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Showing 21 to 40 of 1847 Records
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2018 (6) TMI 1829
TP Adjustment - legal and professional charges under intra-group services - TPO had passed a rectification orderwhich has resulted in reduction of total adjustment from Rs. 42,50,763/- to Rs. 9,91,844/- only which represents the disallowance of mark-up charged by the AE - HELD THAT:- As AR submitted that and if the assessee’s ground was accepted in principle, the adjustment with respect to the mark up will not be contested by the assessee, in such a situation, we direct the AO to pass the final assessment order incorporating the adjustment only to the extent of Rs. 9,91,844/- and also protect the assessee’s right to raise these grounds again in this assessment year in the event of the final assessment order not having been passed restricting the transfer pricing adjustment to Rs. 9,91,844/- only.
Directions of the Ld. DRP in confirming the provision for loss on suspended contracts by treating the same as contingent liability - HELD THAT:- The amount represents bank guarantee furnished by the assessee to its customers which was given in the year under consideration but en-cashed by the customers in AY 2011-12. It is also undisputed that the assessee has already offered to tax the amount of advance which had been forfeited from the customers and to which the bank guarantee relates. The bank guarantee has been en-cashed in the subsequent assessment year, therefore, the liability has crystallized in the subsequent assessment year when it was en-cashed on 28/04/2010. The fact remains that at the time of furnishing the bank guarantee, it was not known as to when the liability will crystallize. Accordingly, we find no reason to interfere with the directions of the Ld. DRP.
TP Adjustment - services offered by the AE were not stewardship services - HELD THAT:- DRP has taken note of the fact of the assessee providing substantial evidence in form of e-mails, correspondence with the AE etc. so as reach a conclusion that the AE was rendering services which were beneficial for the assessee in conducting its business and some benefits might have accrued to the overall group but the primary beneficiary was the assessee. DRP concluded that the services rendered by the AE were not in the nature of stewardship activity. Although the Department has assailed these directions of the Ld. DRP, in the proceedings before us, the Department could not point out any factual or legal error in the directions of the Ld. DRP by leading any evidence to the contrary. In such a situation, we are not in a position to differ from the findings of the Ld. DRP and we, accordingly, dismiss ground no. 4.
Disallowance pertaining to advances and deposits written off - HELD THAT:- DRP directed deletion of disallowance by observing that from the material available on record, the same appeared to be revenue in nature. Thus, it is not the case of the department that the issue was not examined. The Ld. DRP has returned a categorical finding in this regard and, accordingly, we find no reason to interfere on this issue also. Ground No. 2 also stands dismissed.
Allowance of provision for warranty - HELD THAT:- DRP has noted that the facts were identical in AY 2008-09 and the year under consideration and, therefore, the disallowance was to be deleted. We also find that the department’s challenge to the findings of the Ld. CIT (A) on this issue in AY 2008-09 was dismissed by the ITAT . The Department has not been able to bring out any distinguishing factor with respect to the facts in the proceedings before us. In the circumstances, we find no reason to interfere and dismiss ground no. 3.
DRP directing that the TPO/AO to consider the margin realized by the assessee only from its international transactions with its AEs and there cannot be entity level margins - HELD THAT:- A perusal of the directions of the Ld. DRP shows that this aspect has not been considered in a proper perspective by the Ld. DRP and the directions in this regard have been given without recording a finding of fact in this regard and without giving any sound reason for such direction. In the circumstances, we have no option but to restore this ground to the file of the Ld. DRP with a direction to pass a speaking order on the issue after giving proper opportunity to the assessee. Accordingly, ground no. 2 stands allowed for statistical purposes.
Loss on suspended contracts - HELD THAT:- Ld. DRP has discussed the issue at length on pages 11 and 12 of its directions and has held that the contention of the assessee is allowable in view of the facts. The AO is directed to give effect to the directions of the Ld. DRP in this regard. Accordingly, this ground is treated as allowed.
