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2017 (7) TMI 1405
Seeking a direction to the respondent to amend and modify the assessments made in respect of certain Bills of Entry - applicability of N/N.12/2012- Customs dated 17.3.2012 by exercising powers under Section 149 of the Customs Act, 1962 - HELD THAT:- In terms of Section 149 of the said Act, the proper officer may, in his discretion, authorize any document, after it has been presented in the Customs House, to be amended. The Proviso states that no amendment of Bill of Entry or Shipping Bill shall be authorized to be amended after the imported goods were cleared for home consumption or deposited in a warehouse except on the basis of documentary evidence, which was in existence at the time the goods were cleared, deposited or exported, as the case may be. Thus, the only embargo is that a person seeking relief under Section 149 of the said Act cannot rely upon a documentary evidence, which came into existence after the goods were cleared, deposited or exported, as the case may be.
In the case on hand, the petitioners place reliance on a Notification issued by the Department in Notification 12/2012 dated 17.3.2012, which was in existence much prior to the date of import.
Considering the fact that the applications given by the petitioners are still pending, the writ petitions are disposed of with a direction to the respondent to consider the applications of the respective petitioners dated 21.10.2016 on merits and pass a speaking order thereon in accordance with law - Petition disposed off.
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2017 (7) TMI 1404
Revision u/s 263 - Nature of receipt - revenue or capital receipt - incentives received from Engine Manufactures - HELD THAT:- . Learned counsel for the parties are permitted to file additional documents/papers which are part of the assessment record or were filed before the ITAT within eight weeks. List in due course.
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2017 (7) TMI 1403
Seeking release of Fixed Deposits since such deposits have attained maturity - writ petition is maintainable against a Co-operative Society or not - HELD THAT:- There are clear statutory requirements and prescriptions in the Act which mandate that if a society fails to honour its financial commitments, the competent statutory authorities are enjoined and obligated to to take such action as is mandated under the Act. When a depositor complains that a society has not honoured its financial commitment which it was legally bound to do, it would be open to the concerned statutory authorities to take such action, as is warranted and mandated under the provisions of the Act and the Rules, to ensure that the society either honours such commitments or that resources are created through due procedure, either by liquidation of the assets of the society or through such other methods, for the purpose of clearing and honouring such liabilities. When such a duty is cast upon the statutory authorities and since such authorities are also in the party array of the respondents in this writ petition, it cannot be concluded how the Society can maintain that this writ petition cannot lie, especially since this Court can always modulate the reliefs to be granted, including by issuing directions to the competent statutory authorities to take action against the Society if they fail in their statutory and legal duties.
The submissions of the learned Standing Counsel for the Society that this writ petition is not maintainable, cannot be agreed upon - the Society are directed to pay to the petitioner the entire amount along with applicable interest within a period of four months from the date of receipt of a copy of this judgment - petition allowed.
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2017 (7) TMI 1402
Revision u/s 263 - interest u/s 244A in relation to taxation of interest on securities - allowance of interest u/s 244A allowed in the order of rectification u/s 154 by the AO as excessive for the reason that the assessee included the amount of interest on securities on accrual basis and paid self assessment tax thereon, though claimed by way of a note accompanying the return of income the said income as not taxable in that year as it has not become due - HELD THAT:- As in THE STOCK HOLDING CORPORATION OF INDIA LTD. [2014 (11) TMI 899 - BOMBAY HIGH COURT] held that tax paid on self assessment would fall u/s 244A (1) (b), i.e. a residuary clause covering refunds of amount not falling u/s 244A (1), therefore, interest is payable on refund on excess amount paid on self assessment tax.
We are of the considered view that the issues in the instant appeal are decided in favour of the assessee by the judgment of the Hon’ble Bombay High Court in Stock Holding Corporation of India Ltd. (supra) and order of the Co-ordinate Bench in the case of the assessee delineated here-in-above. We follow the same and hold that the rectification order dated 20.07.2010 passed by the AO is neither erroneous nor prejudicial to the interest of revenue.
