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Showing 41 to 60 of 1750 Records
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2016 (11) TMI 1715 - RAJASTHAN HIGH COURT
Dishonor of Cheque - seeking to recall the order - compromise subsequently entered between the parties - acquittal of the accused-petitioner for the offence under Section 138 of N.I. Act - HELD THAT:- On going through the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent-complainant, it is found to be a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled.
Application allowed.
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2016 (11) TMI 1714 - ITAT CHANDIGARH
Rejection of books of accounts - applying GP rate of 35% as against 18.71% shown by the assessee - non-maintenance of item-wise detail of jewellery purchased and sold - adoption of Weighted Average Cost (WAC) method for valuation of stock was found incorrect and the FIFO method was found to be appropriate as a consequence, the stock of gold was found undervalued - HELD THAT:- On perusing the order of the I.T.A.T. in the case of M/s Sunny Jewellery House [2016 (5) TMI 1579 - ITAT CHANDIGARH], we find that the facts in that case were identical to that in the present case, where the books of accounts of the assessee, a jeweler, were rejected for identical reasons as stated in the assessee’s case being non-maintenance of item-wise detail of jewellery purchased and sold and stock of the same as also incorrect method of valuation of stock adopted being WAC as against FIFO adopted by the Assessing Officer. The Hon'ble I.T.A.T., in that case, after relying on the order of Jagdish Chand [2003 (6) TMI 441 - ITAT CHANDIGARH] had held that there was no infirmity in the order of the CIT (Appeals) in deleting the addition made. - Decided against revenue.
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2016 (11) TMI 1713 - ITAT PANAJI
Interest income from the sister Concern - assessee had borrowed an amount from the Andhra Bank in the financial year 2010-11 on interest @18.25 p.a., out of which partial amount was advanced by the assessee to sister concern MDC @12% p.a - as per DR amount of interest paid to Andhra bank ought to have been capitalised to WIP as the amount was borrowed for working capital - HELD THAT:- Assessee has borrowed the said amount from Andhra Bank for the purpose of working capital facilities which is used for making advance of ₹ 8 crores to MDC and also for other purposes for meeting administrative expenses. It is stated that assessee has advanced the said amount to MDC for commercial expediency and placed reliance on the decision of the Hon’ble Supreme court in the case of SA Builders Limited [2006 (12) TMI 82 - SUPREME COURT]
The assessee is partner in MDC entitled for 50% share in profits and the said concern is also engaged in real estate and construction. The Revenue could not controvert the said contention of the assessee that the said amount was advanced keeping in view commercial expediency as stated above, thus keeping in view our above detailed reasoning, we are of the considered view that the addition made by the Assessing Officer by disallowing the interest expenses and adding the same to WIP is not sustainable keeping in view peculiar facts and circumstances of the case.
The revenue is also not able to show that inventories are acquired out of borrowings and interest is to be capitalised keeping in view AS-16 issued by ICAI. The AS-2 issued by ICAI clearly stipulates that generally the interest shall not be added to the inventories as the same does not usually bring the inventories to the present location and condition The assessee has earned interest income from MDC f ₹ 3,37,40,072/- which is offered for taxation, while interest paid for Andhra Bank on OD is ₹ 1,59,27,795/- and hence there is net interest income which had been earned by the assessee. We have also noted a peculiar fact that advances received from customer by the assessee as at 31-03-2012 is ₹ 68.57 crores, while closing WIP is ₹ 45.04 crores, thus advances from customer received by the assessee are higher than closing WIP as at 31-03-2012. Thus, keeping in view our detailed discussions and reasoning as set out above, we donot find any infirmity in the appellate order of the learned CIT(A), which we confirm and refuse to interfere - Appeal of revenue dismissed.
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2016 (11) TMI 1712 - SUPREME COURT
Maintainability of appeal - Court has no jurisdiction to entertain and adjudicate the appeal and that the same is required to be filed before the Supreme Court in view of the provisions of Section 130E of the CA, 1962 - whether the present case falls within the ambit of Section 130 of the Act or not? - it was held by Gujarat High Court that the appeal squarely falls within the ambit of Section 130 of the Act and has, therefore, rightly been filed before this Court.
