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M/s DS. Woodtech Pvt. Ltd, M/s DS. Doors Pvt. Ltd. Versus Assistant Commissioner of Income Tax

Validity of assessment framed under Section 153A read with section 143(3) - A.Ys. 2001-02 to 2006-07) - Held that:- Considering the undisputed fact emerging in the assessment for the assessment years 2001-02 to 2006-07 are that no addition other than the addition on account of difference in construction as shown by the assessee in its books of account and as estimated by the D.V.O. in his report has been made which impliedly supports the contention of the assessee that no incriminating material .....

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iew of cited decisions by the Learned AR that is in the cases of All Cargo Global Logistics Ltd. vs. CIT (2012 (7) TMI 222 - ITAT MUMBAI(SB)) and others, we are of the opinion that the assessments framed under sec. 153A for the assessment years under consideration are not valid. - Decided in favour of the assessee.

Validity of addition made on undisclosed investment in construction - basis of valuation report of the D.V.O. to make additions - Held that:- Sole addition made in these a .....

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report of the D.V.O. is misconceived. The additions made on account of undisclosed investment in the construction based on the valuation report of the D.V.O. are thus held as not justified - Decided in favour of the assessee.

Validity of assessment framed under Section 153A - (A.Y. 2007-08) - Held that:- As during the course of search in the premises of the assessee several documents including prima facie incriminating material were found and seized. Thus, it cannot be said that the .....

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s of surrendered amount dehors evidence in corroboration and ignoring subsequent retraction thereto by the assessee with valid reason. Here the case before us is that when surrendered income was objected by the assessee with sufficient reason then the same should have been duly considered by the Assessing Officer and Learned CIT(Appeals) while making and upholding the additions. The assessee vide several letters including letter dated 17.10.2008, 22.10.2008, 13.11.2008, 05.12.2008, 24.12.2008, 2 .....

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o decide these afresh after verifying the contents of these letters after affording adequate opportunity of being heard to the assessee - Decided in favour of assessee for statistical purposes.

Addition on account of cash receipt - incorrect facts have been recorded - Held that:- the authorities below have justified decoding of those figures by making addition of zero to the figure where after recording the figure, a zero was mentioned after putting decimal e.g., if ₹ 1,000 was .....

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ons in question are thus not sustainable in absence of any basis particularly in a search proceedings under sec. 153A of the Act. These additions are accordingly deleted. - Decided in favour of assessee. - ITA Nos. 1986 to 1991 & 2053/Del /2011, ITA Nos. 2273 to 2275& 2052/Del /2011 - Dated:- 13-3-2015 - Shri I.C. Sudhir And Shri T.S. Kapoor JJ For the Appellant : S/sh. Ashwani Taneja & Tarun Kumar, Advocates For the Respondent : Smt. A. Misra, CIT, DR ORDER Per Shri I.C. Sudhir, JM: (A.Ys .....

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on the basis of valuation report of the D.V.O. has been questioned. In ground no. 5, the grievance raised is regarding non-granting of the benefit of the telescoping by the authorities below and in ground no. 6, charging of interest under Sections 234A, 234B and 234C of the Act has been questioned. 2. We have heard and considered the arguments advanced by the parties in view of the orders of the authorities below, material available on record and the decisions relied upon. 3. The facts in brief .....

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s return of income. The A.O. being not satisfied with the explanation of the assessee made the addition on account of undisclosed investment in construction on the basis of valuation report of the D.V.O. to whom the A.O. had made reference for the same. Before the learned CIT(A), the assessee questioned validity of assessment framed under Section 153A of the Act made in the absence of evidence found during the course of search and has also questioned the validity of addition made by the A.O. on .....

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he present appeals have been preferred before the Tribunal against the said first appellate order. 4. In support of the issue raised in ground nos. 1 and 2 on the validity of assessment framed under Section 153A read with section 143(3) of the Act, learned AR submitted that no incriminating material was found during the course of search, nor any assessment based on the return of income originally filed was pending on the date of search, hence the A.O. was not justified in initiating the proceedi .....