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2017 (7) TMI 1401
Benefit of public employment on the basis of a claim to belong to a beneficiary group - Scheduled Caste a Scheduled Tribe or backward community - Halba-Halbi" under Entry 19 of the Scheduled Tribes Order, 1950 - HELD THAT:- It is declared that
(i) The directions which were issued by the Constitution Bench of this Court in paragraph 38 of the decision in Milind were in pursuance of the powers vested in this Court Under Article 142 of the Constitution;
(ii) Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for (a) the issuance of caste certificates; (b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government; (c) the procedure for the conduct of investigation into the authenticity of the claim; (d) Cancellation and confiscation of the caste certificate where the claim is found to be false or not genuine; (e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and (f) Prosecution for a criminal offence;
(iii) The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.
(iv) The exception to the above doctrine was in those cases where this Court exercised its power Under Article 142 of the Constitution to render complete justice;
(v) By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates (Section 6(2) and 6(3); cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section 10); and initiation of prosecution (Section 11), amongst other things;
(vi) The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 October 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
(vii) Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
(viii) The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini in so far as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
(ix) Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
(x) The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and
(xi) Though the power of the Supreme Court Under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act XXIII of 2001 holds the field.
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2017 (7) TMI 1400
Estimation of income on bogus purchases - Addition on the basis of surmises and presumption - AO after rejecting the books of accounts applied 12.5% as profit on purchases - HELD THAT:- Application of GP 12.5% on the bogus purchases is reasonable but the GP declared by the assessee in the books of account should be reduced from the said percentage and only the differential should be applied - the rate as applied by the AO i.e 12.50% minus already declared in the profit and loss account i.e 9.38 % which comes to 3.12% should be applied.
Accordingly, we set aside the order of ld.CIT(A) and direct the assessing officer to apply GP rate 3.12% on the bogus purchases to cover the various types of savings such as saving on account of VAT and other incidental charges. Resultantly, the appeal of the assessee stands partly allowed.
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2017 (7) TMI 1399
Restraint on agents, servants, officers, departments, etc. taking any step which would nullify, interfere with and/or override the effect and operation of the order - Notifications all dated 10th July 2017 - HELD THAT:- It would premature and not be appropriate at this stage to pass any orders which would have the effect of preempting the State Government from amending the existing Rules. It is required to be noted that under the three impugned Notifications the State Government has invited objections and suggestions with respect to the proposed amendments which would be considered by the Government. The Petitioners have submitted their objections and suggestions accordingly. The Petitioners cannot assume that their representations shall not be considered favorably or otherwise.
It is noted that the Writ Petitions impugn only the Government Resolution and Circular. The Petitioners would be required to challenge the amended Rules if and when the amended Rules come into force. It is not possible to grant any relief to the Petitioner in anticipation that the amended Rules will come into force upon the final Notifications being issued.
Notices of Motion are dismissed.
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2017 (7) TMI 1398
Professional misconduct against several chartered accountants - seeking direction to the respondents to expedite and complete the enquiry thereon - constitutionality of Rules 9, 14, 15, 18 and 19 of the Chartered Accountants (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 - HELD THAT:- It is obvious that the present writ petitioner is indulging in judicial adventurism and the present petition is not bona fide. Nothing precluded the petitioner from seeking the prayer which made herein in the previous writ petition or seeking amendment thereof to incorporate the present prayer.
This litigation is not being conducted by counsel pro bono. It is field under legal advice. The writ petition refers to a complaint regarding professional misconduct by a Chartered Accountant. Therefore, a proper legal advice deserved to be given to the petitioner to incorporate all his challenges which rest on the same factual basis, in one petition - This kind of filing deserves to be deprecated in as much as it results in unwarranted multiplicity of litigation and wastage of judicial time. It puts pressure on an over-worked registry.
Petition dismissed with costs which are quantified at ₹ 10,000/.
