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Showing 21 to 40 of 2102 Records
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2019 (2) TMI 2087 - CESTAT AHMEDABAD
Valuation - Commercial or Industrial Construction Service - value of the free supplies material should be added in gross value or not - Commercial or Industrial Construction Service - exemption under N/N. 15/2004-ST - HELD THAT:- This issue has been settled by SC in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] where it was held that value of the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005.
Thus, for the purpose of computing the gross value of Commercial or Industrial Construction Service value of free supplies material by the service recipient need not be added in the gross Value of service.
The impugned order set aside - appeal allowed.
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2019 (2) TMI 2086 - ITAT AHMEDABAD
Addition of fair rental income - Income from house property - rate of rent to be charged from the related parties - assessee is the owner of a building consisting of some floors for which declared the gross rent only under the head house property - Revenue alleges that the actual rent received/receivable is less than the reasonable expected rent - HELD THAT:- As rent should be decided on the basis of the sum which can be reasonably expected from the letting out the property during the year or the actual rent received/receivable, whichever is higher.
CIT (A) has determined the fair rent of the property at Rs. 248/- per Square feet on the basis of the rent received by the assessee from the bank of Baroda in the assessment year 2011-12 as increased by 5% p.a. As no dispute that the bank vacated the property on 30th June 2010. Assessee claimed that the fair rent for the property under consideration is of the same amount received by it from its associated enterprises.
Thus once the assessee has disputed the fair rent, then the lower authorities are under the obligation to reject the contention of the assessee with cogent reasons. As such the authorities below were under the obligation to determine the fair rent of the property in the manner as discussed. But the authorities below have not determined the fair rent without considering the procedures prescribed under the law.
The rent charged by the assessee from the bank of Baroda cannot be the basis for determining the fair rent of the properties as property was rented out by the assessee to the bank of Baroda in the year 1998, and in every rental agreement, there is an escalation clause for enhancing the amount of rent. Rent charged by the assessee from the bank was based on the agreement which was made in the year 1998. Rent charged by the assessee from the bank in the year, 2010 was not based on the fair market rent.
There is a time gap of 1 year & 9 months when the assessee received the last rent from the bank of Baroda and the year of consideration. As such there can be certain factors which can affect the fair market rate in any manner which have not been considered while determining the fair market rent.
The issue on hand needs to be examined in the manner as discussed above - restore this issue to the file of AO as stipulated above. Thus, the ground of appeal of the assessee is allowed for statistical purposes.
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2019 (2) TMI 2085 - ITAT BANGALORE
TP Adjustment - comparable selection - Assessee as Providing ITES services - HELD THAT:- Accentia Technologies Ltd., and Acropetal Technologies Ltd., should be excluded from the list of comparable companies as functionally dissimilar.
ICRA Online Ltd. is concerned, the RPT in the case ICRA Online Ltd., needs to be verified by the TPO and if the RPT is more than 15% of the total revenue of this company then the same should be excluded.
Jeevan Scientific Technology is concerned, the TPO is directed to examine the comparability of this company as was directed by the Tribunal in the case of Swiss Re Shared Services India Pvt. Ltd [2016 (7) TMI 1359 - ITAT BANGALORE].
TPO is directed to compute the ALP as per the directions given above after affording opportunity of being heard to the assessee.
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2019 (2) TMI 2084 - DELHI HIGH COURT
Suit for recovery - Whether the Deed of Cancellation dated April 20, 2013 between the parties herein contains an arbitration clause?
HELD THAT:- It is an admitted position that the Deed of Cancellation did not have any arbitration clause.
The plea of appellant that the Deed of Cancellation did not expressly / explicitly obliterate the arbitration clause from the Deed of Cancellation, is not impressing for two reasons; (i) the intention of the parties was to cancel the MoU; (ii) when the parties have expressly incorporated an arbitration clause in the MoU and having not done that in the Deed of Cancellation, the necessary implication is that they have decided not to incorporate the same. The MoU stands superseded by the Deed of Cancellation. A fresh agreement has been entered without arbitration clause.
