|
Advanced Search Options
Case Laws
Showing 141 to 160 of 1648 Records
-
2017 (10) TMI 1512 - SECURITIES AND EXCHANGE BOARD OF INDIA
Violations committed in relation to the GDR issue - WTM of SEBI has directed Cals Refineries Limited (‘Cals’) not to issue equity shares or any other instruments convertible into equity shares or any other security for a period of 10 years - also prohibited other appellants who at the relevant time were the Directors of Cals, from accessing the capital market, directly or indirectly, and dealing in securities or instruments with Indian securities as underlying, in any manner whatsoever, for a period of 10 years - Argument of Cals that it is a victim of fraud and not a vehicle of fraud -
HELD THAT:- As rightly contended by Counsel for SEBI, Apex Court’s decision in case of Iridium India Telecom Ltd. vs. Motorola Inc. & Ors. reported in (2010 (10) TMI 85 - SUPREME COURT), which is binding on this Tribunal, clearly postulates that criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such a case, what is to be ascertained is, whether the degree and control of the person or body of persons was so intense that a corporation could be said to think and act through the person or the body of persons controlling its affairs.
In the present case, the liability imposed on Cals is a civil liability and not a criminal liability. Sometime in May/June, 2007, Sanjay Malhotra, one of the promoters of Spice Energy group approached Goorha (promoter & director of Cals) with a proposal to take over Cals for implementing the refinery project of SRM which was a Spice Energy group company. As Cals had virtually become a defunct company, the BoD of Cals in its meeting held on 23/7/2007 approved the proposal and accordingly 4 nominees of the Spice Energy group viz. Kansagra, Chilikuri, Roy and Sundararajan were appointed as additional directors of Cals. It was inter alia resolved in the said meeting that for implementing the refinery project, Cals would raise funds through issuance of GDR/FCCB. Accordingly, Cals had issued GDRs amounting to USD 200 million.
According to SEBI, by opening an account with Banco and executing the Account Charge Agreement, Cals has financed subscription of its own GDRs which is prohibited under the Securities laws - Fact that the minutes as per the minute book of Cals does not contain any resolution to open a bank account with Banco cannot be a ground to infer that Cals had not intended to open an account with Banco because, firstly, on the basis of the Board resolution dated 30/10/2007 certified by Sundararajan, director of Cals, an account was in fact opened in the name of Cals with Banco for depositing the GDR subscription amount. Secondly, on issuance of GDRs, the GDR subscription amount was in fact deposited in the said account of Cals with Banco. Thirdly, apart from the Board resolution dated 30/10/2007 certified by Sundararajan, there is no other resolution passed by Cals to open an account for depositing the GDR subscription amount. Fourthly, the GDR subscription amount deposited in the said bank account with Banco has been withdrawn by Cals in installments from time to time which is in consonance with the Account Charge Agreement executed by Cals. Without opening a bank account, Cals could not have opened the GDR issue. Very fact that Cals operated the account opened with Banco on the basis of resolution dated 30/10/2007 certified by Sundararajan clearly falsifies the case put up by Cals that it had not authorized any one to open an account with Banco for depositing the GDR subscription amount.
Argument that Cals had never authorized any person to sign any Account Charge Agreement is also without any merit, because, the Account Charge Agreement was signed by Goorha promoter-director of Cals. The Account Charge Agreement provides that all communications in relation thereto should be addressed either to Goorha or Sundararajan as they were the two authorized signatories to operate the Bank account of Cals with Banco. It is relevant to note that Goorha was the founder, promoter, director of Cals, whereas, Sundararajan was the director of Cals nominated by the Spice Energy group which had taken over Cals with a view to implement its refinery project through Cals by raising funds through issuance of GDRs. Admittedly, Sundararajan was in-charge of the entire GDR process. Thus, the bank account with Banco for depositing the GDR subscription amount was opened by Sundararajan, director representing the Spice Energy group and the Account Charge Agreement was signed by Goorha, director representing the promoter group of Cals. In these circumstances, the conclusion drawn by SEBI that opening a bank account with Banco and executing the Account Charge Agreement were the acts done by Cals through its directors to finance Honor for subscribing the GDRs issued by Cals in gross violation of Section 77(2) of the Companies Act, 1956 and the provisions contained in the SEBI Act and the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (‘PFUTP Regulations’ for convenience), cannot be faulted.