Rectification of mistakes u/s 154 - failure to provide an opportunity to the assessee of being heard before enhancing the income and this violated the provisions of section 154(3) - HELD THAT:- The Hon’ble Apex Court in the case of Chockalingam & Meyyappan [1962 (10) TMI 48 - SUPREME COURT] is precisely holding that principle of natural justice has to be followed by the authorities. As per Section 154(3) of the Act amendment/rectification which has the effect of enhancement of an assessment or reducing a refund or otherwise increasing the liability of the assessee shall not be made unless the authority concerned gives notice to the assessee of its intention to do so. Therefore, it is obligatory under the statute to issue notice by the tax authority to give a reasonable opportunity of being heard to the Assessee. This is clearly set out u/s 154 of the Income Tax Act and it has to be followed by the tax authorities at the initial stages. If this procedure of issuing the notice and giving reasonable opportunity of being heard is not followed, any further exercise will be non est. Therefore, the order itself becomes void ab initio. In the circumstances, we have no other option to set aside the impugned rectification order as being void ab initio.
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2018 (6) TMI 1828
Miscellaneous applications seeking to recall the order passed by this Tribunal [2019 (10) TMI 1549 - ITAT KOLKATA] wherein this Tribunal had dismissed the appeals of revenue for want of grounds of appeal - HELD THAT:- The revenue had filed grounds of appeal before us and both the parties on verification of records considered that these grounds of appeal were duly approved by the Pr. CIT even before filing of appeals of Tribunal. Since this fact remains undisputed and in view of the fact that the grounds filed by the revenue are before us , we are now inclined to recall the orders passed by us. Accordingly, the miscellaneous applications of the revenue are allowed. The registry is directed to fix for hearing on 31.07.2018 and both the parties are informed in the open court about the scheduled date of hearing and no fresh notices would follow.
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2018 (6) TMI 1827
Assessment of trust - claim of depreciation as assessee had claimed the amount incurred on purchase of assets in earlier years as application of income - set off of loss of earlier deficit with current year income - HELD THAT:- After hearing Ld. DR and on perusal of the impugned order we find that, since the issues raised in the grounds of appeal are squarely covered by the judgement of Hon’ble Jurisdictional High Court and other High Courts which has been followed by the Ld. CIT (A), therefore, we do not find any merits in the grounds raised by the department and accordingly the assessee’s current claim is allowed which is in lying with the judicial precedence of the aforesaid High Court judgments. Appeal of the revenue is dismissed.
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2018 (6) TMI 1826
Disallowance of deduction claimed u/s 54B - HELD THAT:- In the case of the co-owner Shri Keshav Sunderam Rajam [2017 (12) TMI 1852 - ITAT CHENNAI] this Tribunal remitted the matter back to the file of the AO. AO was directed to re-examine the matter afresh in the light of the material that may be produced by the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
Since the present assessee is also one of the co-owners of the property, for the sake of consistency, this Tribunal is of the considered opinion that the matter needs to be re-examined by the AO - Accordingly, the orders of both the authorities below are set aside and the issue raised by the assessee is remitted back to the file of the AO. AO shall re-examine the matter in the light of the material that may be produced by the assessee, more particularly the Adangal extract and other relevant documents, and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee. Appeal filed by the assessee is allowed for statistical purposes.
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2018 (6) TMI 1825
TP Adjustment - selection of certain comparables - HELD THAT:- Companies rejected on functional dissimilarity as well as the RPT more than the threshhold limit.
Disallowing re-imbursement of travelling and conveyance expenses and the reimbursement of Salary and Allowance u/s 40 (a) (i) - HELD THAT:- As decided in own case [2017 (9) TMI 1024 - ITAT DELHI] AR submits that while computing the disallowance u/s 40(a)(i) of the Act the AC should have considered the factual situation that has a bearing on the computation of disallowance u/s. 40 (a) (i) of the Act. From a reading of the assessment order, we find that the Assessing Officer did not consider any further facts while complying with the directions of the DRP, as such, this fact needs verification at the end of the Assessing Officer, after affording an opportunity to the assessee to furnish the requisite details that have a bearing on the disallowance u/s. 40 (a) (i) of the Act. We, therefore, set aside this aspect to the file of the Assessing Officer.