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2017 (7) TMI 1397
Doctrine of mutuality - certain receipts by cooperative societies from its members - Principle of mutuality in respect of transfer fees and TDR premium received by the Assessee from its members - receipts by cooperative societies, from its members i.e. non-occupancy charges, transfer charges, common amenity fund charges and certain other charges, are exempt from income tax - Contribution to the common amenity fund - HELD THAT:- Delay condoned. Leave granted.
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2017 (7) TMI 1396
Validity of order passed by JCIT u/s.144A - limited scrutiny or complete scrutiny - proceedings converted into a complete scrutiny based on an approval received from the PCIT - Assessment of trust - Addition u/s. 56(2)(vii) - difference between turnover shown in the Income Tax return and turnover shown in Service Tax return - assessee is a private discretionary trust - JCIT, Non Corporate Range 2, Chennai passed an order u/s. 144A directing to treat a corpus donation received by the assessee trust during the relevant previous year, as income under the head "income from other sources" - AR submitted that ld. JCIT had invoked Sec. 144A of the Act, even when an assessment was not pending
HELD THAT:- As the assessment order clearly states that notice u/s. 143(2) of the Act was issued to the assessee on 01.06.2016. Thus, clearly when the ld. JCIT passed his order under Sec. 144A of the Act, assessment proceedings were pending. We are in agreement with the contention of the ld. Departmental Representative that it mattered little whether such assessment proceedings was for a limited scrutiny or complete scrutiny assessment.Section simply states that an assessment has to be pending and nothing more. We cannot read into the section, words which are not there and give an interpretation as canvassed by the ld. Authorised Representative.
Nature of directions issued by the ld. JCIT - Section itself says that the directions under section 144A of the Act are binding on the ld. Assessing Officer. Thus, in our opinion, the distinction sought to be drawn between guidance and directions hardly mattered. It might be true that ld. Assessing Officer had simply followed the directions of the ld. JCIT without applying his mind. However ld. Assessing Officer being duty bound under law to follow the directions of ld. JCIT, the question whether he had applied his mind over that issue, in our opinion became irrelevant. Thus we are of the opinion that the directions issued by the ld. JCIT were within the parameters of Sec. 144A of the Act and valid.
Corpus donation - There can be absolutely no doubt on this aspect. In fact ld.CIT(A) had clearly held that amount received could not be considered as benefit or perquisite and Sec.2(24)(iva) of the Act. There can also be no doubt that the amount did not fall within the Sec.2(24)(iia) of the Act since assessee was not a trust created for a religious or charitable purpose.
Status of an assessee for the purpose of assessment cannot be determined by the form in which a return of income was filed. Definition of a person u/s. 2(31) of the Act does not give a specific classification for a trust, whether it is for private purpose or for public charity. However, the definition is an inclusive one and this by itself mean that all possible status in which a person can be assessed are not exhaustively detailed in it. Or in other words how the assessee described itself in its return may not be determinative of its status. Status under Income Tax is a matter of law and not of choice.
Application of Sec.56(2)(vii) - As the provisions as it stood prior to introduction of clause (x) covered only individuals and HUF and the legislature wanted to include in its fold other entities also, which were receiving gratuitous payments. Applicability of this provision is only from 01.04.2017
We are of the opinion that the sum of ₹ 25,00,00,000/- received by the assessee could not have been considered as income from other source u/s. 56(2)(vii) of the Act r.w.s 2(24)(xv) of the Act. The said addition stands deleted.
Disallowance u/s. 14A - Contention of the assessee is that dividend on which exemption was claimed by it, was only on few investments, whereas majority of its investments did not yield any income at all - HELD THAT:- In the decisions of Interglobe Enterprises Ltd [2014 (4) TMI 269 - ITAT DELHI] and Rei Agro Ltd [2013 (9) TMI 156 - ITAT KOLKATA] it has been held that investments on which no income was received by an assessee, should not be considered while calculating the disallowance u/s. 14A of the Act. Therefore this aspect in our opinion, requires a revisit by the ld. Assessing Officer. We set aside the orders of the lower authorities and remit the issue regarding disallowance u/s. 14A of the Act back to the file of the ld. Assessing Officer for computation of such disallowance, after excluding those investments, which yielded no income during the relevant previous year. Ordered accordingly.
