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Showing 41 to 60 of 1976 Records
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2018 (4) TMI 1940
Maintainability of appeal - non-compliance with the provision of Section 129 E of Customs Act, 1962, by making pre-deposit of the requisite amount - HELD THAT:- The matter has been listed under the category ‘Mention Matter’.
The appeals are non-maintainable on account of non-compliance with the provision of Section 129 E of Customs Act, 1962, by making pre-deposit of the requisite amount.
The appeals are dismissed as non-maintainable.
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2018 (4) TMI 1939
Validity of order of dismissal from the service - punishment of forfeiture of seniority of 24 months, also passed - It was observed that when the Respondent had been awarded the punishment of dismissal from service, second punishment, namely, forfeiture of seniority for 24 months did not make any sense - HELD THAT:- From the evidence discussed above, it stands established that calls were made from Cell Phone No. 9564784782. However, some controversy has arisen in respect of CDRs produced from the service provider, namely, Vodafone South Mumbai and the Respondent is trying to take advantage thereof. In this behalf, it may be mentioned that in the NOFRA records, though Cell Phone No. 9564784782 is rightly mentioned, the said phone number is displayed as belonging to Idea network. On that basis, it was argued that NOFRA CDRs could not have been relied upon. However, it needs to be recorded that the Appellants had given satisfactory explanations for the aforesaid mistake. It was explained before the AFT that the mobile number of the Respondent had been erroneously shown as an Idea Cell Number due to feeding of Code "95" as that of Idea Cell in the system of NOFRA. This was also clarified by Mr. Fernandes who appeared as CW-2. He was the Programmer of the NOFRA system. It is significant to point out that there is no cross-examination by the Respondent on this point - It is also pertinent to note that apart from raising the dispute that NOFRA record shows that it was Idea Cell number, it is not disputed that phone number in question as recorded in NOFRA system is the same which belongs to the Respondent. It is only the description of the phone number that had been erroneously displayed as Idea Cell which aspect has been satisfactorily explained by the Appellants. It would be of no significance, inasmuch as same Cell number could not belong to both the Idea as well as Vodafone.
Learned Counsel for the Appellants rightly argued that non-production of the certificate Under Section 65-B of the Indian Evidence Act, 1872 on an earlier occasion was a curable defect which stood cured. Law in this behalf has been settled by the judgment of this Court in Sonu alias Amar v. State of Haryana [2017 (7) TMI 1366 - SUPREME COURT].
In any case, this Court has examined the records having regard to the submissions made by Dr. Sharma on behalf of the Respondents. However, no case is made out that the conclusion arrived at by the Tribunal was utterly perverse which no reasonable person could have arrived at. We have not found any such infirmity at all - there are no merit in the appeal preferred by the Officer.
Quantum of sentence given by the AFT - HELD THAT:- After setting aside the sentence of dismissal from service, the Tribunal has substituted the same by the sentence of loss of seniority for 24 months. Further, while directing reinstatement in service, the Tribunal has also ordered that the Respondent herein shall not be entitled to pay and allowances for the period from the date when he was dismissed from the service till the date of reinstatement, if it is within three months from the date of order of the Tribunal.
The Respondent has not reinstated in service as this Court had, vide orders dated August 31, 2015, stayed the operation of the said order/direction. Thus, the Respondent is still out of service and, therefore, lost his salary from the date of the order of the Tribunal which was passed on March 04, 2015. The Respondent was dismissed from service vide orders dated January 26, 2013. For all these reasons, the order of the Tribunal on sentence, need not be interfered, inasmuch the effect is that not only seniority of the Respondent is forfeited by 24 months, he is also deprived of his salary for more than five years. Such a sentence, would meet the ends of justice and in these circumstances discretion exercised by the Tribunal does not need any interference.
The Respondent herein shall be reinstated in service within 2 weeks from the date of passing of this order and he shall not be entitled to any salary for the intervening period, i.e., from the date of dismissal till the date of reinstatement - appeal dismissed.