Respectfully following the order of the Tribunal in assessee’s own case in the preceding assessment year we deem it proper to restore this issue to the file of the Assessing Officer/TPO for adjudication of the issue afresh.
Delayed contribution made to Employees Provident Fund (EPF) - HELD THAT:- It is an admitted fact that the contributions to employee’s provident fund though deposited beyond the prescribed date as per the PF act, however, the same has been deposited prior to the due date of filing of return of income. The coordinate Benches of the Tribunal are taking the consistent view that where the EPF is deposited prior to due date of filing of return of income, no disallowance u/s. 43B or 2 (24) (x) read with 36 (1) (va) can be made. Since admittedly the EPF has been deposited prior to due date of filing of return of income, therefore, we hold that no disallowance is called for in the instant case. We, therefore, direct the Assessing Officer to delete the disallowance. The ground raised by the assessee on this issue is accordingly allowed.
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2018 (6) TMI 1824
Jurisdiction of AO over the assessee - appeal carried by the ACIT-39 to the Appellate Tribunal was dismissed as not competent - HELD THAT:- Assistant Commissioner of Income Tax-39, who had no jurisdiction over the assessee, carried an order in appeal to the Appellate Tribunal against an order passed by the Commissioner (Appeals). At the relevant time, the ITO-44 had jurisdiction over the assessee.
The appeal carried by the ACIT-39 to the Appellate Tribunal was dismissed as not competent. The order of the Appellate Tribunal was challenged by the Revenue in this Court. This Court did not interfere with the order of the Tribunal and the matter rested there without this Court’s order being challenged by the Revenue before the Supreme Court. In the present case, the matter pertains to the same assessment year when the ITO-44 has preferred an appeal where the initial assessment was not done by the ITO-44 but such assessment was conducted by the ACIT-39 at a point of time when ACIT-39 lost jurisdiction over the assessee pursuant to the said CBDT Notification of 2002.
Since there was a fundamental error, the Appellate Tribunal dismissed the appeal as incompetent since the order of the AO who had no jurisdiction to undertake the assessment qua the assessee could never have been found to be legal or resurrected.
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2018 (6) TMI 1823
Disallowance of depreciation on the amount of cost of plant & machinery incurred as reimbursement to Gulbrandsen Chemicals Inc., USA - as alleged that the assessee has neither reduced the amount form the cost of asset nor disallowed the depreciation - HELD THAT:- We find that the expenditure were pertaining to professional fees for setting-up of the Plant and the travelling cost of the Architects etc. which were incurred by Gulbrandsen Chemicals Inc., USA, and were paid by it on behalf of the appellant to external third parties during the period from 2000 to 2002. We noticed that before the AO that it had set-up its Plants during the period of 2000 to 2002 in India.
As per the appellant in this phase, it had very limited organizational and functional resources and therefore Gulbrandsen Chemicals Inc., USA assisted it in Plant set up phase engaging external service providers (such as Plant Consultant, Architect etc.). We hold that any expenditure incurred in relation to creation of a capital asset should be capitalized to the relevant asset. Appellant accordingly it also capitalized the amount of Rs. 1,42,66,483/- spent for setting up of the Plants to the respective plants account in FY 2006-07 when it received debit notes from Gulbrandsen Chemicals Inc., USA for such reimbursement. They made the payment.
A.O. has invoked Section 43A on the basis of misconception in as much as receipt was for reimbursement from the company and same was the debit to the company and this aspect is not disputed. On account of aforesaid discussion, we allow the appeal of the appellant and direct the A.O. to allow excess depreciation - We allow this ground of appeal.
