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Showing 121 to 140 of 1976 Records
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2018 (4) TMI 1860 - ITAT CHENNAI
Eligibility for exemption claimed u/s 10(21) - CIT- A allowed deduction as relying on assessee's own case - HELD THAT:- CIT(Appeals) has followed the order of this Tribunal in the assessee's own case for the assessment year 1997-98 in which this Tribunal found that the assessee is eligible for exemption under Section 10(21) of the Act. This order of the Tribunal for the assessment year 1997-98 was subsequently followed by this Tribunal in the assessee's own case for assessment years 1998-99 and 2000-01.
Even though an appeal was said to be filed before the High Court, the Ld.counsel submitted that the appeal was not numbered till date by the High Court and it was returned for rectification of certain errors - this Tribunal is of the considered opinion that when the co-ordinate Bench of this Tribunal for assessment years 1997-98, 1998-99 and 2000-01 found that the assessee is eligible for exemption under Section 10(21) of the Act, this Tribunal do not find any reason to interfere with the order of the lower authority - Decided in favour of assessee.
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2018 (4) TMI 1859 - JHARKHAND HIGH COURT
Premature termination of lease deed - it is alleged that the lease area of the petitioner falls within the protected forest as per notification No. C/P.F.-10166/52-19R dated 2.1.1953 - petitioner has primarily challenged the action of the respondents including the impugned letter/order contained in memo No. 734 dated 27.4.2016 on the ground of non-observance of principles of natural justice - specific case of the petitioner is that purported decision taken by the respondent No. 2 vide order dated 26.4.2016 for termination of its mining lease has not been communicated to it.
HELD THAT:- On perusal of the impugned letter dated 27.4.2016, it appears that the respondent No. 4 while referring the order passed by the respondent No. 2 informed inter alia that the mining lease of the petitioner has been cancelled with immediate effect. The specific case of the petitioner is that purported decision taken by the respondent No. 2 vide order dated 26.4.2016 for termination of its mining lease has not been communicated to it. In response to the said averment made in paragraph-16 of the writ petition, it has been stated in paragraph 20 of the second counter affidavit dated 11.11.2016 filed on behalf of the respondents that after cancellation of the lease in question, the respondent No. 4 communicated the same through letter contained in memo No. 734 dated 27.4.2016. The said statement cannot be read as if a copy of the order passed by the respondent No. 2 dated 26.4.2016 was in fact communicated to the petitioner. Even the impugned letter dated 27.4.2016 issued by the respondent No. 4 does not disclose any consideration of the reply submitted by the petitioner in response to the notice dated 12.1.2016 issued by the said respondent - It is well settled that if any decision is taken by any administration/quasi-judicial authority against a person adversely affecting his/her rights, the observance of principles of natural justice is not mere a formality. The objection/reply submitted by the person concerned in pursuance of the notice issued by the authorities is to be properly considered/appreciated so as to reach a logical conclusion in the decision making process.
The impugned letter dated 27.4.2016 only discloses that since the leased land, falls under the notified forest, the mining lease of the petitioner has been ordered to be cancelled by the respondent No. 2 vide order dated 26.4.2016. The reply of the petitioner submitted pursuant to the notice dated 12.1.2016 (Annexure-4/1. to the writ petition) discloses that the petitioner elaborately contested against the applicability of the notification dated 2.1.1953 issued under Section 29 of the Indian Forest Act, 1927 over the leased land in addition to taking other factual plea. The Non-consideration of the reply submitted by the petitioner before the respondent authorities is violative of" well settled principles of natural justice.
The respondent No. 2 is directed to pass a fresh speaking and reasoned order in this regard after affording due opportunity of hearing to the representative of the petitioner, preferably within a period of 12 (twelve) weeks from the date of receipt/production of a copy of this order - Petition disposed off.
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2018 (4) TMI 1858 - DELHI HIGH COURT
Disallowance on account of the difference between purchase price of the Stock Appreciation Rights (SAR) and the sale price of such shares at the time of the exercise by the employees - HELD THAT:- The Scheme is analogous to the Employee stock appreciation rights scheme 2007 and is covered in the favour of the assessee by the ruling of this Court in the case of ‘Commissioner of Income Tax vs. New Delhi Television Limited’ [2017 (9) TMI 118 - DELHI HIGH COURT] which had in turn relied on a previous judgment of Madras High Court in the case of ‘Commissioner of Income Tax-III, Chennai vs. M/s PVP Ventures Limited, T. Nagar, Chennai [2012 (7) TMI 696 - MADRAS HIGH COURT]. Consequently, no question of law arises on this aspect.