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2018 (4) TMI 1938
Unexplained cash credit - addition u/s.68 - advance received against sale of shares unexpalined - assessee failed to prove the identity, genuineness and creditworthiness of the creditors - HELD THAT:- Assessees had duly disclosed the receipt of advance which is under appeal in their regular books of account. The assessees claimed to have sold shares against these advances in the immediately succeeding assessment year i.e. 2009-2010 and have also paid capital gains tax on the gains derived on sale of such shares. It is not in dispute that the related long-term capital gains have been also accepted as genuine by the department in the assessment for the assessment year 2009-2010.
D.R. could not point out any material which was unearthed because of the search and which shows that the advances in question were not genuine in respect of which addition was made by the Assessing Officer and confirmed by the CIT(A). Thus, it is observed that the additions in question were not based on any search material. Additions so made de hors search material is unsustainable - Decided in favour of assessee.
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2018 (4) TMI 1937
Demand of interest on differential duty - Whether the appellant is liable to pay interest on differential duty even though the differential duty, if any, was paid, prior to the date of the passing of the final assessment order - HELD THAT:- In view of order passed in M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (12) TMI 594 - SUPREME COURT], the matter is referred to 3 Judges' Bench subject to orders of Hon'ble the Chief Justice.
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2018 (4) TMI 1936
Benefit of treaty - recipients satisfied conditions of the treaty and can be treated as resident of respective countries as per the DTAA - whether the learned CIT(A) was justified in holding that section 206AA of the Income Tax Act, 1961 do not override the provisions of Double Taxation Avoidance Agreement entered into by the Government of India under section 90? - HELD THAT:- We find that, in the case of DDIT Vs Serum Institute of India Pvt. Ltd. [2015 (6) TMI 26 - ITAT PUNE] section 206AA of the Act does not override the provisions of section 90(2) of the Act and that in the impugned cases of payments made to non-residents, assessee correctly applied the rate of tax prescribed under the DTAAs and not as per section 206AA of the Act because the provisions of the DTAAs was more beneficial. Thus, we hereby affirm the ultimate conclusion of the CIT(A) in deleting the tax demand relatable to difference between 20% and the actual tax rate on which tax was deducted by the assessee in terms of the relevant DTAAs. As a consequence, Revenue fails in its appeals.
The views so expressed by the coordinate bench now stand approved by Hon’ble Delhi High Court’s judgment in the case of Dansico India Pvt. Ltd. [2018 (2) TMI 1289 - DELHI HIGH COURT] No judicial precedent to the contrary has been brought to our notice. In this view of the matter, and respectfully following the binding judicial precedents, we approve the conclusions arrived at by the CIT(A) and decline to interfere in the matter.
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2018 (4) TMI 1935
Money Laundering - proceeds of crime - scheduled offences - forged documents - illegal money by making calls on certain pre-fixed international numbers and putting on hold such calls in the manner described in the complaint - offences punishable under Sections 419, 420, 467, 468, 471 and 120-B I.P.C. - HELD THAT:- By the amending Act of 2009, the provisions of PML Act were amended and Scheduled offences under Sections 419, 420, 467, 468, 471 and 120B IPC which were in Part B of the Schedule were brought in Part A of the Schedule. Further, Part B of the Schedule was omitted.
Thus the offence alleged to have been committed by the petitioners in acquiring or processing etc., of proceeds of crime were always part of the Schedule appended to the PML Act. The arguments of the counsel for the petitioners that these offences were not part of the Schedule at the time when the offence is alleged to have been committed by them, does not hold good in view of expressed provisions of the Act and the Schedule.
There are no merit in the petitions and the same are therefore, dismissed.
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2018 (4) TMI 1934
TP Adjustment - Comparability - HELD THAT:- Since the assessee has furnished the required particulars and relying on the decisions of Tribunal / High Court, we remit the issues in connection with the above comparables to the TPO/A O for a fresh examination. In respect of the comparables, Caliber Point Business Solutions Limited & R Systems International Limited, the assessee shall furnish comparables data for the verification of the TPO. TPO shall decide as to whether the above comparables are to be included or to be excluded, as the case may be, in accordance with law.
Disallowance made u/s. 14A r.w.r. 8D - HELD THAT:- Since, the assessee has not earned any dividend (exempt) income during the year, following the jurisdictional High Court decisions in the cases of Redington (India) Limited [2017 (1) TMI 318 - MADRAS HIGH COURT] and CIT, Central(1), Chennai vs Chettinad Logistics Pvt. Ltd [2017 (4) TMI 298 - MADRAS HIGH COURT] the addition made by the AO is deleted and the assessee’s grounds in this regard is allowed.