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04-05 & 2005-06), order dated 28.06.2013; ii. Jaisteel (India) Ltd. Vs. ACIT, (2013) 259 CTR 281 (Raj.HC); iii. Gurinder Singh Bawa Vs. DCIT and others, ITA No. 2075/Mum./2010 and others(A.Y. 2005-06), order dated 16.11.2012; iv. Kusum Gupta Vs. DCIT and others, ITA No. 4873/Del/2009 and others (A.Y. 2005-06 and others), order dated 28.03.2013; v. CIT Vs. Anil Kumar Bhatia, (2012) 211 Taxmann.com 453 (Del.); and vi. All Cargo Global Logistics Ltd. Vs. CIT, 137 ITD 287 (Mum.) (SB) 5. Learned .....

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13) 38 taxmann.com 318 (Allahabad) 6. Learned AR submitted further that the building under reference i.e. 11/7, Mathura Road with RCC covered area of 29200 sq. fts. and ACC area of 7664 sq. ft. was very much in existence prior to 01.04.2000 hence, no addition could be made in this regard. In support, he referred contents of para nos. 2 and 5 of the assessment order and page nos. 19 to 93 which are copies of house tax notice dated 05.11.1998 issued by Municipal Corporation, Faridabad for the year .....

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t. and ACC area of 4500 sq. ft.; notice of house tax assessment of the business premises of the assessee for the year 2008-09 in respect of RCC area of 29280 sq. ft. and RCC area of 8600 sq. ft. etc. corresponded with the Municipal Corporation, Faridabad regarding the building in question as well as the copy of the ledger account of land and building account for the period 01.01.2000 to 31.3.2007 indicating that substantial amount of construction/renovation was recorded during the said period et .....

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t necessary. He submitted that the decisions relied upon by the learned AR in this regard having distinguishable facts are not helpful to the assessee. The assessee had not filed any evidence in support before the A.O. that the building in question were constructed before 01.04.2000. On the issue of validity of assessment in the absence of incrimination material found during the course of search, the learned DR submitted that the statements of Sh. Dhan Singh Sharma recorded during the course of .....

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investment in the construction and amount in difference found between the D.V.O. report and the investment declared by the assessee in its books of account. 8. In the rejoinder, the learned AR submitted that in the assessment years 2001-02 to 2006-07, undisputedly only one addition has been made which is on account of difference in construction cost as shown by the assessee in its books of account and as estimated by the D.V.O. in his report. It is sufficient to establish this contention of the .....

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to 2006-07 are that no addition other than the addition on account of difference in construction as shown by the assessee in its books of account and as estimated by the D.V.O. in his report has been made which impliedly supports the contention of the assessee that no incriminating material was found during the course of search proceedings at the premises of the assessee. It is also an un-rebutted fact that on the date of search, assessments based on the return of income originally filed for the .....

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assessment years under consideration are not valid. To be more specific, as per the decision of the coordinate bench in the case of DCIT vs. Devi Dayal Petro Chemicals Pvt. Ltd. - ITA Nos. 5430 to 5436/Del/13, C.O. Nos. 83 to 88/Del/2014 dated 10.9.2014, proceedings under sec. 153A can be initiated only for years to which any seized documents, found during the course of search, belongs and not for the years to which seized documents do not belong. 10. Even on the merits, the sole addition made .....

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the report of the D.V.O. is misconceived. Similar are the facts of the present case before us that the A.O. had referred the matter to the D.V.O. for the determination of the value of the property in dispute without rejecting the books of account of the assessee. Respectfully following the ratio laid down by the Hon ble Supreme Court in the above cited case of Sargam Cinema Vs. CIT (supra), we hold that the reference made to the DVO and reliance placed by the A.O. on the report of the D.V.O. fo .....

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01.04.2000. We thus direct the Assessing Officer to delete the addition in question made during the assessment years under consideration on account of the amount in difference between the value of consideration shown and determined by the DVO. The issues raised in ground nos. 1 to 4 are thus decided and allowed in favour of the assessee. 11. Ground no. 5 has not been pressed hence the same does not need adjudication. 12. In ground no. 6, the charging of interest under sections 234A, 234B and 234 .....