The reliance placed by the respondent on the judgment of the Coordinate Bench of this Court in Young Achievers [2012 (7) TMI 1157 - DELHI HIGH COURT], the Court has held that the learned single Judge was right in coming to the conclusion that both the agreements dated 1.4.2007 and 1.4.2010 have been superseded/novated by the Exit Paper, and in view of Exit Paper being a fresh agreement with no arbitration clause for adjudication of disputes, the application of the appellant was rightly rejected.
It is also found that as noted by the learned Single Judge, even the judgment of the Division Bench in Young Achievers [2012 (7) TMI 1157 - DELHI HIGH COURT] has been upheld by the Supreme Court [2013 (9) TMI 137 - SUPREME COURT], wherein the Supreme Court in paras 7 and 8 has held parties have entered into a fresh contract contained in the Exit paper which does not even indicate any disputes arising under the original contract or about the settlement thereof, it is nothing but a pure and simple novation of the original contract by mutual consent. Above being the factual and legal position, we find no error in the view taken by the High Court.
The impugned order does not suffer from any infirmity. The appeal is dismissed.
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2019 (2) TMI 2083 - BOMBAY HIGH COURT
Deduction u/s 80IA - deductions to the assessee who is an undertaking which develops and operates or maintains and operates an Industrial Park - HELD THAT:- In the present case, the assessee had already developed the Industrial Park and as many as 21 units were already operational as admitted by the revenue. These units were sold during the assessment year in question. The profit arising out of such sale was accounted for in the said year and offered to tax.
As therefore, that the assessee was entitled to deduction in respect of such profit. The assessee was following Percentage Completion Method and not Project Completion Method and was therefore obliged to account for the revenue generated from the sale of the units during the year in question itself. Any other view would amount to the assessee offering the income arising out of the sale of the units to tax during the current year on which no deduction u/s 80IA of the Act would be available under the Act.
ITAT has not erred allowing claim of deduction u/s 80IA(4) in favour of the assessee for the impugned assessment year. Decided in favour of assessee.
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2019 (2) TMI 2082 - DELHI HIGH COURT
Referring a dispute for arbitration under the aegis of Delhi International Arbitration Centre - in the agreement entered into between the appellant and respondent No.2 (M/s Slipco Constructions Private Limited), there was an independent arbitration clause - HELD THAT:- It is clear that once a reference was made to the Felicitation Council and the Council conducted conciliation proceedings as contemplated under sub-Section (2) of Section 18 and the appellant submitted to the conciliation, statutory in nature under Section 18(2), the necessary statutory consequence would be that on failure of the conciliation, the matter has to be referred for arbitration under sub-Section (3) of Section 18 and the impugned order only refers to the action taken by the Felicitation Council for reference to the arbitration on failure of the conciliation.
The learned writ Court has rightly rejected the contention of the appellant to the effect that once there was an arbitration agreement, therefore, the arbitration should have been as per the arbitration agreement. The MSMED Act is applicable in the dispute in question, in view of a decision rendered in the case of Bharat Heavy Electricals Limited vs. The Micro and Small Enterprises Facilitations Centre& Anrs. [2017 (9) TMI 2004 - DELHI HIGH COURT] and the appellant themselves having chosen to take recourse to the remedy under the MSMED Act are bound by the entire statutory provision contained in Section 18.
The appellant had two options, either to take recourse to the arbitration agreement and insist on invoking the arbitration clause but having chosen to take recourse to the statutory remedy under the MSMED Act, the entire process, statutory in nature contemplated under the said Act, i.e., Section 18 has to be complied with and in refusing to interfere into the matter on such consideration, in our considered view, no error has been committed by the learned writ Court.
Appeal dismissed.
