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Shri Bansidhar Agarwal Versus The ACIT, Circle- 1, Jaipur and Vica-Versa

Addition on account of entries found noted during the course of survey - Admission in statement during search - Held that:- The additional income offered at ₹ 9,38,50,009/- is computed on the basis of a document prepared at the end of the previous year relevant to assessment year under appeal and the loose paper under reference contained the entries prior to the end of the previous year, thus the same stood covered in the memoranda state of affairs as at 31.03.2008 and any further addition .....

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make separate addition for each. It is very unjustified to add the surrender and further add each item, this amount to double jeopardy which is not permissible. Looking at the entirety of circumstances and fact that the assessee enhanced his surrender from ₹ 3,50,42,961/- to ₹ 9,38,50,009/-; the fact that the balance sheet reflects the sum total of his transactions as on 01.04.2008, it is not justifiable to add the totals of both the balance sheets. On verification of both the balan .....

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pel such factual findings. Further it is found that assesee’s cash balance as per balance sheet is ₹ 18,20,852/- and this amount being the interest income of the assessee during the year has been included in this cash balance on the basis of which the surrender has been made. In our considered view the impugned addition of ₹ 3,45,000/- has been rightly deleted by ld. CIT(A), which order deserves to be upheld - Decided against revenue

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8 of the statement categorically stated that these entries related to the purchases of plot of land in his own name for a total consideration of ₹ 45,40,200/-. In reply to question No. 23 also NLA admitted amount ₹ 30,40,200/- as his undisclosed investment. In our view without dislodging NLA’s clear statement,, ld. AO made an addition of ₹ 32,43,730/- in this behalf in the hands of assessee on surmises. There is no merit in sustaining the addition on the basis of AO’s vague obs .....

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042/JP/2011, ITA No. 104/JP/2014 - Dated:- 26-4-2016 - SHRI R.P.TOLANI, JM & SHRI VIKRAM SINGH YADAV, AM For The Assessee : Shri Manish Agarwal and Shri O.P. Agarwal, CA For The Revenue : Raj Mehra, JCIT -DR ORDER PER R.P. TOLANI, JM:- The assessee and Revenue have filed the cross appeals against the order of the ld. CIT(A)-1, Jaipur dated 09-02-2011 for the assessment year 2008-09 on quantum additions. Besides, assessee is also in appeal against the order of the ld. CIT(A)-1, Jaipur dated 1 .....

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ment in purchase of property in the name of assessee's son Shri Narain Agarwal. 1.1 That the ld. CIT(A) has further erred in ignoring various submissions made and evidences adduced and also by ignoring the income admitted and declared by the assessee, thus the addition of ₹ 32,43,730/- so confirmed by ld. CIT(A) deserves to be deleted. ITA No. 1042/JP/2011 - A.Y. 2008-09 (Revenue ) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) is justified in delet .....

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red in survey statement, still huge additions have been further made by ld. AO. In this backdrop the brief facts as narrated and appearing from record are - the assessee is proprietor of a concern M/s Agarwal & Co. engaged in the manufacturing & trading of Jewellery. Survey operation u/s 133A were carried out at the business premises on 12.09.2008, in the course thereof some incriminating documents were impounded main document being A-24 a balance sheet. 3.2 Original return was filed on .....

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vailable on record and contentions ld. CIT(A) allowed part relief to the assessee. 3.3 Aggrieved on respective grievances, assessee as well as the department is in respective appeals. 4.1 By ground no. 1, department has challenged the relief granted by the Ld. CIT(A) qua the quantification of said Annexure 24 reducing it by ₹ 2,13,15,248/-. Ld. DR relied on the order of ld. AO and filed written submissions dtd. 16-2-16 forwarded by ld. ACIT, Cir. 1, Jaipur mainly contending that: The most .....

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e balance sheet be considered in addition to the original balance sheet. As is evident from the assessment order, the liabilities of the duplicate balance sheet found during the course of survey were attempted to be verified by the Assessing Officer and sufficient opportunity was given to the A.R. in this regard. The CIT (A)-I, Jaipur has also mentioned this fact in the appellate order that the assessee did not discharge his onus to the extent that he did not verify the liabilities appearing in .....

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urn is incorporated in the duplicate balance sheet. On the basis of the assets side, it can be clearly established that the duplicate balance sheet has been maintain in addition to the regular balance sheet. Still the relief of deducting common liabilities of ₹ 1,06,68,208/- was given to the assessee on the basis of the directions issued by the then Additional CIT, Range1,Jaipur u/s 144A. Hence, the common liabilities were worked out and relief to that extent was also given to the assessee .....