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on of ₹ 72,00,000/- made on account of undisclosed stock of the assessee has been questioned. In ground no. 5, the action of the A.O. in bringing to tax the assessee s share out of the alleged surrender of ₹ 1.6 crores has been questioned. Ground nos. 6 and 7 are again general in nature supporting the invalidity of additions questioned in ground nos. 3 to 5 hereinabove. In ground nos. 8 and 9, the validity of addition of ₹ 27,76,029/- on account of undisclosed investment in con .....

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and considered the arguments advanced by the parties in view of the orders of the authorities below, material available on record and the decisions relied upon. Ground Nos. 1 to 7 3. The facts in brief are that during the course of search, some documents were seized by the search team. On the basis of these documents, it was alleged that the assessee was doing business outside the books of account also and thus the assessee had suppressed its sales, purchases and other expenses. The assessee off .....

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the alleged unaccounted accumulated stocks, production, sales, profits earned, expenditure incurred on account of unaccounted purchase, salary & wages and other expenses for unaccounted production. It was also made clear that the surrendered amount shall be considered in the assessment year 2007-08, as if the entire surrendered/offered amount was earned/invested on account of unaccounted purchase, unaccounted production/sales and unaccounted stock in the financial year relevant to assessmen .....

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his duties of making fair assessment of income and to compute amount of tax payable as per law. He submitted that even surrender amount can be retracted, if surrender represents no income. In this regard he placed reliance on the following decisions: i. Srikant G. Shah Vs. Income Tax Officer, (2007) 108 ITD 577 (Mum.) ii. Pullangode Rubber Produce Co. Vs. State of Kerala and Another, 91 ITR 18 (SC) iii. S.Arjun Singh Vs. Commissioner of Wealth Tax, 175 ITR 91(Del.) 5. The learned AR submitted f .....

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howing loss of ₹ 7,142/-. He also referred CBDT Circular F. No. 286/98/2013- IT (Inv. II) dt. 18.12.2014 directing the Assessing Authority for gathering evidences during search/survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence for framing the assessment. 6. The learned AR submitted that there are many discrepancies in the stock taking and working out the undisclosed sales and profit by the Assessing Officer. These discrepancies were point .....

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ar that all purchases, production, sales, expenditure, stock etc. have been duly accounted for in the return filed. The A.O. was requested for computation indicating how the value of stock has been arrived at such a huge figure so that proper reply/reconciliation can be furnished and reply on unaccounted sales was also submitted. Document and year-wise details of undisclosed investment and undisclosed expenditures were furnished before the A.O. Objections with regard to the valuation of stock wa .....

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at the profit earned on alleged unaccounted purchases, sales, production was utilized for purchase of stock found at the time of search. The assessee had also furnished reply dated 26.12.2008 to the A.O. making offer to pay tax on an amount of ₹ 1.6 crores both in the case of D.S. Doors and D.P. Woodtech subject to non-charging of tax under Sections 234A, 234B and 234C and non levy of penalty under Section 271(1)(c) of the Act. He also placed reliance on the decision of Hon'ble High Co .....

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een raised at the fag end of the assessment proceedings i.e. on 26.12.2008 whereas Assessing Officer has been passed on 30.12.2008 (wrongly typed in the assessment order as 30.12.2007). Thus hardly four days time was given by the Assessing Officer to complete the reply. The Learned CIT(Appeals) also did not deal with all the above contentions raised by the assessee before the Assessing Officer and reiterated before him and has simply upheld the additions made by the Assessing Officer. 7. The lea .....

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urrender. She submitted further that the penalty on surrendered income could be imposed. 8. Having gone through the orders of the authorities below on the issue raised in ground nos. 1 to 7, we find that during the course of search in the premises of the assessee several documents including prima facie incriminating material were found and seized. Thus, it cannot be said that there was no incriminating material found during the course of search to concur with the contention of the assessee that .....