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court.
The High Court is at liberty to decide the issue on merits - SLP disposed off.
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2016 (11) TMI 1711 - ITAT KOLKATA
Deduction u/s 80-IB - Difference between the amount claimed by the assessee u/s 80-IB of the Act and the deduction allowed by the AO - different method of apportionment of expenditure followed by the AO - HELD THAT:- There is merit in the submissions of the assessee, as the proposition canvassed by the assessee are supported by Judgments cited above and the facts narrated by him above.
AR has also pointed out that the assessee has been following the method for allocation of common selling and office expenses since long. Therefore the assessee under consideration has been following consistent basis for allocation of common selling expenses and head office expenses. The method adopted by the assessee has been confirmed by the ld. CIT(A) and also confirmed by the Jurisdictional ITAT Kolkata. The AO while making the assessment did not accept the basis for allocation of common selling and head office expenses adopted consistently by the assessee and he has not accepted the orders of the Kolkata Bench of Tribunal. Since the issue is squarely covered in favour of the assessee by the orders passed by the Kolkata Bench of the Tribunal in the preceding previous years, therefore we do not hesitate to confirm the order passed by the ld. CIT(A). Appeal of the revenue is dismissed.
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2016 (11) TMI 1710 - ITAT AHMEDABAD
Claim of exemption u/s 10(38) - capital gains arising from redemption of Deep Discount Bonds - Denial of exemption as capital assets was not in the nature of an equity share in a company or a unit of an equity orient fund subject to various other stipulations therein - whether the impugned redemption income is to be treated as capital gains or interest income from securities? - HELD THAT:- There is no dispute that assessee had acquired the Deep Discount Bonds in question way back on 11.01.1994. It has come on record that the CBDT Circular dated 15.02.2002 applicable from prospective effect only has directed the field authorities to treat such bonds redemption income as interest income. The CIT(A) relied upon the Board’s press note dated 20.03.2002 that the above circular would have prospective effect only.
We further notice that a co-ordinate bench decision in C. S. Goslla [2008 (7) TMI 1083 - ITAT MUMBAI] holds the very Deep Discount Bonds as capital assets. We thus find no force in Revenue’s argument that the impugned redemption income has been wrongly treated as capital gains in the lower appellate’s proceedings.
Assessee’s corresponding first argument seeking to assess his redemption income as interest income on mercantile basis also has not merit since the above Deep Discount Bonds have been declared in the original return as capital assets only. The assessee claimed redemption income therefrom as capital gains u/s.10(38) of the Act in his return filed. We thus find no reason to accept his first argument adopting a different stand at this stage without any tangible basis. The Revenue’s only argument fails.
Non cost indexation benefit qua the above Deep Discount Bonds whilst treating income therefrom as capital gains - We notice that the lower appellate authority has placed reliance on Section 48 third proviso stipulating that second proviso thereto regarding indexed cost of acquisition shall apply to long term capital gains arising from transfer of a long term capital asset being bond or debenture and so on. Ld. counsel fails to dispute the application of this proviso restricting the ambit and scope of the other proviso regarding indexation cost computation. This assessee’s argument also meets the same outcome.
Entitlement for assessment of his capital gains arising from redemption of Deep Discount Bonds at a flat rate of 10% u/s.112 - We find no reason to concur with the same as this proviso itself stipulates that where the tax payable in respect of any income arising from the transfer of a long term capital asset in the nature of listed security other than a unit or zero coupon bond exceeds 10% of the amount of capital gains before giving effect to provisions of second proviso to Section 48, then, such excess shall be ignored for the purpose of computing the tax payable by the assessee. It has already come on record that second proviso to Section 48 of the Act is itself not applicable as per third proviso discussed hereinabove. We thus observe that this assessee’s last argument also deserves to be declined since the above proviso to Section 112 applies before giving effect to the provisions of second proviso to Section 48 which admittedly is not the case here.