Disallowance u/s 14-A - HELD THAT:- ITAT here ruled that since no exempt income was earned during the year, disallowance was impermissible, relying upon the judgment of this Court in the case of ‘Cheminvest Ltd. Vs CIT-VI’, [2015 (9) TMI 238 - DELHI HIGH COURT]. For this reason, this question of law too does not arise.
Disallowance under Section 40 (a) (ia) - Revenue authorities, including the CIT (A), disallowed certain amounts contending that the failure to deduct tax at source from the amount paid to other entities authorized the disallowance - HELD THAT:- ITAT noted that the amounts were paid by way of reimbursement and that there was no finding to the effect that the reimbursement contained any income element. On account of these findings the court is of the opinion that no question of law arises on this aspect.
Admit:
“Did the ITAT fall into error in permitting the assessee expenditure claimed by it for the period April-2007 to June-2007 (₹ 93,89,552/-) having regard to the circumstance that it commences business from July-2007?”
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2018 (4) TMI 1857 - ITAT BANGALORE
Deduction u/s 80IB - Whether condition specified u/s 80IB(10) of I T Act that the built-up area of each flat should be less than 1500 Sqft. to claim the deduction u/s 80IB of the I T Act? - CIT-A allowed deduction - whether CIT(Appeals) while adjudicating the issue has followed the order of the Tribunal in which identical issue has been adjudicated following the judgment of CIT v. SJR Builders [2012 (3) TMI 615 - KARNATAKA HIGH COURT] - HELD THAT:- On the issue of proportional allowability deduction u/s 80IB(10) being in favour of the appellant, it is clear that, the deduction cannot be denied in its entirety. The Assessee on the other hand has submitted that its claim u/s 80IB, during the year under consideration, was restricted only to the units falling below the threshold of 1500 sqft. The AO has not disputed this position of the Assessee. In the facts and circumstances of the case the Assessee's appeal is allowed.
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2018 (4) TMI 1856 - ALLAHABAD HIGH COURT
Levy of penalty under Section 129(3) of the UPGST Act, 2017 - seizure and detention of goods - HELD THAT:- On deposit of tax imposed by the respondent- Mobile Squad Unit, the goods were released. However, the penalty proceeding continued and the penalty order has been passed and the authority has directed to deposit a sum of ₹ 8,14,260/- equivalent to the tax. This penalty order dated 7th February, 2018 has been challenged by means of an appeal before the Additional Commissioner, under Section 107 of the Act. The appeal has been dismissed. Till date, the tribunal has not been constituted, hence the petitioner has no way but to challenge the impugned penalty order by means of present writ petition.
Learned Special Counsel appearing for the State and learned counsel appearing for the respondent nos.1 and 6 may file counter affidavit within a month. Rejoinder affidavit, if any, may be filed within ten days thereafter - List immediately after expiry of the aforesaid period.
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2018 (4) TMI 1855 - SUPREME COURT
Lodging of FIR - whether the death of Judge Loya was due to natural causes, or as alleged by the Petitioners (relying on the contents of news items or material which has come before the Court), there are circumstances which raise a reasonable suspicion about an unnatural death, warranting an inquiry or investigation on the directions of this Court? - should the contents of a news Article by itself be made the basis to lodge an FIR Under Section 154 of the Code of Criminal Procedure 1973?
HELD THAT:- The point of the matter is that facts have emerged from the record which indicate that a carefully orchestrated attempt has been made during the course of these hearings on behalf of the Centre for Public Interest Litigation to create evidence to cast a doubt on the circumstances leading to the death of Judge Loya. In their practice before this Court, Counsel are expected to assist the court with a sense of objectivity in aid of justice. What has happened here is that Mr. Prashant Bhushan has adopted a dual mantle, assuming the character of a counsel for the intervenor as well as an individual personally interested on behalf of the intervening organisation of which he is a member. He has gone to the length of personally collecting evidence to somehow bolster the case. The manner in which the opinion of Dr Kaul was obtained on the basis of a laconic questionnaire leaves much to be desired and is a singular reflection on the lack of objectivity which is to be expected from counsel appearing before this Court. This has bordered on an attempt to misrepresent the facts and mislead the court.