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ly considered by the Assessing Officer and Learned CIT(Appeals) while making and upholding the additions. The assessee vide several letters including letter dated 17.10.2008, 22.10.2008, 13.11.2008, 05.12.2008, 24.12.2008, 26.12.2008, wrote to the Assessing Officer and with written submissions dated 28.1.2010, 24.1.2011 before the Learned CIT(Appeals) tried to point out many discrepancies in the stock taking and working out the undisclosed sales and profit by the Assessing Officer but the same h .....

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rrived at such a huge figure so that proper reconciliation can be furnished and submitted reply on unaccounted sales also. In the letter dated 05.12.2008 to the Assessing Officer, the assessee had submitted documents wise and year-wise details of undisclosed investment and expenditure. In letter dated 14.12.2008 to the Assessing Officer the assessee had raised objections with regard to the valuation of stock and requested that on the basis of the said objections, valuation of stock shall get red .....

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r and has rejected the same mainly on the basis that no evidence was filed in support without giving adequate opportunity to the assessee to file evidence in support. For instance, some letters are dated 24.12.2008 and 26.12.2008 and the assessment order has been passed on 30.12.2008 (wrongly typed as 30.12.2007). The Learned CIT(Appeals) has also not dealt with the contents of the above letters. We thus to meet the end of justice set aside the issues raised in ground Nos. 3 to 7 to the file of .....

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ced by them on an identical issued hereinabove in the appeals for the assessment years 2001-02 to 2006-07. 11. On an identical issue in the appeals for the assessment years 2001- 02 to 2006-07 hereinabove, we after discussing it in detail has come to the conclusion that the action of the A.O. in making reference to the D.V.O. for determination of the value of the property without rejecting the books of account is not justified and no addition can be made on the basis of such valuation reported b .....

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3. In support of this ground, learned AR submitted that the benefit of telescoping ought to have been allowed by the authorities below in respect of profits earned during the assessment years 2001-02 to 2007-08 and addition of ₹ 12,00,000/- (out of ₹ 20,00,000) out of brought forward amount/stocks available with the assessee company as on 01.04.2000 and also in respect of assessee s share of ₹ 60,00,000/- towards difference in the alleged unaccounted accumulated stock as per th .....

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es not need independent adjudication. 17. In the result, the appeal is partly allowed. 18. In summary, the appeals relating to the assessment years 2001-02 to 2006-07 are allowed and that for the assessment year 2007-08 is partly allowed. D.S. Woodtech Pvt. Ltd. ITA Nos. 2273 to 2275& 2052/Del /2011: (A. Yrs: 2004-05 to 2006-07): 19. In these appeals, in ground No.1, the assessee has questioned first appellate order on the validity of assessment framed under sec. 153A read with section 143(3 .....

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of cross-examination and without confronting the entire adverse material used against the assessee without providing adequate opportunity of hearing. The ground No. 5 is general in nature and in ground No.6, charging f interest under sec. 234A, 234B and 234C of the Income-tax Act, 1961 has been questioned. 21. Similar are the grounds for the remaining assessment years 2005-06 and 2006-07 with the difference in amount of addition. In assessment year 2005-06, the addition made on account of cash r .....

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icer held that the assessee has not shown the cash receipts in its books of account and made addition of that amount. Referring the different page Nos. 1 to 22 of Annexure A08 on the basis of which additions have been made in these assessment years; the learned AR submitted that page 1 to 7 contains some phone numbers of parties and rates etc., page Nos. 1 to 10 are blank, page No. 11 is rough estimate given to parties, the page No.12 is a blank paper; page No.13 contains transaction with Mr. K. .....

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Satender Kumar and page No. 22 contains some phone numbers. The learned AR submitted that so far as page No. 13 is concerned, it contains transaction with Mr. K.P. Das who is brother of Mr. S.K. Dass and all transactions with them have been counted for in the name of Mr. S.K. Dass and duly reflected in the books of account. On page no.12, amount of ₹ 9,873.05 is some estimate as written on the page and amount of ₹ 1500, ₹ 2,000, ₹ 2,000 and ₹ 2,000 may be some cash .....