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2018 (4) TMI 1933
Principle of mutuality - Club or Association services - appellant being a registered club is providing various services to its members - HELD THAT:- On perusal of material available on record, it appears that the Hon’ble Jurisdictional High Court in the case of SPORTS CLUB OF GUJARAT LTD VERSUS UNION OF INDIA & 3 [2013 (7) TMI 510 - GUJARAT HIGH COURT] observed that Section 65 (25a), 65 (105)(zzze) and 66 are not applicable to the appellant as per the ratio laid down in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT] where it was observed that the relationship between the club members and club based on the principle of mutuality which attracts no service tax.
There are no reason to interfere with the impugned order, the same is sustained along with the reasons mentioned therein - appeal dismissed - decided against Revenue.
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2018 (4) TMI 1932
Reopening of assessment u/s 147 - HELD THAT:- During the course of hearing, it has been brought to our notice that the Central Board of Direct Taxes has issued a letter directing for withdrawal of these appeals.
In view of the above, these appeals are dismissed as withdrawn. Question of law is kept open.
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2018 (4) TMI 1931
Exemption u/s 80P(2)(a)(vi) - interest earned on fixed deposits on accrual basis - CIT(A) had restricted the addition to 50% of interest earned on the ground that some fixed deposits were required to be kept by the assessee co-operative society being bank guarantee to procure the business - HELD THAT:- Applying the principle laid down by the Tribunal in assessee’s own case [2016 (12) TMI 297 - ITAT PUNE], which in turn, has been given effect to by the Assessing Officer in assessment year 2011-12 also, it is held that interest earned by the assessee on fixed deposits is entitled to deduction claimed under section 80P(2)(a)(vii) of the Act. Accordingly, the Assessing Officer is directed to allow the same. The grounds of appeal raised by the assessee are thus, allowed.
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2018 (4) TMI 1930
Assessment u/s 144 and 271B - CIT(A) orders are passed ex-parte - apellant could not attend the proceedings before the CIT(A) - HELD THAT:- DR fairly agreed that he has no objection to the matter being remitted to the file of CIT(A) for adjudication de novo, after giving yet another reasonable opportunity of hearing to the assessee. We think this is a fair approach and since the learned CIT(A) did not have the benefit of assistance from the assessee appellant, the matter should be remitted to the file of learned CIT(A) for adjudication de novo, after giving yet another opportunity of hearing. In any case, there is no reason for an Appellate Forum being bypassed and the matter being taken up directly before us for adjudication on merits.
We deem it fit and proper to remit the matter to the file of learned CIT(A) for fresh adjudication and the assessee appellant be given a reasonable opportunity of hearing - Assessee appeals are allowed for statistical purposes
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2018 (4) TMI 1929
Condonation of delay in filing appeal - Commercial and Industrial Construction Service - CWC Warehouse located in Railway side - CBEC Circular No.157/8/2012-ST dt. 27.4.2012 and Circular No. 80/10/2004-ST dt. 17.9.2004 - HELD THAT:- The delay is condoned.
Application admitted.
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2018 (4) TMI 1928
Nature of receipt - Subsidies received from the Government under different schemes - Revenue or capital receipts - HELD THAT:- In the present case, it is noticed that a similar issue has been adjudicated by this Bench in assessee’s own case [2015 (7) TMI 515 - ITAT DELHI] held that subsidy received under the TUF scheme is in the nature of capital receipt. - Decided in favour of assessee.
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2018 (4) TMI 1927
Attachment of property - default in repayment of loan - case of the petitioner is that they purchased the subject property in an auction conducted by the secured creditor pursuant to an action initiated under the said Act and that the subject property, which was brought for auction, was owned by the defaulter namely M/s. DDS Steel Rolling Mills Private Limited and not the said M/s. SDS Steels Private Limited and the said M/s. Jai Bhawani Steel Enterprises - who is the actual owner of property attached?
