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Showing 41 to 60 of 1380 Records
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2016 (2) TMI 1343 - ITAT AMRITSAR
Addition u/s 69B - difference in value of stock as per bank statement and as per the balance sheet furnished to the Department - Difference in figures of closing stock submitted to the Bank and balance sheet - HELD THAT:- We find that the above issue is squarely covered against the Revenue and in favour of the assessee by the consolidated order in the case of Dy. Commr. of Income Tax, Circle-1, Bathinda vs. Ishar Infrastructure Developer (P) Ltd; Bathinda [2015 (6) TMI 766 - ITAT AMRITSAR] as held addition on account of difference furnished to the bank as per books of account u/s 69B of the Act can not be sustained. - Decided in favour of assessee.
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2016 (2) TMI 1342 - ALLAHABAD HIGH COURT
Non-compliance of the terms and conditions of the auction by the petitioner - Acceptance of highest bid - seeking production of original receipt by the petitioner, so that the excess amount deposited by him may be returned - HELD THAT:- The writ petition is pending since 2012.
If the petitioner has any grievance in the matter, he is at liberty to approach the State Government under Section 41(3) of U.P. Urban Planning and Development Act, at the first instance - Petition dismissed.
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2016 (2) TMI 1341 - SC ORDER
TDS u.s 194A in respect of the interest paid to the owners of the land acquired - payment of interest for belated payment of compensation for the land acquired - deduction of the payment of interest at source under section 194-A by the Land Acquisition Collector - HELD THAT:- While issuing notice in these appeals, the following order was passed on February 22, 2010 [2010 (2) TMI 1303 - SC ORDER]- "Issue notice as to why the matters should not be remitted - In the impugned order, no reasons have been given by the High Court. Hence, matters need to be sent back. This is prima facie opinion."
In view of the said position reflected in the aforesaid order, Learned Counsel for the Respondent was confronted therewith. He submitted that he has no objection if the matters are remitted to the High Court for fresh consideration.
The impugned orders passed by the High Court are, accordingly, set aside and all these cases are remitted back to the High Court for deciding the issue afresh by giving detailed reasons after hearing the counsel for the parties.
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2016 (2) TMI 1340 - ITAT CHENNAI
TP Adjustment - ALP determination - whether rate approved by the RBI prior to 1994 and cannot be considered for the purpose of Arms Length Price? - HELD THAT:- Commissioner of Income Tax (Appeals) has directed the Assessing Officer to calculate royalty at Arms Length Price @0.75% rejecting the determination by TPO. The ld. Authorised Representative explained the provisions and conditions of agreements and approval of the RBI - We on perusal of the documentary evidence filed by the Authorised Representative and also judicial decisions approving the royalty payments which the RBI prescribed, found the approval of Government of India and RBI was in 1994 and as per the terms royalty rate is calculated. The assessee company substantiated their grounds with financial statements and comparable statements. We perused the RBI letter and follow the decision in the case of Owens Corining Industries (India) Ltd . [2014 (10) TMI 651 - ITAT HYDERABAD] where it has been held that RBI approval of the royalty rates paid by assessee itself implies that the payments were at Arm’s Length. So considering the apparent facts and circumstances the ld. Commissioner of Income Tax (Appeals) has examined the issue and verified the statements and material filed and viz a viz explanations of the assessee. We, therefore are not inclined to interfere with the order of the CIT(A) on this ground. Accordingly, this ground of the Revenue is dismissed.
Price variation of Arms Length Price transaction is at higher and volatile - HELD THAT:- Revenue has not brought any evidence to show that price variation is on higher side and impact on the Arms Length Price. Though ld. Authorised Representative justified his arguments with the submissions and judicial decisions. Considering the summary of module and agreements entered by the assessee company with Associated Enterprise, we find the order of Commissioner of Income Tax (Appeals) is in order and we do not interfere with the findings and uphold the findings of the Commissioner of Income Tax (Appeals) and direct the Assessing Officer to delete the addition. This ground of the Revenue is dismissed.