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2019 (2) TMI 2081 - CESTAT CHENNAI
Levy of Service Tax - replacement of spare parts by the manufacturer in lieu of the same replaced by the appellant during free warranty service - HELD THAT:- The matter is indeed covered not only by the ratio of the Apex Court in UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] but also by the decision of this Tribunal in the case of ABT LTD. VERSUS CCE, COIMBATORE, CHANDRA AUTOMOBILE INDIA PVT. LTD. AND SREE SARADHAMBAL AUTOMOBILES P. LTD. [2018 (5) TMI 716 - CESTAT CHENNAI] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax.
The impugned orders to the contrary are then required to be set aside - appeal allowed.
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2019 (2) TMI 2080 - DELHI HIGH COURT
Income deemed to accrue or arise in India - royalty receipts - consideration for providing domain registration services - HELD THAT:- The following question of law arises in this appeals:
“Whether, in the facts of the case and in law, the Tribunal erred in holding that the income received by the Appellant as a consideration for providing domain registration services amounted to 'royalty' under section 9(1)(vi) of the Income Tax Act, 1961”?
List on 29.07.2019.
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2019 (2) TMI 2079 - BOMBAY HIGH COURT
Quantum of occupation charges of the suit premises - application for stay of decree filed by the respondent (tenant) has been allowed on the condition that the respondent shall pay an amount Rs.10,000/- per month from the date of the judgment of the trial court till the decision of appeal towards occupation charges of the suit premises - it is contended that amount is unreasonably low, considering the market rent that is being fetched by similar properties in the very same building.
HELD THAT:- While granting stay of the decree passed against the appellant, the appellate Court is expected to impose conditions that are reasonable and those that are based on the prevalent market conditions. This is because when the trial Court passes decree of eviction, the relationship of landlord and tenant stands severed and if the person who has been occupying the premises as a tenant desires to occupy the same during the pendency of the appeal challenging the eviction decree, he is expected to abide by conditions that are imposed by the appellate Court while granting stay.
The judgments relied upon by the learned senior counsel appearing on behalf of the petitioners show that relevant material for determining quantum of such occupation charges can certainly be ready reckoner, lease deeds or rent agreements executed in the recent past concerning comparable properties, so that the Court can arrive at a reasonable figure towards occupation charges while granting stay of decree of eviction faced by the tenant. In the judgments in the case of Super Max International Pvt. Ltd. .vs. State of Maharashtra [2009 (8) TMI 1282 - SUPREME COURT] and ADAM ALI H. FIRDOSY, INAYAT ALI S/O LATE HUSSAIN FIRDOSY, AKBAR ALI S/O LATE HUSSAIN FIRDOSY, VERSUS NATIONAL INSURANCE CO. LTD, THE REGIONAL MANAGER, THE DIVISIONAL MANAGER, [2018 (3) TMI 1999 - BOMBAY HIGH COURT], this Court has proceeded on the basis that when the market rate of the suit premises is determined on the basis of a ready reckoner or other such relevant material, 6% of such market value gives the figure that the suit property would fetch annually towards rent. On this basis, in the aforesaid cases, this Court has proceeded to determine the figure of occupation charges to be paid by the tenant who seeks stay of the eviction decree.
The aforesaid position of law is not seriously disputed by the learned counsel appearing for the respondent, but, he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Niyas Ahmad Khan .vs. Mahmood Rahmat Ullah Khan [2008 (5) TMI 750 - SUPREME COURT] to contend that the appellate Court in the present case had fixed a reasonable figure towards occupation charges. It was contended that when the appellate Court imposes condition while determining the quantum of occupation charges, it cannot adopt an arbitrary figure and that the condition cannot be unreasonable or oppressive. The said judgment of the Hon’ble Supreme Court relied upon by the learned counsel for the respondent is clearly distinguishable because in that case the landlord had failed in both the Courts below and it was the writ petition of the landlord which was being considered by the High Court and in such a situation, the question that the High Court considered was as to whether the tenant could be asked to pay a higher figure towards occupation charges or rent during the pendency of the writ petition before the High Court. In the said case, since the Courts below had not granted the eviction decree, the relationship of landlord and tenant continued and, therefore, the observations made by the Hon’ble Supreme Court in the said case pertained to a totally different factual scenario.