HELD THAT:- The petitioner requested the Customs Authorities to lift the attachment and in this regard, a representation was sent on 16.9.2017, followed by reminders dated 05.10.2017 and 25.10.2017. Having not been favoured with any response, the petitioner is before this Court for appropriate directions to the respondent. The fact that the petitioner has made a representation for lifting the attachment is not in dispute, as the Department, by letter dated 16.10.2017, requested for details from the petitioner, which the petitioner has furnished.
The writ petition is disposed of with a direction to the respondent to consider the petitioner's representations dated 05.10.2017 and 25.10.2017 as well as the documents furnished along with the representation dated 25.10.2017, afford an opportunity of personal hearing to the authorized representative of the petitioner and pass orders on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order.
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2018 (4) TMI 1926
Deduction of business loss - For A.Y.rs. 2009-10 to 2010-11 held that the assessee was in the business trading of shares and cannot be said there was no business due to the fact that there was lull in the share market and the income of the assessee is to be treated as business - HELD THAT:- AO on examination of record in the profit and loss account of the assessee was of the opinion that the assessee has no business during the year and the major income as earned by the assessee was from house property and service charges connected thereto.
AO held that the major revenue @ 83% as earned by the assessee from service charges and computed the income of the assessee from house property and short term capital gain and denied the business loss as claimed by the assessee vide his order dated 20.02.2014 u/s 143(3) - Before the CIT(A) it was contended that the AO allowed expenditure that has been incurred by the assessee in A.Y.2009-10 and 2010-11 as deduction.
AO without following the consistency that has been followed in the earlier years arbitrarily computed the income of the assessee on different heads as against the claim of the assessee. CIT(A) considering the submissions of the assessee along with the assessment orders and by following the earlier orders of first appellate authority for A.Y.2009-10 and 2010-11 allowed the business loss and computed the income of the assessee from business. We note that the order of CIT(A) for A.Y.2009-10 was challenged before the Tribunal and the Tribunal considered the treatment of stocks as held by the assessee as stock-in-trade and upheld the order of CIT(A) in computing the income of the assessee from business. - Decided against revenue.
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2018 (4) TMI 1925
Disallowance u/s 14A r.w.r. 8D - disallowing expenditure incurred by assessee in relation to tax exempt income - HELD THAT:- We have noted that the assessee earned exempt income in the form of dividend income. The Hon'ble Delhi High Court in case of Joint Investment Pvt. Ltd. [2015 (3) TMI 155 - DELHI HIGH COURT] held that the window for disallowance indicated in section 14A is only to the extent of disallowing expenditure incurred by assessee in relation to tax exempt income. These proposition or portion of tax exempt income surely cannot swallow the entire amount. Thus the disallowance under section 14A is restricted to the exempt income/dividend income - Assessing Officer is directed accordingly.
TP Adjustment of non-interest bearing shareholder deposit - HELD THAT:- As relying on assessee’s own case for A.Y. 2012-13 [2017 (11) TMI 376 - ITAT MUMBAI] identical grounds of appeal was allowed in favour of assessee on the same amount of share-holder deposits the Associate Company.
Long Term Capital Gain on sale of investment not considered - assessee submits that the Assessing Officer has not considered the Long Term Capital Gain on sale of investment and filed application under section 154 before the Assessing Officer for rectification of order - CIT(A) directed the Assessing Officer to dispose the application of the assessee filed under section 154 in accordance with law - HELD THAT:- Keeping in view that the Ld. CIT(A) has already given direction to the Assessing Officer for disposing of the application under section 154 of the Act, filed by assessee which has not been disposed of so far. The Assessing Officer is directed to consider the claim of assessee and pass the order in accordance with law. Needless to say that the Assessing Officer shall grant necessary opportunity of hearing before passing the order.
Disallowance u/s 14A r.w.Rule 8D to the computation of book profit under section 115JB - HELD THAT:- Considering the decision of Tribunal in assessee’s own case for A.Y. 2012- 13 [2017 (11) TMI 376 - ITAT MUMBAI] and the decision of Special Bench in Vireet Investment (P.) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] the Assessing Officer is directed to re-compute the book profit by following the decisions.