TDS u/s 195 - addition on account of foreign sales commission as assessee failed to deduct TDS - HELD THAT:- As perused the material on record and judicial decisions and Double Taxation Avoidance Agreements. The assessee has paid foreign commission to outside foreign agencies who do not have business establishment in India and liable for taxation in their respective countries. We rely on the Coordinate Bench decision in the case of ACIT vs. Euro Leder Fashions Ltd [2016 (1) TMI 75 - ITAT CHENNAI] as held assessee has not established the facts on record that the non-resident has rendered services at abroad and there is no business connection in India by producing relevant records, viz., either agreement entered into by the assessee with them or correspondence took between the parties. Without examining these details, we are not in a position to decide the nature of services rendered by the non-resident agent. Therefore, it is appropriate to remit the entire issue back to the file of the AO with direction to the assessee to prove that it was sales commission towards procurement of orders from abroad. Accordingly, the entire issue is remitted back to the file of the AO for fresh consideration and the AO is directed to make necessary enquiry regarding the nature of services rendered by the non-resident agent and the payments made there of - we remit the issue to the file of Assessing Officer for verification and examination and the appeal of the Revenue is partly allowed for statistical purpose.
Lab analysis fees paid to non residents of US, UK and Germany - HELD THAT:- Since the services rendered outside India and payments made outside Country and does not attract TDS provisions. Alternatively u/sec.9(1)(vii) fees for technical services, the lab analysis fees will not fall into category of technical fees and also there is no permanent establishment in India to charge such income to tax. The ld. Authorised Representative demonstrated the DTAA clauses with USA, UK and Germany and such payments are outside the purview and not chargeable as per provisions of DTAA. On the other hand, the ld. Departmental Representative relied on the findings of the Commissioner of Income Tax (Appeals) that the know how was available and there was site inspection and reference was made in Audit Report on verification of training programme. We after considering the matrix of facts, judicial decisions and Audit report observed in assessment order which indicates the services are rendered in India and report was obtained in India. Therefore, we remit the issue to the Assessing Officer for limited purpose to verify the working system of Audited and consultancy work or inspection was carried by the Auditors on lab analysis and we set aside the order of the Commissioner of Income Tax (Appeals) and direct the Assessing Officer to consider the issue and pass the order after providing adequate opportunity of hearing before passing the order on merits. In the result, the appeal of the assessee is partly allowed for statistical purpose.
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2016 (2) TMI 1339 - ITAT JAIPUR
TDS u/s 195 - Disallowance u/s 40(a)(ia) - services rendered and expenditure incurred is in the nature of commission - HELD THAT:- It is not in dispute that the assessee firm is engaged in the business of manufacturing and export of readymade garments and in connection with the exports, the assessee has incurred an amount. On perusal of the agreement with M/s Arjoo J. Ltd. the CIT(A) has given a clear finding that the services rendered and expenditure incurred is in the nature of commission. Given the fact that the commission has been paid in relation to export of garments outside India and the fact that the no services have been rendered in India we are unable to accede to the arguments of the ld. DR that the subject payments are taxable in India.
Similar is the position in respect of payment to M. Ishikawa who has been paid commission in relation to export of garments as apparent from the agreement as well as working of the commission payments. Accordingly, provisions of section 195 are not attracted in the instant case, hence the disallowance of expenditure u/s 40(a)(i) is hereby deleted. - Decided in favour of assessee.
Delayed employees contribution to PF and ESI - HELD THAT:- CIT(A) has given a categorical finding that the employees contribution to ESI and PF has been paid before filing of the return of income u/s 139(1) of the Act. In view of the consistent stand taken by this Bench and respectfully following the decision of the Hon’ble Rajasthan High Court in the case of State Bank of Bikaner & Jaipur.and others [2014 (5) TMI 222 - RAJASTHAN HIGH COURT] ground taken by the Revenue is dismissed .
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2016 (2) TMI 1338 - BOMBAY HIGH COURT
Dishonor of Cheque - petitioner is legal heir of the original accused - liability of fine amount or compensation, on the self acquired property of the petitioner - HELD THAT:- Here in the case, property which has come into the hands of petitioner was admittedly owned by original accused Saifuddin, by virtue of will deed executed by Saifuddin on 6.10.2010, said property is received by the petitioner naturally, with all liabilities attached therewith. In view of section 70 of IPC, amount of fine and compensation is recoverable from the said property. The trial Court has considered all these legal aspects of the case and thereafter passed the impugned order.
Petition dismissed.