The insinuation is against the judges of the Bombay High Court at Nagpur for having quashed a criminal case in which the present Chief Minister was involved. We are not called upon to evaluate the merits of the decision, save and except to note that the High Court in quashing the proceedings placed reliance on a decision of this Court and had noted that the dispute was admittedly private in nature where no element of public law was involved. The attempt of the Petitioners is to create prejudice and to malign the dignity of the judges, particularly of Justice BR Gavai. Copies of the criminal application and of the order of the Bombay High Court form part of the same compilation in which is also annexed a copy of the Article published in the Indian Express of 27 November 2017, referring to the statements of Justice Gavai and Justice Shukre. This is another instance in the course of the hearing of the present case where a matter extraneous to the subject of the inquiry before the court has been sought to be relied upon to somehow sensationalise the case. What is worse is the manner in which wholly unfounded aspersions have been cast on the judges of the Bombay High Court following a decision which has been taken in the judicial capacity. This constitutes a serious attempt to scandalise the court and obstruct the course of justice.
The misuse of public interest litigation is a serious matter of concern for the judicial process. Both this Court and the High Courts are flooded with litigation and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. This Court has a long list of pending cases where the personal liberty of citizens is involved. Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice. It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation - Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. Courts resolve disputes about legal rights and entitlements. Courts protect the Rule of law. There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.
The present case is indeed a case in point. Repeatedly, counsel for the Petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the Rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any title of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This Court would be failing in its duty if it were not to stand by them.
There is absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry - Petition dismissed.
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2018 (4) TMI 1854 - ITAT MUMBAI
Disallowance u/s 80P(2)(d) - interest earned by the assessee society from cooperative banks - HELD THAT:- On identical issue in the case of Income Tax Officer vs M/s Presidency Co-operative Housing Society Ltd. [2018 (3) TMI 309 - ITAT MUMBAI],LANDS END CO-OPERATIVE HOUSING SOCIETY LTD [2016 (2) TMI 620 - ITAT MUMBAI] AND DARBHANGA MANSION CHS LTD. [2014 (12) TMI 1112 - BOMBAY HIGH COURT] decided identical issue in favour of the assessee by holding that the deduction in respect of income cooperative society by way of interest from its investment with other co-operative society, the assessee is entitle to deduction in respect of interest received/derived by it on deposit with cooperative bank - Also see M/S. THE TOTGARS´ COOPERATIVE SALE SOCIETY LIMITED [2010 (2) TMI 3 - SUPREME COURT] - Decided in favour of assessee.
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2018 (4) TMI 1853 - ITAT DELHI
Correct head of income - interest income on FDRs for short term duration - income from other sources or capital receipt - HELD THAT:- Respectfully applying the ratio of the judgment of Indian Oil Panipat Power Consortium Ltd. [2009 (2) TMI 32 - DELHI HIGH COURT] we hold that since the business of the assessee had not commenced, the interest received in the period prior to the commencement of business was in the nature of capital receipt and was required to be set off against the preoperative expenses. Therefore, the impugned interest income is a capital receipt not chargeable to tax during the year under consideration. Accordingly, we allow the grounds of appeal raised by the assessee.
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2018 (4) TMI 1852 - ITAT PUNE
Eligibility of deduction u/s 80IB - total area of the land on which the project was undertaken is less than the one acre of land - assessee argued that he had set apart certain portion of land for making DP road as per municipality order - HELD THAT:- For getting the sanction for development of housing project on the plot of land, which measured to 4077.21 sq.mtrs. by actual measurements, then the said sanction would be accorded where the assessee gives up area for DP road measuring 218.49 sq.mtrs. The said was the condition for getting permission to develop the housing project at the said place. The learned Authorized Representative for the assessee before us has pointed out that against the said area left for DP road, the assessee was entitled to increased FSI. In other words, the assessee gained from leaving the land for DP road.
The Courts have time and again held that the condition which needs to be fulfilled for claiming the deduction, as per clause (b) is the actual measurement of plot of land on the date of start of development. The assessee had in the present set of facts, purchased the plot of land, which measured slightly more than one acre at 4077.21 sq.mtrs.