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2016 (11) TMI 1709 - ITAT JAIPUR
Deduction u/s 54F - as observed that the assessee claimed that the entire sale consideration was deposited in the Nationalized Bank as well as in capital gain account however, no documentary evidence was submitted to the AO - as contended by the assessee that since the investment is made before the due date of filing of return under section 139(4) of the Act and also before the date of filing of return on 21.02.2013, the assessee is eligible for deduction u/s 54B & 54F even if he has not deposited the amount in capital gain account - HELD THAT:- The Coordinate Bench of the Tribunal while deciding the identical issue in the case of Nand Lal Sharma [2015 (6) TMI 482 - ITAT JAIPUR] as relying on ASHOK KAPASIAWALA VERSUS THE ITO WARD-7 (1) , SURAT [2015 (10) TMI 2045 - ITAT AHMEDABAD] ,ASHOK KAPASIAWALA VERSUS THE ITO WARD-7 (1) , SURAT [2015 (10) TMI 2045 - ITAT AHMEDABAD], SMT. VRINDA P. ISSAC [2012 (8) TMI 608 - KARNATAKA HIGH COURT] as decided in favour of assessee.
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2016 (11) TMI 1708 - ITAT KOLKATA
Reopening of assessment u/s 147 - addition of credit to the current account of the Assessee in the partnership firm - AO noticed that the partnership firm M/S.Salarpuria Soft Zone, of which the assessee company was a partner, had revalued its assets during the year ended with 31.3.2008 and transferred the Revaluation profit to its partners’ current account in their respective profit or loss sharing ratio - CIT-A deleted the addition by quashing reopening notice - HELD THAT:- On a careful perusal of the order of the learned CIT(Appeals), we do not find any legal infirmity or illegality in his order to interfere. Findings of the learned CIT(Appeals) are impeccable, and are in accordance with the law laid down by the Hon’ble Apex Court in Sanjeev Woolen Mills v. CIT, [2005 (11) TMI 26 - SUPREME COURT]. The ratio of decision in the case of M/s. Orchid Griha Nirman Pvt. Ltd. [2016 (11) TMI 247 - ITAT KOLKATA] is applicable to the facts of this case on all fours, inasmuch as the facts of both the cases emanate from the same transaction. We, therefore, while respectfully following the established judicial reasoning referred to above, hold that the facts of the case do not warrant any interference with the impugned order of the learned CIT(Appeals) on the aspect of proceedings under section 147 of the Act, and accordingly, uphold the same. Ground No 1 of the Revenue stands dismissed.
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2016 (11) TMI 1707 - SC ORDER
Jurisdiction - power of Additional Director General, Department of Revenue Intelligence under Section 28 of the Customs Act, 1962 to issue SCN - HELD THAT:- The Special Leave Petition is dismissed.
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2016 (11) TMI 1706 - CALCUTTA HIGH COURT
Dishonor of cheque - insufficiency of funds - rebuttal of presumption - existence of debt/liability or not - HELD THAT:- It is a settled position of law that the presumption under section 139 of the N.I. Act postulates that whenever a cheque or negotiable instrument is issued in favour of the other side, then the Court can presume that it was issued in discharge of existing liability. It is true that there is no presumption as to the existence of debt or liability and it is to be proved by the complainant before the floor of the Court.
This Court on scrutiny of the evidence on record both oral and documentary, considering the judgment of the Trial Court and the First Appellate Court and also the agreement advanced is satisfied that the approach of the First Appellate Court to reverse the order of conviction was not in conformity with the legal position as decided by this Court in NITA KANOI VERSUS PARIDHI AND ORS. [2015 (1) TMI 1471 - CALCUTTA HIGH COURT]. This Court is not willing to answer the point as to whether the interest or damages claimed was usurious as it was not a point either before the Trial Court or before the First Appellate Court.
Appeal allowed - decided in favor of appellant.
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2016 (11) TMI 1705 - ITAT KOLKATA
Assessment u/s 153C - proof of seized documents as belonging to assessee - HELD THAT:- From the material seized, though there was a reference to the name of the assessee-firm, equally there are names of other parties on the same documents. There is nothing to indicate that these documents were disclaimed by NKG in whose case search was conducted. The AO has not referred to any material to indicate that the assessee is the owner of those seized documents. Therefore, we hold that the AO was not justified in exercising jurisdiction u/s 153C of the Act. Hence, the assessments made pursuant to issue of notice u/s 153C are hereby cancelled.
