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Showing 161 to 180 of 2114 Records
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2018 (2) TMI 1955 - ITAT MUMBAI
Bogus purchases u/s 69C - closing WIP in respect of certain purchases alleged as bogus - HELD THAT:- Average cost per sq.ft. of assessee ₹ 2,812.87/- per sq.ft. is equivalent to its associate concern M/s. Triveni Properties with project in the same vicinity having average cost as ₹ 2,907/-per sq. ft. Since, no allegation on purchases of said associate concern was made by the department, the average cost per sq. ft. of the assessee is to be accepted. Therefore, there is no question of any inflation of cost or deflation of profit. The assessee had been following Project Completion method since its inception.
Though the AO had adopted percentage completion ( method for A.Y. 2008-09 to AY 2011-12, the Id. CIT(A) had deleted the addition in this respect for A.Y. 2008-09 to A.Y. 2010-11. The revenue's appeal for A.Y. 2008-09 and A.Y. 2009-10 was dismissed being below the prescribed tax limit. The revenue is not in appeal against the said deletion for current A.Y. i.e. 2010-11. Thus, project completion method followed by the assessee has been accepted by the revenue. It was submitted by the assessee that since no expenditure/deduction was claimed by the assessee for the year under consideration, no disallowance should be made for the year under consideration based on the decision of the on’ble Mumbai ITAT in the case of M/s. Maruti Impex v. JCIT [2016 (5) TMI 104 - ITAT MUMBAI] & Savala Associates v. ITO [2009 (10) TMI 640 - ITAT MUMBAI]
We uphold addition to the extent of 2% of such bogus purchases during the A.Y.2012-13.
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2018 (2) TMI 1954 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of outstanding dues - existence of debt and dispute or not - Whether the respondent succeeded in proving the existence of a genuine dispute as alleged in the reply of the Corporate Debtor? - HELD THAT:- The corporate debtor failed to establish existence of a dispute falls within the purview of section 5(6) of the I&B, Code. So also the corporate debtor failed in proving existence of dispute as held in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT]. The claim made by the operational creditor is not at all hit by section 9(5)(ii)(d) of the I&B, Code as contended on the side of the corporate debtor. The application file under section 9 of I&B, code on the other hand is complete. There is no repayment of the unpaid operational debt. No insolvency professional is proposed by the operational creditor. Hence compliance of section 9(5)(2)(e) doesn't arise.
This application filed under section 9 of the I&B, Code is liable to be admitted - Application admitted - moratorium declared.
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2018 (2) TMI 1953 - SUPREME COURT
Notification dated 18th January, 2016 - Territorial jurisdiction - expansion of port limits of Hazira port - HELD THAT:- There can be no doubt that Shri Joshi's plea that the power of the Government to alter the limits of any port Under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commercial port's limits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc.
We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have no 'right' to private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government - the notification is intra vires as the alteration in the limits of Hazira Port does not affect any 'right' of the Appellants to private property.
Appeal dismissed - decided against appellant.
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2018 (2) TMI 1952 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Prayer for adjournment - Petitioner submits that the connected matter being CP No. 350/2017 u/ s 241/242 of the Companies Act, is pending before the Hon 'ble Principal Bench. He would be taking appropriate steps for transfer of this case to the Hon 'ble Principal Bench. In view of the same, he prays for an adjournment - HELD THAT:- To come up on 16th March, 2018 for directions.
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2018 (2) TMI 1951 - RAJASTHAN HIGH COURT
Providing of registration form to the petitioners for the purpose of registration as ANM and GNM - issuance of the registration certificate in favour of the petitioners - registration was not granted without assigning proper reasons - HELD THAT:- It is not in dispute that the respondent No.3-University, from which the petitioners have passed the GNM and ANM courses, is a University established under a statute.
Hon'ble Supreme Court in Dr. B.L. Asawa Vs. State of Rajasthan & Ors. [1982 (3) TMI 282 - SUPREME COURT] has held that degree or diploma granted by a University, created by law or under the law, is not required to get recognition by other authority.