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ransactions with Mr. R.P. Jain have duly been accounted for in the books of account, a copy of ledger account has been made available at page No. 3 of the paper book. Regarding page No.14, the learned AR submitted that it contains transaction of Mr. R.P. Singhla as mentioned in the books of account but the Assessing Officer has treated the cash of ₹ 10,000 as ₹ 1 lac without any basis, copy of ledger account in this regard has been made available at page N. 4 of the paper book. Page .....

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earned AR submitted further that page No. 17 contains transaction of Mr. Satish Sharma which is duly reflected in the books of account and referred page No. 6 of the paper book wherein the copy of the said ledger account has been made available. Regarding the contents of page No. 20, the learned AR submitted that there is transaction of Mr. R.K. Rane and all the transactions with Mr. R.K. Rane have been duly accounted for in the books of account and referred copy of ledger account in support mad .....

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of the authorities below with this contention that the additions in question have been made based on the documents found and seized during the course of search proceedings to which the assessee was having no explanation. 24. Considering the above submissions, we find that in the assessment year 2004-05, the Assessing Officer has made addition on the basis of entries found recorded on page No. 15 of Annexure 8 and in the assessment year 2005-06, the addition has been made on the basis of entries .....

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icer observed entries on page No. 15 of the Annexure A-8 containing amount of Shri Parveen Jain. He noted that assessee has not shown the cash receipts of ₹ 1,05,000 in its books of account. The Assessing Officer observed that the cash payments totaling to ₹ 25,000 should be read as ₹ 2,50,000, have not been reflected in the books. The assessee opposed the addition of ₹ 1,05,000 by the Assessing Officer on the basis that it has been made on whims and his assumption by the .....

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icer noted cash payments totaling to ₹ 10,000 relating to Shri R.P. Singhla as ₹ 1 lac not reflected in the book. The cash payment of ₹ 2,000 relating to Shri Ramesh Bansal was read as ₹ 20,000 not reflected in the books and cash payments totaling to ₹ 25,000 relating to Shri Parveen Jain has been taken as ₹ 2,50,000, not reflected in the books. The Learned CIT(Appeals) did not agree with the contention of the learned AR that the addition in question has been .....

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the case of Shri D.C. Kothari has been decoded by him as ₹ 1 lac not reflected in the books of account. He noted further that entries of cheques payment of ₹ 50,000, ₹ 1,50,000 and ₹ 1,11,538 are, however, reflected in the books. In the case of Demco Solution (P) Ltd., he read the cash amount of ₹ 30,000 as ₹ 3 lacs not shown in the books of account by adopting the same decoding method. Learned CIT(Appeals) upheld the addition of ₹ 1 lac made on account .....

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e. Since amount of ₹ 5000 and ₹ 25,000 totaling to ₹ 30,000 still remained unexplained, hence, the addition of ₹ 30,000 was justified, held the Learned CIT(Appeals). 28. Considering the above submissions, we find that the authorities below have justified decoding of those figures by making addition of zero to the figure where after recording the figure, a zero was mentioned after putting decimal e.g., if ₹ 1,000 was written as ₹ 1000.0, the Assessing Officer h .....

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e of any basis particularly in a search proceedings under sec. 153A of the Act. These additions are accordingly deleted. The ground Nos. 2 to 4 are accordingly allowed. 29. Ground No.5 is general in nature and in ground No.6, charging of interest under sec. 234A, 234B and 234C of the Income-tax Act, 1961 has been questioned, which is consequential in nature and does not need an independent adjudication. 30. In result, the appeals are allowed. ITA No. 2052/Del/2011 (A.Y. 2007-08): 31. In ground N .....

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. 33. In ground No.3, the addition of ₹ 16 lacs on account of undisclosed income upheld by the Learned CIT(Appeals) has been questioned. 34. In ground No.4, the addition of ₹ 48 lacs by treating it as undisclosed stock of the assessee upheld by the Learned CIT(Appeals) has been questioned. 35. In ground No. 5, the action of the Learned CIT(Appeals) in upholding the assessment order in bringing to tax the alleged assessee s shares out of alleged surrender of ₹ 1.6 crores as surr .....