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2018 (6) TMI 1822
TP Adjustment - Comparable selection - HELD THAT:- Assessee is engaged in the business of providing non-binding investment advisory services pertaining to investment opportunity available in India to its Associated Enterprises (AE) named Apax Partners UK Ltd., located in UK, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
Computation of RPT transactions - The co-ordinate bench in the case of Goldstar Jewellery Design P Ltd [2014 (11) TMI 904 - ITAT MUMBAI] has observed that “the term “related party transaction” cannot be considered in its generic sense. It will encompass only such transactions between the related parties which directly affect the overall profitability in one way or the other”. A.R submitted that the reimbursements do not affect profitability and hence the same has to be excluded. We find merit in the said submissions. The reimbursement of expenses does not result in any profitability, i.e., it is mere compensation for the expenses incurred by one party on behalf of another party. Accordingly we direct the AO/TPO to exclude the reimbursements and accordingly compute RPT transactions. Accordingly we restore this comparable to the file of AO/TPO for considering it afresh.
Assessee has opted for Advance Pricing Agreement (APA) for AY 2010-11, wherein the assessee has accepted determination of higher margins - We notice that Rule 10MA provides for the methodologies of Roll back of the APA and clause (iv) of sub rule (2) of Rule 10MA states that there should be a request from the assessee for roll back of APA. In the instant case, admittedly, there is no request from the assessee for roll back. Hence we do not agree with the submissions made by the Ld D.R.
Accordingly we restore the issue of determination of ALP to the file of AO/TPO by considering the comparables approved by us in the preceding paragraphs by adopting single year data in terms of Rule 10B(4) of IT Rules. In the result, the appeal of the assessee is treated as allowed and the appeal of the revenue is dismissed.
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2018 (6) TMI 1821
TP Adjustment - comparable selection - high percentage of related party transactions entered - HELD THAT:-Crisil Limited (Research Segment) - It is now almost settled by various judicial precedents that for carrying out comparability analysis RPT filter should be around 25%. Since this issue has not been examined from this perspective, therefore, we are of the opinion that for examining the percentage of related party transactions matter should be remanded back to the file of TPO, who shall examine this point and in case the RPT is more than 25%, then this comparable cannot be included in the comparability list and hence should be excluded. With this direction issue of Crisil Limited (Research Segment) is remanded back to the file of the TPO.
Brescon Corporate Advisors Ltd. are not only into advisory services but also into merchant banking, financial restructuring and syndication of debt. Whereas the assessee company as discussed above is purely providing investment advisory services and none of its activities are into merchant banking. Brescon Corporate Advisory is also assisting company in special situations through recapitalisation, mergers and acquisition, infusion of private equity or direct investment etc. The company which is mainly carrying out merchant banking, restructuring and syndication of debt cannot be held to be functionally comparable with a company which is purely into investment advisory services.
There is no segmental information with regard to various streams of fees, i.e., financial restructuring and re-capitalisation, syndication of debt equity related advisory, M & A Advisory, etc. In the absence of such segment information, it would be very difficult to carry out in benchmarking analysis with the assessee, because none of such activities are carried out by the assessee. Accordingly, we direct exclusion of said comparable from the list of the comparables.
Khandwala Securities Ltd. - Only few activities undertaken by it under the corporate advisory services which can said to have some similarity with those carried out by the assessee. However in totality if we take the overall streams of revenue and function carried out by this company then it would be very difficult to include such a company into a basket of comparability list and therefore, at entity level and in absence of any overall segment of corporate advisory services, we do not find that it should be included in the comparables. Accordingly, we direct the exclusion of such comparable.
India Venture Capital - We find that the principal products of this company are software product and services, whereas the assessee company is purely into ITeS which is in the nature of business and investment research services. When a company is into Software development companies then ostensibly it cannot be held to be comparable with ITeS Company and on this ground alone we direct the exclusion of the said company.
Disallowance on account of provision made during the year for leave encashment by the assessee u/s 43B (f) - HELD THAT:- We do not find any merits in the contentions raised by the assessee that since the entire income of the assesses is exempt and, therefore, corresponding expenses are also exempt, because from the perusal of the assessment order it is seen that no deduction u/s 10A has been claimed by the assessee and if the provision of leave encashment has not been paid, then in terms of section 43B(f) such amount cannot be allowed as deduction. Accordingly, the addition as confirmed by the AO in pursuance of the DRP direction is upheld. Thus, on this issue the assessee’s ground is dismissed.
