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Showing 41 to 60 of 2034 Records
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2018 (3) TMI 1997 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - transactions of sale and purchase of certain agriculture lands - land was purchased and petitioner had 50% share in the land and his investment was which was not reflected in the petitioner's books of account or profit and loss account, thus unexplained investment to be taxed u/s 69 - HELD THAT:- Revenue cannot get away from the fact that the entire transaction was scrutinized by the Assessing Officer from very same angle of possible applicability of section 69 of the Act. When the Assessing Officer called upon the petitioner to explain this aspect, the petitioner had conveyed that the land was actually purchased by the firm in which, he is a partner and this detail was reflected in the firm's accounts as work in progress in the balance sheet. Upon being satisfied by such an explanation, the Assessing Officer made no addition in the order of assessment. It is true that he neither gave any reason for this action nor even referred to this transaction in the order of assessment. This however would not be of any importance, as long as the Assessing Officer noticed the transaction, raised queries and elicited response from the assessee during the original assessment.
Assessee had sold certain agriculture land at Village Kosmada at a declared sale consideration which was lesser than the stamp duty valuation, the difference was taxable in the hands of the petitioner as his capital gain in terms of section 50C - As seen that during the original assessment proceedings, Assessing Officer was acutely conscious of the fact that the petitioner had sold certain agriculture land situated in the village Kosmada at the sale consideration shown in the registered document was less than the valuation adopted by the Stamp Valuation Authority for registering the sale deed and that the possibility of application of section 50C of the Act would arise. He therefore, asked the petitioner to explain these aspects.
The petitioner's explanation was that he had no reason. Any amount in addition to what was actually stated in the sale deed, he was not aware about the stamp valuation procedure and lastly, he contended that he would invoke the provisions of section 50C(2) of the Act. Under such provision, an assessee disputing the stamp valuation of any sale deed could call upon the Assessing Officer to make reference to the DVO to ascertain the value of the capital asset. Be that as it may, the Assessing Officer did not make any additions in the order of assessment. Thus, silently accepting the assessee's representation it was thereafter not open for him to rake up the same issue through the process of reopening of assessment. Decided in favour of assessee.
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2018 (3) TMI 1996 - COMPETITION COMMISSION OF INDIA
Abuse of dominant position in the market for manufacture and sale of scooters in India - Contravention of the provisions of Sections 3 and 4 of Competition Act, 2002 - Restriction on the purchase of oils and consumables - Restriction on the purchase of accessories - Refusal to deal with any competing product - Restriction on Annual Maintenance Contract (AMC), Extended Warranty (EW) and Road Side Assistance (RSA) - Deliberate deduction from dealer’s account to fund advertising expenses - Compulsory off-loading of stock and slow moving models - Compulsory billing of merchandise - Restriction regarding the sale of batteries - Exclusive arrangements with financers and insurance partners - Re-sale price maintenance and discount control mechanism - Fixation of limits of geographic operation - Enforcing hub and spokes arrangement by negatively evaluating dealers - Termination of dealership and refusal to take back stock?
Whether the OP enjoys a dominant position in any relevant market.
HELD THAT:- The Commission is prima-facie satisfied that the restrictions imposed by the OP for sale of oil, lubricants and batteries are unfair and in contravention of Section 4(2) (a)(i) of the Act. Similarly, the condition for mandatory purchase of accessories, merchandise items, forceful billing of slow moving vehicles, compulsory deduction of advertising expenses, restrictions on insurance and finance options, making purchase of AMC, EW and RSA contingent upon purchase of booklets from Corporate India Warranties (I) Private Limited, termination of dealership without prior notice and refusal for stock buyback appear to be unfair and suggest prima-facie contravention of Section 4(2) (a)(i) of the Act. The Commission is also prima-facie satisfied that the Dealership Agreement has been concluded with the said supplementary obligations which, by their nature or commercial usage, have no connection with the subject of the contract. Thus, the Commission is of the prima-facie view that the conduct of the OP merits examination under Section 4(2) (d) of the Act - The Commission also notes that the mandatory requirement imposed by the OP on its dealers for purchase of oil and consumables, genuine accessories, AMC, EW and RSA, advertising services, merchandise items, batteries, insurance and finance options, from designated sources; resale price maintenance and discount control mechanism; allocation of any area or market for the disposal or sale of the goods; and exclusive supply agreement/refusal to deal; also appear to be in the nature of anti-competitive restraints covered under section 3(4) of the Act.