In the facts of present case, involvement of Cals controlled by the Spiece Energy group is so intense that it can be easily seen that the fraudulent acts and deeds were executed by Cals through its directors. In these circumstances, argument that Cals was not aware of the actions of its directors cannot be accepted. Consequently, the finding recorded in the impugned order that Cals and its directors had financed for the subscription of its own GDRs in gross violation of Section 77(2) of the Companies Act, 1956 and the provisions contained in the SEBI Act and the PFUTP Regulations cannot be faulted.
It is interesting to note that Cals (controlled by the Spice Energy group) not only financed Honor (owned by Malhotra, promoter of the Spice energy group) for subscribing to the GDRs of Cals, but also resolved in its BoD meeting held on 19/1/2008 to appoint Malhotra as an advisor to Cals for setting up the refinery in Haldia on a monthly consultancy charge of ₹ 15 lac. Thus, it is evident that Malhotra was not a stranger to Cals and all acts done by Cals in relation to the GDRs were at the instance of Malhotra, promoter of the Spice Energy group. As the promoter directors of Cals have also participated in the fraud committed in relation to the GDRs, Cals cannot escape liability for the misdeeds committed by its entire BoD.
Neither in the Memo of Appeal nor during the course of arguments, Cals has disputed the finding of fact recorded in the impugned order that USD 200 million was received by Cals from Honor and not from the alleged 10 foreign investors. In these circumstances, decision of SEBI that by furnishing false information to the Stock Exchange that the GDRs have been fully subscribed by 10 foreign investors, Cals has misled the investors in India cannot be faulted.
For all the aforesaid reasons, the findings recorded and the directions issued against Cals in the impugned order dated 23/10/2013 cannot be faulted.
Liability of directors - Argument of Goorha that he signed the Account Charge Agreement without knowing the contents of that agreement is ex facie untenable because, the very name of the document ‘Account Charge Agreement’ itself suggests that the amounts in the account of Cals would stand charged as per the terms set out in the Account Charge Agreement. At the relevant time, there was only one account of Cals with Banco for depositing the GDR subscription amount and there was no proposal on part of Cals to take any loan from Banco. Thus, the title of the document ‘Account Charge Agreement’ itself indicates the object with which it is being executed and to ascertain the object it was not necessary to read the entire document.
Explanation given by Sundararajan relating to the discrepancy in the resolution dated 30/10/2007 recorded in the minute book of Cals and the resolution dated 30/10/2007 certified by him is not worthy of acceptance because, assuming that there was lapse on part of the Company Secretary of Cals to record the said resolution in the minute book of Cals on 30/10/2007, then, Sundararajan would have got the error corrected in the subsequent Board meeting. However, in the meeting of BoD of Cals held on 19/1/2008, the minutes of BoD meeting dated 30/10/2007 as recorded in the minute book of Cals was approved. Very fact, that Sundararajan who was present in the BoD meeting dated 19/1/2008 did not take any steps to get the alleged error in the minutes of meeting dated 30/10/2007 rectified, clearly shows the mala fide intention on part of Sundararajan.
Sundararajan has also admitted that he had sent an e-mail to Goorha on 13/11/2007 expressing his inability to go to London for executing the documents on behalf of Cals and requested Goorha to sign necessary documents on behalf of Cals. Accordingly, Goorha had signed the Account Charge Agreement on 12/11/2007 (as per the date in London). Apart from signing the Account Charge Agreement, no other agreement was signed on behalf of Cals on 12/11/2007. These facts clearly demonstrate that Sundararajan was clearly aware that the document to be executed on behalf of Cals at London on 12/12/2007 was the Account Charge Agreement. Therefore, argument of Sundararajan that he did not know anything about the Account Charge Agreement is a blatant lie.
