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Showing 41 to 60 of 2053 Records
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2017 (11) TMI 2016 - ITAT BANGALORE
TDS u/s 195 - disallowance of subscription charges paid under section 40(a)(i) paid to Forrester Research Inc., USA.- As argued the impugned payments were not chargeable to tax in India, not liable for TDS under section 195 - HELD THAT:- Respectfully following the aforesaid decision [2011 (10) TMI 370 - KARNATAKA HIGH COURT] in the assessee's own case (supra), we uphold the disallowance under Section 40(a)(i) of the Act of the payments made by the assessee to Forrester Research Inc., USA for non-deduction of tax at source under Section 195 of the Act. Finding no merit in this Ground No.2.1 raised by the assessee, we dismiss the same.
Assessee's contention is that there was no amount payable as on 31.3.2005 and therefore no disallowance is called for under Section 40(a)(i) - AR fairly conceded that in the case of Palam Gas Service [2017 (5) TMI 242 - SUPREME COURT]has held that the word ‘payable’ in Section 40(a)(ia) of the Act not only covers amount payable as on the last day of the previous year but also covers amount actually paid. Respectfully following the aforesaid decision of the Hon'ble Apex Court (supra), we uphold the orders of the authorities below and consequently dismiss ground No.2.2 raised by the assessee.
Depreciation be allowed at 60% in respect of the software expenses paid to overseas entities - In our considered view, this ground is liable to be dismissed as the Assessing Officer has disallowed the expenditure under Section 40(a)(i) and not as capital expenditure.
Software expenses paid to Indian entities and software expenses related to overseas branches are eligible for depreciation at 60% after holding that these payments were not liable for TDS and therefore not liable for disallowance under Section 40(a)(i) - During the period relevant to Assessment Year 2005-06, there was no liability to deduct tax at source under Section 194J in respect of software expenses paid to Indian entities as the term ‘Royalty’ in Section 194J was introduced by the Taxation Laws Amendment Act, 2006 w.e.f. 13.7.2006. Therefore CIT (Appeals) has rightly held that software expenses paid to Indian entities are not liable for disallowance under Section 40(a)(ia) of the Act.
Similarly, CIT (Appeals) also held that since software expenses are related to overseas branch offices, these payments are not liable for TDS and therefore not liable for disallowance under Section 40(a)(i). Having held so, it is seen that the learned CIT (Appeals) has erroneously treated both these expenses as ‘capital expenditure’ and allowed depreciation at 60%.
In our view, since the Assessing Officer has disallowed the above payments under Section 40(a)(ia) of the Act for not making TDS thereon, treatment of the same payments as capital expenditure by the learned CIT (Appeals) is not correct. The learned CIT (Appeals) having already held that the above expenses i.e. software expenses paid to Indian entities and software expenses related to overseas branch offices are not liable for disallowance under Section 40(a)(ia) of the Act, and consequently these payments would be eligible for deduction in computing the business income and as a result, the question of allowing depreciation at 60% thereon does not arise. Ground of the assessee's appeal are accordingly allowed.
Correctness of the finding of AO that provision for software expenses is also liable for disallowance under Section 40(a)(i) of the Act for not deducting tax at source thereon and the correctness of the finding of the learned CIT (Appeals) that the aforesaid provision is not eligible for any depreciation as the amount was only a provision - We find that the Hon'ble Karnataka High Court in the case of KPTCL [2016 (2) TMI 412 - KARNATAKA HIGH COURT] held that there would be no liability to deduct tax at source on the amount of provision in the absence of accrual of income to the payees - The aforesaid decision of the Hon'ble Karnataka High Court (supra), was followed by the co-ordinate bench of this Tribunal in the case of TE Connectivity India P. Ltd. [2016 (5) TMI 1222 - ITAT BANGALORE] to hold that the provision amount is not liable for TDS as no income accrues in the hands of the payees.
AO is accordingly directed to examine and decide the issue of TDS on provisions for software expenses and consequent disallowance, if any, u/ 40(a)(i) of the Act, following the aforesaid decisions of KPTCL (supra) and of the coordinate bench in the case of TE Connectivity India P. Ltd. (supra) after affording the assessee adequate opportunity of being heard. Ground of the assessee's appeal are partly allowed for statistical purposes.