Prima-facie, a case of contravention of the provisions of Section 4 and 3(4) of the Act is made out against the OP. The Director General (DG) is directed to cause an investigation to be made into the matter and to complete the investigation within a period of 60 days from receipt of this order - Nothing stated in this order shall tantamount to expression of final opinion on the merits of the case and the DG shall conduct the investigation without being swayed in any manner whatsoever by the observations made herein.
The Secretary is directed to send a copy of this order along with the information and the documents filed therewith to the Office of the DG forthwith.
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2018 (3) TMI 1995 - ITAT BANGALORE
Rectification u/s 254 - validity of Assessment u/s 153C - six assessment years for which assessments/reassessments could be made u/s 153C - contention was raised by the revenue before Hon’ble Delhi high court that the relevant six assessment years would be the assessment years prior to the assessment year relevant to the previous year in which the search was conducted - HELD THAT:- In the present case, although the search has taken place on 25.10.2010 but the satisfaction note was recorded on 14.12.2012, (relevant to A. Y. 2013 – 14) by the AO of the assessee in his capacity of AO of this assessee and not in the capacity of the AO of the searched person although the AO is same of this assessee and of the searched person as noted by the tribunal in case of Shri Gali Janardan Reddy [2016 (11) TMI 530 - ITAT BANGALORE] and Smt. G. Lakshmi Aruna[2016 (10) TMI 1378 - ITAT BANGALORE]
Hence, relevant six years in these two cases for section 153A/153C are A. Y. 2007 – 08 to 2012 – 13. Hence, the present assessment year 2011 – 12 is also covered by section 153A/153C and therefore, there is no apparent mistake in these two tribunal orders.
Revenue raised ground that the issue of the period of six assessment years for the purpose of section 153C of the Act is a fresh ground raised by the learned AR of the assessee raised in the course of hearing of the M. P - We find that this is not a fresh ground raised by assessee in the course of hearing of the M. P. In fact, this is the ground raised by the revenue in these M. Ps. that the present year cannot be a part of six years covered u/s 153C and in reply thereto, assessee has placed reliance on the judgment of RRJ Securities Limited (2015 (11) TMI 19 - DELHI HIGH COURT] and it was contended that as per this judgment, the present assessment year 2011 – 12 is also covered by section 153A/153C and therefore, there is no apparent mistake in these two tribunal orders. Hence, this contention is also not rendering any help to the revenue.
Thus we hold that the present assessment year 2011 – 12 is also covered by section 153A/153C in the facts of the present case and therefore, there is no apparent mistake in these two tribunal orders.
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2018 (3) TMI 1994 - SUPREME COURT
Maintainability of suit - auction sale - principles of res-judicata - owners entitled for possession of the suit property - Plaintiffs suit is hit by Section 11 of Code of Civil Procedure as contended in the written statement or not? - entitlement for compensatory costs - HELD THAT:- The Trial Court and High Court have applied the settled legal position in reference to the decisions of this Court as noticed by the High Court in the impugned judgment. The principle of res judicata as enshrined in Section 11 of Code of Civil Procedure, is founded on the maxim "Nemo Debet Bis Vexari Pro Una Et Eadem Causa". In a recent decision in the case of NAGABHUSHANAMMAL (D) BY LRS. VERSUS C. CHANDIKESWARALINGAM [2016 (2) TMI 1285 - SUPREME COURT] this Court observed thus The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that the parties are not vexed twice over; vexatious litigation is put an end to and valuable time of the court is saved.
The principle of res judicata applies on all fours to the present case as has been rightly held by the Trial Court and affirmed by the High Court in the impugned judgment - Appeal dismissed.