Non grant of credit for TDS - HELD THAT:- This can be verified by the ld. Assessing Officer and if such credit is available to the assessee under law it has to be given. Ordered accordingly.
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2017 (7) TMI 1395
Permission for withdrawal of writ petition - Company has already filed an appeal before the Tribunal - HELD THAT:- This Court permits the petitioner to withdraw the writ petition and clarifies that it is entirely open for the Company to make all possible legal pleas before the Debt Recovery Tribunal.
The writ petition is dismissed as withdrawn.
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2017 (7) TMI 1394
Seeking payment of arrears of tax and penalty - petitioner has not submitted their objections nor approached the Assessing Officer seeking extension of time - HELD THAT:- The petitioner has paid 25% of the disputed Tax and the Department was also not vigilant in immediately proceeding with the matter after issuance of the notice dated 24.06.2016, and they have initiated action only on 20.04.2017, this Court is inclined to grant an opportunity to the petitioner subject to certain condition. Accordingly, the petitioner is directed to pay a further sum of ₹ 5,00,000/- towards the disputed tax within a period of two weeks from the date of receipt of a copy of this order. If the petitioner complies with the said order, then the petitioner would be entitled to submit their objections to the impugned notice dated 24.06.2016 within a period of seven days thereafter.
Petition disposed off.
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2017 (7) TMI 1393
Disallowance u/s 14A r.w.r 8D - disallowance being 0.5% on the average value of investment - HELD THAT:- AR submitted that assessee has not earned any exempt income during the year - we find that the issue is squarely covered in favour of the assessee by the decision of the Hon'ble Delhi High Court in the case of Cheminvest Limited [2015 (9) TMI 238 - DELHI HIGH COURT] wherein it has been held that in absence of exempt income during the year no disallowance under Section 14A of the Act can be made. Thus, ground No. 1 is allowed.
Disallowance on account of increase in net profit being 1% of the turnover made by AO by disallowing the expenditure - AO was of the view that though the provisions of Section 92BA relating to the related party domestic transactions are effective only from 1 April 2013 but he looked into the reasons for making hundred percent purchases from a related party and whether the transactions are at arm's-length or not and unreasonable profit has not been transferred to the other related party - HELD THAT:- Neither the learned assessing officer nor the learned CIT - A has applied the provisions of Section 92BA of the income tax act in its true spirit. In fact the adjustment has been made by disallowing part of the purchase prices from the related party by the learned assessing officer which is actually in conformity with the provisions of Section 40A (2) of the act. Now it is required to be seen whether the addition made by the learned assessing officer and partly confirmed by the learned CIT - AE is in accordance with that provisions of not
Assessee has stated that the sister concern is the manufacturing unit of the group whereas the assessee is a marketing unit of the group. Therefore comparison of the gross profit and net profit of a manufacturing unit with a marketing unit is not proper.
If the revenue wanted to apply the provisions of Section 40A (2) of the act it has to prove that purchase price paid by the assessee are unreasonable and excessive looking to the market rate of such goods and further the needs of the business of the assessee. No such exercise has been carried out by the learned AO. In fact this exercise could have been carried out by the learned assessing officer by verifying the books of the sister concern where that sister concern sales to the assessee as well as to the other party. The learned assessing officer could have obtained the comparative prices of the similar goods supplied to the assessee by the sister concern and to the other parties. No such efforts have been made but merely a statistical analysis of the comparison of the profit was made by the learned assessing officer which is not warranted by the provisions of Section40A (2) of the act. Further the learned CIT - A has also casually dealt with the whole issue by comparing the tax arbitrage and confirming the party addition looking to the tax benefit derived by the group. In view of this the addition sustained by the learned CIT - A is devoid of any merit and not in accordance with the law. Therefore, ground No. 2 is allowed.