Additional depreciation u/s. 32(1)(iia) - assessee as engaged in manufacturing or production of coal which is production activity - AO held that assessee is not engaged in any production / manufacturing activity and therefore the additional depreciation is not available for the deduction u/s 32(1)(iia) - whether the activity of extraction of coal amounts to the production? - CIT-A allowed deduction - HELD THAT:- As decided in GS. ATWAL AND CO. (GUA). [2001 (2) TMI 32 - CALCUTTA HIGH COURT] the point that the assessee is still not an industrial undertaking even though it might be engaged in production of coal is, in our opinion, also to be decided against the Revenue. Under the definition of an industrial undertaking given under s. 33B, Explanation mining activity would bring in the assessee within the definition of an industrial undertaking. But we need not import the definition of another section to the present one, although ordinarily the definition given in one section in an Act can be used for the purposes of another section unless the context indicates otherwise.
So far as the assessee is concerned, an undertaking it certainly is. We have found no facts from which we can opine that the assessee is not an industrial undertaking. Ordinarily speaking if a manufacturing activity or an article producing activity is carried on, an undertaking carrying on such activity is to be classed as an industrial one. It might be small scale or large scale, that does not matter much. Even if an undertaking is manufacturing or producing articles, but is still not to be classed as an industrial one for this, clear indications have to be given as to why this difference should be made in case of the undertaking in question, so that it stands out from the general category. - Decided against revenue.
Excess depreciation claim - AO opined that the machine has been used in the year under consideration for less than 180 days - HELD THAT:- We find that the machine was put to use with effect from 02.10.2009 as evident from the Delivery Inspection Report, the Service Report of Volvo India Pvt. Ltd. and also from the report of Heavy earth moving machine. In the background of the above discussion and precedent we do not find any infirmity in the order of Ld. CIT(A) and according we uphold the same. This ground of Revenue is dismissed.
Addition on account of festival celebration expense - allowable business expenses or not? - assessee has claimed festival celebration expense on its completion of 50 years of existence - HELD THAT:- The assessee celebrated its Golden Jubilee in Maysore where all the stockholder of the assessee-company, such as principals, founders, suppliers, banners, employees were also invited - the Golden Jubilee festival was celebrated on the completion of its flagship Ravi Udyog it came into existence in 1972 to 1973 and the flagship company was the strategic partners of the assessee-company. The expenses were incurred wholly and exclusively for the purpose of business of assessee.
There is no denial that expenditure was incurred by the appellant. The AO has brought no evidence on record to show that any part of the expenditure under consideration was bogus or of capital nature or incurred for the purpose other than wholly and exclusively for the purposes of the business of the appellant. Under the circumstances no justification of disallowance made by the AO especially, when the expenditure was supported by bills and vouchers - Decided against revenue.
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2016 (11) TMI 1704 - ITAT DELHI
Non prosecution of appeal - HELD THAT:- When the matter was called up for hearing today, no one has appeared on behalf of the assessee. The assessee has not filed any adjournment application also. The notice of hearing sent to the assessee has not been returned unserved. The matter was earlier adjourned a couple of times at the request of the assessee. In these circumstances, it appears that the assessee is not interested in prosecuting his appeal. The appeal filed by the assessee is, therefore, liable to be dismissed, for non-prosecution.
The appeal filed by the assessee is dismissed for non-prosecution.
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2016 (11) TMI 1703 - BOMBAY HIGH COURT
Cancellation of cash credit facility under which the loan was obtained - default in repayment of loan - privity of contract between the respondent Bank in carrying on business - insufficiency of stamp duty - HELD THAT:- In the present case, the Company raises a defence that if the creditor was to enforce the corporate guarantee on account of non-payment of dues by the main borrower, in a Civil Court, the creditor could not be relying upon this document which forms the basis of the debt since it is inadequately stamped. If such defence is taken up in a Civil Suit, and if the document in question is insufficiently stamped, probably, such defence may come to the aid of the appellant. At this stage, there are no steps taken by the creditor to enforce its claim against the guarantor based on the documents of corporate guarantee in the State of Maharashtra. Therefore, definitely, in the present Company Petition, the Company Court was not required to consider such plea raised by the appellant. Therefore, such defence will not hold water in aid of appellant's contention.