Transfer Pricing Adjustment towards interest on outstanding balances of the Associate Enterprises - HELD THAT:- As in assessee own case for A.Y. 2012-13 observed from the above provision the outstanding debit balances with the associates is not directly covered within the ambit of 'international transaction'. Also, the terms "any other transaction having a bearing on the profits, income, losses or assets of such enterprises" must be interpreted ejusdem generis with the transactions mentioned in the preceding clause or at least analogous to it and therefore would not include the provision of guarantee for loans taken by associate enterprises. In view of the above, we are of the view that it is the real income and not the hypothetical income which is to be taxed and real income is to be ascertained from the realistic and practical point of view as held by Hon'ble Supreme Court in the case of UCO Bank [1999 (5) TMI 3 - SUPREME COURT] Hence, we delete the disallowance and reverse the orders of the lower authorities.
TP Adjustment towards this involve in guarantee on loan and advances to Associate Enterprises - HELD THAT:- When the guarantee has been given by the assessee results in a direct or indirect benefit to the assessee itself, then there arises no need to charge any commission on the same. Thus, following the decisions of the co-ordinates benches of the Tribunal in own case 2017 (11) TMI 376 - ITAT MUMBAI] we, in the present case are of the view that the above transaction does not fall within the purview of international transaction as defined under section 92B of the Act and hence, the orders of the lower authorities are reversed - no illegality or infirmity in the order passed by Ld. CIT(A) in deleting the adjustment in guarantee on loans and advances to Associate Enterprises.This issue of assessee's appeal is allowed.
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2018 (4) TMI 1924
Seeking quashment of the Criminal Complaint case by invoking extra ordinary jurisdiction of this Court - Dishonor of Cheque - Vicarious liability of director of the firm - non-availability of specific averments against the present petitioner as required under the law - HELD THAT:- Since the complaint dated 30.8.2013 in the present case does not contain specific averments against the present petitioner as required under the law, therefore, the trial Court could not have taken cognizance against the present petitioner No.2 Sagufta Shahin. The vicarious liabilities on the petitioner has not been clearly pleaded in the memo of complaint. There is no allegation also that the petitioner was in charge and responsible for conduct of petitioner No.1/company at the relevant time.
The order impugned taking cognizance of the offence is not proper - the complaint case is not maintainable and exercising the powers under Section 482 of Cr.P.C. the same is quashed.
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2018 (4) TMI 1923
Entitlement to husband to the decree of anti-suit injunction against the respondent-wife - proceedings in the Foreign Court are oppressive or not - HELD THAT:- Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.
It is a well-settled law that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a court impinging on the jurisdiction of another court, which is not entertained very easily specially when the it restrains the parties from instituting or continuing a case in a foreign court.
It appears from the proceedings recorded before the US court that the respondent herself has admitted that the Family Court Gurgaon has jurisdiction in the given case. The evidence placed on record is sufficient enough to show that the respondent is amenable to the personal jurisdiction of Gurugram Family Court. Though the respondent-wife is amenable to the jurisdiction of Family Court, Gurgaon, there is nothing on record to hold that the other party will suffer grave injustice if the injunction is not granted. There is no dispute to the fact that both the parties are permanent citizens of U.S. Undisputedly, the Circuit Court, Florida, USA is also having the concurrent jurisdiction in the given case.
Foreign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between them.
The proceedings in the Foreign Court cannot be said to be oppressive or vexatious - Appeal dismissed.
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2018 (4) TMI 1922
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- By perusal of the record of present petition goes to shows that the Operational Creditor duly issued a statutory demand notice under section-8 by providing supporting documents to prove supply of goods and materials by describing the details of the unpaid amount against goods duly received by the Corporate Debtor Company. These documents includes tax invoices/ Credit memos issued during the year, 2015 for total outstanding dues of Rs. 2,33,278/- which is evident that the Corporate Debtor company has committed default - Since, the Corporate Debtor has failed to make reply to the demand notice. Therefore, it amounts to admission of debts.
On perusal of the record the filing of present petition is found to be in order. It meets statutory requirement of section-8 and 9 of the Code, hence, it is found complete and deserve for admission.
Petition admitted - moratorium declared.
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2018 (4) TMI 1921
CENVAT credit - interpretation of the words 'input' and 'capital goods' - HELD THAT:- The delay is condoned.
The leave is granted.
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