Disallowance being 30% of business promotion and advertisement expenditure - Addition of expenditure are incurred by the assessee through its Directors by credit cards and gifts to various customers - CIT (Appeals) restricted the same to the extent of 10% - HELD THAT:- The details of the expenditure incurred by the assessee were submitted before the Assessing Officer. This expenditure was incurred through the credit cards of the Directors, but that fact itself cannot result into the disallowance. It needs to be tested under parameters of section 37 (1) of the Act. The details of the expenditure show that these are for the purchase of various diaries, Diwali expenditure and entertainment and gifts to the customers. Naturally these expenditure are incurred by the Directors, but that does not mean that these are the personal expenditure and not incurred wholly and exclusively for the purposes of the business of the assessee. Even otherwise, in the case of the company assessee, there cannot be any personal expenditure. In view of this, Ground No. 3 of the appeal is allowed and the disallowance is directed to be deleted.
Depreciation on Apple LCD monitor - assessee claimed depreciation @ 60% stating it to be computer and AO and CIT (Appeals) allowed it @ 15% holding it to be not a computer but general plant and machinery - HELD THAT:- As assessee has purchased Apple LED DIS which is in fact a monitor for ₹ 45,500/- which is required for display at the time of conferences and presentation and is required to be attached to a CPU. In fact, it is a computer Monitor. Therefore, we hold that it is a computer entitled to 60% of the depreciation, as it is a monitor attached to the computers. Thus, ground No. 4 is allowed.
Disallowance of rent to the related parties - AO found that assessee has paid rent to specified persons under Section 40A (2) (b) - HELD THAT:- For the purpose of Section 40A (2) (b) the Revenue authorities should have brought on record that the rent paid to the related party is excessive and un-reasonable. Merely the tax arbitrage cannot be the reason to make disallowance under Section 40A (2) (b) of the Act. Valuation of perquisite if shown properly by directors in their tax returns and if it is less than Rent paid by the assessee to the land lord in whose house the directors are residing, it is the duty of AO of the directors to see whether perquisites are correctly valued or not. It cannot straight away result in to disallowance u/s. 40A (2) of the Act unless it is shown that it is unreasonable and excessive having regard to the fair market value of such service or legitimate needs of the business of the assessee. All these ingredients are absent in the disallowance made by the revenue. In view of this, we direct the ld. Assessing Officer to delete the disallowance of rent paid to related parties as Revenue failed to show that it is excessive and un-reasonable compared to the market rate.
Disallowance of the medical expenses of the Directors - AO disallowed as neither the appointment letter of the Directors nor the resolutions were filed - HELD THAT:- Even before us, it was not shown that the Directors are employees of the company and they were entitled to reimbursement of medical expenditure as per their terms of appointment. In view of this, we do not find any infirmity in the orders of the lower authorities.
Confirmation of the disallowance of 10% of various expenditure such as Staff welfare, Repair, Telephone, Travelling, Vehicle running etc. - HELD THAT:- CIT (Appeals) held that the above disallowance is reasonable for the reason that appellant is a private company run by its Directors and naturally certain expenditure have to be of personal nature. We find that before the Assessing Officer assessee has submitted the complete details of this expenditure. It is also submitted before us in Paper Book No. 2. We note that the assessee before us is a Pvt. Ltd. company and a company cannot have personal expenditure. It is not the case of the Revenue that disallowance is made as expenses are not incurred wholly and exclusively for the purposes of the business. No such instances despite submission of the details by the assessee were pointed out by the Revenue. The disallowance is also made on ad-hoc basis - we reverse the order of the lower authorities and direct the Assessing Officer to delete the disallowance.
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2017 (7) TMI 1392
Exemption u/s 11 - denying the assessee registration u/s 12AA - transfer of the funds from M/s Mata Narayan Kaur Charitable Trust to the assessee trust of ₹ 1.57 crores appear to be a method to transfer funds from a non functional trust headed by the husband to a trust headed by wife to preclude the possibility of the dissolution of the donor trust - HELD THAT:- Assessee trust had received donation of ₹ 1.57 crores from M/s Mata Narayan Kaur Charitable Trust. Whether the said donation was to preclude dissolution of the donor trust or that it was made from accumulated funds which had not been utilized in the specified time frame, have no effect nor do they affect the genuineness of the assessee trust. Whatever may have been done by the donor trust, may have an impact on the genuineness of the donor trust and there is no reason in holding the donee trust to be ingenuine on that account. Besides it is an uncontroverted fact that the donor trust was also enjoying exemption u/s 12AA of the Act and any such donation made by a charitable trust are entitled to be treated as donation of the said trust. For the above reason, we reject the contention of Ld.CIT(Exemptions) that since the donations were received from M/s Mata Narayan Kaur Charitable Trust, they make the activities of the assessee trust ingenuine.