Basic condition of fulfillment of having plot area of one acre stands fulfilled by the assessee. The said area had to be set apart only as per the requirements of different rules under the Municipality Act, but the same does not lead to the conclusion that the assessee had less than one acre of plot of land area for its development. The gross total area was more than one acre and hence, the assessee was entitled to claim the deduction under section 80IB(10) of the Act irrespective of the fact that the assessee had set apart certain portion of land for making DP road.
There is no merit in the orders of authorities below in denying the claim of deduction under section 80IB(10) of the Act. Accordingly, the Assessing Officer is directed to allow the deduction under section 80IB(10) of the Act as the assessee had fulfilled the condition of holding plot of land, having area of more than one acre
The finding of CIT(A) that the original plot size itself in the hands of assessee was less than one acre was not correct, in view of actual measurements of land as per triangulation method, what had to be seen as the actual measurement of plot of land and not the plot size mentioned in local language of 40R. The DVO had also referred to same area of 4077.21 sq.mtrs. Reversing the order of CIT(A), claim of assessee of 80IB(10) deduction is allowed. - Decided in favour of assessee.
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2018 (4) TMI 1851 - NATIONAL COMPANY LAW TRIBUNAL — MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Whether entering into consent terms over an operational debt for dismissal of earlier company petition will change the nature of the claim that has been made by the petitioner before this Bench or not? - HELD THAT:- It is a fact that this petitioner filed a company petition stating that it has rendered services to the corporate debtor for the construction of multi-purpose berth Nos. 1 and 2 at Dighi, Maharashtra, under the contract dated November 1, 2008. On having the services rendered and the corporate debtor having not paid, when the petitioner's side ready to argue the case, the corporate debtor entered into consent terms with the petitioner on March 29, 2017 agreeing as mentioned before by stating that the petitioner is entitled to file fresh company petition under the IB Code in the event payment has not been made as mentioned in the consent terms and also by saying that the arbitration proceedings pending before the hon'ble High Court would be treated as withdrawn in view of the consent terms arrived between the parties. For these consent terms have been entered into comprehensively dealing not only with the payments in relation to berth Nos. 1 and 2 at Dighi but also in respect to berth No. 3 at Agardanda, Maharashtra, a clause has been inserted that the arbitration application filed by the petitioner in respect to berth No. 3 would be treated as withdrawn by saying that arbitration proceedings stood as withdrawn in view of the consent terms arrived between the parties in respect to berth No. 3 as well.
It is vividly clear that whatever disputes either in relation to the services given by the petitioner or in relation to any of the arbitration proceedings, it has to be understood that the parties arrived into an understanding that whatever disputes were there before entering into consent terms in respect to berth No. 3 would also be merged (doctrine of merger) as part of the consent terms, today the corporate debtor counsel could not say that there is a pre-existing dispute in respect to berth No. 3, therefore, this claim cannot be construed as hit by pre-existing disputes. When the parties arrived to a settlement or consent terms, whatever disputes that were in existence before execution of the consent terms, have to be treated as resolved by the consent terms subsequently arrived at - Merely because consent terms arrived between the parties will never change the nature of the claim, here the claim is the petitioner rendered services to which money was not paid, upon which company petition was filed since the corporate debtor entered into consent terms putting the petitioner under belief that he would pay money to the petitioner as agreed in the consent terms, the petitioner withdrew the company petition believing that the corporate debtor would make payment as agreed in the consent terms.
It can be safely inferred that merely entering into consent terms, operational debt neither will become financial debt nor something else, the nature of the claim is same, it has to be treated as operational debt in view of the same for having the petitioner filed consent terms and the corporate debtor having defaulted in making payment as stated in the consent terms and there being no dispute in respect to the corporate debtor executing consent terms and filing the same before this Bench, there cannot be any argument saying that dispute is in existence in respect to the services provided by the petitioner.
Petition admitted - moratorium declared.
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2018 (4) TMI 1850 - ITAT BANGALORE
TP Adjustment - comparable selection - Assessee is engaged in the business of providing IT Enabled Services to its parent company - HELD THAT:- CG VAK Software & Exports Ltd.rejected by the TPO on the ground that its turnover is less than ₹ 1 crore in ITeS segment - It is evident that when the company is functionally similar, the company cannot be rejected on the ground that the company’s turnover is less than ₹ 1 crore especially when the companies with high turnover have not been rejected. To the same effect is the Hon’ble Delhi High Court decision in the case of CIT v Mckinsey Knowledge Centre India Pvt Ltd [2015 (3) TMI 1226 - DELHI HIGH COURT] - From perusal of the orders of the lower authorities, it is not clear whether the company passes through the filters applied by the TPO. Therefore, we deem it fit to remit this issue back to the file of the TPO with a direction to examine whether this company had passed through other filters applied by the TPO.