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2018 (6) TMI 1820
Seeking permission for withdrawal of petition - HELD THAT:- Writ petitions are disposed of as withdrawn. Liberty is granted to the petitioner to urge all the grounds including the grounds urged in the writ petitions and also permitted to raise counter claim, if any.
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2018 (6) TMI 1819
Unexplained investment - non reliance on additional evidences by CIT-A - procedure prescribed by law - Denial of natural justice - necessity of passing speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard - As per assessee property was purchased by the assessee and his other co-owner and taken bank loan and balance was paid by his brother - HELD THAT:- CIT(A) being aware of the procedures should have provided the assessee a specific opportunity to place its evidences by way of a proper application under Rule 46A. Opportunity to do so in all fairness should have been provided. CIT(A) in the discharge of his responsibilities is not visualized to function in a mechanical manner.
Merely because the assessee’s counsel apparently ignorant about the procedure relies upon evidences without following the due procedure does not entitle the First Appellate Authority to function mechanically. The Ld. CIT(A) is expected to act fairly and responsibly utilizing the powers with which he is endowed with the single minded aim that justice is done and not to frustrate a valid claim of the assessee on a hyper technical ground. The Appellate Forum provided under law must perform by ensuring that only just and due taxes for the state are only collected. The orders passed should not rely on the ignorances of the tax payers. The claims of the assessee must succeed or fail on merits, facts and evidences and not on account of the ignorance of the assessee or his counsel.
Admittedly where the assesse’s Counsel himself is ignorant about the procedures, the occasion to castigate the assessee for not being conversant with the legal requirements is, in the least, unfortunate. It is further seen that qua the specific property there were three other co-owners. The loan as per the claim put forth was from Nainital Bank as per the finding in the impugned order which also has been taken by these persons apart from the assessee. The purpose of referring to the co-sharers is relevant as exercise of administrative and quasai judicial orders passed by the authorities is legitimatized only if it is seen to be fair, equal and impartial. If identically situated persons are differently taxed, such orders of Quasi Judicial Authority strike at the very root of the principles of legitimate expectation of the tax payers and thus is open to the challenge of being whimsical, arbitrary and perverse. Such an approach cannot be given legal sanction.
In the interest of substantial justice, the impugned order is set aside and remanded back to the file of the CIT(A) with a direction to admit the fresh evidences - Appeal of assessee is allowed for statistical purpose
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2018 (6) TMI 1818
Assessment u/s 153A - Necessity of incriminating documents found in search - HELD THAT:- As it is a settled law that without any incriminating documents no adjustment to finally assessed income in completed assessment year can be tinkered with. The Ld. departmental tentative amount was any error in the order of the Ld. CIT – A. In view of this, we do not have any other option but to dismiss the appeal of the revenue.
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2018 (6) TMI 1817
Revision u/s 263 by CIT - declaration which was in the nature of unexplained nature was erroneously claimed by the assessee in addition to WIP and allowed by AO wrongly - as per CIT declaration made against WIP ould have been treated as unexplained expenditure u/s 69C and needed to be reduced from closing WIP - HELD THAT:- In the present case we find that in the assessment order AO has noted about the survey conducted on 02.02.2012, the statement of assessee was recorded on oath incurring of cash expenses. He has further noted that the details about the sources of business expenses and other expenses were called for by the assessee and the admission of additional income was also examined by him. He also noted that in the revised return, the additional income admitted was included by the assessee. We find that AO has examined the issue and after application of mind has passed the order.
Before us no material has been placed by the Revenue to demonstrate that the view taken by the AO while passing the order u/s 143(3) of the Act was unsustainable in law. In the present case, Ld.PCIT was not justified in invoking the provisions of Sec.263 - We, therefore, set aside the order of Ld.PCIT, whereby he has set aside the assessment order passed by the AO u/s 143(3) of the Act. Thus, the grounds of the assessee are allowed.
