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Showing 41 to 60 of 2148 Records
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2018 (8) TMI 2114 - ITAT KOLKATA
Write off of investments - assessee company was engaged in promoting the growth of electronics, IT and ITES sectors in the State of West Bengal - DR argued that the assessee had made certain investments in subsidiaries which were merely pure and simple investments and had written off the same in its books and write off is only a capital loss in the hands of the assessee company and hence cannot be allowed as deduction - assessee before us is not engaged in the business of financing - as argued assessee before us is a manufacturing company and hence every investment made in subsidiaries cannot be stretched further to have been made for the purpose of business and the investments made by the assessee company in the aforesaid subsidiaries were not meant for survival needs of the subsidiary companies - HELD THAT:- Assessee despite knowing the fact that the subsidiaries had incurred huge losses, had bothered to acquire the shares from outsiders during the year so as to enter into joint venture with renowned industrial houses for promoting the growth of IT and ITES sectors in the State of West Bengal. It is also not in dispute that the assessee company’s proposal to enter into joint venture with renowned industrial houses had been abandoned and hence the assessee had no other choice after making investments in shares but to write off the same. This conscious business decision of the assessee cannot be questioned by the revenue and if the shares held by the assessee results in any gain in future on sale of the same, the same would any way get taxed as income in the hands of the assessee company. We find that the objects of the assessee company includes financing also and that the financing could be by way of lending to parties by way of loans or by way of investing in shares of those companies. In effect the assessee had only brought down the value of investments on the ground of non-realisability of the value thereon. Hence we hold that the assessee is entitled for deduction in respect of write off of investments by respectfully following the decision of Tamil Nadu Industrial Investment Corporation Ltd [2017 (7) TMI 1048 - MADRAS HIGH COURT] Decided in favour of assessee.
MAT computation - provision for investments and loans and advances in its profit and loss account and claimed the same as deduction while computing the book profits u/s 115JB - HELD THAT:- As in the instant case, it is not in dispute that the assessee had made only provision for doubtful investments and doubtful loans and advances in the sum which was not written off in the books by the assessee. Assessee had voluntarily added back the said provision under the normal computational provisions of the Act and had not disputed the same before the revenue.
Hence it could be safely concluded that the amounts provided towards doubtful investments and advances were only in the nature of mere provisions and not write off.
In the instant case, the provisions of section 115JB of the Act, being a complete code in itself having a deeming fiction , need to be strictly construed and and amendment has been brought by way of inserting clause (i) in Explanation 1 to section 115JB of the Act with retrospective effect from 1.4.2001 by the Finance (No. 2) Act, 2009. Accordingly, we hold that the addition while computing the book profits u/s 115JB of the Act by the ld AO is in order. The Ground No. 2 raised by the assessee for the Asst Year 2008-09 is dismissed.
Disallowance u/s 14A - Necessity of recording satisfaction - Assessee claimed that no expenditure was incurred by it for earning dividend income - AO applied the provisions of second and third limb of Rule 8D(2) of the IT Rules and made disallowance - HELD THAT:- It could be safely concluded that even when the assessee claims that no expenditure was incurred by it for the purpose of earning exempt income, still it is incumbent on the part of the ld AO to record satisfaction having regard to the accounts of the assessee in terms of section 14A(2) / 14A(3) of the Act as to why the claim so made by the assessee is incorrect. Only after recording such satisfaction, he could resort to computation mechanism provided in Rule 8D(2) of the Rules.
In the absence of any such recording of satisfaction, we hold that no disallowance u/s 14A of the Act read with Rule 8D of the Rules could be made by the ld AO. Thus no hesitation in directing the ld AO to delete the disallowance made u/s 14A - Decided in favour of assessee.
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2018 (8) TMI 2113 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD
Sanction of scheme of amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Upon considering the approval accorded by the members and creditors of the Petitioner Companies to the Scheme, and the report filed by the Regional Director, there appears no impediment to grant sanction to the Scheme. Consequently, sanction is hereby granted to the Scheme under Section 230-232 of the Companies Act, 2013. The sanctioned Scheme shall be binding on the Petitioner Companies and on all their respective shareholders and creditors, and all other concerned persons, with effect from the Appointed Date, i.e. April 01, 2018. The Petitioner Companies shall, however, remain bound to comply with the statutory requirements by law.