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2018 (3) TMI 1993 - KERALA HIGH COURT
Dishonour of Cheque - vicarious liability of directors of an accused drawer Company u/s 141 of the Negotiable Instruments Act - period of limitation stipulated under Section 142 of NI Act - Service of statutory demand notice - HELD THAT:- A three Judge Bench of the Apex Court in the case in Aneeta Hada's case [[2012 (5) TMI 83 - SUPREME COURT]] has held that so long as the cheque is drawn from an account maintained by the Company the offence Section 138 of the N.I. Act is committed by the drawer of the Company and so the Company being the drawer is the principal offender in such an offence and the criminal complaint alleging offence under Section 138 could be maintained validly only by arraying the accused who is the drawer of the Company as an accused and though the other directors who were responsible for the affairs of the Company as conceived in Section 148 of the N.I. Act would also be arrayed as co-accused. Therefore, in view of the law declared subsequently by a three Judge Bench in Aneeta Hada's case [[2012 (5) TMI 83 - SUPREME COURT]], the view earlier taken by a two Judge Bench in Anil Hada's case [[1999 (11) TMI 808 - SUPREME COURT]] stood overruled.
The Apex Court in Kirshna Texport & Capital Markets Ltd.'s case [[2015 (6) TMI 344 - SUPREME COURT]] has held that statutory demand notice on the drawer Company is mandatory where the drawer of the dishonoured cheque is a Company and that in such cases, it is not necessary to additionally issue notices to the directors/officers of the Company so long as the statutory demand notice is served on the drawer Company, etc.
The revisional interdiction of this Court is imperative as the impugned judgments of the Courts below are illegal and ultra vires - the impugned judgments of both the Courts below will stand set aside and the conviction and sentence imposed on the petitioners will also stand set aside - the revision petitioners/accused No. 1 and accused No. 2 will stand acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act.
Criminal Revision Petition disposed off.
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2018 (3) TMI 1992 - ITAT MUMBAI
Income taxable in India - Fees for Technical Services(FTS) - consideration for the services in the nature of managerial, technical, or consultancy, and that same would be subject to tax under India-Singapore tax treaty provisions - assessee engaged Fractal Singapore(FS), its wholly owned subsidiary, for providing marketing and business development services to it and the assessee had entered in to an agreement with FS for providing Customer Coordination Services on its behalf, that the Singapore entity did not have the authority to conclude any agreements or make any commitments on behalf of the assessee.
HELD THAT:- We hold that requirement of Article 12 of India-Singapore tax treaty-i. e. making available of services in the nature of managerial, technical or consultancy-was not satisfied.
We find that in the case before us, the services availed by the assessee were in the nature of marketing, business development and customer co-ordination support services provided by FS and those services were rendered by employees of FS outside India, that the assessee was not enabled to independently perform such functions and had only consumed the services of FS, that the expertise and knowledge would still remain with FS.
Assessee was only reaping the rewards of the functions carried out by FS and was making payment for availing such services and not towards the skill of business development or marketing as such skills had not been made available to the assessee by the non-resident entity. So, we hold that payment made by it to FS was business income of FS, that FS did not have PE in India, that services were rendered outside India, that payment received by the FS was not taxable in India.
We further hold that as per the law prevailing at the time in force no income was arising in India by virtue of these services, so, the provisions of Section 195 for withholding of taxes on such remittance were not applicable. In the case of Virola International [2014 (2) TMI 653 - ITAT AGRA] Tribunal has held that a retrospective amendment in law would not change the tax withholding liabilities with a retrospective effect, that the withholding obligations from payments made to non-residents would depend on the law as it stood on the date obligation to withhold tax arose.
We hold that SG Business Development expenses paid to FS, amounting to Rs. 1. 18 crores, was neither taxable in India as FTS under Article 12 of India-Singapore tax treaty nor was it taxable as Business Income under Article 7 of India-Singapore DTAA, that there was no liability of the assessee to withhold taxes on such payments made to FS and it was not a disallowable expenditure u/s. 40(a)(i) r. w. s. 195 of the Act. First two grounds of appeal are decided in favour of the assessee.
Disallowance of business expenses - Scope of Circular 23 of 1969 dated 23/07/1969 - AR argued that the Circular was effective during the year under consideration, that withdrawal of the circular at a later date could not be held to be retrospective, that the benefit of the provisions laid down by the circular were available to the assessee, that the income of FS was not taxable in India, that no tax was required to be deducted on the payment made by the assessee - HELD THAT:- We find that identical issue was deliberated upon and decided by the honorable Delhi High Court in the case of Angelique International Ltd. [2013 (10) TMI 17 - DELHI HIGH COURT] wherein it was held that withdrawal of the circular and 2009 could not be held to be retrospective and could not be classified as explaining or clarifying the earlier circular issued in 1969, that the circular was in force till it was withdrawn. Respectfully following the above judgment, we decide GOA 3 in favour of the assessee.