Author of the assessee trust is the sole trustee of the trust and since trust involves receipt and custody of money it has violated the provisions of Indian Trust Act, 1882 which requires the number of trustees to be atleast two in such cases - We find no merit in this contention of the Ld.CIT(Exemptions) also. Merely because the trust by virtue of clauses in the Trust Deed remain with a particular family has no reason to hold that it is a family trust for the benefit of particular family. Merely because the trusteeship remains with the particular family it does not mean that the trust is for the benefit of a particular family only. Trustees are only guardians of the trust and no benefit enures to them. In the absence of any finding by the Ld.CIT(Exemptions) that the benefits from the assessee trust accrue or arise to a family only, there is no merit in the finding of the Ld.CIT(Exemptions) that the assessee trust is family trust not intended for public benefit.
Carried out no charitable activity in the year - Assessee has demonstrated before us that it had filed adequate replies before the Ld.CIT(Exemptions) demonstrating that it had carried out charitable activities in the impugned year which was the first year of coming into existence since it was formed only on 23.12.2015.
We find that the assessee had adduced evidence of having carried out charitable activities thereafter also. Moreover, even before us the Ld. counsel for the assessee has adduced voluminous evidences to demonstrate that that it was involved continuously in carrying out charitable activities as per its stated objects. CIT(Exemptions), we find, has not dealt with and considered the submissions of the assessee. We, therefore, consider it fit to restore the issue back to the file of the Ld.CIT(Exemptions) to reconsider submissions of the assessee vis-à-vis charitable activities carried out by it and thereafter adjudicate the issue of grant of registration under section 12AA of the Act in accordance with law.
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2017 (7) TMI 1391
Maintainability of appeal - the appeal is of the year 2007 and it has been pending before the Tribunal for more than a decade. Ahead of the transition of Indirect Tax to GST, this Tribunal has been given a mandate to dispose of all old cases at least prior to 2007 - HELD THAT:- It would be appropriate and prudent to close the file for the purpose of statistics.
It is made clear that the appeal along with stay order / interim orders, if any, will continue before the Tribunal and the matter is closed only for the purpose of statistics - Both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon’ble High Court or in case of any change of circumstance.
The appeal is disposed as file closed.
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2017 (7) TMI 1390
Revision u/s 263 - verification of purchases - Outstanding sundry creditors - assessee was making payment for purchase after ten months or one year which is not normal in the business practice - HELD THAT:- AO asked for details of payment to sundry creditors outstanding as on 31-03-2012 exceeding ₹ 1 lacks per party with evidence of payment subsequently. Assessee filed statements giving details of subsequent payments to the sundry creditors exceeding ₹ 1 lacks and also produced copies of ledger accounts of these parties for subsequent assessment years wherein the payment received from assessee through banking channels is reflected.
As regard to the query of the AO that the assessee has received credits on account of purchased from parties, it was explained that the assessee group including the partners independently is developing various projects in which substantial purchases were made and therefore having good business relations with these parties and due to that is availing credit facility.
AO examined the aspect in detail in the course of assessment proceedings and did not find any anomaly in the details furnished before him and accordingly has not taken any adverse view of the matter. We find that the complete details were examined by the AO during the course of assessment proceedings and now CIT through this revision order want to re-examine this issue, which according to us is not permissible u/s 263.