Petition allowed.
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2018 (8) TMI 2112 - ITAT AHMEDABAD
Disallowance u/s 14A - computation of deduction - AO observed that assessee has not properly worked out the disallowance therefore the assessee was asked to explain why not the disallowance should be worked out as per section 14A - HELD THAT:- As noticed that as on 31st March, 2011, the assessee was having its own fund of Rs. 158.57 crores (share capital of Rs. 69.44 crores + reserves of Rs. 89.14 crores). It is explained that borrowed funds were utilized for construction of hospital building and the interest amount was capitalized as evident from rule 19 of annual accounts - identical issue on similar facts in the case of the assessee, has been decided for assessment year 2010-11 on 08.08.2017 in favour of the assessse. DR was fair enough not to controvert these facts and findings. Accordingly, the appeal of the revenue on this issue is dismissed.
Depreciation on system software of the computer - @ 60% or 25% - as per AO application software are not integral part of the computer and held that the application software is intangible assets and they are eligible for depreciation u/s. 32 of the act @ 25% - HELD THAT:- Special Bench in the case of Datacraft India Ltd [2010 (7) TMI 642 - ITAT, MUMBAI] held that any device when they are used along with computer and when their functions are integrated with the computer comes within the ambit of the expression computer. Decided against revenue.
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2018 (8) TMI 2111 - ITAT MUMBAI
Nature of gain from the transaction of securities - Income from securities as capital gain OR business income - exemption under Article 13(6) of the India Switzerland Tax Treaty - PE in India - HELD THAT:- Considering the precedents in assessee’s own case for Assessment Years 2008-09 (supra) as well as 2009-10 [2016 (6) TMI 1462 - ITAT MUMBAI] it has to be held that income of a FII from sale and purchase of securities is liable to be taxed as ‘Capital Gains’.
PE in India - Taxability of such income, which has been held to be non-taxable in India under Article 13(6) of the India-Switzerland Tax Treaty - Tribunal, in Assessment Year 2009-10 (supra) held that banking branch of the assessee in India would not constitute a PE qua the aforesaid income. Thus, the aforesaid decisions of the Tribunal in assessee’s own case, and which continue to hold the field as they have not been altered by any higher authority, fully cover the aforestated Grounds raised by the Revenue before us. Accordingly, we hereby affirm the decision of CIT(A), which is in line with the aforestated precedents in assessee’s own case. Thus, the order of CIT(A) is hereby affirmed. Appeal of the Revenue is dismissed.
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2018 (8) TMI 2110 - ITAT BANGALORE
Demand u/s 201(1) and 201(1A) - assessee’s had not remitted the tax deducted at source on certain payments made - Assessee argued recipient of the income has filed loss returns of income and no taxes were payable to the government - HELD THAT:- As fairly agreed to by the counsel of both the assessee and Revenue that the issue before us i.e whether the assessee’s are liable to pay interest u/s 201(1A) of the Act has been considered at length and held against the assessee by the decision of the co-ordinate bench of this Tribunal in the case of power and control systems in holding there is a difference between case where the amount paid is chargeable to tax but the payee has suffered loss or does not have positive income and a case where the payments made are not chargeable to tax at all. The argument made on behalf of the assesee can be considered only where the payment in question is not chargeable to tax at all. But in a case where payment in question is chargeable to tax but the payee has suffered loss or does not have positive income then the person making the payment is obliged to deduct tax at source. The fact that the payee does not have positive income will absolve the person making payment from being treated as ‘an assessee in default’ for not deducting tax at source but cannot absolve the payee from paying interest u/s 201(1A)
Respectfully following the aforesaid decision Research Enterprises [1998 (12) TMI 18 - MADRAS HIGH COURT] and CIT Vs. CIT Vs. Chennai Metropolitan Water Supply and Sewerage Board [2011 (9) TMI 224 - MADRAS HIGH COURT] and Hon’ble Punjab & Haryana High Court in Punjab and Infrastructure Development [2017 (8) TMI 78 - PUNJAB AND HARYANA HIGH COURT] we concur with and uphold the view of the ld CIT(A). Consequently, all four appeals of these two assessee’s are dismissed.