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validity of assessment framed under sec. 153A read with sec. 143(3) of the Act and violation of principal of natural justice by the Assessing Officer is concerned, the parties have adopted similar arguments as advanced by them in the case of D.S. Doors (P) Ltd. hereinabove in ITA No.2053/Del/2011 for the assessment year 2007-08. Following the view taken therein, we do not find any substance in these grounds on the issue, the same are accordingly rejected. 39. Ground Nos. 3 to 7, in support of gr .....

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has not accepted the surrender in its totality. The assessing authority accepted the disclosure of the assessee because there was nothing on record so quoting the undisclosed expenditure/income/investment etc. as the department failed to bring forth any material in support. Nothing is left thereafter to support the allegations and subsequent additions made to the tune of ₹ 64 lacs (Rs.48 lacs plus ₹ 16 lacs). In support of the contentions that the Assessing Officer has recorded inco .....

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Highlight: Transfer of trading assets at cost price, the profit component also stood transferred to the outgoing Directors, which otherwise belonged to the Company - the fact that AO has made the addition in the hands of the Directors would not make any difference - additions confirmed - HC

Highlight: The interest u/s 234B of the Act cannot go beyond the stage of S.245D(I) before the Settlement Commission - HC

Highlight: Galvanized iron pipe is a different commercial commodity than a iron pipe, therefore the activity of galvanization in our considered opinion amounts to manufacture - Deduction u/s 80-IB allowed - HC

Highlight: Penalty u/s 271C - non deduction of TDS on interest paid to sister concerns in terms of Section 194A - Levy of penalty confirmed - HC

Highlight: Disallowance of interest - reference to section 179 - The legislature has also recognised, that the doctrine of lifting of veil in the matter of tax dues is to be applied to prevent fraud etc. and not where the company has suffered despite its normal bona fide function. - HC

News: RBI Reference Rate for US $

Notification: Amendment in Notification No. S.O. 3118(E), dated the 3rd October, 2016

Highlight: Discount on ESOP to be allowed as business expenditure u/s 37(1), during the years of vesting on the basis of percentage of vesting during such period, subject to upward or downward adjustment at the time of exercise of option.

Notification: Central Government appoints the 20th September, 2017 as the date on which proviso to clause (87) of section 2 of the Companies Act 2013, shall come into force

Notification: Companies (Restriction on number of layers) Rules, 2017

Highlight: Penalty u/s 271(1)(c) - additional income disclosure - surrender of income post survey u/s 133A - he disclosure made by the assessee is voluntary in nature, in the revised return - no penalty

Highlight: Reopening of assessment - notice u/s 148 issued on the directions of JCIT / CIT - a perusal of reasons for initiating reassessment proceedings clearly show that they are against the sprit of provisions u/s 147

Highlight: MAT - Adjustment to book profit - computation u/clause (f) of Explanation-1 to section 115JB(2) is to be made without resorting to the computation as contemplated u/s 14A r.w.Rule 8D of I.T. Rules.

Highlight: Addition on account of alleged suppression of service value received - the addition made simply believing the Form 26AS will be an arbitrary exercise of power which cannot be sustained

Notification: Exempts intra state supply of heavy water and nuclear fuels from DAE to NPCIL

Notification: Seeks to amend notification No. 12/2017-UTT(R) to exempt right to admission to the events organised under FIFA U-17 World Cup 2017

Notification: Seeks to amend notification No. 11/2017- UTT(R) to reduce CGST rate on specified supplies of Works Contract Services

Highlight: Liability to pay duty on import of software - Though no authorization was given by the appellant to DHL, it is an undisputed position that the software has, in fact, been ordered by the appellant and have been delivered to them by DHL - the appellant is to be considered as the importer

Notification: Exempts inter-state supply of heavy water and nuclear fuels from DAE to NPCIL

Notification: Seeks to amend notification No. 09/2017-IT(R) to exempt right to admission to the events organised under FIFA U-17 World Cup 2017

Notification: Seeks to amend notification No. 08/2017-IT(R) to reduce CGST rate on specified supplies of Works Contract Services

Notification: Exempts intra state supply of heavy water and nuclear fuels from DAE to NPCIL



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