Brand building expenses - AO treated the brand building expenses as ‘deferred revenue expenditure’ and held that they were to be allowed over a period of five years as he was of the view that these expenses result in long term enduring benefit which is not limited to the year under consideration alone - HELD THAT:- On a perusal of the orders of the authorities below, it appears to us that the AO and CIT (Appeals) in coming to their views have merely gone by the nomenclature ‘brand building expenditure’ without actually examining the nature of each expenditure under the above head. In view of the above, we restore this issue of ‘brand building expenditure’ back to the file of the Assessing Officer to verify the nature and description of expenditure included under the head ‘brand building’ and decide the issue of allowability of brand building expenditure as revenue expenditure in the light of our observations and after affording the assessee adequate opportunity of being heard and to file details / submissions in this regard, which shall be duly considered.
Disallowance u/s. 14A - HELD THAT:- The action of the AO in making the disallowance under the head ‘Income from other sources’ is not correct since the facts show that the disallowance under Section 14A of the Act represents the business expenditure incurred by the assessee in relation to exempt income. Such disallowance would go to increase the assessee's business income and consequently the assessee would be entitled to proportionate deduction under Section 10A of the Act in respect of such increase in business income. In coming to this view, we draw support from the decision of Gemplus Jewellery India Ltd. [2010 (6) TMI 65 - BOMBAY HIGH COURT] we direct the Assessing Officer to allow proportionate deduction under Section 10A of the Act on account of the disallowance made under Section 14A
Foreign tax credit u/s 90 even in respect of income which is exempt under Section 10A - HELD THAT:- Remand to the file of the Assessing Officer for verification of details and documents in respect of the issue of allowability of foreign tax credit in respect of income eligible for deduction under Section 10A of the Act is also allowable under Section 90 of the Act in the light of the decision of the Hon'ble Karnataka High Court in the case of Wipro Ltd. [2015 (10) TMI 826 - KARNATAKA HIGH COURT] and adjudication thereon after affording the assessee adequate opportunity of being heard and to file details and submissions in this regard that shall be duly considered. The Assessing Officer is accordingly directed. Consequently, additional ground No.1 is treated as allowed for statistical purposes.
Provision for warranty - HELD THAT:- Respectfully following the decision of the co-ordinate Bench of this Tribunal in the assessee's own case which was rendered after considering the decision of the Hon’ble Apex Court in the case of Rotork Controls India P. Ltd.[2009 (5) TMI 16 - SUPREME COURT] we uphold in principle the assessee's claim of provision for warranty and remand this issue to the file of the Assessing Officer for examination of the basis of provision towards warranty, the claim made and the expenditure incurred towards warranty obligation in accordance with the observations of the Hon'ble Apex Court in the case of Rotork Controls India P. Ltd. (supra). Consequently, Ground of Revenue’s appeal are allowed for statistical purposes.
Depreciation on Software Expenses - Revenue contends that the CIT (Appeals) erred in allowing depreciation @ 60% in respect of software payments made to Indian entities and related to overseas branches - HELD THAT:- We have held that the learned CIT (Appeals) erroneously treated both the above payments as ‘capital expenditure’ and allowed depreciation @ 60% thereon. In our view the Assessing Officer disallowed the above payments under Section 40(a)(i) / (ia) of the Act for not making TDS, treatment of the same payments as capital expenditure and allowing depreciation @ 60% by the learned CIT (Appeals) is not correct and hence bad in law. We therefore reverse the order of the learned CIT (Appeals) on this issue and restore the finding of the Assessing Officer in the matter.
Computation of deduction u/s 10A - HELD THAT:- We set aside the issue of reduction of foreign currency expenditure from export turnover while computing the deduction under Section 10A of the Act to the file of the Assessing Officer for examination and verification of the issue afresh based on factual evidence.