Want of certificate by an authorized officer of the respondent Bank, in accordance with the terms of corporate guarantee, the certificate referred to in clause 15, is said to be a conclusive proof of the dues. It could be one of the modes of conclusive evidence against the guarantors. However, there could be other evidence of such conclusive evidence of the dues. In other words, it could be proved by other means of evidence. If there is convincing material on record with regard to the dues of the creditor against whom winding up is sought, it is immaterial whether a certificate of the nature was produced or not.
When a statutory notice before lodging Company Petition seeking winding up of the appellant's Company was filed by the respondent Bank, they had made it clear that the respondent bank's debt was over 22 crores, therefore, cannot be said to be disputed with bonafides on the part of the appellant. There is nothing on record to show that in the Company Petition, the respondent Bank has not correctly disclosed the position of the debt as on the date of the petition.
Appeal dismissed.
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2016 (11) TMI 1702 - DELHI HIGH COURT
Nature of expenditure - whether the payments made were capital or revenue in nature? - assessee had urged that in the light of the National Telecom Policy 1999, the payments - made on quarterly basis were not capital- that is for depreciation under Section 32 but entitled to be treated as revenue expenditure - HELD THAT:- CIT (A) and ITAT accepted the assessee’s contention and directed that the expenditure should be treated as falling under revenue fee by relying upon Commissioner of Income Tax vs. Fascel Limited [2008 (12) TMI 743 - DELHI HIGH COURT]. There is also a subsequent judgment Commissioner of Income Tax vs. Bharti Hexacom Ltd [2013 (12) TMI 1115 - DELHI HIGH COURT] in which it was held that such payments are in fact revenue and cannot be treated as capital expenditure.
This court is of the opinion that having regard to Bharti Hexacom Ltd (supra), the question of law urged does not arise. No other substantial questions of law have been pleaded.
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2016 (11) TMI 1701 - SUPREME COURT
Maintainability of a cross-objection - Code of Civil Procedure is applicable to an appeal preferred Under Section 37 of the Act - HELD THAT:- In juxtaposition with the provisions contained in 1996 Act, it seems that the legislature has intentionally not kept any provision pertaining to the applicability of the Code of Civil Procedure. On the contrary, Section 5 of 1996 Act lays the postulate, that notwithstanding anything contained in any other law for the time being in force in matters covered by Part I, no judicial authority shall intervene except so provided wherever under this Act.
In International Security & Intelligence Agency Ltd. [2003 (2) TMI 498 - SUPREME COURT], a three-Judge bench was dealing with maintainability of a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. It is apt to mention here that the controversy arose in the context of 1940 Act. While dealing with the same, the three-Judge bench ruled thus a cross objection can be preferred if the applicant could have sought for the same relief by filing an appeal in conformity with the provisions of Section 39(1) of the Act. If the subject-matter of the cross objection is to impugn such an order which does not fall within the purview of any of the categories contemplated by Clauses (i) to (vi) of Sub-section (1) of Section 39 of the Act, the cross objection shall not be maintainable.
As is manifest, a person grieved by the award can file objection Under Section 34 of the 1996 Act, and if aggrieved on the order passed thereon, can prefer an appeal. The court can set aside the award or deal with the award as provided by the 1996 Act. If a corrective measure is thought of, it has to be done in accordance with the provision as contained in Section 37 of the 1996 Act, for Section 37(1) stipulates for an appeal in case of any grievance which would include setting aside of an arbitral award Under Section 34 of the Act.
Section 5 which commences with a non-obstante Clause clearly stipulates that no judicial authority shall interfere except where so provided in Part 1 of the 1996 Act. As we perceive, the 1996 Act is a complete Code and Section 5 in categorical terms along with other provisions, lead to a definite conclusion that no other provision can be attracted. Thus, the application of Code of Civil Procedure is not conceived of and, therefore, as a natural corollary, the cross-objection cannot be entertained.