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2018 (8) TMI 2109 - SC ORDER
CENVAT Credit - capital goods - plant, structures, embedded to earth - angles, joists, beam, channels, bars, flats which go into fabrication of such structures - HELD THAT:- Issue Notice.
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2018 (8) TMI 2108 - ITAT CHANDIGARH
TDS u/s 195 - TDS when payment is made to a power of attorney holder even when the de-facto and as well as de-jure ownership lies with the NRI - assessee purchased property from NRI without deducting TDS on the payments made as consideration for the said purchase - AR argued that since the assessee has been dealing with an Indian resident and so no tax was to be deducted by the purchaser and since the seller has already paid the taxes the interest cannot be charged in the hands of the assessee - HELD THAT:- The provisions of 201(1) stipulates that the assessee is liable to deduct tax on the payment and section 201(1)(A) casts liability of the assessee to pay interest on the default. Though the statutory provisions casts liability on the assessee, keeping in view the payment received by the exchequer, whether by the assessee(purchaser) or by the recipient(seller) leverage was given by the authorities not to burden the assessee with the strict liability of the TDS deduction when the recipient pays the due taxes vide Circular No. 275/201/95-IT dt. 29/01/1997. This doesn’t mean the assessee is absolved totally of the responsibility to deduct the taxes and also interest if any. This Circular absolves the assessee in the cases where the due payments of tax or interest has been duly paid by the recipient.
Hon'ble Delhi High Court in the case of DIT vs. Jacabs Civil Incorporate [2010 (8) TMI 37 - DELHI HIGH COURT] which says that an authority which is bound to make a deduction of tax at source as per statute, if does not deduct, or after deducting fails to pay the tax, than such a person or authority is liable to pay simple Interest on the amount of tax not deducted. This shows that, liability of the tax deductor is absolute. The assessee who should be the deductor as per statute failed to deduct taxes and is seeking to benefit itself by claiming the benefits which are available to the deductee.
AR has also referred to the decision of the ITAT, Hyderabad in the case of Tecumseh Products(I) Ltd. [2006 (7) TMI 529 - ITAT HYDERABAD] - On perusal we find the facts of the case are not applicable to the issue before us. Hence, keeping in view the provisions of the Act and facts of the case we hold that the interest under section 201(1)(A) has been rightly confirmed by the Ld.CIT(A). Assessee appeal is dismissed.
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2018 (8) TMI 2107 - ANDHRA PRADESH HIGH COURT
Seeking appointment of an arbitrator - Arbitration in the Credit Information Companies (Regulation) Act, 2005 - credit institution - applicant pleaded that the third respondent CIC has erroneously and without verification of any details, included false information as furnished by the credit institution, regarding the applicant - whether the dispute as between the applicant as a borrower and the credit institution is not a dispute that would fall under Section 18 of the Act for settlement in terms thereof read with the provisions of the A & C Act?
HELD THAT:- Section 18 of the Act is a mechanism for settlement of disputes relating to business of credit information. It does not relate to settlement of any dispute as between the borrower and the credit institution in relation to the credit information given by the credit institution to the CIC, including the correctness or otherwise of such information. This will be the legal position also in relation to any dispute as between a 'client' as defined in Section 2(c) (which is an inclusive definition) of the Act and the credit institution. Section 18 of the Act would apply only when dispute arises on matters relating to business of credit information. A dispute between the borrower and credit institution, including any dispute as to the correctness or otherwise of the credit information given by the credit institution to the CIC, is not a dispute relating to the business of credit information.
This request filed invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 read with Section 18 of the Credit Information Companies (Regulation) Act, 2005 fails - Application dismissed.
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2018 (8) TMI 2106 - ITAT DELHI
Assessment u/s 144C - Validity of draft assessment order - HELD THAT:- There are other judgments of Hon’ble Delhi High Court wherein similar issue has been decided in favour of the assessee like in the case of, Honda Cars India Limited [2016 (2) TMI 527 - DELHI HIGH COURT] as held that, if assessee is not an “eligible assessee” in terms of section 144C(15)(b), then AO is not competent to pass a draft assessment order u/s 144C and the final assessment order consequently becomes time barred. Accordingly, following the aforesaid binding judicial precedents, we hold that the draft assessment order is invalid and consequently the impugned final assessment order is also unsustainable in law and is set aside. Consequently the additional ground as well as the appeal of the assessee is allowed.