Thus, it is not in dispute that the respondent No.3-University is a University established under the statute and, therefore, in view of the law laid down in the above referred case that a degree, diploma or any qualification awarded by any University, established under the statute, is automatically recognized and needs no recognition by any other authority, there is no hesitation in holding that the respondent No.2-RNC cannot refuse to register the petitioners under the provision of Act of 1964 on the ground that the respondent No.3-University, from which the petitioners have completed GNM and ANM courses, is not recognized by the INC.
The respondent No.2-RNC is directed to consider the request of the petitioners expeditiously preferably within a period of two months from the date of production of certified copy of this order, and if the petitioners are otherwise eligible, necessary registration be granted to them - petition allowed.
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2018 (2) TMI 1950 - ITAT MUMBAI
TP Adjustment - Comparable selection - HELD THAT:- Assessee was engaged in providing investment advisory services of non-binding in nature, thus companies functionally dissimilar with that of assessee need to be deselected.
We find that if the two comparables selected by the assessee and upheld by us in paragraph 4.2 are included and the comparable namely Ladderup selected by the revenue is excluded, the assessee’s adjusted margin of 14.76% as computed by the revenue well exceeds the margin of the comparables on the basis of single year data. The stated fact, in itself, makes the other contentions raised by assessee, merely academic in nature and therefore, we do not find any necessity to delve into the same. Therefore, the matter is restored back to the file of Ld. AO to compare the margins / PLI of the assessee vis-à-vis margins / PLI of the two comparables and re-compute the total income of the assessee
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2018 (2) TMI 1949 - ITAT MUMBAI
Profit derived from the operation of ships in international traffic - DTAA between India and Denmark - income deemed to accrue and arise in India - whether treated as Royalty as per Article 13 and section 9(1)(vi) and (vii) - nature of certain IT costs and Inland Haulage Charges [IHC] received by the assessee during the course of shipping business - HELD THAT:- We find that both the issues, on similar facts and circumstances, have already been settled in assessee’s favor in his own case for several other years [2017 (2) TMI 1356 - ITAT MUMBAI] as held amendment is carried out under domestic law, same cannot be read into the treaty. Accordingly, we are of the view that The FACT cost represent merely allocation of cost incurred and hence in the nature of reimbursement of expenses not having any element of profit embedded in it. Such recovery only includes proportionate cost incurred by the assessee for the development and maintenance of the system. Therefore, such recoupment of cost does not constitute income chargeable to tax in the hands of the assessee. It is undisputed that he assessee is in business of conducting operation of ships in international traffic and not engaged in the business of providing communication services, and therefore, per se no separate royalty/FTS were rendered by the assessee. Hence, we allow this issue of assessee’s appeal.
Income from Inland Haulage Charges [IHC] of cargo - activities of the IHC are connected directly or an ancillary activity that provides minor contribution and should not be regarded as a separate business to the operations of ships. These activities are linked or connected to each other and as such one cannot say that one is to be conducted efficiently without the other and which have a nexus to the main business of the assessee of operations of ships should be considered as integral part of income from shipping operations. Accordingly, we allow the claim of assessee - repayment of money may be construed as “reimbursement” only if it is bereft of profits for the services rendered. There is no profit element in the pro rata costs paid by the agents of the assessee to the assessee and accordingly, we have no hesitation in holding that the amounts paid by the agents to utilize the amount arose out of the shipping business cannot be brought to tax as sought to be done - Revenue appeal dismissed.