R Systems International Ltd. rejected on the ground that it follows different accounting year - Hon’ble Delhi High Court has held in Mckinsey Knowledge Centre India Pvt Ltd. [2015 (3) TMI 1226 - DELHI HIGH COURT] that the company cannot be rejected simply because it follows different accounting year and results of adjusted period can be adopted - in the present case, the assessee-company had not discharged the onus of filing the results for adjusted period of the company. In absence of this segmental information, inclusion of this company is not possible. Further, no such plea was made before TPO. Hence, the ground of appeal filed in this regard is rejected.
Accentia Technologies Ltd. rejected as functionly dissimilar with that of assessee
Accentia Technologies Ltd.not comparable with that of assessee as relying on M/S. TESCO HINDUSTAN SERVICE CENTRE PVT. LTD., [2017 (1) TMI 1673 - ITAT BANGALORE]
E-clerx Services Ltd., is functionally different as it provides high end data analytics and customized process solutions and is a leading Indian provider of KPO services
Infosys BPO Ltd.is functionally dis-similar and different from the assessee and hence is not comparable and the finding rendered in the case of Trilogy E-Business Software India Pvt. Ltd. [2016 (6) TMI 1293 - ITAT BANGALORE] for Assessment Year 2007-08 is applicable to this year also.
Deduction u/s 10A - direction of the Hon'ble DRP to include earning of foreign exchange, miscellaneous income as part of business income for the purpose of calculating benefit u/s 10A - HELD THAT:- This issue is no longer res integra as it is resolved by the Hon'ble jurisdictional High Court in the case of CIT vs. Hewlett Packard Global Soft Ltd [2017 (11) TMI 205 - KARNATAKA HIGH COURT] as held incidental activity of parking of Surplus Funds with the Banks or advancing of staff loans by such special category of assessees covered under sections 10-A or 10-B of the Act is integral part of their export business activity and a business decision taken in view of the commercial expediency and the interest income earned incidentally cannot be de-linked from its profits and gains derived by the Undertaking engaged in the export of Articles as envisaged under Section10-A or section 10-B of the Act and cannot be taxed separately under section 56 - Decided against revenue.
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2018 (4) TMI 1849 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Recovery of amount from the account of the ‘Corporate Debtor’ - appropriation of amount towards its own dues - the application was already admitted and the moratorium was already declared - HELD THAT:- Once the moratorium is in force the financial creditor including the bank has to prefer its claim before the RP, which would be considered alongwith other claims as per law - Further, it is found that there is direct violation of Section 14(1)(c) which creates a bar prohibiting any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation Act is also prohibited. Besides there is violations of order of moratorium passed by this Tribunal on 01.06.2017. As there is a direct statutory violation we find that it is a fit case for imposing cost. Accordingly, a cost of ₹ 25,000/- is imposed on the non applicant / respondent. The cost be deposited in the Prime Minister Welfare Fund.
While we are not inclined to interfere with the impugned order dated 25th January, 2018 but set aside the order whereunder cost of ₹ 25000/- has been imposed and make our interim order dated 21st March, 2018 absolute which will continue during the period of moratorium. However, after the period of moratorium is over, it will be open to the bank to act in accordance with guidelines of Reserve Bank of India to manage the account - Appeal disposed off.