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2018 (3) TMI 1991 - BOMBAY HIGH COURT
Income taxable in India - Liability to tax on interest - Reimbursement of expenses - Data processing fees paid by the assessee to its overseas branch at Singapore is in the nature of interest - HELD THAT:- The question as proposed has became academic in view of the fact that the alternative submission made by the respondent before the authorities was that the payment made to its overseas branch at Singapore in respect of the data processing fees was really in the nature of reimbursement. The impugned order of the Tribunal has on facts found that the payment made by the respondent assessee to it overseas branch at Singapore was in the nature of reimbursement of expenses. The aforesaid findings of fact by the Tribunal is not the subject matter for challenge before us by the Revenue. It is also an agreed position between the Counsel that the issue of reimbursement of expenses is now in similar circumstances been held to be not chargeable to tax A.P. Moller Maersk A/S [2017 (2) TMI 993 - SUPREME COURT - No substantial question of law.
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2018 (3) TMI 1990 - ITAT BANGALORE
Assessment u/s 144C - DRP did not admit the additional evidence filed - Whether DRP violates the principles of judicial discipline as the binding nature of the orders of the higher appellate authorities have been totally ignored? - HELD THAT:- Before the DRP the assessee has filed additional evidence on 29.08.2017 but it was not admitted by the DRP having observed that these evidence should have been filed before the TPO. Without looking to the additional evidence, the DRP has adjudicated the issues and confirmed the order of the TPO. In the earlier years also, the DRP did not admit the additional evidence and confirmed the order of the AO and the Tribunal in all these years set aside the order of the DRP and restored the matter to the AO/TPO to readjudicate the issues raised before the Tribunal afresh, after affording opportunity of being heard to the assessee.
We are of the view that let this matter also go back to the AO/TPO to readjudicate the issues raised before us afresh, after affording opportunity of being heard to the assessee. Appeal of the assessee stands allowed for statistical purposes.
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2018 (3) TMI 1989 - ITAT DELHI
TP Adjustment - determination of the arm’s length price (ALP) of the international transaction of ‘Payment of application cost’ at nil - HELD THAT:- In view of the fact that the payment of application cost is a separate international transaction unrelated with royalty, the next question is the determination of its ALP. The TPO as well as the DRP have taken Nil ALP of the international transaction of payment of `Application cost’ under the CUP method for the reason adduced in their respective orders, which has been found above to be not sustainable.
In such a situation, a separate benchmarking of this international transaction is required. However, we find that no data for determining the ALP of payment of application cost is available, nor has it been discussed by the TPO - we are of the considered opinion that the ends of justice would meet adequately if the impugned order on this score is set aside and the matter is remitted to the file of AO/TPO for determining the ALP of the international transaction of payment of `Application cost' afresh as per law after allowing a reasonable opportunity of being heard to the assessee. Discussion made infra holds good here as well, which justifies restoration of the issue.
Addition for receipt of services - TPO proposed the transfer pricing adjustment equal to the stated value of three international transaction at Rs.1.22 crore and odd by holding that no benefit was received by the assessee as a result of availing the services or these amounted to duplication of services and hence no payment on this score was warranted - HELD THAT:- AO in his draft order has taken the ALP of the international transaction at Nil on the basis of recommendation of the TPO without carrying out any independent investigation in terms of the deductibility or otherwise of such payment in terms of section 37(1) of the Act. This addition has been made by the AO in his final assessment order giving effect to the direction given by the DRP and not by invoking section 37(1) of the Act. As per the ratio decidendi of Cushman & Wakefield India (P.) Ltd. [2014 (5) TMI 897 - DELHI HIGH COURT] TPO was required to simply determine the ALP of the international transaction, unconcerned with the fact, if any benefit accrued to the assessee and thereafter, it was for the AO to decide the deductibility of this amount u/s 37(1) - As the TPO in the instant case initially determined Nil ALP by holding that no benefit accrued to the assessee etc. and the AO made the addition without examining the applicability of section 37(1) of the Act, we find the actions of the AO/TPO running in contradiction to the ratio laid down in Cushman & Wakefield (supra). Following this decision, we remit the matter to the file of AO/TPO for deciding it in conformity with the law laid down by the Hon'ble jurisdictional High Court in this case.