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2018 (2) TMI 1948 - CHATTISGARH HIGH COURT
Exemption u/s 11 and 12 - whether the Appellate Tribunal has rightly allowed the respondent's appeal to grant registration under Section 12A despite the fact that before the Commissioner of Income Tax (CIT), the respondent has failed to produce the details of donation received in FY 2012-2013 and from 01.04.2013 till the date of order; details of charitable activities done in FY 2012/2013 and; details of activities done from 01.04.2013 till the date of order? - HELD THAT:- The provision contained under Section 12A nowhere empowers the CIT to assess the objects vis-a-vis the donation received in the first year of its establishment. In a given case it may happen that the trust is not able to commence the charitable activities for various reasons, however, that may not be conclusive of the fact that the trust does not intend to carry on the aims and objects for which it is established. If the aims and objects clearly project the activities of the trust to be charitable in nature, it is not the stage for lifting the veil and assessing whether those activities are actually carried on at the first year of establishment of the trust.
In the matters of Commissioner of Income Tax vs Vijay Vargiya Vani Charitable Trust ( [2015 (2) TMI 671 - RAJASTHAN HIGH COURT] and Fifth Generation Education vs Commissioner Income Tax [1990 (5) TMI 38 - ALLAHABAD HIGH COURT] All, it is held that at the stage of Section 12A, the Commissioner is not to examine the application of income.
All that he may examine is whether the application is made in accordance with the requirements of Section 12A read with Rule 17A and whether Form No.10A has been properly filled up. He may also see whether the objects of the trust are charitable or not. At this Stage, it is not proper to examine the application of income.
The order passed by the Tribunal has discussed the matter in detail and has assigned justifiable reason as to how the CIT has failed to exercise jurisdiction vested in it at the stage of examining the application under Section 12A. As earlier discussed, the list of donations and the list of charitable activities are not to be looked into at this stage.
We are satisfied that the Appellate Tribunal has rightly interfered with the order passed by the CIT. No substantial question of law arises for determination in view of the plain language of Section 12A - Decided against revenue.
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2018 (2) TMI 1947 - MADRAS HIGH COURT
Setting up a TASMAC shop - HELD THAT:- The writ petitions are disposed of recording the undertaking of the learned Additional Government Pleader (Puducherry) appearing for the official respondents that the objection raised by the petitioners shall be considered in accordance with law.
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2018 (2) TMI 1946 - MADRAS HIGH COURT
Restraint on respondents from setting up or re-locating or granting licence to a liquor shop - Condition (9) of the conditions printed in Form F.L.2 under Rule 113(2) of the Pondicherry Excise Rules, 1970 - HELD THAT:- 'Public Interest Litigation' is a new class of litigation which dilutes the concept of locus standi. In earlier times, Courts entertained Litigations only if a person aggrieved came to the Court. Today, when the attention of the Supreme Court or the High Courts is drawn to any patent illegality, which affects the public in general or any particular group and/or groups of people, the Courts intervene irrespective of the locus standi of the petitioner to initiate the proceedings. However 'Public Interest Litigation' does not empower the Court to take over the functions of the Executive.
The Court has to adjudicate and decide if there is any patent illegality in any action or inaction on the part of the respondents-authorities. If such action or inaction contravenes the human rights and/or constitutional rights and/or legal rights of any class of persons, particularly, persons who may not be able to approach the Courts, then the Courts step in. However, interference is restricted to the existence of an illegality in any action or inaction, and/or to enforcement of a right.
In the absence of contravention of any statutory rules or any binding judicial precedent, there are nothing to interfere with the setting up of a liquor shop - petition dismissed.
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2018 (2) TMI 1945 - DELHI HIGH COURT
Disallowance of the credit claimed - re-opening of assessment on the basis of a statement made by one Mr. S.K. Gupta - HELD THAT:- AO in the re-assessment order refused to give effect to the retraction of that statement, brushing aside the later statement, on the ground that it was made years later. At the same time, this Court for another Assessment Year (AY 2002-03) held that whilst it was open to the AO to not rely upon the statement taken into account or rather ignore the retraction, yet, primary duty to verify the soundness of the claim of having been made genuine payment had to be gone into and verified. This was not done and consequently in Principal Commissioner of Income Tax (Central)-I vs. M/s FIIT JEE Ltd. [2018 (1) TMI 1396 - DELHI HIGH COURT] the Court upheld the order of ITAT setting aside the additions on merits made during the re-assessment. Since on the merits, the additions are not sustainable, the Court is of the opinion that no substantial question of law arises.