Even if the said position of law, relied upon by the learned counsel for the respondent, is applied to the facts of the present case, it becomes clear that while passing the impugned order, the appellate Court failed to take into consideration the material placed on record on behalf of the petitioners.
If the ready reckoner is taken into consideration and applied to the suit shop premises, it has come on record that the market value of the suit shop block would come to about Rs.82.71 square meter X 1,49,400/- per square meter. Although the petitioners have contended that the area in occupation of the respondent is about 1332 square feet, but taking into consideration the pleadings on record and the fact that the appeal is still pending before the appellate Court, even if the area of only two shop blocks is taken into consideration, it undisputedly comes to about 890 square feet, which is about 82.71 square meters. Therefore, the rate specified in the ready reckoner has been multiplied by the figure of 82.71 square meters to arrive at market value of the suit shop blocks. It is undisputed that if the said market value is taken into consideration and the rent of the two shop blocks is estimated at about 6% of the said figure, the monthly rate of rent comes to about Rs.1,71,631/- per month - It appears that in the said lease deed, the tenant is a Bank and the period of lease is upto the year 2031 with periodical increase in the rent amount every five years. Taking into consideration these factors, it appears that a figure of Rs.1,00,000/- per month is a reasonable amount towards occupation charges for the suit shop blocks, in the facts and circumstances of the present case.
The writ petition is partly allowed and the impugned order is modified to the extent that there shall be stay of the decree of eviction granted by the trial Court, subject to the condition that the respondent shall pay a sum of Rs.1,00,000/- per month from the date of the judgment of the trial Court till the decision of the appeal, towards occupation charges for the suit premises. The arrears of the said occupation charges at the aforesaid rate shall be deposited by the respondent within a period of three months from today.
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2019 (2) TMI 2078 - ITAT MUMBAI
Disallowance of deduction u/s 14A - disallowance for interest on funds used for making the investment for earning the tax free income - HELD THAT:- As expounded that if the assessee has sufficient interest free funds to make the investment in tax free instrument, disallowance u/s. 14A cannot be done. Respectfully following the Hon'ble Jurisdictional High Court decision in the case of Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and CIT vs. HDFC Bank Ltd [2014 (8) TMI 119 - BOMBAY HIGH COURT] we remit the issue to the file of the A.O. to decide as per the Hon'ble Jurisdictional High Court’s decision as referred above.
Deduction u/s. 35D - AO has disallowed the claim on the ground that the assessee has sold its Steel Division - HELD THAT:- We find that the ITAT on this issue vide order [2015 (12) TMI 1237 - ITAT MUMBAI] held that as perusal of section 35D shows that the Act is silent in the case when a unit is sold. There is no clause in the section which debars the assessee from claiming the expenses as a write off on sale of the undertaking. We, therefore, do not find any reason for declining the claim of the assessee - claim can be denied in the case of amalgamation and demerger but since the Act is silent in the case of sale of undertaking, in our understanding of the law, the Revenue authorities have erred in denying the claim. Decided in favour of assessee.
Addition on account of annual value of the property - As per revenue determining the annual value @ 12% of the cost of land and building shall mean that the same annual value shall remain for eternity as the cost of the land and building will never change - HELD THAT:- As assessee’s contented that the direction should be given in accordance with the earlier year ITAT order that the annual value of the property should be 12% of the cost and the land and building, we note that it is the plea of the Revenue that making an annual value as a percentage of the cost of the land and building forever will lead to annual value fixed for eternity which can never be permitted. We find that the ITAT earlier had confirmed the same direction. The matter is already before the Hon'ble Jurisdictional High Court. We do not find any cogent reason to depart from the earlier order of the Tribunal in the assessee’s own case.
Loss on compulsory conversion of u/s 64 - assessee submitted that the ITAT in the case of Schrader Duncan Ltd. [2012 (4) TMI 394 - ITAT MUMBAI] has dismissed the assessee’s appeal on similar issue and the Hon'ble Bombay High Court has admitted the said appeal - HELD THAT:- As we find that on the same issue, the ITAT has decided the case against the assessee and it is not the case that the Hon'ble Jurisdictional High Court has reversed the said decision. Respectfully following the same, we uphold the order of the ld. CIT(A).