Assessee's claim for inclusion of rental income from Infosys BPO Ltd. and BSNL, Chennai as profits of the business in computing deduction under Section 10A of the Act, when these incomes were not derived from the export of computer software - HELD THAT:- Whether interest income, income from sale of scrap, export incentive, rental income, etc. are eligible for deduction under Section 10A of the Act has been considered by the Hon'ble High Court of Karnataka in the case of Subex Ltd.[2015 (1) TMI 875 - KARNATAKA HIGH COURT] held that rental income by virtue of sub-section (4) of Section 10 of the Act is deemed to be business of the undertaking for the purpose of extending the benefit of deduction under Section 10A of the Act. Also see WIPRO LTD. [2010 (8) TMI 1053 - KARNATAKA HIGH COURT]
Thus we are of the view that rental income received from Infosys BPO Limited and BSNL, Chennai cannot be excluded from the profits of the business of the undertaking while computing the deduction under Section 10A of the Act in the case on hand. Consequently, Ground No.9 of the revenue’s appeal is dismissed.
Deduction under Section 10A - HELD THAT:- In our considered view, the issue raised in these grounds are covered against revenue by the decision of the Hon'ble High Court of Karnataka in the case of CIT Vs. Tata Elxsi Limited [2011 (8) TMI 782 - KARNATAKA HIGH COURT] wherein it is held that communication expenses reduced from export turnover should also be reduced from total turnover while computing the deduction under Section 10A - Respectfully following the aforesaid decision we dismiss ground Nos.10 to 12 raised by revenue.
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2017 (11) TMI 2015 - BOMBAY HIGH COURT
Initiation of criminal proceedings against the respondent No. 4 - illegal detention of petitioner for more than 33 hours - HELD THAT:- A lame attempt was made on behalf of Respondent No. 3 by producing a Call Data Record to show that the petitioner was allowed to make and receive telephone calls during the period he along with the police party left his home at Chembur and arrived at the Kopargaon Police Station. In our considered view, this circumstance would at the most demonstrate that the police party had done some favour to the petitioner in allowing him to make calls. However, that will not militate against the actual removing of the petitioner from his house and taking him to Kopargaon without formally showing that he was arrested - having not resorted to this procedure, they have clearly breached the mandate of clause 2 of Article 22 and have also violated the right of the petitioner to life and liberty guaranteed under Article 21 of the Constitution of India. It is indeed a blatant violation of fundamental right of the petitioner shocks our conscience.
We have not been shown that any steps have been taken either by the State Government or the higher officials of the Police Department in setting their home in order. We do not propose to comment any further. We are satisfied that there is a blatant violation of fundamental rights of the petitioner guaranteed under Article 21 and 22 of the Constitution of India.
There are no strict parameters, however, considering the fact that the petitioner was produced before the learned Magistrate at Kopargaon after about 32 hours and 30 minutes, in our view as a solace the petitioner is entitled to receive an amount of Rs. 50,000/- by way of compensation. In addition we also deem it appropriate to direct the State Government/Respondent No. 1 to pay Rs. 10,000/- to the petitioner as a cost of this petition - the detention of the petitioner at the instance of Respondent No. 3 from 6.30 hours of 11.09.2014 to 15.00 hours of 12.09.2014 is illegal and in violation of his fundamental rights guaranteed under Article 21 and 22 of the Constitution of India - Respondent No. 1/State of Maharashtra are directed to pay compensation of Rs. 50,000/- to the petitioner together with interest @ 8% per annum from the date of filing of this petition i.e. 13.02.2015 till realization of the entire amount of compensation together with interest. This amount shall be paid to him within four weeks from today.
Petition allowed.
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2017 (11) TMI 2014 - ITAT AHMEDABAD
Reasonable cause for non-representation on the date of hearing - HELD THAT:- As in the absence of any representation on behalf of the assessee or petition seeking time, it can be safely presumed that the assessee is not serious in pursuing the appeal filed. Accordingly the only alternative left is to dismiss the appeal of the assessee in limine. Support is drawn from the order of the Tribunals in Commissioner of Income Tax vs. Multi Plan India (P) Ltd [1991 (5) TMI 120 - ITAT DELHI-D] and Estate of Late Tukojirao Holka [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT]
Before parting, it is appropriate to add that in case the assessee is able to show that there was a reasonable cause for nonrepresentation on the date of hearing, it would be at liberty if so advised to pray for a recall of this order.