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ing of the amount against the head stock in both the balance sheets and on the basis of the directions u/s 144A, of the Addl. CIT, Range-1 Jaipur . Further the addition of ₹ 3,45,000/- was made on account of undisclosed income surrendered during the survey proceedings on account of loans and advances which is also discussed in the order. The addition of ₹ 31,065/- was the disallowance on account of motor car expenses and depreciation on car for personal use. It is contended by ld. DR .....

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red (before deduction u/s 80C) (PB 42) 10,10,177.00 9,38,50,009.00 During the course of survey assessee explained that the Ann. 24 was a combined balance sheet of accounted and unaccounted books. Based on information available at the time of survey and subject to verification of further documents, assessee during survey declared additional income of ₹ 3,50,42,961/- for A.Y. 2009-10 and ₹ 75,22,019/- for A.Y. 2008-09. On verification assessee found that the declaration of income was l .....

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survey. It contained the details of the transactions disclosed in the regular return along with intermixed unaccounted assets and liabilities. Assessee by letter dated 14.09.1010, filed during the course of assessment proceedings, suo motu increasing the additional income, furnished all relevant details and working of the undisclosed income which is placed on PB 14-15. The assessee thus discharged his onus to effectively explain the working of additional income. Consequently the burden then shif .....

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pears termed as Capital . The calculation of the additional income declared by the assessee is the balancing figure of the total of assets entries in Ann-24 minus the total of the asset side of the Balance Sheet furnished with original return. 4.3 Assessee categorically stated maintaining of two sets of books i. one for all finalized transactions based on which return of income was filed and ii. the other one prepared for total transactions of the business including i.. This fact finds clear men .....

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Balance Sheet - total of Assets side not mentioned: 10,25,81,794/- Less: The Liabilities not mentioned in regular Balance Sheet: 1,07,36,661/- Net Difference 9,18,45,133/- It was contended that as against this assessee has offered additional income amounting to ₹ 9,38,50,009/- which is more than ₹ 9,18,45,133/-. Ld. AO, however without cogent reasons and justification interfered with the specific and binding statutory directions of Adl. CIT u/s 144A with following observations at pag .....

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rounds in circles unnecessarily. Here it is important to mention that the liability side is taken as base here because the common liabilities are clearly identified. Thus Ld. AO instead of being objective about working and entry specific used the convenient course of making sweeping, general and used following presumptive terms to make double addition: presuming that there was some overlapping of the amount against the head stock in both the balance sheets . One can t again move to the assets s .....

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e balance sheet or in both the balance sheet? Ld. AO herself found common names/entries amounting to ₹ 1,06,68,208/- which find place in both the balance sheets. It demonstrates that the accounted and unaccounted balance sheets are interdependent, intermixed and complimentary to each. The sole incriminating paper PB7 is relied by ld. AO, based thereon, whereas assessee offered additional income of ₹ 9,38,50,009/- which is much in excess of the amount arrived at by the Ld. Additional .....

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the paper impounded during the survey is one of the recognized, reasonable and scientific method for working out additional income. The working provided by assessee is thus based on facts based on the recognized, reasonable and scientific method. Thus the deference offered by assessee on bona fide basis can be reasonably considered to be the additional undisclosed income and not by extrapolating it on conjectures and surmises. More particularly when it is admitted fact that during the survey ex .....

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taking the document as a whole it has been used in piece meal basis which is not permissible in the eyes of law as an impounded document is to be holistically considered. 4.4 Ld. CIT(A) appreciated these facts and submission made by the assessee and given a finding of fact that the balance sheet filed with the original return is part of the Ann-24 balance sheet found during the course of survey by observing at page 5& 6 para 4.11 & 4.12 of his order as under: 4.11 Thus, it is apparent t .....

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partment. 4.12 In view of the fact that the assessee has surrendered the amount as per the balance sheet showing the sum total of his transactions as on 01.04.2008, it is not rational nor justifiable as per accounting principles to add the totals of both the balance sheet. Particularly when it is clear on verification of both the balance sheets that the one filed for income tax purposes is incorporated in the actual one found during the course of survey. Therefore, the addition of ₹ 2,13,1 .....

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nce between sections 133A and 132(4) - Statement in survey operations - Not conclusive piece of evidence - Statement by partner in survey operations regarding undisclosed income of firm - Subsequent retraction of statement by firm - Amount disclosed by partner not assessable as income of firm - Income Tax Act, 1961, ss. 132, 133A. Paul Mathews and Sons Vs. CIT (Ker.) 263 ITR 101 The provision also enables the income-tax authority to impound and retain in his custody for such period as he thinks .....