The analysis made in ITI Ltd. [2002 (5) TMI 706 - SUPREME COURT] to the effect that merely because the 1996 Act does not provide Code of Civil Procedure to be applicable, it should not be inferred that the Code is inapplicable seems to be incorrect, for the scheme of the 1996 Act clearly envisages otherwise and the legislative intendment also so postulates - As we are unable to follow the view expressed in ITI Ltd. (supra) and we are of the considered opinion that the said decision deserves to be re-considered by a larger Bench.
Let the papers be placed before the Hon'ble the Chief Justice of India for constitution of an appropriate larger Bench.
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2016 (11) TMI 1700 - ITAT KOLKATA
Revision u/s 263 by CIT - reason given in the show-cause notice as different for which revision powers are finally exercised - unexplained investment under section 69B - HELD THAT:- The issue raised by the ld. CIT in the notice issued u/s 263 of the Act was materially different with grounds on which the revision order was passed. It is thus clear that the ground taken in the show-cause notice that there was unexplained investment under section 69B - But upon taking into account the submission made by the assessee, the ld. CIT himself changed the stand. CIT instead of taking the decision on merits based on the show-cause notice has merely referred the matter to the Assessing Officer for verification of certain aspects. It is thus clear that there was a shift in the stand of the ld. CIT as to whether it was a case for revision on the ground of unexplained investment under section 69B of the Act or non-verification of certain aspects. The reason given in the show-cause notice is different for which revision powers are finally exercised in the impugned order.
As in a situation in which the revision order is passed on the ground other than the grounds for which revision proceedings are initiated, the same cannot be sustainable in law. That apart, in the impugned order we have also noticed that the learned Commissioner has not faulted the explanation given by the assessee and has merely remitted the matter to the file of Assessing Officer for verification of factual elements embedded in explanation as given by the assessee. This approach is also not sustainable in law in view of the law laid down by the Hon'ble Bombay High Court in the case of CIT -vs.- Gabriel India Limited [1993 (4) TMI 55 - BOMBAY HIGH COURT]
In the present case, proceedings were not initiated on the grounds that adequate enquiries were not carried out. The Commissioner has not alleged in the show cause notice that adequate enquiries were not carried out, and again, it is elementary that no person can be condemned unheard, and therefore, the assessee not having been heard on the question whether or not adequate enquiries were carried out, learned Commissioner could not have subjected the assessment order to revision proceedings on the ground that adequate enquiries were not carried out. Secondly, there is nothing on record to provoke an enquiry, which has not been carried out in the instant case. Learned Commissioner has not pointed out any reason as to why the Assessing Officer should have made further enquiry, which was apparently left out. In view of this discussion and entirety of the case, we uphold the grievance of the assessee and quash the impugned revision order. AO has conducted the enquiry about the addition of the fixed assets as appearing from the notice issued under section 142(1)
Commissioner of income tax can exercise his jurisdiction u/s 263 of the Act only in cases where no enquiry is made by the Assessing Officer. In the instant case, it is admitted by the Income Tax Department that the Assessing Officer had made some enquiries though according to them it was not a proper enquiry. In view of the above facts that some enquiry was made is sufficient to debar the authorities from exercising the powers u/s 263 of the Act. The Tribunal was accordingly justified in setting aside the order passed u/s 263 of the Act. - Decided in favour of assessee.
Disallowance u/s 14A r.w.r.8D - In the instant case the AO has taken the possible view for making the disallowance under section 14A of the Act. Thus in our considered view the AO has taken a possible view and therefore the order of the AO cannot be held erroneous & prejudicial to the interest of Revenue. Accordingly the ground raised by the assessee is allowed.
Addition of trade discount on the ground that the assessee claim for trade discount was not in order - From the submission of the ld. AR we find that details of the trade discount were duly furnished to the AO at the time of assessment under section 143(3) of the Act. The details of such discount is placed - From the facts we find that the ld. CIT has changed its stand as initiated in the notice and at the time of passing the order under section 263 of the Act. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed.