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2018 (2) TMI 1944 - DELHI HIGH COURT
Reopening of assessment u/s 147 - validity to Reasons to believe - HELD THAT:- Reassessment in this case was validly based on fresh material in the form of information received by the concerned authorities during the course of search assessment and disclosures made. They would fit the description of “tangible material” unavailable with the Revenue at the time the original assessment was completed. Furthermore, in the present case, the original assessment was not completed under Section 143(3) of the Act, rather, merely framed under Section 142(1) of the Act. Having regard to these facts, the impugned order is clearly untenable and set aside.
ITAT is directed to examine the merits of the respondent/assessee’s appeal and decide it in accordance with law after hearing counsel for the parties. - Decided in favour of the Revenue
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2018 (2) TMI 1943 - SUPREME COURT
Interpretation of statute - Section 88 of the Code - whether it was obligatory for the Court to release the appellant by accepting the bond under Section 88 Cr.P.C. on the ground that he was not arrested during investigation or the Court has rightly exercised its jurisdiction under Section 88 in rejecting the application filed by the appellant praying for release by accepting the bond under Section 88 Cr.P.C.?
HELD THAT:- Section 88 of the Cr.P.C. does not confer any right on any person, who is present in a Court. Discretionary power given to the Court is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial. Discretion given under Section 88 to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses.
The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 Cr.P.C. had been initiated. In this view of the matter he was not entitled to the benefit of Section 88.
The word ‘may’ used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the Court or not. The both Special Judge, C.B.I. as well as the High Court has given cogent reasons for not exercising the power under Section 88 Cr.P.C. - there is no infirmity in the view taken by the Special Judge, C.B.I. as well as the High Court in coming to the conclusion that accused was not entitled to be released on acceptance of bond under Section 88 Cr.P.C. We thus do not find any error in the impugned judgment of the High Court.
There are two reasons due to which we are unable to accept the request of the appellant to consider the case of bail of the appellant in present proceeding. Firstly, this Court on two earlier occasions had granted liberty to the appellant to make an application for bail before the trial court, the appellant has not filed any application for bail before the trial court and had insisted on releasing him on acceptance of bond under Section 88 Cr.P.C. Secondly, in the facts of this case, trial court is to first consider the prayer of grant of bail of the appellant - as and when the appellant files a bail application, the same shall be considered forthwith by trial court taking into consideration his claim of disability and other relevant grounds which are urged or may be urged by the appellant before it.
Appeal disposed off.
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2018 (2) TMI 1942 - PATNA HIGH COURT
MAT applicability - Grant of benefit to the assessee u/s 115JB - assessee is the Bihar State Finance Corporation created by Central Finance Corporation Act, and therefore, it is held to be a corporation created under the statute and not a company registered under the Companies Act, 1956 - HELD THAT:- Benefit has been granted by the tribunal to the respondent assessee which is a creation of statute, we see no error or any substantial question of law warranting reconsideration merely because in the returns filed erroneously due to mistake of the official, filing the returns in stead of indicating the corporation to be creation of the Central Finance Corporation Act, it is shown to be a company, the statutory benefit accruing to the Corporation by virtue of Section 115JB cannot be denied and in doing so, the learned Tribunal has not committed any error and we find no substantial question of law, warranting reconsideration.
That apart the deduction granted by the Tribunal which is also challenged in these appeals are based on due appreciation of the evidence and material that came on record and we see no perversity or illegality in the same warranting reconsideration, exercising our limited jurisdiction in a proceeding under Section 260A of the Income Tax Act.