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2016 (2) TMI 1337 - SUPREME COURT
Claim of compensation for the death of one Raj Kumar Gautam, who died in a vehicular accident - Sections 140 and 166 of the Motor Vehicles Act, 1988 - HELD THAT:- The powers of the first appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
A three-Judge Bench decision of this Court in MADHUKAR AND OTHERS VERSUS SANGRAM AND OTHERS [2001 (4) TMI 922 - SUPREME COURT], wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
An appeal under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence.
As a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute - appeal allowed in part.
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2016 (2) TMI 1336 - TRIPURA HIGH COURT
Dishonor of Cheque - insufficiency of funds - leading of evidence - cross-examination of witnesses - section 313 of the Cr.P. C. - HELD THAT:- It appears that if a person commits an offence under Section 138 of the NI Act, then the court has the power to punish him with imprisonment for a term which may extend to 2 years or with fine which may extend twice to the amount of the cheque or with both.
In the instant case, the accused petitioner did not deny that he had issued the cheque of ₹ 4,50,000/- in favour of the complainant respondent and the said cheque was dishonoured for insufficiency of fund in his account. His only plea was that he had taken a loan of ₹ 5000/- from the complaint-respondent and repaid the same by signing a blank cheque. Now question arises, if the convict petitioner did not take any loan from the respondent complainant, then why he had issued the cheque for an amount of ₹ 4,50,000/-. It is also not the case of the petitioner that the complainant respondent did not comply with the statutory requirements before lodging the complaint.
In the instant case, admittedly the cheque amount is ₹ 4,50,000/-. The learned trial Court found the convict petitioner guilty for the offence under Section 138 of the N.I. Act and sentenced him to suffer R.I. for six months and to pay a fine of ₹ 4,50,000/-, i.d. to suffer for further one month.
The instant criminal revision petition is dismissed.
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2016 (2) TMI 1335 - ITAT PUNE
Treatment to profits on sale / redemption of investments (including amortization of securities) as taxable - HELD THAT:- The year under appeal before us is assessment year 2008-09 i.e. the year in which the said provisions of Rule 5 of First Schedule were not on Statute. Similar claim was made by the assessee that the profit / loss arising on sale / redemption of securities, investment was not taxable and even the loss on account of amortization of securities was to be reduced from the taxable income of the year, arose before the Tribunal in assessee’s own case in assessment year 2003-04 [2009 (8) TMI 810 - ITAT PUNE-A]
Following the same parity of reasoning, we hold that while computing the income from insurance business under section 44 and First Schedule of the Act, there is no merit in holding the profit / loss on sale / redemption of securities / investments amounting to about ₹ 50 crores as taxable and the loss on amortization of securities is to be reduced from the taxable income of the assessee. The order of Tribunal in assessment year 2003-04 has been subsequently followed by the Tribunal in assessment year 2004-05 [2010 (12) TMI 1191 - ITAT PUNE] Appeal of assessee allowed.
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- The issue arising before us is identical to the issue before the Tribunal for assessment year 2003-04 [2009 (8) TMI 810 - ITAT PUNE-A] and in the absence of any contrary material brought to our knowledge by the learned Departmental Representative for the Revenue, we find no merit in the orders of authorities below. The disallowance as made by the assessee under section 14A of the Act at ₹ 49,42,631/- as assessee itself had worked out the expenses disallowable under section 14A is upheld and the balance disallowance worked out by the Assessing Officer and DRP is thus, deleted. The ground of appeal No.2 raised by the assessee is thus, allowed.
TDS u/s 195 - Disallowance computed by invoking the provisions of section 40(a)(i) - payment made to Allianz Reinsurance Asia Pacific Branch Singapore (ARAP) on account of re-insurance premium and payment of survey fees was also paid to non-resident surveyors - HELD THAT:- Applying the said ratio laid down by the Hon’ble Supreme Court in GE India Technology Centre P. Ltd.[2010 (9) TMI 7 - SUPREME COURT] we hold that merely because remittance has been made to a foreign company, the same would not be liable to tax deduction at source, where the whole or part of the said payment is not liable to be taxed in India in the hands of recipient nonresident company. The provisions of section 195(1) of the Act postulates that the remittance should be chargeable under the provisions of the Act and where the same is not liable to tax in India, there is no requirement for tax deduction at source and the provisions of section 195(1) of the Act are not attracted and further the provisions of section 40(a)(i) of the Act are not to be applied.