Inference drawn in the impugned order that Sundararajan was aware of the fact that Deep Rastogi had significant influence over Cals as contemplated under AS-18 and failure to disclose the related party transaction between Cals and Asia Texx was in violation of the Securities laws, cannot be faulted.
-
2017 (10) TMI 1511 - GUJARAT HIGH COURT
Grant of anticipatory bail - summons under Section 108 of the Customs Act - HELD THAT:- The applicant is only an employee of a firm, which was engaged for the purpose of customs clearance and transportation and change containers on behalf of M/s. Bhagyoday Enterprise of one Shri Dipak Thakor, Proprietor and Radhika Enterprise, Proprietor - Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to the powers of Investigating Agency to file an application before the competent court for his remand.
The present application is allowed by directing that in the event of arrest of the applicant herein, the applicant shall be released on bail on his furnishing a personal bond of ₹ 10,000/-, subject to following the conditions imposed.
-
2017 (10) TMI 1510 - ITAT JAIPUR
TDS us 194C - addition u/s 40(a)(ia) - Making Payment to the so-called Contract Labour expenses without deducting TDS - only explanation for non-deduction of tax as submitted by the Ld. Counsel for the assessee, that no amount was payable - HELD THAT:- We find that Ld. CIT(A) given a finding on fact that evidences were produced by the assessee do not inspire confidence. We find that Ld. CIT(A) was not decided the issue whether the tax was deductible and the provision of Section 40(a)(ia) of the Act was applicable. Therefore, considering the totality of the fact, we deem it proper to restore this issue to the file of the Ld. CIT(A) to decided afresh, after considering the submissions of the assessee. This ground of Assessee’s appeal is allowed for statistical purpose.
Addition of 3% of the contract expenses - HELD THAT:- We find that Assessing Officer on the one hand they had stated that the assessee has contravened provision of Section 40A (3) of the Act on the other hand he proceeded to make disallowance of 3% of the total contract expenses. Disallowance is made on adhoc basis without specifying as what were the expenses were that not got verified by the assessee. Under these facts, the addition so made cannot be sustained. - Decided in favour of assessee.
-
2017 (10) TMI 1509 - ITAT MUMBAI
Bogus purchases - quantification of the profit involved in making of the purchases by the assessee of the goods under consideration from the open/grey market - HELD THAT:- In view the VAT benefit of (1%) and Custom duty (2%), the profit element from making of such purchases, in the backdrop of certain other benefits that the assessee would had derived from making of the same from the open/grey market, coupled with the fact that the unidentified seller operating in the open/grey market would not be transferring the entire set of benefits to the buyers, thus, can fairly be taken at 4%. We thus, in light of our aforesaid observations direct the A.O to restrict the addition in the hands of the assessee to 4% of the aggregate value of purchases of ₹ 2,49,99,469/- claimed by the assessee to have been made from the aforementioned party, viz. M/s Olive Overseas Pvt. Ltd. The addition sustained by the CIT(A) is modified in terms of our aforesaid observations.
-
2017 (10) TMI 1508 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Oppression and Mismanagement - valuation of shares - appointment of valuer for valuation of shares - HELD THAT:- Deloitte Touche Tohmatsu Limited, Ahmedabad is appointed as Independent Valuer to carry out valuation of the business of the 1st Respondent Company, Madhu Silica Private Limited as on 31st March, 2017 - The Valuer shall complete the entire exercise of valuation of the business of the company within 10 weeks from the date of this order.