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2017 (11) TMI 2013 - ITAT SURAT
Short-term capital gains made u/s. 50C - AO adopted the jantri rate and made his own valuation on the basis of assessable rate of stamp duty on the date of registration of sale deed - rate adopted on the basis of information collected from Stamp Duty Authorities with regard to various rates which were adopted for the purpose of payment of stamp duty in respect of transfer of property in various area - Jantri rate is higher than the agreement value shown in the registered documents - AO observed that new jantri rate was outcome of survey held by Government in year 2006 and same was made applicable from 01.04.2008, hence, the AO was of the view that jantri rate of 3500 per sq. mtr is not the rate of year 2008 but it was well before the date of registration of document - HELD THAT:- On the basis of information AO worked out the value of land sold and adopted the same for the purpose of stamp duty made taken the same for the purpose of computing capital gain. In our opinion, this exercise is to be made by the AO Stamp Duty Authorities and not by the AO.
AO therefore, not justified to adopt the value other than as adopted by the Stamp Duty Authorities As per the provision of section 50C only assessed value by the Stamp Duty Authorities is to be considered for the purpose of sale consideration of property if the consideration shown in agreement to sale In doing so, less than the Stamp Duty Authorities valuation. In view of these facts and circumstances, and respectfully following the decision of Co-ordinate Bench [2011 (4) TMI 643 - ITAT, AHMEDABAD] we do not find any fault or infirmity in the order of Id. CIT (A), fair same is upheld. Consequently, appeal of the revenue is dismissed.
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2017 (11) TMI 2012 - ITAT MUMBAI
Exemption u/s 11 - BMW car purchased in the name of the trustee whereby the funds of the trust were diverted and used for the benefit of excluded person as covered within the provision of Section 13( 1 )(c)(ii) & Section 13(2)(g) r.w.s. 13(3)(cc) - HELD THAT:- Tribunal has made an elaborate discussion with respect to purchase of BMW car and similar observation was made by the Revenue for Assessment Year 2009-10 [2016 (2) TMI 77 - ITAT MUMBAI] also and finally, the appeal of the assessee was allowed directing the DIT(E) that the registration granted u/s 12AA of the Act cannot be denied to the assessee. It is also noted that the order of the Tribunal was affirmed by Hon'ble High Court of Bombay vide order [2017 (7) TMI 1053 - BOMBAY HIGH COURT]
No contrary facts/decision were brought to our notice by either side and more specifically the Revenue, therefore, considering the decision of the coordinate Bench of this Tribunal and following the decision from Hon'ble jurisdictional High Court, we find no infirmity in the order of the Ld. Commissioner of Income Tax (Appeal), resultantly, the appeal of the Revenue is dismissed.
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2017 (11) TMI 2011 - GUJARAT HIGH COURT
Clandestine diversion of AGU for industrial use or not - grant of personal hearing - examination/cross-examination of relevant witnesses, allowed or not - permission to petitioner to adduce further evidence - HELD THAT:- Material on record suggests that the adjudicating authority referred to and relied upon the statements of various witnesses to prove the allegations against the noticees. While filing reply to the show cause notices, the petitioners applied for cross-examination of such witnesses citing reasons. The adjudicating authority did not dispose of such a request but proceeded further with the hearing of the show cause notices. In the final order of adjudication, he dealt with such a request rejecting it primarily on the grounds that the cross-examination of investigating officers of the department is not necessary. The petitioners having made confessional statements crossexamination of other witnesses would not be necessary.
Even counsel for the department could not build a case that the adjudicating authority had placed no reliance on the statements of the witnesses whose cross-examination the petitioners wanted but the adjudicating denied. That being the position, it was necessary that the petitioners be allowed cross-examination of such witnesses at least on sample basis. It is not possible for us to segregate the nature of evidence on record and come to the conclusion that even in absence of the statements of these witnesses, the findings of the adjudicating authority can be salvaged. The adjudicating authority not having undertaken any such exercise it would neither be possible nor appropriate on our part to do so.
The impugned orders are vitiated on the ground of cross-examination of witnesses not being allowed though applied for and that adjudicating authority relying upon the statements of such witnesses in the final order of adjudication - Only on the ground of not permitting cross-examination of the members of panel, in the opinion of the Court, did not vitiate the order of confiscation against the petitioner.
Proceedings are remanded to the adjudicating authority for fresh consideration and disposal in accordance with law - petition allowed by way of remand.
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2017 (11) TMI 2010 - DELHI HIGH COURT
Jurisdiction of CIC conferred under the Right to Information Act, 2005 - HELD THAT:- The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
The impugned order passed by the CIC cannot be sustained - Petition allowed.