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ng any sworn statement. On the other hand, we find that such a power to examine a person on oath is specifically conferred on the authorised officer only under section 132(4) of the Income-tax Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it thought fit and necessary to confer such power to examine a person on oath, the same has been expressly provided whereas section 133A does not empower any Income-tax Officer to examine any person on oath. Thus, in contradisti .....

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lone has evidentiary value as contemplated under law. Therefore, there is much force in the argument of learned counsel for the appellant that the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this. 4.6 Ld. Counsel further contends that the assessee is an ordinary business person neither well worse and nor a technical expert on the intricacies of Income Tax Laws, a suo motu excess disclosure in revised return than agreed in s .....

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assessments, survey and search which is duly published in print, electronic media as well as CBDT s national portal. It has been declared that the income tax authorities have to act strictly in accordance with charter while exercising their powers including Survey And Search action. To buttress his arguments, Ld. Counsel in written submissions has referred to the speech given by the Hon ble Finance Minister on the floor of Parliament in this behalf, while proposing to simplify the procedure of .....

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Finally, books of account impounded during survey will not be retained beyond ten days, without the prior approval of the Chief Commissioner . The CBDT vide instructions No. F.No. 286/2/2002-IT(Inv.) dated 10.03.03 has further clarified the assertion made by the Hon ble Finance Minister in budget speech which reads as under:- Instances have come to the notice of the Board where assessee have claimed that they have been forced to confess undisclosed income during the course of the search and seiz .....

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t. Similarly, while recording statement during the course of search and seizure operation, no attempt should be made to obtain confession as to the undisclosed income Hon ble Supreme Court in following binding decisions has held that beneficial circulars / instructions issued by the CBDT are binding upon the Income Tax Authorities and additions extracted by such uncorroborated and irregular surrenders during the course of survey are unsustainable being in contravention to the CBDT circulars and .....

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on for the purpose of construction of the statute. 2. 259 ITR 51 Kerala State Industrial Dev. Corpn. Ltd. Vs. CIT (SC) Interpretation of taxing statutes - Finance Minister s speech before Parliament while introducing bill - Can be relied on to throw light on object and purpose of provisions. 3. 273 ITR 305 CIT Vs. Durgesh Oil Mills (All.) Circular - CBDT - Circular binding on Income Tax Authorities. It is well settled that the circular issued by the Central Board of Direct Taxes is binding on au .....

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econciled as It was a mistake-statement made under section 133A not conclusive proof- Assessee able to explain discrepancy in stock by production of relevant record - Addition to be deleted-Income-tax Act, 1961, s. 133A. 5.1 Apropos revenue ground no. 2 ld. AO made an addition of ₹ 3,45,000/- on account of entries found noted in the impounded material marked as A-14, during the course of survey has enquired about the contents thereof; there is no whisper of any coding or decoding of figure .....

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ntly contends that once as a result of survey consolidated additional income was declared and suo motu increased by assessee as mentioned above there is no justification to accept that as well as go on adding further income which amounts to taxing same income twice. Ld. Counsel referred to the letter filed before the Ld. AO on 22.09.2008 placed at PB-17 wherein it was clearly stated that all the entries found noted in the pages found and impounded during the survey were considered for computing .....

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hat they appear to be interest because the date has been mentioned regularly for a two month period for the same amount. For example 400 / D. Modi 25.9 to 2.11. Then 400 / Rajendra 01.11.07 to 2.1.08. Thus, it appear that these are entered for interest payment received. Moreover, on perusal of page 1 of annexure 24 it is seen that Shri Rajendra Ji Was debtor who has squared up his account with the assessee as on 01.04.2008. 6.5 Since, the cash balance of the assessee in this balance sheet is  .....

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d at the end of the previous year relevant to assessment year under appeal and the loose paper under reference contained the entries prior to the end of the previous year, thus the same stood covered in the memoranda state of affairs as at 31.03.2008 and any further addition is not warranted. It is therefore, contended by ld. counsel that the Ld. CIT(A) has rightly deleted the addition and thus the order of Ld. CIT(A) deserves to be uphold on this score. 6.1 Apropos revenue ground no.3, it is co .....

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duction hence the same cannot be disallowed. Reliance is placed on the following case law:- (1) S.A. Builders Ltd. Vs. CIT 158 Taxman 74 (SC) (2) 35 TW 64 ITO VS. M/S TRIVENI FARMA (JAIPUR) (3) 92 TTJ 1060 MUKESH K. SHAH VS. ITO (MUMBAI) 6.2 Ld. DR supported the orders of AO. 6.3 We have heard the rival contentions and perused the material available on record. Apropos the first revenue ground from the record, it emerges that there are sufficient reasons to infer that the balance sheet found duri .....