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2018 (6) TMI 1816
Unexplained cash deposits - HELD THAT:- CIT (Appeals) has proceeded on this basis that the entry regarding withdrawal is by way of clearing of cheque but when examined the bank statement available in the Paper Book, find that the clearing of cheque is mentioned by the bank against the entry of deposit of same amount and against withdrawal the narration given is "by self". It comes out that there is cash withdrawal of Rs.25.85 lakhs on 10.01.2011 and the deposit of cash in the bank account of Rs.10.01 lakhs is on 13.01.2011 and therefore, in my considered opinion, the source of deposit stands explained. Hence this addition is deleted.
Cash deposit in bank account - addition was made by the AO on this basis that this amount was received from the father-in-law and the assessee has not produced any evidence and therefore, the addition was made by the Assessing Officer - HELD THAT:- This is not the case of AO or CIT (Appeals) that this cash received from Ms. Swati is used by the assessee for some other investment or for some other cash deposit in bank account. In the absence of any such allegation, the source of Rs.2 lakhs stands explained and hence,delete this addition. This decision is further supported by these facts that as per the entry in the bank statement there is a deposit of cheque of Rs.2 lakhs on 15.2.2011 and there is reversal of such entry on the same date on this basis that cheque returned because of insufficient funds and assessee's submission is this that cheque of Rs.2 lakhs was received from Ms. Swati and it was deposited and the same was dishonored and cash was received against such dishonor of cheque. Accordingly Ground Nos.5, 6 & 7 are also allowed.
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2018 (6) TMI 1815
Disallowance relating to the part of the monthly lease rentals - HELD THAT:- We deem it proper to restore this issue to the file of the AO with direction to adjudicate this issue a fresh in light of the decision in case of IndusInd Bank Ltd. [2012 (3) TMI 212 - ITAT MUMBAI] and accordance with law. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. Thus, Ground No. 2 and 2.1 are partly allowed for statistical purpose.
Disallowing the revenue expenditure incurred on leasehold improvements - HELD THAT:- Decision of the Hon’ble Delhi High Court in the case of CIT vs. Amway India Enterprises [2011 (11) TMI 4 - DELHI HIGH COURT] held that in respect of the premises expenses which are incurred by the assessee on flooring, partition, wiring, fall ceiling, roofing, Air conditioner unit and duct, electrical wiring, laying network for setting up computer and for purchase of computer the same are in the nature of Revenue expenditure. The Hon’ble High Court has given the finding that whether an expenditure incurred is made on Revenue account or otherwise one would have to bear in mind the nature of the expenditure that is was it incurred for maintenance or preservation of an asset or was it expanded otherwise. If the expenditure was of the formal kind it would be in the nature of Revenue expenditure. In the light of the Hon’ble Delhi High Court decision it will be appropriate to remand this issue to the file of the Assessing Officer and after taking into cognizance the provisions of the Act the Assessing Officer may take a call for a proper justification.
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2018 (6) TMI 1814
Disallowance u/s 14A r.w.r. 8D - stay petition - HELD THAT:- We find from the decision under appeal that the assessing officer had failed to establish that the borrowed funds were utilised for the purpose of acquiring shares and in view of availability of own funds with the assessee, the expenditure ought to have been disallowed. This is a finding of fact. We do not find any perversity in such finding. As such, we do not admit the appeal on this point.
We do not find any utility in keeping the stay petition alive as there is no scope of passing any interim order. We accordingly dispose of the stay petition - we shall hear the appeal on the basis of the stay petition as we are apprised by the learned counsel for the parties that the stay petition contains all the relevant materials necessary for adjudicating the appeal.
On consent of the learned counsel for the respondent, service of the notice of appeal is waived and filing of paper book is also dispensed with. The appeal shall be listed in the monthly list of July 2018.
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2018 (6) TMI 1813
Refund of CENVAT Credit - input services - nexus with the output services or not - HELD THAT:- The appellant have described the nature of services and use thereof, it is prima facie found that in respect of all the services this Tribunal held that these subject services are input service, particularly in respect of identical placed assesse as appellant are engaged in providing output service which are exported. It is also observed that the lower authority denied the Cenvat credit/refund either on the basis of nexus or wanting of documentary evidence. The lower authority have not considered catena of judgments relied upon by the appellant.