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2017 (11) TMI 2009 - CESTAT DELHI
Composition scheme for Works Contract - Works Contract Service or not - benefit of abatement as provided under the Notification No. 1/2006-ST dated 01.03.2006 - HELD THAT:- For ascertaining the fact of entitlement to the abatement benefit and consideration of the activities under the works contract service, the Tribunal in M/S S&S TECHNOCRAFTS PVT. LTD., M/S. AHLUWALIA CONSTRUCTION GROUP VERSUS CST, DELHI [2016 (7) TMI 1663 - CESTAT NEW DELHI] has remanded the matter to the original authority for deciding the issues afresh in line with the decision of Tribunal in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] and the judgment of Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT].
Therefore, the present matter should also be remanded to the original authority, since period in dispute in this case is subsequent to the period, for which the decision had been rendered by the Tribunal in M/S S&S TECHNOCRAFTS PVT. LTD., M/S. AHLUWALIA CONSTRUCTION GROUP VERSUS CST, DELHI. Further, we also find that the other submissions made by the appellant were not considered by the authorities below in the respective orders.
The matter remanded to the original authorities for Denovo adjudication in line with the above observations - the appeal is allowed by way of remand.
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2017 (11) TMI 2008 - SECURITIES APPELLATE TRIBUNAL MUMBAI
Maintainability of appeal against circulars issued to the stock exchanges in relation to all the companies exclusively listed on de-recognized/ non-operational stock exchanges - orders under regulation 28(2) of the Delisting Regulations - Exit route for the shareholders of the companies exclusively listed on de-recognized/ non-operational stock exchanges - Order seeking direction SEBI to ensure that the companies listed exclusively on regional stock exchanges get listed either on the Bombay Stock Exchange or on the National Stock Exchange automatically - HELD THAT:- Merely because SEBI has referred the orders passed under regulation 28(2) of the Delisting Regulations as ‘circulars’ cannot be a ground to deny the appellant his right to file an appeal against the said circulars which are in fact orders passed under the Delisting Regulations.
In our opinion, the argument advanced on behalf of the appellant is wholly misconceived.
Impugned circulars issued by SEBI contain administrative directions given by SEBI to the stock exchanges in relation to all companies which are exclusively listed on de-recognized / non-operational stock exchanges. Since the directions contained in the said circulars are not restricted to any particular company but are generally applicable to all the companies exclusively listed on de-recognized/ non-operational stock exchanges, it is abundantly clear that the impugned circulars are nothing but the administrative circulars issued in the interest of the investors in the securities market.
None of the companies to whom the directions contained in the impugned circulars apply have deemed it appropriate to challenge the impugned circulars and the appellant who is an investor in those companies has deemed it appropriate to challenge the impugned circulars. Assuming that the appellant has any grievance against the impugned circulars, in view of the decision of the Apex Court in case of NSDL [2017 (3) TMI 1061 - SUPREME COURT] proper course to be adopted by the appellant is to take appropriate steps in judicial review proceedings and not by way of an appeal before this Tribunal.
Argument of the appellant that the impugned circulars constitute orders under regulation 28(2) of the Delisting Regulations is totally frivolous to say the least. By circular dated 22.05.2014 SEBI directed the stock exchanges to give various options specified therein to the companies exclusively listed on de-recognized/ non-operational stock exchanges to get listed on the nationwide exchanges.
In view of the representation made by some of the companies exclusively listed on derecognized/ non-operational exchanges, SEBI issued circular dated 17.04.2015 thereby giving extension of time to all the companies exclusively listed on de-recognized non-operational stock exchanges to get listed on nationwide stock exchanges. Thus, the appellant is wholly unjustified in arguing that the impugned circulars constitute orders under regulation 28(2) of the Delisting Regulations. Conduct of the appellant in pursuing the appeal by raising such frivolous grounds inspite of the decision of the Apex Court in NSDL (Supra) is reprehensible.
The appeal is dismissed with costs quantified at ₹ 10,000/- to be paid by the appellant.