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2018 (4) TMI 1848 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI (COURT-I)
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - pre-existence of dispute or not - service of demand notice - HELD THAT:- Perusal of the affidavit filed under Section 9(3)(b) clearly shows that even though the notice of default has been received by OC prior to the filing of this Petition and which incidentally has also been annexed as mentioned in the earlier part of the order, there seems to be a covert attempt on the part of the Petitioner at least at the stage of moving this Petition to not to state anything in Affidavit filed under Section 9(3)(b) of IBC, 2016 with a view not to have the Petition rejected outright taking into consideration Section 9(5)(ii)(d) of IBC, 2016. The affidavit thereby filed has stifled the truth in effect of the notice of dispute as sent by the CD and which had precluded the Tribunal from exercising its powers under Section 9(5)(ii)(d) of IBC, 2016 for rejection Of the Petition if thought fit and which subsequently had lead to issue of notice to CD and the attendant hearings of this Petition by this Tribunal. The attitude of the Petitioner in this regard stands strongly deprecated in invoking the provisions of IBC,2016 despite being aware that there is a dispute in existence and in any case that a notice of dispute is required to be brought to the notice of this Tribunal by filing an affidavit disclosing facts as required under Section 9(3)(b) on the date of moving the Petition before this Tribunal and thus the Petition deserves to be dismissed on this ground alone.
The dispute between the OC and CD predates 2017 and there has been a running battle between the OC on the one hand and MSEDCL on the other with respect to CPP and CGP status of the OC and its users, all of which goes against the grain of Lol and subsequent PSA entered into between OC and CD. The contentions of the CD in this regard are not illusory or moon shine is vouched by the records that even as of today the issue with MSEDCL has not attained finality and the OC is required to approach Central Electricity Regulatory Commission (CERC) as per the latest order dated 29.12.2017 as it is having a pan India presence and the issue even though contended by the Lerned Counsel for OC to be technical has a significant financial implication upon CD, in view of repeated demands made from it by MSEDCL for the relevant period for which supply of power was made by OC to CD - Further, it is also to be seen that all the same the CD cannot be made to wait for final outcome of the running battle between OC and MSEDCL as the PSA itself is for a year and the delay in determination of CPP status has a significant monetary impact on the CD by way of increased levy to the extent imposed by MSEDCL. Further it is also to be seen that the PSA itself has been terminated vide termination letter dated 20911.2016, which is much prior to the notice of default by OC and further, whether such termination is wrongful or whether the CD is entitled to damages as claimed by it, all of which is not for this Tribunal to decide in a summary manner and for which a suit or arbitration is more appropriately suited.
Petition is dismissed with cost of ₹ 1,00,000/-.
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2018 (4) TMI 1847 - ITAT DELHI
Condonation of delay - CIT(A) in deleted the addition in violation of Rule 46A of the I.T. Rules, 1962 - CIT(A) on admitting the additional evidences directed the AO to examine the case properly by calling the books of accounts and other details and file a Remand Report - HELD THAT:- Despite giving several sufficient opportunities, the AO did not file the Remand Report before CIT(A). He did not examine books of account and other details. Therefore, AO has shown negligency in not filing the Remand Report before Ld.CIT(A). The same conduct of the AO continued even after passing of the impugned appellate order because the appellate order was kept pending without any action and no appeal has been filed by the Department within the period of limitation. It is simply stated in the application for condonation of delay that due to time barring assessment, the impugned order was overlooked and got barred by limitation.
It is a fact that AO was aware that departmental appeal would be meritless. It is, therefore, clear that the AO deliberately overlooked the impugned order and did not file appeal before the Tribunal within the period of limitation. Even the authorization by Ld. Pr. CIT to file the appeal have been granted after the period of limitation to file the appeal on 07.06.2016. Therefore, no sufficient cause has been shown to explain the delay in filing the appeal before the Tribunal beyond the period of limitation.
The application is not supported by any evidence. We, therefore, hold that the Revenue Department has failed to explain the delay in filing the appeal was due to sufficient cause, therefore, the appeal of the Revenue shall have to be dismissed as time barred. We reject the application for condonation of delay and treat the departmental appeal as time barred and dismiss the same in limine.
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2018 (4) TMI 1846 - ANDHRA HIGH COURT
Grant of Bail - acquiring assets disproportionate to his known source of legal income - Nature and gravity of charge and severity of punishment in the event of conviction - Possibility of AO meddling with investigation and tampering the evidence - Proposed marriage of AOs son - HELD THAT:- After conducting preliminary searches the value of disproportionate assets increased to ₹ 2,50,40,881/-. This figure does not include in itself the worth of valuable articles recovered from the locker of AO in SBI, Warasiguda Branch, Hyderabad. No doubt, in the grounds of bail application, it is the contention of AO that out of 19 items cited, items 1 to 4 and 6 to 13 alone belong to him and his family members and rest of the items belong to his sister-in-law and others. Even if the said contention is taken into consideration, the value of items 1 to 4 and 6 to 13 mentioned in remand report roughly comes to ₹ 2,16,78,881/-. However, his savings for the said period were only worth ₹ 88,54,000/-. Therefore, even if his contention is accepted, still the worth of disproportionate assets comes to ₹ 1,28,24,881/- - a careful scrutiny of the aforesaid figures would manifest that even if the contention of petitioner is accepted and some errors in the appraisal of the income, expenditure and assets are taken into consideration, still, AO possessing assets disproportionate to his income cannot be ruled out at this juncture. Of course, I must hasten that this is only a theoretical analysis to know about the existence or non-existence of prima facie case to consider the bail application. Ultimate truth has to be exhumed after investigation. Hence, there exists a strong prima facie case against AO which requires a thorough investigation.