“Eligible assessee” in terms of section 144C (15)(b) - AY 2006-07 & 2007-08 - As no transfer pricing adjustment or order u/s 92CA varying the returned income has been passed which is evident from the observation and the finding given by the AO in the impugned orders. In these years also, the AO has resorted to proposed draft assessment order u/s 144C (1) which is in absence of requisite condition that assessee was not the “eligible assessee” in terms of section 144C (15)(b). Hence, such a draft assessment order could not have been made, instead regular assessment order u/s 143 (3)/147 should have been passed. Thus, we hold that the impugned final assessment orders passed in the assessment years 2006-07 and 2007-08 are bad in law and are accordingly set aside. In these years also the appeal is allowed on the basis of additional ground raised.
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2018 (8) TMI 2105 - ITAT DELHI
TP adjustment with respect to interest on delayed payments from the AE - receivables outstanding beyond the agreed period - Assessee argued non-charging of interest in respect of extended credit period cannot be held as an international transaction provided the assessee was giving similar treatment to both AEs and non AEs - HELD THAT:- As decided in Kusum Health Care Pvt. Ltd [2017 (4) TMI 1254 - DELHI HIGH COURT] delay in collection of monies even beyond the agreed period will have to be investigated on a case to case basis. It has also been laid down that the TPO will have to make a proper enquiry to discern a pattern which could indicate that the arrangement reflects an international transaction intended to benefit the AE in some way. It has also been held that where the assessee has already factored in the impact of receivables on the working capital, any further adjustment only on the basis of outstanding receivables would distort the picture.
This aspect will have to be necessarily re-examined by the AO/TPO before any such adjustment is made. It has also been submitted by the Ld. AR that the impact of the outstanding receivables has been factored in the working capital adjustment. This aspect also requires verification.
We restore this issue to the file of the AO/TPO for the purpose of re-examining and re-considering the issue in light of the ratio of the judgment of the Hon’ble Delhi High Court in the case of Principal CIT vs. Kusum Health Care Pvt. Ltd (supra) and pass a speaking order as per law after giving proper opportunity to the assessee.
Disallowance of depreciation - assessee must use the asset for the "purposes of business" - HELD THAT:- The issue is squarely covered in favour of the assessee by the judgment of the Hon’ble Apex Court in the case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT] held that as long as the asset is utilized for the purpose of business of the assessee, the requirement of section 32 will stand satisfied, notwithstanding nonusage of the asset itself by the assessee - it considered the phrase 'use for the purpose of business' in the case of liquidators of Pursa Ltd. [954 (2) TMI 1 - SUPREME COURT] The Hon’ble Apex Court pointed out that the critical words which are essentially constituent for the purpose of considering the claim of the assessee was machinery or plant "used for the purposes of business, profession or vocation". The words "used for the purposes of business" obviously means used for the purpose of enabling the owner to carry on the business and earn profits in the business.
We find no reason to interfere with the findings of the Ld. CIT (A) on the issue and dismiss the grounds raised by the Department.
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2018 (8) TMI 2104 - KARNATAKA HIGH COURT
TP Adjustment - mirror transactions ALP adjustments - Tribunal held that in mirror transactions ALP adjustments cannot be done, i.e., if one transaction is treated as at Arm’s Length, no adjustment can be made on the other related corresponding transaction of the AE without appreciating that this stand is against the provisions of Section 92(3) of the Act?” - substantial question of law - HELD THAT:- As this Court in a recent judgment in M/s Softbrands India Pvt. Ltd. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable. No substantial question of law arises in the present case
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2018 (8) TMI 2103 - HIMACHAL PRADESH HIGH COURT
Amendment in conveyance deed - registration of immovable property - Petition sought change of name due to merger into new entity - Validity of demand of "unearned increase/transfer charges" on account of alleged violation of Clause 2(xi) of conveyance deed - HELD THAT:- A similar question was decided by the Single Judge of the High Court [2015 (5) TMI 1243 - CALCUTTA HIGH COURT], wherein with the observations that when the respondent-State had recognized independent juridical entity of ‘Dabur Pharma Limited’ as a lessee, the subsequent change of promoter group, which ultimately led to the change of corporate name the petitioner-Company cannot be saddled with an independent obligation to pay transfer fee. It has, therefore, been held in the judgment supra that no demand for transfer fee could have been raised against the petitioner-Company as a condition precedent for recordal of its name as a lessee on the ground that there has been transfer of leasehold rights.