Both the parties shall provide necessary documents, data and information to the Valuer within 10 days of service of notice on them by the Independent Valuer - The Independent Valuer shall submit the valuation reports in three originals to the Registrar of this Tribunal in a sealed cover and the cover shall be opened on 22nd December, 2017 in the open Court. Thereafter, this Tribunal will pass appropriate orders for the exchange of shares/consideration by fixing a time line.
List the matter on 22nd December, 2017.
-
2017 (10) TMI 1507 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Approval of Resolution Plan - extension of date for submission of resolution plan - statutory time limit for submission of Resolution Plan failed - HELD THAT:- Since statutory time limit of 270 days for submission of Resolution Plan has failed therefore corporate Debtor shall go under liquidation as per provision Chapter 3 of Insolvency & Bankruptcy Code, 2016 read with Insolvency and Bankruptcy Board of India (Liquidation Process Regulation), 2016. Copy of the order may be sent to Registrar of Companies.
The liquidator shall issue a public announcement stating that the corporate debtor Nicco Corporation Pvt Ltd. is in liquidation - Moratorium u/s 14 of IBC shall cease to have effect - fresh Moratorium starts under sub section (5) of Sec 33 of IBC.
-
2017 (10) TMI 1506 - ITAT PUNE
Deduction u/s. 80IA(4) in respect of structure of foot over bridges and installation of road signages - Whether erection of foot over bridges and installation of road signage can be construed as “infrastructure facility” within the meaning of Explanation to section 80IA(4) ? - HELD THAT:- The issue in the present appeal is identical to the one already adjudicated by Co-ordinate Bench of the Tribunal in assessee’s own case for assessment year 2010-11 [2015 (10) TMI 2773 - ITAT PUNE] . The assessee has not placed on record any material to show any distinguishing features in assessment year under appeal. Therefore, we find no reason to take a different view. Following the order of Co-ordinate Bench, we hold that the assessee is not eligible for claiming deduction u/s. 80IA(4) in respect of construction of foot-over bridges and installation of road signages as they do not fall within the ambit of “infrastructure facility” within the meaning of Section 80IA (4) of the Act. Accordingly, appeal of the assessee is dismissed being devoid of any merit.
-
2017 (10) TMI 1505 - MADRAS HIGH COURT
Suspension of CHA License - SCN pending adjudication before the Customs Authority - Regulation 19 (1) of CBLR - HELD THAT:- The respondent has invoked Regulation 19(1). This Regulation commences with a non-obstante clause and states that, notwithstanding anyting contained in Regulation 18, the Commissioner Customs may, in appropriate cases, where, immediate action is necessary, suspend the licence of a customs broker, where, an enquiry against such agent is pending or contemplated. Thus, to invoke the power under Regulation 19(1), the Commissioner of Customs should be satisfied that, immediate action is necessary to suspend the customs broker licence, and such powerr is exercisable, where, an enquiry against the Agent (petitioner in this case) is pending or contemplated.
The enquiry should be conducted under the provisions of CBLR, and the respondent cannot fallback upon the show cause notice, which has been issued to the petitioner, under the Customs Act. This is more so, because, the licence has been granted, in terms of CBLR, and enquiry ought to have been commenced against the customs broker, for violation of the licence conditions, and for such other matters, as provided under the Regulations, and in particular, Regulation 18 - On a reading of the impugned order of suspension, it is seen that there is no enquiry, either pending, or contemplated against the petitioner, under the CBLR. Therefore, the power under Regulation 19 (1) of the CBLR could not have been invoked. Furthermore, there was no necessity to suspend the petitioner’s customs broker licence, as the consignment was detained on 01.04.2016.
The importer had requested the petitioner to amend the Bill of Entry, by adding invoice No.YF2-2016, dated 15.03.2016, and changing the description of the goods, quantity and value, as per the second invoice, and such a request was made on 04.04.2016. There is no immediate necessity for suspending the licence issued to the petitioner - in the absence of contemplation of enquiry, or pending enquiry, suspension order cannot be passed by invoking the power vested with the Commissioner under Regulation 19(1) of CBLR.
