under section. 80IB (10) of the Act has been wrongly allowed - whether in the facts of the present case, the assessee firm is justified in considering the group of Buildings No.2 & 5 in the ‘Balaji Garden’ complex as a ‘project’ for the purposes of claim of deduction under section 80 IB (10) ? - HELD THAT:- A somewhat similar issue had come-up in the case of M/s. Vandana Propertiesobserved that the expression ‘housing project’ in common parlance would mean constructing building or group of buildings consisting of several residential units. According to the Hon'ble High Court, the provisions of section 80 IB (10) envisage that construction of even one building with several residential units of the size not exceeding 1000 sq.fts would constitute a ‘housing project’ for the purposes of availment of benefits under section 80 IB(10) of the Act.
In the spirit of what has been laid down supra in our considered opinion, assessee is fully justified in considering Buildings No. 2 & 5 in the complex of ‘Balaji Garden’ as a ‘housing project’ for the purposes of claiming deduction under section 80 IB (10) - Clearly on this aspect the CIT misdirected himself and, therefore, in this view of the matter the issue as to whether the other buildings have been completed within the time frame is not at all relevant to evaluate assessee’s claim for deduction under section 80IB (10) of the Act in the instant year.
In so far as the said project comprising of Buildings No.2 & 5 is concerned, the same has been completed on 19/03/2010, when assessee’s architect submitted application to the local authority for issuance of Occupancy Certificate. The aforesaid is clearly born out of the completion certificate issued by the concerned local authority i.e. Kalyan & Dombivali Municipal Corporation, Kalyan dated 17/09/2013 - assessee has referred to the decision of the Court of Joint Civil Judge, Kalyan dated 25/11/2010, wherein it is decreed that the Occupancy Certificate and Completion Certificate as per provisions of Rule-38 of the Kalyan–Dombivili Municipal Corporation Development Control Regulations is deemed to have been obtained in respect of Buildings No.2 & 5 on 19/03/2010, i.e. on the date when requisite application was made by the assessee. Considered in this light, it has to be understood that the completion of construction of the instant housing project is within the period stipulated in section 80 IB (10)(a)(iii) r.w. Explanation (ii) thereof. Thus, on this aspect, we find no reason to uphold the stand of the CIT.
Built-up area of some of the flats comprised in the housing project - The architect has enumerated the ‘built-up area’ of various flats comprised in the Buildings No.2 & 5. He has further certified that such built-up area is as per the sanctioned plan and also that the same is as per the definition of the expression ‘built-up area’ contained in section 80 IB (14) of the Act. Thus, as per the said certificate of the architect, it is quite clear that the area of balconies/projections, as required, has been taken into account in calculating the built-up area. It is also clear that built-up area of none of the flats is exceeding the limit of 1000 sq.fts prescribed in clause (c) of section 80IB (10) of the Act . We have perused the order of the CIT and find that he has merely proceeded on a presumption that the built-up area of some of the flats might exceed 1000 sq.fts., if the area of balcony is added. However, we find not even an iota of evidence with the CIT to suggest that the built-up area shown in the certificate of the architect is without including the area of balcony; whereas the certificate clearly mentions that the built-up area is inclusive of the requisite projections and balconies.
At the time of hearing, the Ld. Representative for the assessee has also made assertion that in the earlier assessment year of 2010-11, the site inspection was carried out by the Assessing Officer and that there was no adverse finding on this aspect. There is no negation to the aforesaid plea of the assessee and, therefore, considering the material on record, we find that the CIT has proceeded on mere doubt to hold that there is a violation of the provision of clause (c) of section 80 IB(10) of the Act.
AO has reproduced in the assessment order a chart which enumerates the various conditions prescribed in section 80 IB(10) of the Act and how the same are complied by the assessee firm. Clearly, it is not a case of any lack of enquiry. In fact, as our aforesaid discussion shows, the CIT has misdirected himself on both the counts namely non-consideration of Buildings No. 2 & 5 as a project for the purposes of section 80 IB(10) of the Act and regarding the built-up area of some of the units as prescribed in section 80IB(10(c) of the Act. Under these circumstances, in our view, there was no justification for the CIT to uphold that the assessment order dated 13/01/2014 is erroneous in so far as it is prejudicial to the interest of the Revenue within the meaning of section 263 of the Act, qua the claim of deduction under section 80IB(10) of the Act allowed by the Assessing Officer.
We hereby set-aside the order of the CIT and restore the assessment order passed by the Assessing Officer under section 143(3) - Decided in favour of assessee.
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