The contention of petitioner that the Registry of High Court has granted permission to register FIR in a post-haste manner does not hold water because, the letter dated 17.03.2018 of Director General, ACB to the Registrar General would show that upon securing permission, the ACB at first conducted discrete enquiry against AO and submitted a report and after satisfying with the prima facie material, the High Court accorded permission to register the FIR against AO. Hence it appears a methodical exercise was undertaken prior to registration of FIR.
Nature and gravity of charge and severity of punishment in the event of conviction - HELD THAT:- It is not out of place here to mention that each time a Judicial Officer is accused of committing bribery or other related offence, the reputation of judicial institution itself stands for trial. The judicial edifice is built not with bricks and cement but with belief and confidence reposed by the public on the institution. That is why absolute honesty and integrity are regarded as the minimum qualifications for a Judicial Officer to hold the mace of justice. A minutest impious deed of even a single individual will bring disrepute to the majesty of justice. In that context, the impact of the offence has to be viewed even at the stage of bail, particularly when prima facie case is found out.
Possibility of AO meddling with investigation and tampering the evidence - HELD THAT:- AO being Judicial Officer, there is a possibility of his finding out the ways to stifle the crucial evidence and scuttle the process of investigation with his legal acumen. Such a possibility cannot be obviated. The contention of AO that the entire investigation is completed with the searches conducted at various places and his service record is available with the High Court and hence, he cannot tamper with the evidence cannot be countenanced in view of the crucial part of investigation still left over.
Ill-health of the petitioner/AO - HELD THAT:- The trial Court considering the discharge summary issued by NIMS, which revealed his fit condition, did not accede to grant bail on the health grounds - there are no reason to come to a different conclusion.
Proposed marriage of AOs son - HELD THAT:- The petitioner only produced a manuscript of lagna patrika showing the marriage is fixed to be performed on 06.05.2018. No printed wedding card is produced for verification. Even assuming that his sons marriage is going to be held on 06.05.2018, in view of gravity of the offence and pending investigation at the crucial stage, a regular and full-fledged bail cannot be granted to AO at this stage.
Bail application dismissed.
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2018 (4) TMI 1845 - SC ORDER
Bail Application - allegations of corruption and amassing of unaccounted money - it was held by High Court that there is no good ground for grant of bail to the applicant Pradeep Garg - HELD THAT:- List after three weeks.
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2018 (4) TMI 1844 - ITAT PUNE
Exemption u/s.10A - assessee is duly registered with STPI as per requirement of the scheme of the year 2010-11 and the claim of deduction u/s. 10A of the Act has been allowed after due verification for the past 10 assessment years. But in the assessment year under appeal i.e. 2010-11, the claim of deduction was disallowed by AO - HELD THAT:- On facts, it is undisputed fact that the assessee has been consistently claiming deduction and the Revenue allowed the same without any disturbance. The Assessing Officer disturbed the same for the first time for the A.Y 2011-11.
Considering ratio laid down in the case of Paul Brothers [1992 (10) TMI 5 - BOMBAY HIGH COURT] we cannot appreciate the decisions of Assessing Officer and CIT(A). The decision of Pune Bench of Tribunal has already adopted the similar proposition as extracted above. Considering the above, we are of opinion that this legal aspect stands covered in favour of the assessee. Thus, we find merit on the grounds raised by assessee and argument made by Ld. DR on this context becomes academic exercise. Hence, the grounds raised by the assessee are allowed.