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this amount was raised by survey party. Thereafter, assessee before any further detection by department and before assessment proceedings, suo motu and without any insistence by the department, further increased the surrender of undisclosed income at ₹ 9,38,50,009/- for all impugned transactions. Thus assessee demonstrated that he want to come clean in this behalf. Department has accepted this additional income declaration, there is no dispute on the issue of revenues power to give up any .....

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essee enhanced his surrender from ₹ 3,50,42,961/- to ₹ 9,38,50,009/-; the fact that the balance sheet reflects the sum total of his transactions as on 01.04.2008, it is not justifiable to add the totals of both the balance sheets. On verification of both the balance sheets it emerge that the one filed for income tax purposes is part of and incorporated in the one found during the course of survey. Therefore, in our considered view, the addition of ₹ 2,13,15,248/- as excess liab .....

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ndra 01.11.07 to 2.1.08; perusal of page 1 of annexure 24 it is seen that Shri Rajendra Ji Was debtor who has squared up his account with the assessee as on 01.04.2008. Ld. DR could not dispel such factual findings. Further it is found that assesee s cash balance as per balance sheet is ₹ 18,20,852/- and this amount being the interest income of the assessee during the year has been included in this cash balance on the basis of which the surrender has been made. In our considered view the i .....

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of ₹ 31,065/-. This ground of revenue is also dismissed. 9.1 Apropos assessee s appeal ld. Counsel for the assessee contends that during the course of survey statements of the assessee, his son Shri Narain Lal Agarwal (NLA) and employees were recorded. Surrender of undisclosed income towards investment and expenditure was obtained. The relevant extract of the statements of assessee s son NLA is as under: प्रश्न 36ः आज सर .....

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8; धारा 133A(3)(ia) के तहत् impound कर लिया गया है जिसमें वित्तीय वर्ष 2007-08 व 2008-09 से संबंधित कागजात हैं, जो कि नि&# .....

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49;ी loose papers व नोट बुक आदि को देख लिया है इनमें से बहुत से कागजों का अभी स्पष्टीकरण नहीं दे पा रह&# .....

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#2350;ें वित्तिय वर्ष 2007-08 रू. 8,00,000/- की अतिरिक्त आय, आयकर के लिए मैं. अग्रवाल एंड कम्पनी में समर्पित & .....

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;ी खरीद में किए गए अघोषित निवेश 32,43,730/- रू. व मकान निर्माण में किए गए अघोषित निर्माण के पेटे रू .....

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2352; आयकर अदा करने के लिए समर्पित करता हूँ। इसी प्रकार वित्तिय वर्ष 2008-09 में मैं. अग्रवाल एंड .....

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मकान के निर्माण में किए गए अघोषित निवेश के पेटे रू. 14,43,714. व अशोक अग्रवाल को अघोषित आय से दिए .....

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360;मर्पित किए है। अर्थात् मैं. अग्रवाल एंड कम्पनी में वित्तिय वर्ष 2008-09 के लिए कुल रू. 3,50,42,961/- अघो&# .....

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#2357;ाल एंड कम्पनी मे कुल रू. 75,22,019/- अघोषित आय मानते हुए नियमानुसार आकर के लिए समर्पित करता हूँ .....

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350;ेरे पिता हैं कि सहमति से दिए हैं इसके पेटे मैं श्री बंशीधर अग्रवाल द्वारा मैं. अग्रवा .....

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;ष 2007-08 के लिए) आपको दिए जा रहे हैं। मैं यह विश्वास दिलाना चाहता हूँ कि मैं अपना व मेरे पिता ब& .....

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381;रिम कर एवं स्वतः कर निर्धारित कर दे दूंगा चूंकि मैं. अग्रवाल एंड कम्पनी का कामकाज मैं &# .....

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law that the statement which is relied on by the department itself cannot be distorted to in parts to suit the revenues cause. During survey qua some loose papers including page 5 of Exhibit A-14 assessee son, in reply to question No. 18 of the statement categorically stated that these entries related to the purchases of plot of land in his own name for a total consideration of ₹ 45,40,200/-. Similarly in reply to question No. 23 he further admitted in this behalf an amount ₹ 30,40, .....

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was made out of funds available outside the books of assessee and is not reflected in the surrendered income as per the revised return of the assessee, the same is added to the income of the assessee. Ld. AO conveniently lost sight of the fact that impugned investment was owned by son by a sworn statement which for all purposes remains uncontroverted on the record. This material and clinching fact cannot be ignored or brushed aside. If son has admitted the income there is no reason why assessee .....