In view of the point in issue in this writ petition is authoritatively adjudicated upon by the Calcutta High Court with the help of case law and the facts also identical, therefore, the point in issue is covered by the judgment ibid in favour of the petitioner.
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2018 (8) TMI 2102 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- There is nothing on record to suggest that the Corporate Debtor raised any dispute about the supply or quality of goods prior to issuance of demand notice under Section 8(1) of I&B Code. Such being the case, the Adjudicating Authority has rightly held that there was no pre-existing dispute and admitted the application.
Appeal dismissed.
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2018 (8) TMI 2101 - MADHYA PRADESH HIGH COURT
Benami transaction - Power of Adjudicating Authority to regulate its own procedure - not giving opportunity to cross-examine - reason on the pending applications filed by the petitioners - HELD THAT:- Cross-examination in the proceeding initiated by the respondents, cannot be said to be a right of the petitioners and can be considered to be an integral part of the principle of natural justice, which is required to be followed in view of Section 11 of the PBPT Act, 1988 as the proceeding before the Adjudicating Authority has to be guided by the principle of natural justice. It is noteworthy to mention that as per subsection (5) of Section 24 of the PBPT Act, 1988 in which impugned show cause notice has been issued referring the matter to the Adjudicating Authority, the Initiating Officer after passing the provisional attachment of property is obliged to draw up the statement of the case and refer it to the adjudicating authority. On receipt of reference under Sub-section (5) of Section 24, the adjudicating authority shall issue notice to the stakeholders as provided under Sub-section (1) of Section 26 of the Act.
Section 26(3) makes it clear that the adjudicating authority will examine the entire issue and relevant material.
It the right to cross-examine cannot be considered to be an integral part of the principle of natural justice, however, it is open for the authority to examine the available circumstances and if deems fit, the opportunity to cross-examine can be provided, but not as a matter of right.
Thus, considering the overall circumstances without expressing any opinion whether the respondents have to provide an opportunity of cross-examination or to supply the certified copies of the documents requested by the petitioners, an order has to be passed by the authority assigning reason on the pending applications filed by the petitioners as to why such applications cannot be accepted. It is not proper on the part of the respondents not answering the applications submitted by the petitioners and sitting silent over the applications demanding documents and asking opportunity for cross-examination is itself arbitrary and in violation to the principle of natural justice.
This petition is disposed of directing the respondent No.2 to pass appropriate order on the pending applications of the petitioners assigning reason for not providing the certified copies of the documents and not giving opportunity to cross-examine.
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2018 (8) TMI 2100 - ITAT BANGALORE
TDS u/s 194J - Expenditure on rendering professional services - Non deduction of TDS - Nature of expenses - HELD THAT:- Assessee had deducted tax at source and had made payment of the tax so deducted to the credit of the Central Government as per the due dates specified in Section 40(a)(ia) of the Act. Copies of the relevant TRACES of TDS Centralized processing cell - We are of the view that it would be just and appropriate to set aside the order of the CIT(A) and remand for verification by the AO the claim of the Assessee that it had complied with the provisions of sec.40(a)(ia) of the Act. If tax had been deducted and paid as claimed, then the addition made is directed to be deleted.
Disallowance u/s. 14A - expenditure incurred earning exempt income - whether no interest paid can be attributable to the income received and the A.O. has not given a finding that the claim made by the assessee is not correct? - HELD THAT:- Assessee has to make a claim (including a claim that no expenditure was incurred) with regard to expenditure incurred for earning income which is not chargeable to tax. Such a claim has to be examined by the AO and only if on an objective satisfaction arrived at by the AO that the claim made by the assessee is not correct, can the AO proceed to apply the computation mode as specified in Rule 8D(2) of the Rules. In the present case, the Assessee has not given such a basis. Assessee submitted that the issue may be set aside to the AO and the Assessee will give the basis on which it computed the disallowance u/s.14A - Thus set aside the order of the CIT(A) on this issue and remand the issue for fresh consideration.