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2018 (4) TMI 1843 - RAJASTHAN HIGH COURT
Submission of defaulted returns - Condonation of Delay Scheme, 2018 - High Court of Delhi has permitted the Directors to file compliance under CODS, 2018 - Applicability of of Section 164(2)(a) as well as Section 167 of the Companies Act of 2013 - HELD THAT:- In order to balance the equities while the respondents rights to argue and make the submissions are reserved and four weeks time is granted to file reply.
This Court deems it appropriate to allow the petitioners to continue to hold the post of Director in the defaulting Companies as well as other Companies so that they may be able to avail the benefit of CODS, 2018 during the pendency of the writ petition.
Learned Counsel further submits that on account of Company in default names having been struck off in terms of Section 248(5) of the Companies Act, 2013, the benefit of CODS, 2018 may not be allowed online. It is also prayed that they may be allowed to file hard copies of returns under CODS, 2018 and the respondents may be directed to accept the same - the prayer seems to be reasonable.
Petition disposed off.
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2018 (4) TMI 1842 - ITAT CHANDIGARH
Long term capital gain on sale of agriculture land - transfer of land in the year under consideration - only 10% of the sale consideration was received during the year and balance 90% consideration was received on 14.08.2008 i.e. AY 2009-10 - Benefit of investments in new agriculture land u/s 54B & construction of house u/s 54 F invested subsequent to the receipt of money against sale of agriculture land - HELD THAT:- As assessee admitted that factual finding with regard to the assessees land being included and covered in the disputed lands before the High Court, were not available on record but at the same time, contended that the same could be established by the assessee by placing relevant material and evidence on record subject to verification by the department of the same.
As assessee requested, therefore, that the issue be restored to the Assessing Officer so as to enable the assessee to establish the identity of the facts of the present case with that in the case of Rajiv Kumar [2016 (7) TMI 184 - ITAT CHANDIGARH] - As for the affidavit regarding postponement of handing over of possession of land by the sellers to the buyers only on receipt of complete consideration, the Ld. counsel for assessee stated that no such affidavit was filed in the case of Parshotam Kumar which was also an identical case decided on the lines of Rajiv Kumar(supra) following the said decision.
We restore the issue back to the Assessing Officer for the limited purpose of enabling the assessee to establish the identity of the facts of the present case with that in the case of Rajiv Kumar(supra) and Purshotam Kumar (supra) .
Claim of exemption u/s 54B & 54F - Considering fair market value of property and relating to grant of benefit of cost of improvement of land, cannot be adjudicated at this juncture. These issues are, therefore, also restored to the Assessing Officer to be adjudicated upon afresh after deciding the main issue in the present appeal as per our directions with regard to ground No.1 raised by the assessee. The grounds of appeal Nos.2 to 4 are also, therefore, allowed for statistical purposes.
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2018 (4) TMI 1841 - ITAT JAIPUR
Addition on account of advances given for purchase of land and disclosed in the statement recorded under section 132(4) but was not offered to tax - assessee in his statement recorded under section 132(4) has admitted undisclosed income on account of advances given to various persons for purchase of land - HELD THAT:- In the case in hand, the assessee never disputed the amounts or entries recorded in the seized material but the assessee has subsequently explained and brought on record the fact that out of the total amount of ₹ 11,25,00,000/-, a sum of ₹ 1,60,00,000/- given as an advance during the financial year 2012-13 relevant to the assessment year 2013-14 was received back by the assessee on 20th April, 2013 and, therefore, the said amount was available with the assessee for giving advances during the year under consideration.
This stand of the assessee is not disputing the entries in the seized material and further the assessee has filed the evidences in support of the fact that the said amount was received back by the assessee. Since these transactions are unaccounted transactions and only found during the course of search and seizure operation, therefore, there cannot be any other evidence in the shape of entries in the books of accounts except the persons concerned who have duly made the statements on oath as the affidavits were filed by the assessee in this regard.
Statement u/s 132(4) alone cannot be considered as a conclusive piece of evidence by ignoring the other facts and evidence which may establish the correct facts regarding the transactions in dispute - when the assessee has filed the evidences in support of the claim that a sum of ₹ 1,60,00,000/- was received by the assessee which was available for advance given during the year under consideration then in the absence of any enquiry conducted by the AO to controvert the facts and to dispute the evidence filed by the assessee, the addition made by the AO and sustained by the ld. CIT (A) is not justified. Hence we delete the addition made on this account. - Decided in favour of assessee.
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