The order of suspension shall remain stayed till the adjudication of the show cause notice issued under the Regulation 20 (1) of the CBLR - By virtue of this order, the petitioner would be entitled to carry on their activities as a licensed customs broker.
-
2017 (10) TMI 1504 - ITAT AMRITSAR
Late filing fee u/s 234E - intimation u/s 200A - HELD THAT:- Issue is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT [2015 (6) TMI 437 - ITAT AMRITSAR] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A.
The impugned levy of fees under section 234E is unsustainable in law. We, therefore, delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee.
-
2017 (10) TMI 1503 - ITAT KOLKATA
Additional depreciation u/s 32(1)(iia) - HELD THAT:- Issue squarely covered in favour of the assessee inter alia by the decision of coordinate benches of this Tribunal in the case of M. Satish Kumar (supra) and Hutti Gold Mines Co. Ltd. [2012 (11) TMI 215 - ITAT CHENNAI] as well as by the decision of Hon’ble Madras High Court in the case Hi Tech Arai Ltd. [2009 (9) TMI 60 - MADRAS HIGH COURT] and that of Hon’ble Karnataka High Court Gold Co. Ltd.[2014 (9) TMI 1115 - KARNATAKA HIGH COURT] . The learned DR, on the other hand, has not been able to bring to our notice any judicial pronouncements on this issue either of the Hon’ble Jurisdictional High Court or any other High Court which is in favour of the revenue. We, therefore, respectfully follow the aforesaid judicial pronouncements cited by the learned counsel for the assessee which are in favour of the assessee and delete the disallowance made by the AO and confirmed by the Ld. CIT (A) on account of assessee’s claim for additional depreciation under section 32(1)(iia). Ground no 1 & 2 of the assessee’s appeal for A.Y. 2011-12 are accordingly allowed.
Disallowance u/s 14A - HELD THAT:- Provision of sub-section (2) of section 14A which stipulates that the Assessing Officer shall determine the amount of expenditure incurred in relation to such income which does not form part of the total income under the Act in accordance with such method as may be prescribed (Rule 8D) if the Assessing Officer having regard to the accounts of the assessee is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under the Act. AO thus was required to record his dissatisfaction with the correctness of the claim of the assessee in respect of expenditure incurred in relation to exempt income before invoking Rule 8D and since there was no such dissatisfaction recorded by the AO as agreed even by the Ld. DR, we find merit in the contention of the learned counsel for the assessee that the disallowance under section 14A made by applying Rule 8D is not sustainable. We, therefore, delete the disallowance made by the A.O. under section 14A read with Rule 8D and sustained by the Ld. CIT (A)
Disallowance u/s 40(a)(ia) on account of payment of ERPC charges without deduction of tax at source - HELD THAT:- This issue thus now stands squarely covered in favour of the assessee by the decision of this Tribunal in assessee’s own case for A.Y. 2008-09 [2016 (5) TMI 1104 - ITAT KOLKATA] and respectfully following the same, we uphold the impugned order of the Ld. CIT (A) deleting the disallowance made by the A.O. under section 40(a)(ia) on account of payment of ERPC charges
-
2017 (10) TMI 1502 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA.
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and dispute or not - Section 9 Of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as I & B Code) 2016 read with Rule 6 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- The present application has been filed relating to invoices which have been raised regarding the service rendered at Orissa for which contract was separate. The corporate debtor has not filed any document to show that there was any pre -existing dispute regarding service rendered in Orissa. The corporate debtor has not filed a reply to the demand notice under the statutory period prescribed under Sec.8(2) of the I & B Code - Therefore, on the basis of law laid down by Hon’ble Supreme Court in the case of Mobilex Innovations Private Limited [2017 (9) TMI 1270 - SUPREME COURT] it is clear that corporate debtor has taken the defence of existence of dispute as a frivolous ground and in fact no dispute truly exists in between the parties relating to the service rendered by the operational creditor in Orissa for which contract was separate.