Thus, entire case has to be re-considered by verifying documents and analysis of judgments which are directly in respect of subject input services - the appeals are allowed by way of remand to the adjudicating authority to re-consider the issue of Cenvat credit as well as refund after considering the submissions made by the appellant.
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2018 (6) TMI 1812
TDS u/s 194C - disallowance under Section 40(a) (ia) - HELD THAT:- We admit the appeal on the following point, which in our opinion involves substantial question of law.
"Whether on the facts and I the circumstances of the case the Tribunal was justified in law by holding that Section 194C(6) and Section 194C(7) are independent of each other and cannot be read together to attract disallowance under Section 40(a) (ia) of the Income Tax Act, 1961"
We dispose of the stay petition as there is no scope of passing any interim order. Let paper books be filed within eight weeks. All other formalities including service of notice of appeal be complied with within the aforesaid period.
The appeal shall be listed on 9th August,2018.
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2018 (6) TMI 1811
Estimation of commission of the sales turnover - CIT-A directed to work out it @ 0.1% as against 2% made by AO - HELD THAT:- The assessee is an employee of one Asia Group. There is an uncontroverted finding in the impugned order that the amount of sale and purchases are exactly same and no profit or loss resulted from such purchase/sale. The assessee has admitted that the transaction of sale and purchases were within the group companies only and were made at the instance of the employer to increase the turnover of the group company. It was also further admitted that there was no movement of goods and the transactions were shown of doing circular trading within the group merely to increase the turnover.
CIT (Appeal) has mentioned the case of Smt. Kalawati Negi, who was also an employee of the same group and showed similar transaction to jack up the turnover, wherein, the Ld. Assessing Officer itself made the addition on such account @ 0.1%. No contrary decision was brought to our notice. Thus, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal), resultantly, the appeal of the Revenue is dismissed.
Appeal of the Revenue is dismissed.
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2018 (6) TMI 1810
Seeking grant of default bail - time limitation - statutory period for filing the charge sheet or Challan expired or not - HELD THAT:- The law is fairly settled at least from the Constitution Bench expression of the Apex Court in SANJAY DUTT VERSUS STATE THRU. C.B.I. BOMBAY [1994 (9) TMI 351 - SUPREME COURT]. Undisputedly, in these cases, the punishment provided for any of the offences is only up to 10 years and for one of the offences upto life and thus the charge-sheet must be filed from the very wording of Section 167 of Cr.P.C. within 90 days from the date of respective remand and, if not filed, for that default, in non-compliance with the statutory period to file the final report under Section 173 Cr.P.C. read with 167(2) Cr.P.C, the accused are entitled to the 'default bail', which is an indefeasible right to avail. Even there is no any controversy as to the default bail is to be granted is not from the date of default till filing of charge-sheet as a default bail once granted will enure till end of trial, that cloud is also cleared by the Apex Court.
It is the duty of the Court if charge-sheet not filed within the statutory period, to release the detenu on bail. For that even an oral application is enough if at all accused wants to apply. There are some expressions saying even default bail granted when there is a subsequent filing of charge-sheet, the procedure contemplated if at all to cancel the bail and to take custody is as per Cr.P.C. It is crystal clear therefrom of only the bail sought to be cancelled as contemplated by Section 439(2) and 437(4) Cr.P.C. once the default bail is availed by the accused for non submission of the charge-sheet.
Thus, once an application is made by the accused, after expiry of the statutory period of remand from non-filing of the charge sheet, he is entitled to the default bail and such a right cannot even be defeated by filing of charge sheet thereafter. So, the filing of the application either orally or in writing is a prerequisite, if not the Court chosen to grant the default bail, and once such an application is there, in recognition of his indefeasible right, he is entitled to the default bail, and that can no way be delayed even in its disposal - the petitioners/accused Nos. 5, 6, 8, 9, 10 and 12 respectively are entitled to the default bail. Thereby, the dismissal of the applications by the trial Court despite the petitioners-accused have chosen in filing written applications to avail the default bail is un-sustainable
Petition allowed.
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