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40,00,000/- in respect of assessment year 2009-10 while filing the return of income for A.Y. 2009-10 which is not backed by any evidence; the same was offered bona fide to by peace and to cooperate with the department, it has been duly accepted by the department in the assessment completed u/s 143(3) of the I.T. Act,1961 for the assessment year 2009-10 and such additional income offered is sufficient to cover the alleged investment in purchases of property therefore no separate addition should b .....

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by the son NLA a fact which is uncontroverted and clinches the issue in favour of the assessee. There is no material to suggest that investment in this behalf was made by assesssee. During survey proceedings in respect of loose papers including page 5 of Exhibit A-14 assessee son, in reply to question No. 18 of the statement categorically stated that these entries related to the purchases of plot of land in his own name for a total consideration of ₹ 45,40,200/-. In reply to question No. .....

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Highlight: Levy of additions tax u/s 115O on distribution of dividend - shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder - not to be bifurcated as agriculture and non-agriculture dividend - SC

Highlight: Rate of GST on old and scrap buses - 28% or 18% - at such initial tender process initiated by the Respondents-KSRTC, the present petitions filed by the petitioners are premature and misconceived and do not require any interference by this Court at this stage. - HC

Highlight: In view of amendment made u/s 132A of the Income Tax Act, 1961 by Finance Act of 2017, the 'reason to believe' or 'reason to suspect', as the case may be, shall not be disclosed to any person or any authority or the Appellate Tribunal, SC dismissed the appeal of the assessee

Highlight: Validity of Assessment Order - period of limitation u/s 153 (2A) is applicable even if the entire order was not set aside but matter was remanded back for for limited aspects with directions - HC

News: Note ban was a shake-up, achieved its main objectives

Notification: Amendments in the notification No.5/2017- Integrated Tax (Rate) dated the 28th June, 2017.

Highlight: Levying interest u/s 234C - interest is to be charged on the returned income and not on assessed income.

Highlight: Accrual of income - sale of right to develop and sell incentive FSI under LOI - till the conditions of LOI are fulfilled transfer is not complete and income does not accrue to the assessee

Highlight: TPA - determination of ALP - TP adjustment by applying Bright Line Test (BLT) is not sustainable on protective basis having no statutory mandate.

Highlight: Safeguard Duty - Advance License Scheme - as there is no exemption from safeguard duty leviable under Section 8C, which is imposed on the goods imported from China, the importer has to pay safeguard duty

Highlight: Manufacture - process of cutting of waste plastic container - Such plastic containers before and after cutting are nothing but waste / scrap - Not a manufacturing activity as no new product emerges.

News: NITI Aayog and Govt. of Assam organizes workshop on health sector reforms in Guwahati; launches SATH- Sustainable Action for Transforming Human Capital

Notification: Seeks to amend notification no. 5/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding restriction of refund on corduroy fabrics

Notification: Seeks to amend notification no. 2/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst exemptions

Notification: Seeks to amend notification no. 2/2017- integrated tax(rate) dated 28.06.2017 to give effect to GST council decisions regarding GST exemptions.

Notification: Seeks to amend notification no. 1/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates

Notification: Seeks to amend notification no. 1/2017- integrated tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates.

News: Notification Issued For GST Actionable Claim On Branded Food Products

Highlight: Classification printed computer stationary/manifold Business Forms - to be classified under Chapter Heading 4820.00 or under Chapter Heading 4901.90 - items like A4 sheets, advertisement and job card to be classified under Chapter 49

Article: RCM – Applicability to persons not liable to get registered us 23(1)

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

News: GST Refund - Blockage of Working Capital of Exporters - earlier also there was a normal blockage of funds for a period of 5-6 months at least

News: Clarification about Transition Credit - ₹ 1.27 lakh crore of credit of Central Excise and Service Tax was lying as closing balance as on 30th June, 2017 - claim of credit of ₹ 65,000 crore is not unexpected

Article: 20 Things You must know about E Way Bills in GST Law

Article: MISTAKES IN DRAFTING

Highlight: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg. - Circular

Highlight: The definition of "subsidiary company" or "subsidiary" u/s 2(87) of the Companies Act, 2013 shall come into force w.e.f. 20-9-2017

Highlight: Central Government notified the All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017 - Notification

Notification: All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017

Circular: Investment by Foreign Portfolio Investors in Corporate Debt Securities – Review

Notification: Exemptions on supply of services under UTGST Act

Notification: Rates for supply of services under UTGST Act

Notification: Exemptions on supply of services under IGST Act

Notification: Rates for supply of services under IGST Act

Notification: List of Exempted supply of services under the CGST Act



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