Excess depreciation claimed - We do not agree with the view of the ld. CIT as there is change in his stand with regard to the notice and in the revision order. In similar facts & circumstances we have already held in Para 8(a) of this order that the order of the AO is not erroneous and prejudicial to the interest of Revenue. Following the same we reverse the order of ld. CIT and the ground raised by the assessee is allowed. The assessee gets the relief, accordingly - Assessee appeal allowed.
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2016 (11) TMI 1699 - ITAT MUMBAI
Correct head of income - income earned on share transactions - profit from capital gain or business income - HELD THAT:- DR has not brought any material to demonstrate that the facts are not identical to the case decided by the Tribunal for the AY 2007-2008. Therefore, we are of the opinion, the decision of the CIT (A) to rely on the said Tribunal's decision (supra) for the AY 2007-08 is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.
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2016 (11) TMI 1698 - APPELLATE TRIBUNAL FOR ELECTRICITY, NEW DELHI
Disallowance of fuel cost for the period FY 2014-15 and FY 2015-16 - Whether the Appellant is entitled to claim the fuel costs incurred by it due to delay in execution of Fuel Supply Agreement (FSA) with Coal India Limited (CIL) and its subsidiaries for reasons not attributable to the Appellant in its tariff to Respondent No.2, with whom there is a valid, duly approved Power Purchase Agreement, in accordance with the applicable Tariff Regulations of State Commission? - HELD THAT:- This issue is answered in favour of the Appellant for allowing cost of coal for Unit-I limiting to the extent of what has been allowed/is being allowed by the State Commission for the corresponding period for the supply under FSA arrangement for the generation from Unit-II of the Appellant to Respondent No.2.
Approval of Auxiliary Energy Consumption of 9.05% for FY 2014-15 in paragraphs 2.5.9 to 2.5.19 of the Impugned Order as against 9.61% as proposed by the Appellant - HELD THAT:- Considering the actual Auxiliary Energy Consumption as 9.61%, the availability for the year works out to be 85.40% which is more than the Target Availability and consequently, the Appellant is entitled for recovery of entire Annual Fixed Charges for FY 2014-15.
The consequent computation of Availability in paragraph 2.3 of the Impugned Order of 84.83% as against 85.40% as proposed by the Appellant - HELD THAT:- The compensation as per IEGC amendments are described under Sub Regulation 6.3 B. Further as per Notification dated 6.4.2016, the IEGC fourth amendment Regulations shall come into force with effect from date of publication in Official Gazette except subregulation 6.3B which shall come into force on such date as the Commission may appoint by notification in the Official Gazette - Hence these Amendments related to APC have not come into effect. Hence the State Commission cannot allow such increase in Auxiliary Power Consumption due to part load compensation due to backing down instructions by SLDC. Consequent to this, there can be no change in the availability of the Power Station for the period FY 2014-15. This issue is decided against the Appellant.
Approval of Gross Station Heat Rate of 2401 kcal/kwh as against 2457 kcal/kwh for FY 2014-15 as proposed by the Appellant - HELD THAT:- In view of the fact that the Appellant's Generating Station was in the 1st and 2nd year of operations after its Commercial Date and the Appellant had produced sufficient material before Respondent No.1 for exercise of such powers, is decided against the Appellant.
Consideration of actual Interest on Working Capital (IWC) of ₹ 33.43 Crore for computing efficiency gain on the purported basis - HELD THAT:- Once having recognized that there is a requirement of funds to manage operations in business, it cannot be implied that the same has been met through operational efficiency as has been held by the State Commission in the Impugned Order.
Interest on Working Capital - HELD THAT:- The State Commission had sought the month-wise cash flow statement from VIPLG to substantiate that the internal accruals were utilised to meet the working capital requirement. However, in the present matter, the Interest on Working Capital as per audited accounts was ₹ 33 Crore. Therefore, the State Commission considered ₹ 33 Crore as the actual Interest on Working Capital.