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2018 (3) TMI 1988 - BOMBAY HIGH COURT
Correction in order - On page-1 in para-2 in the last line “in the nature of income” be substituted with “similar to interest” and on page-2 at para-3 in the last sentence thereof, the words “not” be added after the words “similar circumstances been held that” and before the words “to be chargeable to tax”.
Office to carry out the aforesaid corrections and the order be read accordingly.
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2018 (3) TMI 1987 - BOMBAY HIGH COURT
Income deemed to accrue or arise in India - Liability to tax in India - Payment of data processing fees paid by the assessee to its overseas branch at Singapore is in the nature of income - HELD THAT:- The question as proposed has became academic in view of the fact that the alternative submission made by the respondent before the authorities was that the payment made to its overseas branch at Singapore in respect of the data processing fees was really in the nature of reimbursement.
The impugned order of the Tribunal has on facts found that the payment made by the respondent assessee to it overseas branch at Singapore was in the nature of reimbursement of expenses. The aforesaid findings of fact by the Tribunal is not the subject matter for challenge before us by the Revenue. It is also an agreed position between the Counsel that the issue of reimbursement of expenses is now in similar circumstances been held that to be chargeable to tax by the Apex Court in Director of Income Tax Vs. A.P. Moller Maersk A/S [2017 (2) TMI 993 - SUPREME COURT].
Question of law as proposed being academic, does not give rise to any substantial question of law. Therefore, not entertained.
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2018 (3) TMI 1986 - ITAT DELHI
TP adjustment proposed with respect to the international transactions of export of Agricultural commodities [ Agri Based Commodities] - TPO rejected the CUP method holding that when the data was produced before him it was seen that CUP data was actually the quotations from 3rd parties and not the price charged or paid for property transferred or services provided in a comparable uncontrolled transactions as per the intent of rule 10 B - HELD THAT:- We agree with the views of the Transfer Pricing and Ld. dispute resolution panel that adequate and reliable data is a necessary ingredient of selecting any method for comparability analysis for determining arm‟s length price of an international transaction. However without examination of the evidences submitted by the assessee it is premature to state that information supplied by the assessee is not reliable, it lacks credibility or it is not enough for determination of arm‟s length price of the international transaction. We do not find any mention by the ld TPO or By LD DRP any reference of examination of these documents and then rejecting it with cogent reasons that they are not reliable, authentic or inadequate. With respect to the applicability of the quotations for CUP method, Hon‟ble Gujarat High Court in case of CIT versus Adani Wilmer Ltd. [2014 (4) TMI 563 - GUJARAT HIGH COURT] interpreting rule 10 D
In the present case the Ld. Transfer Pricing Officer has not examined the evidences submitted by the assessee. Therefore, in the interest of Justice , we set aside the issue of determination of arm‟s length price of the international transactions of export of agricultural commodities to the associated enterprise back to the file of the Ld. Transfer Pricing Officer with a direction to examine the details furnished by the assessee in the form of various quotations of agricultural commodity brokers as well as other entities with respect to their authenticity, adequacy and reliability. If The Ld. Transfer Pricing Officer finds those evidences as authentic, reliable and adequate information for the purpose of determination of arm‟s length price then he is directed to adopt the CUP method for comparability analysis. The assessee is also directed to support the evidences before the Ld. Transfer Pricing Officer and to show their reliability, authenticity, and adequacy for supporting the international transaction of export of commodities. In view of this ground No. 2.5 – 2.8 of the appeal of the assessee is set aside to the file of the Ld. TPO to decide the issue afresh in accordance with above direction. Accordingly, those grounds are allowed with above direction.
Adjustment made to the international transactions entered into by the assessee with respect to its business support services segment - Comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected.