Deduction u/s. 80HHC - assessee has claimed deduction on DEPB - HELD THAT:- Assessee stated that this issue is covered in favour of the assessee by ITAT order for A.Y. 2003-04 and Topman Exports vs. CIT [2012 (2) TMI 100 - SUPREME COURT] - Decided in favour of assessee.
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2019 (2) TMI 2077 - KARNATAKA HIGH COURT
Dishonour of Cheque - legally enforceable debt or not - It is the contention of the learned counsel for the respondent that though the petitioner-accused has participated in the proceedings effectively and has not raised a single finger about the jurisdiction, now he cannot contend that the Court below was not having any jurisdiction - HELD THAT:- It is well settled principles of law that a Court which is not containing any jurisdiction, if it passes an order, the said order is nullity in the eye of law. It is pure question of law whether an objection is raised or not, it is the duty of the Court to verify as to whether the Court is having any jurisdiction to entertain the said appeal or not. The Court gets jurisdiction only if the said Court is having an authority to pass such orders. In that light, the said contention does not stand and the same is rejected. The main contention taken by the learned counsel for the petitioner is that against the order of acquittal, an appeal lies before this Court and as such the said order is nullity.
On close reading of the Section 378(b) of Cr.P.C., it clarifies that against an order of acquittal, an appeal lies before the High Court. The admitted fact is that an appeal has been preferred before the District Court and the same has been entertained. Under such circumstances, the order passed is a nullity and the same is unsustainable in law.
It is submitted by the learned counsel for the respondent/complainant that he may be given liberty to file an appeal before this Court by giving the point of limitation which has been consumed under wrong proceedings as per Article 114 of the Limitation Act. The said period is also going to be covered in this behalf. Keeping this liberty, the respondent/complainant to file an appropriate proceedings before this Court.
The Criminal Revision Petition is allowed.
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2019 (2) TMI 2076 - ITAT KOLKATA
Penalty u/s 271(1)(c) - Defective notice u/s 274 - whether the asseessee is guilty of having “furnished inaccurate particulars of income” or of having “concealed particulars of such income”? - HELD THAT:- Decision of the Coordinate Bench of this Tribunal rendered in the case of Suvaprasanna Bhattacharya [2015 (12) TMI 43 - ITAT KOLKATA] by relying on the decision in the case of CIT & Another –vs.- Manjunatha Cotton & Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] is squarely applicable in the present case and respectfully following the same, we hold that the show-cause notices issued by the AO under section 274 for both the years under consideration not being in accordance with law, the penalty orders passed by the AO in pursuance thereof are liable to be cancelled being invalid. We accordingly uphold the impugned orders of the ld. CIT(Appeals) canceling the penalties imposed by the AO under section 271(1)(c) for both the years under consideration and dismiss both the appeals of the Revenue.
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2019 (2) TMI 2075 - SC ORDER
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Considering the amount of revenue involved i.e. Rs.5,48,579/-, this appeal is declined, whilst keeping the questions of law open.
The appeal is dismissed.
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2019 (2) TMI 2074 - ITAT HYDERABAD
Late filing levy u/s 234E - intimations u/s 200A - As per assessee prior to 01/06/2015 such inclusion of late fee u/s 234E in the intimation u/s 200A is not permissible under the law - HELD THAT:- We find that similar issue came up for consideration in the case of M/s Terra Infra Development Ltd. [2018 (10) TMI 285 - ITAT HYDERABAD] as held levy of fees u/s 234E while processing returns, TDS u/s 200A prior to 01.06.2015 was without any authority of law.
Thus we hold that the late fee is not leviable in the period prior to 1.6.2015 and therefore, the issue is covered in favour of the assessee.