Computation of Income Tax as proposed by the Appellant instead of restatement of the same based on the Impugned Order for the period F.Y. 2014-15 onwards - HELD THAT:- The State Commission has allowed the Income Tax for FY 2015-16 in accordance with the Regulation 34.1 of the MYT Regulations, 2011. The State Commission has considered the Income Tax for FY 2015-16 in the Impugned Order on provisional basis - Further the Regulation 34.2 of the MYT Regulation provides for the the reimbursement of difference between the actual and approved Income Tax at the time of final True –up. Therefore, the provisionally approved Income Tax for FY 2015-16 and the subsequent 3rd Control Period shall be subject to final truing up. Hence we are in agreement with the decision of the State Commission in this issue - the issue is decided against the Appellant.
Disallowance of Ash Utilization and Disposal Expenses and the findings - HELD THAT:- The State Commission has not allowed the Ash disposal expenses on the ground of inappropriate design. The Ash disposal area is even not in accordance with the CEA guidelines. Therefore the Appellant was held fully responsible for this lapse and the impact of such disposal difficulties was not allowed to be passed on to the Beneficiaries - the impact of any such lapse in planning/ design of the Ash Utilization facilities should not be passed on to the Beneficiaries. Hence this issue is decided against the Appellant.
Disallowance of Additional O&M expenses towards RO Plant - HELD THAT:- The State Commission in its Impugned Order has detailed out the issue related to additional O&M expenses for RO Plant as well as normative O&M expenses allowed in the Impugned Order - We have perused the findings of the State Commission and do not find any infirmity.
Jurisdiction of the State Commission to order refund of the excess amount - HELD THAT:- As in the case of FY 2014-15, the State Commission directed the Appellant to refund the Revenue Surplus of FY 2015-16, determined as ₹ 405.89 crore upon provisional truing up, to Rlnfra-D in 6 monthly instalments.
Whether Respondent No.1 has the power, authority or jurisdiction to pass an order of refund as has been done in the present case? - HELD THAT:- The Tariff can be determined by the State Commission with either upward revision resulting in increase in charges payable by the Consumer or have the downward revision with reduction in charges payable. Hence we decide this issue against the Appellant.
Appeal allowed in part.
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2016 (11) TMI 1697 - ITAT CHENNAI
Unabsorbed depreciation set off against the long term capital gain - HELD THAT:- By placing reliance on the judgment of the Gujarat High Court in General Motors P Ltd. [2012 (8) TMI 714 - GUJARAT HIGH COURT], this Tribunal in the assessee’s own case for the assessment year 2007-08 [2014 (1) TMI 1908 - ITAT CHENNAI] allowed the claim of the assessee. The only contention of the department representative is that the decision of the Mumbai Special Bench of this Tribunal is against the assessee.
This Tribunal is of the considered opinion that the judgment of the Gujarat High Court has to be preferred rather than the decision of the Mumbai Special Bench of this Tribunal. Therefore, the CIT(A) has rightly placed his reliance on the judgment of the Gujarat High Court in General Motors P Ltd. (supra) rather than the decision of Mumbai Special Bench of this Tribunal in Times Guarantee Ltd. (supra). - Decided against revenue.
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2016 (11) TMI 1696 - GUJARAT HIGH COURT
Disallowance u/s 14A r.w.r. 8D - sufficiency of own funds - suo moto disallowance - ITAT deleted the addition - satisfactory explanation - HELD THAT:- Considering the fact that while making the addition made by the Assessing Officer under Section 14A of the Income Tax Act read with Rule 8D of the Income Tax Rules, 1962, the Assessing Officer did not record as to how the expenditure as claimed by the assessee was not satisfactory, and considering the fact that the assessee had sufficient interest free fund, out of which the concerned investment had been made, it cannot be said that the learned Tribunal has committed any error in deleting the addition made by the Assessing Officer made under Section 14A r.w.r. 8D of the Income Tax Rules, 1962. Under the circumstances and considering the direct decision of the Division Bench of this Court in the case of India Gelatine and Chemicals Limited .[2015 (11) TMI 392 - GUJARAT HIGH COURT]
No substantial question of law arise in the present appeal.
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