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2018 (3) TMI 1985 - ITAT CHENNAI
Disallowance of employees’ contribution towards Provident Fund - HELD THAT:- CIT(Appeals) allowed the claim of the assessee by placing reliance on the judgment of Madras High Court in CIT v. Industrial Security and Intelligence Pvt. Ltd. [2015 (7) TMI 1063 - MADRAS HIGH COURT] - This Tribunal is of the considered opinion that the judgment of Madras High Court is binding on all the authorities in the State. Therefore, the CIT(Appeals) has rightly followed the judgment of Madras High Court and allowed the claim of the assessee. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. Appeal filed by the Revenue stands dismissed.
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2018 (3) TMI 1984 - ITAT PUNE
Deduction u/s 80IA(4) - claim made u/s 153A when there was no such claim made in the original return of income of the assessee for the year under consideration - no audit report in form 10CCB as mandated under section 80IA(7) was filed with the original return - whether the assessee was developing infrastructure facility enabling it to claim the aforesaid deduction under section 80IA(4)? - AO denied the assessee aforesaid deduction under section 80IA(4) of the Act on the ground that the work was awarded by the Government of Maharashtra, so the assessee was a contractor and not entitled to the said claim - HELD THAT:- The assessee claims that it was engaged in executing Infra projects, hence was entitled to claim the aforesaid deduction under section 80IA(4) of the Act. The CIT(A) has elaborately discussed the issue and allowed the claim of deduction under section 80IA(4) of the Act holding the assessee to be eligible to claim the aforesaid deduction. The Revenue has not been able to controvert the findings of CIT(A) in this regard. Tribunal in ACIT Vs. Mahalaxmi Infraprojects Ltd. [2018 (1) TMI 1103 - ITAT PUNE] had allowed the aforesaid claim of deduction under section 80IA(4) of the Act in the case of assessee engaged in executing infrastructure projects. Following the same line of reasoning, we hold the assessee to be eligible to claim the aforesaid deduction under section 80IA(4) of the Act.
Claiming the deduction u/s 80IA(4) on the additional income offered by the assessee on account of wages - Applying the ratio laid down in CIT Vs. (1) Continental Warehousing Corporation (Nhava Sheva) Ltd. and All Cargo Global Logistics Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] and the ratio laid down in Shri Gajendra D. Pawar [2017 (10) TMI 1299 - ITAT PUNE] we hold that the assessee is not entitled to the claim of deduction under section 80IA(4) of the Act both on original income and on additional income offered, even if the assessee in principle is entitled to claim the aforesaid deduction.
We hold that in the years, where the assessment had not been abated, the assessee could not make any fresh claim of deduction under section 80IA(4) of the Act, even if in principle the assessee was entitled to claim the said deduction. We further hold that even on additional income so offered, the assessee cannot make claim of deduction under section 80IA(4) of the Act in the non-abated assessments relating to assessment years 2006-07 to 2009-10. Hence, the additional income offered for the years is to be assessed in the hands of assessee, in addition to the original income offered in the original return of income filed by the assessee.
Assessment years 2010-11 to 2012-13 - Assessee is entitled to claim the deduction under section 80IA(4) of the Act on additional income offered in the abated assessment proceedings i.e. assessment years 2010-11 to 2012-13. Accordingly, the grounds of appeal raised by Revenue in assessment years 2006-07 to 2009-10 are allowed and the grounds of appeal raised by Revenue relating to assessment years 2010-11 to 2012-13 are dismissed.
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2018 (3) TMI 1983 - ITAT SURAT
Principle of mutuality - activities of the assessee company for treatment of appellant and disposal of waste - HELD THAT:- The basic object of the company is to give treatment of effluent in the form of liquid and solid to prevent the pollution in Vapi Industrial area on the suggestion of the Hon'ble Gujarat High Court. The company is limited by guarantee. There is no share capital of the members. Only subscription is made on the basis of wastage delivered by their plants. No dividend has been distributed by the company so far. The object mentioned in the main and ancillary object are as per the line of the company act but it is not for profit earning. The Board of Director has to pass resolution to allow the outsider to get the services of the company. No director is outside from the members of Vapi Industrial Association. On the basis of decision of Sports Club of Gujarat [1987 (10) TMI 21 - GUJARAT HIGH COURT] the assessee also has declared the interest income in return as taxable on fixed deposit with bank however, it was admitted that no outsider had provided the services of the company but the AO is directed to verify the claim of the assessee whether any outsider is getting services or not from non-members, has to be taxed accordingly after giving full opportunity to the assessee. The assessee is also directed to cooperate with the A.O. and give all the evidences as required by the A.O. for his satisfaction. The revenue appeal on allowance of depreciation by the CIT(A) has no bearing as the principle of mutuality has been accepted by this Court.