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2019 (2) TMI 2073 - ITAT KOLKATA
Revision u/s 263 - assessee's status converted from a private Limited Company to LLP - notice to [dissolved company] - whether there is violation of the principles of natural justice qua the LLP which is the Successor-in-Interest of the M/s. Brolly Dealcom Pvt. Ltd. before the Ld. Pr. CIT passed the order u/s. 263 of the Act - whether service was made in the manner as provided under the Code of Civil Procedure, 1908 - whether the LLP was served with a notice of sec. 263 proceedings or made aware of the said proceedings or is it feigning ignorance of the said proceedings before the Pr. CIT. This is what we have to find out as directed by the Hon'ble High Court - HELD THAT:- The scribbling on the Photostat with the incomplete address, wherein the Room No. 24, 3rd floor was not mentioned in the address of Princep Street and the fact that there was no tear off acknowledgment slip for the delivery if any of the notice at Princep address cumulatively goes on to show that no notice was delivered to the proper address at prince street; And we note that the first tear off acknowledgement is blank except seal and dated 20.03.2013 with no name or signature or address and second tear off is only at the most evidences collection of the impugned order after passing of the said order and not before that; and likewise Power of Attorney to Chartered Accountants were after the passing of the impugned order and thus and both the tear off acknowledgement slips and Power of Attorney to Chartered Accountants shown to us from the file of Pr. CIT in no way advance the case of the revenue to show that notice of the proceedings u/s. 263 of the Act is conveyed to the successor-in- interest the LLP at the proper address of the dissolved company/LLP at prince street.
Thus no notice of the sec. 263 proceeding has been brought to the knowledge of the assessee [dissolved company] at its last proper address of the dissolved company at prince street thereby it could have been said that successor-in-interest LLP had knowledge about the proceedings going on before the ld Pr CIT u/s 263 of the Act or before the impugned order was passed by the Ld. Pr. CIT u/s. 263.
Despite department knowing the last proper address of dissolved company at Princep street no notice was issued to its proper address or successor-in-interest LLP and, therefore, no opportunity of hearing was given to the assessee before passing the order u/s. 263 - So since there was denial of reasonable opportunity of hearing to assessee there is a violation of natural justice and, therefore, the impugned order of the Ld. CIT u/s. 263 of the Act is held to be fragile for violation of natural justice as held in CIT vs Amitabh Bachan [2016 (5) TMI 493 - SUPREME COURT] - Appeal of assessee is allowed.
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2019 (2) TMI 2072 - ITAT KOLKATA
Addition u/s 68 - share capital received at a premium unexplained - addition was made by the AO as there was no compliance from the assessee - identity, genuineness and the creditworthiness of the share applicant companies have not been established and the reasons for investment in this company that has no track record and that too with huge premium is not clarified - CIT-A deleted the addition assessee has responded to the notice of the Assessing Officer and filed documents giving full details of each of the 16 share applicant companies who had subscribed to the share capital as well as share premium money raised by the assessee -
HELD THAT:- A perusal of the statement of profit and loss account and balance sheet of the assessee company demonstrates that the revenues from operation was Rs.33,40,000/- for the impugned Assessment Year and other income was Rs.8,92,279/-. The assessee incurred substantial expenditure towards employee’s benefits, depreciation etc. It has fixed assets worth Rs.62,36,839/-. It is in the business of transport. Hence the test to be applied for such companies, in our considered opinion is not the same as that which is to be applied in case of a jamakharchi company or a company on paper which has net worth and no transactions or real asset base.
The creditworthiness of these share applicant companies is not in doubt. As far as the identity of these share applicant companies are concerned, the assessee has furnished the following details before the Assessing Officer in case of each of these companies as Share applications, ITR Acknowledgements, Audited Financial Statements, Relevant bank details and Allotment advices
It is well settled that merely because the directors of the share applicant companies did not appear before the Assessing Officer, the addition could not be made - We find that the revenue has not brought out any evidence to controvert the findings of the ld. CIT(A). We find no infirmity in the order of the ld. CIT(A) and uphold the same. - Decided against revenue.