On the basis of the documents filed by the petitioner,' it is clear that operational creditor has before filing the petition issued demand notice under Sec.8(1) of the I & B Code along with the copy of the invoices and it is also evident that after receiving the demand notice corporate debtor failed to issue any notice regarding existence of dispute or to record the pendency of the suit or arbitration proceedings relating to such dispute. The operational creditor has filed an affidavit in compliance with the provision of Sec.9(3)(b). The operational creditor has also filed a certified copy Of bank statement in compliance with the provision of Sec.9(3)(c) - From the documents filed by the petitioner, it is clear that no dispute was existing regarding the outstanding dues of the invoices raised for the service rendered by the operational creditor in the state of Orissa. It is also evident that the defence taken by the corporate debtor regarding the existence of a dispute is spurious and without any basis. In fact, the said dispute was existing relating to the service rendered by the operational creditor in UP for which there was separate agreement executed on different dates, and there was no interconnection between the contract made for Orissa and the contract awarded regarding the same service of UP.
Application admitted - moratorium declared.
-
2017 (10) TMI 1501 - RAJASTHAN HIGH COURT
Accrual of income - Addition on account of suppression of scrap sales - HELD THAT:- In the present case, no real income accrued to the appellant or was received by it during the year under reference4 simple because it did not recover or realize the same. As evident from the examination of the vendor M/s Noble Industries by the AO during remand proceedings, it had not returned the scrap to the appellant.
On the contract undertaken as sub-contracted to sub vendors and there was no evidence on the record to suggest that these sub-vendors had ever returned the scrap to the alleged vendor or the appellant itself. The appellant had provided complete names & addresses of these sub-vendors along with their PANs to the AO. Accordingly no adverse inference could have drawn against the appellant merely on surmises. There was no real income which could be brought to tax in the hands of the appellant on accrual basis or receipt basis. In view of above facts, direct the AO to delete the addition - Decided in favour of assessee.
-
2017 (10) TMI 1499 - ITAT BANGALORE
Penalty u/s 271F - failure to file the return of income on or before the end of the relevant assessment year - Admission of additional evidence - existence of reasonable cause under Section 273B - HELD THAT:- Additional evidence now sought to be filed by the assessee before the Tribunal are necessary and required proper adjudication of the issues involved in the appeal. These evidence, according to the assessee, show that the assessee was dependent on its holding company for day to day affairs and for financial support including payment of self-assessment tax. The additional evidence is therefore admitted for consideration.
Since the revenue authorities did not have an opportunity to examine the additional evidence now admitted by the Tribunal, we deem it proper to set aside the order of the CIT (Appeals) and remand the question of the existence of reasonable cause under Section 273B of the Act for fresh consideration by the Assessing Officer in the light of the additional evidence now admitted by the Tribunal. The Assessing Officer shall afford an opportunity of being heard to the assessee before deciding the issue. Appeal is allowed for statistical purposes.
-
2017 (10) TMI 1498 - ITAT KOLKATA
Deletion of addition on interest income earned from nationalized Banks - provisions of section 80P(1), 80P(2) and 80P(2)(d) of the Income Tax Act, 1961 ignored - deletion of addition made by the A.O. on profit from the business of Holiday Homes.
Addition on account of interest income from other sources - AO is of the view that the assessee has parked its surplus funds by way of depositing the same in the current, savings and fixed deposits account with the bank - HELD THAT:- The AO is directed to allow the deduction as claimed by the assesee u/s 80P(2)(a)(i) of the Act.