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2017 (11) TMI 2007 - RAJASTHAN HIGH COURT
Nature of land sold - agricultural land as exempted u/s 2(14)(iii)(b) - Whether land was falling within 8 kms of the municipal limit? - HELD THAT:- Whether the distance of the land in question is more than 8 kilometer on the outskirts of Jaipur city is required to be re-verified by the Tribunal taking into consideration, the notification dt. 6th January, 1994 issued by the Income Tax Department and judgment of this Court in [2017 (9) TMI 1161 - RAJASTHAN HIGH COURT]. The Tribunal will consider both the notification and judgment and if required make a request to Revenue Authority not below Deputy Collector to verify the distance from the outskirts of Jaipur to the land in question.
The matter is remitted back to the Tribunal only with a view to verify the distance.
It is made clear that we have not expressed any opinion on merits and it will be open for the Tribunal to reconsider the same and take an independent view after taking into account the new facts after verification and it will not being influenced by the decision of this Court.
Prima facie we are of the opinion, the proceedings which are initiated at Calcutta pursuant to our order seems to be misconstrued by the department. We take a serious note about the notice issued by the competent authority and also the lower authority requesting the higher authority u/s 263 which is also surprising to us.
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2017 (11) TMI 2006 - ITAT DELHI
Nature of expenditure - advertisement expenses, business promotion, brokerage and commission and software developing charges - revenue or capital expenditure - HELD THAT:- The facts are that the assessee is developing a project and for which the assessee has incurred the cost of the project on the land and its development charges. The same have been capitalized as work in progress by the assessee. Certain expenditure such as advertisement expenditure, brokerage expenditure, business promotion expenditure and software development charges were not capitalized by the assessee, but claimed as revenue expenditure. The guidance has been provided by the Institute of chartered accountants of India for accounting in case of real estate projects. These guidelines are undisputedly applicable to the facts of the case before us.
None of the expenditure incurred by the assessee were not found to be not genuine. Looking from the another angle about the expenditure claimed by the assessee, it would be apparent that if the assessee follows the completed contract method, then the assessee would be carrying on the cost of the project for the period till the project is sold. Naturally the cost of the project would be increased by these amounts and the revenue is duty bound to grant the deduction of this cost of project at the time of sale. Therefore in that particular scenario, the amount of expenditure incurred by the assessee would be allowed to the assessee is a deduction in that particular year. If the deduction is allowed to the assessee during this year and the assessee has incurred loss assessee is duty bound to set of this loss within a specified number of assessment year specified under section 72 of the Income Tax Act, i.e. 8 years. If the assessee cannot set of these losses during that particular period then the assessee forgoes the tax advantage of claim of the loss. Therefore, even if the expenditure is allowed to the assessee for this year as deduction, it does not make the case of the revenue at any disadvantageous position, in fact, it puts assessee into some disadvantage
On the identical facts and circumstances of the case, the coordinate bench in case [2016 (11) TMI 709 - ITAT MUMBAI] for assessment year 2008-09 has allowed the claim of the assessee for deduction under section 37 (1) on account of advertisement expenses, brokerage expenses.
Therefore, respectfully following the decision of the coordinate bench we also allow the claim of the assessee with respect to the deduction of advertisement expenses, business promotion expenses, brokerage and commission and software development charges. Furthermore, we do not find any infirmity in the order of the Ld. CIT (A), hence, we confirm the same and direct the Ld. assessing officer to delete the addition - ground in the appeal of the revenue is dismissed.
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2017 (11) TMI 2005 - ITAT KOLKATA
Reopening of assessment u/s 147 - assessee objecting to the reopening on the reasons recorded u/s. 148(2) - HELD THAT:- Assessee’s objection after going through the reasons recorded for reopening, was not done at all by the AO before passing the reassessment order which is per se against the binding direction in GKN Driveshaft (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] wherein their Lordships held that on receipt of reasons, the noticee is entitled to file objection to issuance of the notice and the AO is bound to dispose of the same by passing a speaking order.
In the instant case, a perusal of the order sheet of AO does not disclose that AO had disposed of the objection raised by the assessee by passing a speaking order.
We note that the assessee vide letter had in fact objected to the reopening of filing six pages letter and this fact is corroborated by the AO himself in the order sheet maintained by him and we note that the AO has not passed any speaking order to dispose of the objection raised by the assessee.