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2019 (2) TMI 2071 - SC ORDER
Deduction u/s 10A - determination of gross total income or computing the net total income i.e. chapter IV or VI - introduction of the word ‘deduction’ - amendment made by Finance Act, 2003 with retrospective effect from 1.4.2001 - HELD THAT:- The Special Leave Petition is disposed of in terms of the judgment in Commissioner of Income Tax & Anr. vs. Yokogawa India Ltd., [2016 (12) TMI 881 - SUPREME COURT]
Pending applications, if any, shall also stand disposed of.
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2019 (2) TMI 2070 - ITAT MUMBAI
Penalty levied u/s 272(A)(1)(C) - no compliance by the assessee to file the said details in response to summons u/s 131 issued by the AO - assessee failed to file the specific details like ‘Consent Waiver Form’ before the AO as well as the Ld. CIT(A) - HELD THAT:- It is found that similar issue arose in the case of JAY KETAN PARIKH, RAJ HITEN PARIKH, SAUNAK JITENDRA PARIKH [2018 (10) TMI 1989 - ITAT MUMBAI] as held a bare reading of the summons show that a proforma of Consent Waiver Form was enclosed requiring the assessee to sign it, notarise it and thereafter submit it back. Therefore, it cannot be said that there was any default on the part of the assessee to submit a document which was already in his possession, as is the wont of the provision contained in clause (c) of Sec. 131(1) of the Act. What the Assessing Officer seeks to do in the present case is to compel the assessee to execute a document, as rightly put by the learned representative for the assessee before us, and not a case where a document already in possession of the assessee is being asked to be produced. Therefore, without going into any other aspect of the controversy, we find that the instant default is not of the type understood by a conjoint reading of clause (c) of Sec. 131(1) of the Act with clause (c) of Sec. 272A(1) of the Act. Therefore, on this count itself, we find no merit in the levy of penalty u/s 272A(1)(c) of the Act, which is hereby ordered to be deleted. - Decided in favour of assessee.
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2019 (2) TMI 2069 - ITAT MUMBAI
Denying exemption u/s 10(10AA)(i) - leave encashment received at the time of retirement - 263 days of leave as on the date of absorption - assessee had been in service under the Department of Telecommunication, Govt. of India and his stamps of appointment and pay-scale were governed by the Central Govt. Rules and assessee was absorbed in MTNL, a Govt. of India Undertaking, w.e.f 01.10.2000 vide order dated 19.01.2004 - HELD THAT:- As per the provisions of section 10(10AA)(i) of the Act, the assessee is entitled for exemption on the amount of leave encashment of leave earned during the period before absorption in MTNL as per section 10(10AA)(i) of the Act as applicable to Central Govt. because before that date he was employee of Govt. of India that the Central Government. The amount of leave encashment in respect of leave accrued after absorption in MTNL will be governed by the exemption as per section 10(10AA)(ii) of the Act.
Facts are clearly in favour of assessee and for 263 days of leave as on the date of absorption was available to the assessee, which was earned and unutilized from Government service i.e. Central Government and will be governed by 10(10AA)(i) - The balance 37 days of leave earned is from MTNL and will be governed as per the provisions of section 10(10AA)(ii) of the Act. Accordingly,allow the appeal of the assessee and direct the AO to recompute the exemption proportionately as directed above - Appeal of assessee is allowed.
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2019 (2) TMI 2068 - ITAT RANCHI
Accrual of income - interest earned on fixed deposit - Real income theory - The said income was not the business receipt of the assessee company but was income from Other sources - AO rejected the contention of the assessee to hold that the interest accrued to the appellant was its income - HELD THAT:- CIT(A) deleted the addition stating that Income-tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income-tax Act. The real profit can be ascertained only by making the permissible deductions. There is a clear-cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e., between the commercial profits and statutory profits. The latter are statutorily fixed for a specified purpose.
Facts of the case clearly show that the appellant never became the 'owner' of the money. It had to return the excess funds to the government. The addition made by the Ld. Assessing Officer cannot be sustained in appeal. Ground of appeal is allowed in favour of assessee.
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