Deduction u/s 80P(2)(a)(i) of the Act from business of holiday homes - AO rejected the claim of the assessee for the deduction u/s 80P(2)(a)(i) of the Act on the ground that deduction is available on the income attributable to the business providing credit facilities to the members. As such the activity of holiday home is not eligible for deduction - HELD THAT:- The deduction is available to the assessee from the business of banking or providing credit facilities the members. The present issue is with regard to the income earned by the assessee from the running and maintenance of holiday homes for the members. Thus, the same cannot be allowed as deduction under the provisions of section 80P(2)(a)(i) of the Act - Deduction not allowed.
Appeal allowed in part - decided partly in favor of Revenue.
-
2017 (10) TMI 1497 - ITAT JAIPUR
Long Term Capital Gain - sale of agricultural land situated beyond 8 Kms from Urban Areas - HELD THAT:- On last day of hearing of the assessee had withdrawn his power of attorney. The Notice which sent to the assessee is returned unserved.
Therefore, it is presumed that the assessee is not interested in pursuing its appeal. Respectfully following the decision in the case of CIT vs. Multiplan India Ltd. [1991 (5) TMI 120 - ITAT DELHI-D] and Estate of late Tukojirao Holkar vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] we dismiss the appeal of the assessee for want of prosecution. Appeal of the assessee dismissed.
-
2017 (10) TMI 1496 - RAJASTHAN HIGH COURT
Refund claim - Export of services - assessee had not received the payment on convertible foreign currency - contravention to Rule 3(1) (b) of the Export of Service Rules, 2005 - HELD THAT:- The very object of the Export of Service Rules, 2005 is that such services are performed outside India and payment for such service provided is received by the service provider in convertible foreign exchange.
The assessee was a party to the services which was required to be rendered for earning the foreign exchange therefore a very narrow compass put by the department is considered then no citizen in India will be benefited from the exchange of foreign currency - the interpretation of the department cannot be accepted and we are bound to accept the interpretation as given by the tribunal.
The issues are required to be answered in favour of the assessee and against the department - Appeal dismissed.
-
2017 (10) TMI 1495 - ITAT PUNE
Revision u/s 263 - AO had selected the case for scrutiny under CASS in order to verify the claim of deduction u/s 80IB(10) - HELD THAT:- In view of the settled position by the Hon’ble High Court of Karnataka in CIT Vs. Shravanee Constructions [2012 (7) TMI 88 - KARNATAKA HIGH COURT] and the ratio laid down by different Benches of Tribunal, where the facts of the present case before us are identical to the facts before the Tribunal and the Hon’ble High Court, we hold that the assessee having introduced his land for development and also having obtained the approvals for carrying out the said development including getting sanctions from various State Authorities, it cannot be said that no expenditure has been incurred by the assessee for development of the said property. Hence, the assessee is entitled to claim the deduction under section 80IB(10) as the Co-venturer of the project along with Rajkotia. We have already mentioned in the paras hereinabove that other Co-venturer Rajkotia, who has already been allowed the deduction u/s 80IB(10) of the Act by the Tribunal.
Necessary enquiries were conducted by the AO in scrutiny proceedings, which were picked up under CASS for the specific purpose of verifying the claim of deduction under Chapter VI-A, the Assessing Officer after conducting the enquiries have come to a conclusion which is as per the law and hence, the same cannot be disturbed by the Commissioner under the garb of exercise of revisionary powers under section 263 of the Act. In any case, the Commissioner has failed to give a finding and has remitted the matter back to the file of Assessing Officer to verify the claim of assessee, which is also not permissible under section 263 of the Act.
Without prejudice to our findings in the paras hereinabove, the order of Commissioner under section 263 of the Act is contrary to the extent that where he has held that the assessee merely transferred the land, then in such circumstances, the resultant profit is assessable as capital gains on the date of transfer i.e. 05.10.2004, which falls in assessment year 2005-06 and hence, there is no merit in exercising the jurisdiction under section 263 of the Act in assessment years 2009-10 and 2010-11.