As per Article 141 of the Constitution of India, the Hon’ble Supreme Court’s direction is bound to be acted upon by the courts and other authorities. The AO has not cared to dispose of the objections raised by the assessee as directed by the Hon’ble Supreme Court. As stated above, from the order sheet entries it is very clear that the AO did not dispose of the objection of the assessee as directed in GKN Driveshaft (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] which makes the reassessment order bad in the eyes of law and is non-est in the eyes of law for flouting the order of the Hon’ble Supreme Court. Appeal of assessee is allowed.
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2017 (11) TMI 2004 - PATNA HIGH COURT
Revival of sick industry - providing corpus fund - benefit of rehabilitation under the Bihar State Micro and Small Enterprises Rehabilitation Act, 2008 - contention of appellant is that once the proceedings under the SARFAESI Act was initiated and pending, the Writ Court could not exercise its jurisdiction under Article 226 of the Constitution - HELD THAT:- Once the proceedings under the SARFAESI Act were pending, the learned Writ Court has no jurisdiction to interfere into the matter so far as it pertains to the right of International Asset Reconstruction Co. Pvt. Ltd. (IARC) is concerned.
The learned Writ Court in the facts and circumstances should not have interfered into the matter and issue the mandamus as done, instead, the appellant International Asset Reconstruction Co. Pvt. Ltd. (IARC) should have been granted liberty to proceed with the proceedings initiated by them under the SARFAESI Act and as the decision of the Apex Committee with regard to direction to the Canara Bank was taken behind their back for the purpose of considering rehabilitation package, the matter should have been remitted back to the Apex Level Committee to reconsider the matter instead directing to implement a decision which was not taken in accordance to the requirement of law, i.e. with the consent of all concerned, and even without taking note of various objections, including the objection of Canara Bank based on TEV report dated 30.05.2015, and various other issues involved in the matter.
Appeal allowed.
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2017 (11) TMI 2003 - CESTAT KOLKATA
Availment of remission of duty suo motto - leaked and burst bottles - manufacture of Water, Aerated Water, Soda Water, Fruit Pulp etc. - month of February 2008 and March 2008 - demand of duty with interest and penalties - applicability of Board's Circular dated 08.09.1971, with regard to allowable limit of breakage of bottles - HELD THAT:- The Board Circular is binding on the Revenue Officer as held by the Hon'ble Supreme Court in various decisions - Reliance can be placed in the case of M/S. PEPSICO INDIA HOLDINGS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-VII [2012 (8) TMI 409 - CESTAT, KOLKATA] where it was held that the allowance as indicated in the Board s circular does not relate to breakage owing to pressure-filling with CO2 and is relevant to breakage in course of handling. Even in that case, the physical verification vis-`-vis quantification of breakage is mandatory. Since the same could not be done, the benefit arising out of the Board s circular could not be extended.
Appeal allowed - decided in favor of appellant.
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2017 (11) TMI 2002 - RAJASTHAN HIGH COURT
Exemption u/s 10(23C)(iiiab)/10(23C) (iv) - appellant assessee is registered and granted exemption u/s 12AA vide certificate on 7.11.2007 and carrying on their activity only for the purpose of publication of the educational books which are given to the educational institutions - assessee appellant is an autonomous body established for the purpose of publication of books in Hindi language for post graduate student of Universities in India as per the Education Policy decision of the Ministry of Education & Social Welfare, Department of Education, Government of India - HELD THAT:- Rajasthan Hindi Granth Academy is established by the State Government to see that the books are available to the students of the educational institutions at the grass root level, therefore, while considering the matter, we have considered that mainly the substantive amount out of receipts as received by the assessee from State Government by way of subsidy. Even if, name of the institution i.e. Rajasthan Hindi Granth Academy is considered, it is established that it is for the purpose of publication of Hindi Granth i.e. for education. In that view of the matter, in our considered opinion, in view of decisions referred by Mr. Ranka, this is an educational institution activity.
We are of the opinion that this academy is running only with a view to publish educational books and we have no hesitation in accepting the submissions of Mr. Ranka that this is only for the purpose of academy which is educational in nature.
Assessee will be entitled for the benefit u/s 10(23)(iiiab). Even from the table, looking to the turnover, the profit is negligible, therefore, it is clear that the institution has no profit motive. - Decided in favour of the assessee.