Addition on account of provision for warranty while computing income from business - Assessee claimed deduction as provision for warranty liability on the pressure cookers and electronic items sold by it - AO disallowed the claim for deduction for the reason that the estimation of liability based on which provision for warranty liability was made by the Assessee was not scientific - HELD THAT:- Assessee is in this line of business for a very long time and he should be in a position to demonstrate that making provision of 1% of the sale as provision for anticipated liability on account of warranty claims is based on its own past experience. We therefore deem it fit and proper to set aside the order of the CIT(A) and remand for fresh consideration by the AO, the question of proper estimate of liability on account of provision for warranty based on past events. The Assessee is directed to furnish the necessary figures in this regard to justify its claim. The AO shall examine the claim in the light of the principles laid down by the Hon’ble Supreme Court in the case of Rotor Controls India Pvt.Ltd. [2009 (5) TMI 16 - SUPREME COURT] after affording the Assessee opportunity of being heard. The appeal of the revenue is accordingly treated as allowed for statistical purpose.
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2018 (8) TMI 2099 - ITAT DELHI
Exemption u/s 11 - denying the benefit of exemption u/s 12A as well as not allowing the claim for deprecation - test for carrying on of any activity in the nature of trade, commerce or business as mentioned in the first proviso to Sec. 2(15) would be satisfied if profit making is not the real object - HELD THAT:- As decided in own case [2018 (7) TMI 1478 - ITAT DELHI] as drawing support from the speech of the Finance Minister and subsequent clarification issued by the CBDT within the framework of amended provisions of section 2(15) in our considered opinion, there was no material which may suggest that the assessee association was conducting its affairs solely on commercial lines with the motive to earn profit.
There is also no material which could suggest that the assessee association has deviated from its objects which it has been pursuing since past many decades. In our humble opinion and understanding of law, proviso to section 2(15) is not applicable to the facts of the case and the assessee-association deserves benefit u/s 11/12 of the Act. We, therefore, do not find any reason to interfere with the findings of the first appellate authority. Appeal filed by the Revenue is dismissed.
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2018 (8) TMI 2098 - ITAT AHMEDABAD
Deduction u/s 80P(2)(a)(i) - Assessee is a cooperative society registered under Gujarat Cooperative Societies Act, 1961 and engaged in providing credit facilities to its members - assessee has claimed deduction for the interest income earned on FDRs. with the financial institutions and this claim was denied by the AO on the ground that provisions of section 80P(2)(a)(i) does not cover assessee-society - HELD THAT:- We find that in the case of State Bank of India Co-operative Society [2016 (7) TMI 516 - GUJARAT HIGH COURT] has held that interest earned from investment made in nationalized bank by a cooperative society engaged in providing credit facilities to its members, is not eligible for deduction under section 80P.
Tribunal in earlier occasions on similar issue has taken a consistent view by following above judgment of the Hon’ble jurisdictional High Court. Since orders of the Revenue authorities are in accordance with the judgment of the Hon’ble jurisdictional High Court cited supra, no interfere is called for in the impugned orders, which we confirm. However, any expenditure incurred by the assessee for earning such income could be allowed to it, if not already allowed. AO has to determine the net interest income as well as misc. income earned by the assessee, and only thereafter that income has to be excluded from the admissibility of deduction under section 80P - AO is also directed to examine whether the assessee is entitled for statutory deduction under section 80P. - Decided is partly allowed for statistical purpose.
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2018 (8) TMI 2097 - CESTAT DELHI
Seeking restoration of appeal - inadvertent mistake is prayed to be considered as sufficient reason for restoring the impugned appeal - HELD THAT:- It is settled principle of law for condonation of delay that a sufficient reasonable caused has to be shown by the applicant while praying for the same. Apparently and admittedly the only reason cited is unability to make any alternate arrangement for appointing Counsel in this appeal. The same is impressed upon as an inadvertent mistake.