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2018 (2) TMI 1941 - ITAT MUMBAI
TDS u/s 194J - Disallowance u/s 40(a)(ia) - payment of carriage fees - CIT(A) has deleted the disallowance holding that carriage fees does not come within the ambit of the definition of Royalty thus not required to deduct the tax at source u/s 194J - HELD THAT:- CIT(A) has held that it is not the case of ‘no TDS’ but the case of ‘less TDS’ therefore, the disallowance made by the AO is bad in law. The Ld. CIT(A) has relied on the decision of the Hon’ble Calcutta High Court rendered in CIT vs S. K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] and M/s Star Den Media Services pvt .Ltd [2015 (8) TMI 1444 - ITAT MUMBAI] and Chandabhoy & Jassobhoy vs DCIT [2011 (7) TMI 956 - ITAT MUMBAI].
Hon,ble Gujarat High Court in CIT vs. Prayas Engineering Ltd. [2014 (11) TMI 1086 - GUJARAT HIGH COURT] and CIT vs. Kishore Rao & others (HUF) [2016 (4) TMI 430 - KARNATAKA HIGH COURT] have held that in case of shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under various TDS provisions, no disallowance can be made by invoking provisions of 40(a)(ia) of the Act.
The findings of the Ld CIT(A) are based on the evidence on record and in accordance with the principles of law laid down by the High courts including the jurisdictional High Court discussed above. - Decided against revenue
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2018 (2) TMI 1940 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - debt due and payable - HELD THAT:- The Petitioner filed copies of Invoices and copies of TDS Certificate and copy of Ledger Confirmation supplied by the Respondent Company to establish that an amount of ₹ 5, 14,650/ - is due from the Respondent during the period between 25.2.2013 to 26.3.2013.
The amount claimed by the Petitioner from the Respondent is in respect of provision of services made to the Respondent Company from time to time. Therefore, Petitioner is an Operational Creditor. The documents filed by the Petitioner and the confirmation of balance by the Respondent show that the amount claimed in this Petition is due and payable by the Respondent to the Petitioner. The material on record also show that there is occurrence of default in payment of operational debt by the Respondent to the Petitioner. No dispute of dispute given to Respondent. No pre- existing brought on Record.
This Petition is admitted under Section IO(4)(a) of the Code - Application admitted - moratorium declared.
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2018 (2) TMI 1939 - HIGH COURT OF DELHI
Suit for recovery of principal amount - Whether the machinery supplied by the Plaintiff was of inferior quality as claimed by the Defendants? If so, what was its effect? - Whether the Plaintiff agreed to receive the amount due to the Plaintiff in instalments without interest as claimed by the Defendants? - HELD THAT:- The plaintiff, on the evidence led, has proved sale and supply of machines of the total value of ₹ 1,56,57,000/- to the defendant No. 1 and sale, supply and delivery whereof is supported by 'C Form under the erstwhile Sales Tax law issued by the defendant No. 1 to the plaintiff. It is also not in dispute that the defendant No. 1 has paid only a sum of ₹ 53,07,000/- leaving the balance of ₹ 1,03,50,000/-.
The Counsel for defendants No. 1 to 3 has drawn attention to the pleas taken in the written statement and on which issues aforesaid were framed but which as aforesaid are found to have been proved in favour of the plaintiff. Though the defendants took a plea of the machinery being of inferior quality and of an Agreement with the plaintiff of payment of price thereof in instalments, but have utterly failed to prove the same and the said pleas are found to be falsified from the contemporaneous conduct of issuance of cheques and confirmation of balance - the issues decided in favour of the plaintiff and against the defendants.
Whether the Defendants No. 2 to 4 are jointly or severally liable to pay the amount? - HELD THAT:- A company, being a juristic entity, has to necessarily act through natural persons and we are still far from the day when such juristic entities, with the assistance of Artificial Intelligence will enter into contracts without acting through natural persons. Thus, merely because a natural person has acted on behalf of a juristic entity like a company will not make such natural person personally liable for the debts of such juristic entity - decided against the plaintiff and in favour of the defendant No. 2 to 4.