In the light of findings given by the Tribunal in the appellants’ own case [2012 (4) TMI 813 - ITAT AHMEDABAD] we find that the issue is covered against the Revenue and we have no reason to deviate from the said finding recorded by the co-ordinate bench of the Tribunal. Accordingly, following the same, we hold that the principle of mutuality has accepted by the Tribunal on earlier years is also hold good in the assessment under consideration. Therefore, the same is allowed. However, the Assessing Officer is directed to verify the claim of assessee whether any outsider is getting services or not from non-members which has to be taxed accordingly after giving full opportunity to the assessee. So far allowances of depreciation and prior period expenses are concern, as we have held the principle of mutuality in the case of assessee, therefore, the allowances of depreciation and prior period expenses by Assessing Officer has no bearing as the principle of mutuality has been accepted by the Tribunal. In the result, appeal of the assessee is set aside and disposed of for statistical purposes.
Charging of interest on enhanced income computed for charging interest u/s.234B - HELD THAT:- Interest u/s.234B of the Act charged on enhanced computation of income is no longer survived. Hence, the CIT(A) was rightly deleted the charge of interest u/s.234B of the Act. Therefore, we do not find infirmity in the order of the CIT(A), hence this ground of appeal is dismissed. However, the Assessing Officer will charge consequential interest u/s.234B of the Act after considering the income of the assessee to give effect to the appellate order - Accordingly, this ground is disposed of in the terms as indicated above.
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2018 (3) TMI 1982 - SUPREME COURT
Prayer for exemption from personal appearance Under Section 205 Code of Criminal Procedure - HELD THAT:- The High Court has noticed that the Accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the Accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the Accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself - The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the Accused before the court.
The High Court in its order observed that there is another provision that is Section 317 Code of Criminal Procedure which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the Accused was Under Section 317 Code of Criminal Procedure and not Under Section 205 Code of Criminal Procedure Section 317 Code of Criminal Procedure which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer Under Section 317 Code of Criminal Procedure as per the view taken by the High Court - there is no impediment in the power of the Magistrate to consider the application of Accused for their exemption from personal appearance.
Sufficient grounds were made out for granting exemption from personal appearance of the Appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate Under Section 205 Sub-section (2) Code of Criminal Procedure is empowered at any stage to direct personal appearance of the Accused hence as and when personal appearance of the Accused is required the Magistrate is empowered to issue necessary orders if so decides - Appeal allowed.
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2018 (3) TMI 1981 - ITAT SURAT
Addition u/s.201(1) r.w.s. 201(1A) - period of limitation - HELD THAT:- Limitation in initiating proceedings u/s.201(1) of the Act would therefore, be governed by section 201(3)(i) of the Act as it stood at the relevant time wherein it provided for a period of limitation of two years from the end of the Financial Year in which the statement was filed as referred under section 200. Their limitation for initiating action u/s.201(1) for the statement filed on 04.09.2010 has elapsed on 31.03.2013 whereas the time limitation for initiating action u/s.201(1) for the statement filed during period from 23.10.2010 to 15.05.2012 was elapsed on 31.03.2014.
We may also observe that the amendment in section 201 of the Act as amended by Finance Act No.2 (2014) came into force w.e.f. 20.05.2012.
Therefore, the impugned notice and order u/s.201(1) in respect of the appeals under consideration have been clearly barred by limitation, therefore, same cannot be sustained in the light of the decision in case of M/s. Tata Tele Services vs. Union of India [2016 (2) TMI 414 - GUJARAT HIGH COURT] and M/s. Troikaa Pharmaceuticals Ltd. Vs. Union of India 2016 (3) TMI 285 - GUJARAT HIGH COURT].
It may also be noted that amendment made to section 201(3) by Finance Act 2014 is prospective in nature and is applicable from 01.10.2014 wherein, the time to pass order u/s 201(1) was increased to seven years from the end of the financial year in which the payment is made or credit is given. Therefore, the said amendment is not applicable for those assessment years for which time limit to pass the order u/s.201(1) is expired 01.10.2014.