Unsold flats - HELD THAT:- As explained before us that only part of total sale consideration is received in this year i.e. the advance or earnest money for purchase of flat by the prospective buyer and full consideration is received only in subsequent years. And in subsequent years this sale is reflected as revenue by crediting the same to the P&L Account. The assessee has filed complete statements and details of sale of various units as on 31-03-2012 in subsequent years and the same has been examined by the AO
The assessee before us also filed copies of assessment orders passed u/s 143(3) of the Act for AYs 2013-14 and 2014-15, during which years the assessee has disclosed the sale consideration of these flats when actually these were sold. We find that on merits as well as on the issued at the matter was examined by the AO during the course of assessment proceedings, the revision proceeding initiated by the CIT(A) u/s 263 of the Act and revision order passed is not as per the provision of law.
As decided in MAX INDIA LTD. [2007 (11) TMI 12 - SUPREME COURT] where two views are possible and the AO has taken one of the possible view, with which CIT does not agree, it cannot be treated as erroneous order so as to prejudicial to the interest of Revenue.
We are of the view that the revision order passed by CIT u/s 263 of the Act is without any basis and void. - Decided in favour of assessee.
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2017 (7) TMI 1389
Second Bail application - scheduled offence - proceeds of crime - Section 120-B, 420 and 471 IPC included in the Schedule of Offence Part A of the Act during relevant period - first bail application was rejected - HELD THAT:- From the perusal of the first bail application of the applicant it appears that the ground which has been argued by learned counsel for the applicant in the second bail application has already been considered by learned Single Judge of this Court and simply because the reference has not been made in the order rejecting the bail application cannot be said to be a new ground for the present second bail application.
Without expressing any opinion on the merits of the case and considering the submissions advanced, it is found that no new ground is made out for enlarging the applicant on bail.
Bail application rejected.
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2017 (7) TMI 1388
Exemption u/s 11 denied - Applicability of amended provisions of section 2(15) - ITAT holding that in this case proviso to section 2 (15) is not applicable because assessee authority is not carrying out activity with any profit motive but the predominant object is welfare of people at large - whether Tribunal was justified in restoring the registration u/s 12AA to the assessee by holding that the assessee authority has been cheated with the object of general public utility within the meaning of Section 2 (15) of the Income Tax Act ? - HELD THAT:- Issue raised in this appeal is squarely covered by this Court’s judgment in M/s Yamuna Expressway Industrial Development Authority [2017 (4) TMI 1154 - ALLAHABAD HIGH COURT] and other two connected appeals decided on 21.04.2017[2017 (4) TMI 1154 - ALLAHABAD HIGH COURT] - Decided against Revenue.
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2017 (7) TMI 1387
Imposition of ADD - clear float glass - import from Pakistan, Saudi Arabia and UAE - N/N.48/2014 - CUS (ADD) dated 11/12/2014 - HELD THAT:- The SLP is dismissed.
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2017 (7) TMI 1386
Addition on account of cash deposits in the savings bank account - HELD THAT:- In the instant case Sale deed was registered with all the terms and conditions of sale which is a conclusive proof of sale consideration and no other evidence was provided by the Ld. A.R. explaining the source for the remaining amount of 12.90.lacs.
In the assessee’s case assessee did not explain the source for sum credited in his bank account. Therefore, we hold that the CIT(A) has rightly directed the A.O to tax the amount as unexplained cash deposit and accordingly we dismiss Ground Nos. 1 and 3 of the assessee.
Assessment of income in the hands of the assessee instead of his wife - HELD THAT:- Both the purchase and sale documents clearly show that the property was acquired by Smt Vanaja, wife of the assessee, on 17-09-2008 and the same was sold by her on 14-10-2009. The Ld. AR submitted that the property was acquired from the source of Smt Vanaja but not of the assessee. DR did not controvert the above facts. The Ld. DR also did not place any evidence regarding the beneficial ownership to make assessement in the hands of the assessee. Therefore, we hold that the capital gains, if any, should be assessed in the hands of the owner of the property i.e Smt Vanaja but, not in the hands of the assessee. Accordingly, we delete the enhancement made by the Ld. CIT(A) and the ground no.2 raised by the assessee is allowed.
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