Quantum of interest - HELD THAT:- It is however proved and not disputed that the invoices contained a clause for payment of interest at the said rate and no protest was made with respect thereto and in fact the price was sought to be paid by cheques which were dishonoured - for the pre-suit period, the plaintiff is entitled to the contractual rate of interest for the reason of the transaction between the parties being a 'commercial' one. However considering the prevalent rates of interest paid on fixed deposits in the contemporaneous time, the plaintiff is found entitled to future interest at 9% per annum - the claim of the plaintiff for interest at 24% per annum can only be w.e.f. 1st April 2012 till the date of institution of the suit.
A decree is accordingly passed in favour of the plaintiff and against the defendant No. 1 only, for recovery of ₹ 1,03,50,000/- with interest at 24% per annum from 1st April, 2012 till the date of institution of the suit and at 9% per annum w.e.f. the date of institution of the suit till the date of realisation/payment - The suit, insofar as against the defendants No. 2 to 4 is dismissed.
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2018 (2) TMI 1938 - ITAT KOLKATA
Disallowance u/s 14A r.w.r. 8D(2)(iii) - HELD THAT:- The availability of own funds of the assessee to the tune of ₹ 28.85 crores and the fact that the closing value of investment in the balance sheet as on the last date of the previous year was ₹ 22.3 crores clearly demonstrates that the assessee had sufficient own funds which were more than the value of investments. Apart from the above the source of investments on each of the investments made by the assessee during the previous year has been explained by the assessee in a chart filed before CIT(A).
The factual accuracy of this chart has not been disputed by the revenue. In such circumstances we find no merits in this appeal by the revenue challenging the deletion of addition in terms of Rule 8D(2)(ii) of the rules,. In so far as the disallowance of other expenses under Rule 8D(2)(iii) of the rules is concerned we are of the view that direction of CIT(A) to include only investments which yielded dividend income while computing average value of investments before applying the formula of Rule 8D(2)(iii) of the Rules is in accordance with the decision of the tribunal in the case of REI Agro Ltd [2013 (9) TMI 156 - ITAT KOLKATA] - Decided against revenue.
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2018 (2) TMI 1937 - ITAT RAJKOT
Higher rate of depreciation on dumpers - CIT(A) defining assessee’s business as transporter thereby concluding that it is entitled for higher rate of depreciation on dumpers as against 15% allowed in assessment proceedings resulting in disallowance - HELD THAT:- AR is correct in his proposition that appellant's work include providing its vehicles for transportation to the third parties and the amount received on this count constitute part of business receipts of the appellant and therefore such vehicles are eligible for depreciation at the higher rate of 30%
Departmental Representative however fails to dispute the fact above. We therefore find no reason to adopt a different approach in the instant case. The Revenue’s sole substantive ground is therefore declined.
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2018 (2) TMI 1936 - ITAT MUMBAI
Revision u/s 263 - company was not in existence on the date of order passed U/s 143(3) r.w.s. 147 - assessee company having been dissolved - HELD THAT:- Since the company was not in existence on the date of order passed U/s 143(3) r.w.s. 147 of the Act, hence the said order itself is null and void as there cannot be any assessment on non-existing entity. Therefore an order, which was a nullity in the eyes of law had no existence in the eyes of law and, therefore, the same could not have been revised by the Ld. PCIT u/s.263, thereby giving fresh life to the proceedings which had no legal existence in the eyes of law.
When original assessment order itself was null and void in the eyes of law as the same was passed upon non-existing entity, therefore, CIT could not have assumed jurisdiction under the law to make revision of a non est order and therefore, the impugned order passed u/s.263 by CIT is also nullity in the eyes of law.
We also found that fact of assessee company having been dissolved on 18/03/2011 was duly intimated to the AO during re-assessment proceedings as well as subsequently vide letter dated 10/12/2015. In this respect, Jurisdictional High Court in case of Jitendra Chandaralal Navlani [2016 (9) TMI 60 - BOMBAY HIGH COURT] held that there cannot be any re-assessment proceedings on non-existing company. - Decided in favour of assessee
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