Assessee with an authorized share capital of ₹ 1.36 crores raised nearly sum of ₹ 32 crores on account of premium and chose not to go in for increase of authorized share capital, merely to avoid payment of statutory fees, as per the Commissioner was an important pointer necessitating investigation. In such a case, the Commissioner held the assessment order is erroneous and prejudicial to the interest of revenue. However, the facts of the said case are at variance to the facts raised before us and we have already referred to the facts and investigation made by the Assessing Officer during the course of assessment proceedings and hence, there is no merit in the aforesaid reliance.
Now, coming to the aspect of book profits which was considered by the Commissioner and the order of the Assessing Officer was held to be erroneous and prejudicial to the interest of revenue. In this regard, it may be pointed out that the case of assessee was picked up for scrutiny under CASS for the limited purpose of verifying the Chapter VI-A deduction. Once the case is picked up for specific purpose under CASS, then it is outside the purview of the Assessing Officer to look into any other aspect other than the aspect for which it is picked up.
Assessing Officer has not formed any opinion in respect of computation of book profits in the hands of assessee. Once, no such opinion has been formed by the Assessing Officer, the Commissioner has erred in holding the order of the Assessing Officer to be erroneous and prejudicial to the interest of revenue in this regard. Accordingly, we reverse the findings of the Commissioner. Accordingly, we hold that the order passed by the Commissioner under section 263 of the Act is invalid and the same is quashed for both the assessment years.
-
2017 (10) TMI 1494 - SC ORDER
CENVAT credit - plates, MS angles, MS channels, MS plates, HR sheet, MS joist and welding rods, etc. - denial on the ground that the appellate authority without examining the records of the respondent, has extended the Cenvat benefit - it was decided that credit rightly allowed - HELD THAT:- There is no merits in the SLP - SLP dismissed.
-
2017 (10) TMI 1493 - ITAT MUMBAI
Rectification of mistake - Unexplained delay in pronouncement of the order - HELD THAT:-The orders have to be passed in variably within three months of the completion of hearing of the case. In this case, admittedly the order was passed beyond three months. No reason whatsoever for the delay has been recorded. As held in SHIVSAGAR VEG. RESTAURANT [2008 (11) TMI 64 - HIGH COURT BOMBAY] such delay is incurable and even administrative clearance cannot cure the same.
As held in the case of Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] any order of the tribunal without considering the decision of Hon'ble jurisdictional High Court or the Hon'ble Apex Court judgement even if not bought to the notice of the tribunal, results in the order of the tribunal being liable for rectification upon filing of an application under section 254(2) for containing mistake apparent from the record.
Admittedly, in this case, the impugned common tribunal orders are not in accordance with the above two jurisdictional High Court's decision which clearly mandate that the order of the tribunal should be pronounced within a period of three months of the hearing of the appeal. The Income Tax Appellate Tribunal Rule 34(5) as mentioned hereinabove also provides the same.
Hence, in accordance with the ratio of the above Hon'ble High Court and Hon'ble Supreme Court judgements, such decisions rendered after 3 months need to be recalled and heard afresh as they are liable for mistake apparent from record. Accordingly, we recall the afore-said common orders of the Tribunal due to delay beyond three months in pronouncing the order in accordance with the Hon'ble jurisdictional High Court decision as above - miscellaneous application filed by the assessee stands allowed.
-
2017 (10) TMI 1492 - ITAT CUTTACK
Addition u/s.40A(3) - cash payment exceeding permissible limits - HELD THAT:- There is no finding of the AO in the assessment order that the payments made are not genuine. Further, it is not in dispute that the sale deeds for purchase of land were registered with the revenue department of the Government. Therefore, the decision of this Bench of the Tribunal in the case of Subhashree Enterprises [2017 (10) TMI 1491 - ITAT CUTTACK] squarely applies to the facts of the assessee’s case. Hence, we set aside the orders of the lower authorities and delete the disallowance made u/s. 40A(3) and allow the grounds of appeal of the assessee.
............
|