Since in the case of assessee, the time limit for passing the order u/s.201(1) of the Act has expired on 31.03.2013 and 31.02.2014 respectively i.e. 01.10.2014. Therefore, the impugned order under appeal is clearly barred by limitation. Accordingly, the order passed u/s.201(1A) of the Act for the impugned assessment years under consideration are therefore quashed on this legal ground.
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2018 (3) TMI 1980 - GUJARAT HIGH COURT
Dishonor of Cheque - it is submitted that on the due date, the debt was of a lesser amount then the amount of the cheques which were dishonoured - whether the criminal proceedings should be quashed? - section 138 of the NI Act.
What the expression "amount of money‟ means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of the part payment made by him, after issuing but before the presentation of cheque in question?
HELD THAT:- The drawer of a cheque may make payment of a part of the amount of the cheque only with a view to circumvent and get out of his liability under Section 138 of Negotiable Instrument Act. But, this can easily be avoided by payee of the cheque, either by taking the cheque of the reduced amount from the drawer or by making an endorsement on the cheque acknowledging the part payment received by him and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instrument Act specifically provides for an endorsement on a Negotiable Instrument, in case of part-payment and the instrument can thereafter be negotiated for the balance amount - it is not open to the complainant to take the plea that the drawer of the cheque could have escaped the liability by paying the actual amount due from him to the payee of the cheque. In order to make the notice legal and valid, it must necessarily specify the principal amount payable to the payee of the cheque and the principal amount demanded from the drawer of the cheque should not be more than the actual amount payable by him though addition of some other demands in the notice by itself would not render such a notice illegal or invalid.
In the decisions, R. Gopikuttan Pillai [2003 (3) TMI 771 - KERALA HIGH COURT] and M/s. Thekkan & Co. [2003 (6) TMI 473 - KERALA HIGH COURT] the court took the view that even if the accused has made part payment and the complainant has acknowledged the same, the same will not be sufficient for the accused to exonerate himself from his liability under section 138 of the N.I. Act. To put it in other words, an accused who has made the part payment, will not be entitled to raise the same as a defence in a prosecution under section 138 of the Act.
The criminal proceedings initiated by the complainant against the writ applicants deserve to be quashed - Application allowed.
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2018 (3) TMI 1979 - ITAT SURAT
Deduction u/s. 80IB (10) - Denial of deduction as assessee treated as contractor of the unit owner - there were two separate agreements for sale of plot and construction on the plot and there was no sale of constructed house and thus, assessee had merely acted as a contractor of the unit owner in respect of construction of house and therefore, not entitled to deduction u/s. 80IB(10) of the Act because the sub section does not apply to a developer of a plotting scheme or a contractor - HELD THAT:- In the present case, the assessee by cutting land into independent plots on different sized sold the land thereafter by entering into an independent construction agreement with individual plot owners undertook construction work. AO held that after selling plots the assessee seized to having a status of developer of the project and therefore, became ineligible for claiming deduction u/s. 80IB(10) of the Act.
But these contentions of the AO does not stand on the merits in view of the decisions of Hon’ble Jurisdictional High Court as respectfully noted above. The conclusion drawn by the ld. CIT(A) is quite correct and we are unable to see any perversity or any other valid reason to interfere with the same. Thus, the same is confirmed. Accordingly, sole ground of the Revenue being devoid of merits is dismissed.
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2018 (3) TMI 1978 - ALLAHABAD HIGH COURT
Acceptance of Form C and issue Form E-1 to the petitioner for the goods distained from one State to another - grant of benefit of concessional rate of tax to the petitioner after accepting Form C on record - HELD THAT:- The fact admitted to both the sides is that the petitioner had purchased coal from the respondent no.2 through an Eauction. The terms and conditions of the E-auction has been placed on record by way of a counter affidavit annexed as CA- 1 to the counter affidavit. The scheme contemplates that if any dispute arises out of the E-auction, the same will be subject-matter of the Arbitration.
Even otherwise, the petitioner is virtually seeking the enforcement of a contract through a writ petition and is raising claim for refund of money. It is open to the petitioner to take recourse to the other legal remedies available to him. The writ petition would not lie under such a situation under Article 226 of the Constitution of India.
Petition dismissed.
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