Keeping in view the same and the fact that sufficient cause and reasonable time are the expression which are found in various statutes. There cannot be a straight jacket formula for accepting or rejecting application furnished for delay caused in taking steps.
Application dismissed.
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2018 (8) TMI 2096 - ITAT JAIPUR
Addition u/s 68 - bogus LTCG on Shares - denying the exemption of long term capital gain U/s 10(38) - HELD THAT:- Holding of the shares by the assessee cannot be doubted and the finding of the AO is based merely on the suspicion and surmises without any cogent material to show that the assessee has introduced his unaccounted income in the shape of long term capital gain. We find that the CIT(A) has also referred to SEBI enquiry against M/s Girriraj Stock Broking (P) Ltd and has stated that current status is that M/s Girriraj Stock Broking (P) Ltd is under investigation. Therefore, in absence of specific findings which can be known only on completion of enquiry and in absence of any material on record that the subject matter of the enquiry has any connection with the transaction of bogus long term capital gain, the same cannot be relied upon by the Revenue.
CIT(A) has stated that period of holding is less than 12 months. In this regard, reference can be drawn to the provisions of section 2(42A)(c) which provides that “in the case of a capital asset being a share or shares in an Indian company, which becomes the property of the assessee in consideration of a transfer referred to in clause (vii) of section 47, there shall be included the period for which the share or shares in the amalgamating company were held by the assessee.”
In the present case, the original shares in M/s Drishti Suppliers Ltd were bought by the assessee in 2010 against which shares of Quest Financial Services Ltd were allotted to the assessee pursuant to amalgamation between the companies. Thus, the holding period has to be reckoned from the date when shares in M/s Drishti Suppliers Ltd were originally purchased by the assessee. Hence, in view of the facts and circumstances when we hold that the order of the Assessing Officer treating the long term capital gain as bogus and consequential addition made to the total income of the assessee is not sustainable. Hence, we delete the addition made by the AO on this account.
Addition made on account of notional commission u/s 69C as consequential to the issue of treatment of long term capital gain as bogus - HELD THAT:- Once, we have reversed the finding of the AO on the issue of treatment of long term capital gain as bogus then, the consequent addition made by the AO on notional commission is not sustainable. Accordingly, the same is deleted.
Assessee appeal allowed.
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2018 (8) TMI 2095 - DELHI HIGH COURT
Re-opening of assessment u/s 147 - as argued AO did not issue any further notice as called for by law u/s 143(2) of the Act, within the time prescribed - notice was premised upon the information received by the Office of the Commissioner of Income Tax, Delhi-V through a letter stating that the petitioner/assessee, subsidiary of an overseas company, had a dependent Permanent Establishment (PE) in India whose activities were subject to Arms Length Price (ALP) determination under Section 92CA - HELD THAT:- Notice was issued in these proceedings; the interim order permitted the Revenue to continue with the re-assessment proceedings provided no final order was made. Consequently, the reference made to the TPO (consequent to the orders of reference) resulted in TPO determination on 29.01.2015.
TPO held that no adjustment was called for having regard to the overall circumstances of the case. This fact – though subsequent to the filing of the petition is relied upon by the assessee. Additionally, it is contended that pursuant to the reassessment notice the AO did not issue any further notice as called for by law under Section 143(2) of the Act, within the time prescribed, proposing to take further proceedings in the re-assessment.
This aspect too is undisputed. The notice under Section 143(2) of the Act ought to have been issued within six months prescribed period (which in this case ended on 30.09.2013), however, that notice was issued on 09.01.2014. This aspect was highlighted not in the petition but in the course of the proceedings in the rejoinder filed by the assessee sometime in July, 2016. It sought to follow this up through an amendment application - In the light of these events, which are both subsequent to the initiation of the re assessment proceedings, the entire purpose for re-assessment, assuming that there was any, can no longer be achieved.
The judgment of this Court in ‘Pr. Commissioner of Income Tax vs. Silver Line [2015 (11) TMI 809 - DELHI HIGH COURT] and the other subsequent decisions have ruled that omission to issue notice u/s 143(2) of the Act within the time stipulated in respect of any assessment is fatal. Reassessment notice and all consequent proceedings emanating from it are hereby quashed.
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