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2017 (11) TMI 2001 - ITAT DELHI
Undisclosed investment in jewellery - submission of the ld. counsel for the assessee that he and his wife have received the above jewellery at the time of marriage - Scope of CBDT Circular No.19 of 2016 - HELD THAT:- Since in the instant case, admittedly the jewellery found in the Locker was only 313.600 grams which is much less than 500 grams as per CBDT Circular No.19 of 2016, therefore CIT(A) should not have insisted for Wealth Tax Return or bills and vouchers to explain the source of such investment in jewellery and should have deleted the addition made by the AO - Although the above circular is for non-seizure of gold jewellery etc. however, various Courts and the Co-ordinate Benches of the Tribunal are taking a liberal view on the basis of this circular and are allowing credit for such gold/jewellery as explained. In this view of the matter, we set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition. The grounds raised by the assessee are accordingly allowed.
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2017 (11) TMI 2000 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - CIT excluding the value of investments not yielding exempt income in the year under consideration for computing the average value of investments as required for working of disallowance u/s 14A r.w.r 8D - Whether CIT(A) has erred in holding that earning of exempt income from investment in touchstone for making disallowance u/s 14A in-spite of fact that section 14A deals with disallowance of expenditure incurred in relation to income not includible in total income? - HELD THAT:- As decided in case of Cheminvest Ltd.[2015 (9) TMI 238 - DELHI HIGH COURT] while calculating the disallowance as per Rule 8D(2)(ii) and 8D(2)(iii), the average value of investment is worked out by taking into account the investments in those shares only which have yielded tax free income to the appellant by way of dividend during the relevant period.
As the issue is squarely covered by the Hon’ble Delhi High Court in the case of Chem Investment (supra), we find no infirmity in the order of CIT(A), the appeal of the Revenue is dismissed.
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2017 (11) TMI 1999 - CHHATTISGARH HIGH COURT
Deduction u/s.80IB(10) - 'housing projects' prior to 01.04.2005 - Whether there was no clause (d) earlier and there is no express provision in this sub-section dealing with the consequence of having a commercial establishment within a housing project? - Whether Section 80IB(10)(d) of the Income Tax Act, 1961 applies to a housing project approved before 31.03.2005 but completed on or after 01.04.2005? - HELD THAT:- We are satisfied that the learned counsel for the Appellant-Revenue is justified in submitting that these appeals are covered as per the judgment of the Supreme Court in Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] and therefore, these appeals may be permitted to be withdrawn.
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2017 (11) TMI 1998 - ITAT PUNE
Depreciation on the “Right to collect toll”, being, an intangible asset - whether the Ld. CIT(A) was justified in holding that assessee was eligible to claim depreciation on “License to collect toll‟ considering it as an intangible asset in terms of section u/s. 32(1) (ii)? - HELD THAT:- As decided in Ashoka Highways (Bhandara) [2017 (10) TMI 579 - ITAT PUNE] that the cost of constructing road was akin to “Right to collect toll”, being, an intangible asset. The ld. DR fairly admitted the position in this regard. Respectfully following the same in parity of reasoning, we hold that the assessee is entitled to the said claim. - Decided against revenue.
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2017 (11) TMI 1997 - ITAT MUMBAI
Correct method of accounting - whether profit on the project should not be taxed on percentage completion method? -AO following percentage completion method as against the project completion method adopted by the assessee - AR submitted that the assessee has been following project completion method for recognizing the revenue wherein cost of land, construction and other expenses incurred every year is added and carried forward as work in progress and advances received from the customers are shown in the liability side in the balance sheet - AR held that post amendment every assessee has to follow either cash or mercantile system of accounting u/s 145 and that no accounting standards has so far been notified u/s 145(2) of the Act in regard to developers and builders - CIT-A deleted the addition made by the AO on account of profit earned by the assessee during the accounting year under consideration - HELD THAT:- The co-ordinate Bench has already decided the said issue in favour of the assessee in assessee’s own case for the assessment year 2011-12 [2016 (12) TMI 1538 - ITAT MUMBAI] by following the decision rendered in CIT vs. Bilahari Investment (P) Ltd. [2008 (2) TMI 23 - SUPREME COURT] , CIT vs. Manish Build Well Private Limited [2011 (11) TMI 35 - DELHI HIGH COURT] and decision of co-ordinate Bench in Avadhesh Builder [2009 (12) TMI 665 - ITAT MUMBAI]. - Decided against revenue.
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