Payment of re-insurance premium to ARAP is not to be allowed in the hands of assessee as the assessee had not made any application under section 195(2) - The reading of sub-section itself show that the provisions of the said sub-section are applicable where the person who is responsible for making the payment to a non-resident is sure that such sum was chargeable under the Act. The first step to be fulfilled is that the payment paid to non-resident company is chargeable under the Act. We have already in the paras hereinabove, have come to a finding that sum paid by the assessee is not chargeable in the hands of non-resident company, as income arising in India. In view thereof, where the amount is not chargeable in the hands of non-resident company, the provisions of subsection (2) to section 195 of the Act cannot be invoked and we find no merit in the order of Assessing Officer in this regard.
Determination of tax deductible by the assessee in respect of various payments made during the year under consideration - Before the DRP, the case of assessee was that in the proceedings under section 201(1) of the Act for the period up to 31.12.2008, all foreign remittances including re-insurance premium payments were subjected to assessment and after evaluating the transactions, the ADIT (International Transaction)-II, had passed consolidated order from assessment years 2005-06 to 2009-10, wherein it was concluded that the taxes were required to be withheld only on payment of certain survey fees paid to the non-residents. In view thereof, where the Revenue authorities have given a finding that no tax was required to be deducted out of reinsurance premium paid by the assessee to ARAP, we find no merit in the order of Assessing Officer in holding that the assessee should have made the application under section 195(2) of the Act.
In order to fulfil the conditions of having PE by an agent acting on behalf of an enterprise of other contracting state, it is provided that such an enterprise would deemed to have PE in the first mentioned state, if this person has habitually exercised an authority to conclude the contracts on behalf of the enterprise and / or maintains stock of goods on merchandise, which he regularly delivers on behalf of the enterprise, in the first mentioned state or habitually secures orders wholly or almost wholly for the enterprise itself or for other enterprises, etc. The assessee claims that it was not acting on behalf of the foreign company. Further, it was not dependent on the foreign company and had no authority to conclude any contract on behalf of the foreign company. Where in such circumstances, there was no merit in the order of DRP in applying the approach of ‘look through’.
Similar issue of providing re-insurance in India and whether in the absence of any PE in India, the entire business income was not taxable in India, arose before Mumbai Bench of Tribunal in Swiss re-insurance Co. Ltd. [2015 (4) TMI 905 - ITAT MUMBAI] considered the aspect of PE of the said company within purview of Article 5 of Swiss Treaty and held that the conditions laid down in Article 5 were not fulfilled to treat the Indian entity as PE. Further, reference was made to the OECD guidelines. It was observed that in the absence of any business connection and in the absence of any agency, it was held that the said foreign entity had no PE in India. - Appeal of assessee allowed.
Disallowance on account of risk inspection charges - AO had treated the claim of the assessee as bogus - HELD THAT:- As we are aware that as against the insurance charges paid by the respective insurer in case of the damages being compensated by the insurance company, the volumes are very high. In such circumstances, it was the responsibility of the assessee to take the requisite steps to protect itself from future losses, if any, in this regard. The risk inspection was the necessary tool in the hands of the assessee. However, in view of the evidence collected by the Revenue Department and in the totality of the facts and circumstances, we hold that the entire expenditure is not allowable in the hands of the assessee. It is not correct to make estimated disallowance of expenses. However, in view of the evidence filed against the assessee and in the absence of complete details available before us and to prevent leakage of revenue, we are constrained to disallow 25% of the said expenditure in the hands of assessee.
The disallowance would be worked out by taking net expenditure of ₹ 11.91 crores i.e. total expenditure of ₹ 14.62 crores minus ₹ 2.17 crores allowed by the Assessing Officer. Further, the assessee himself had withdrawn the claim of expenditure of ₹ 32,67,497/- and has further furnished evidence of ₹ 68,07,042/-. The Assessing Officer shall verify the additional evidence filed by the assessee and if the same is found to be in order, the said expenditure would be allowed in the hands of the assessee. Then out of balance remaining, the Assessing Officer shall disallow 25% of the expenditure. The ground of appeal No.4 raised by the assessee is thus, partly allowed.
Addition on account of income from software consultancy charges - international transactions undertaken by the assessee - assessee had during the year shown international transactions with its associated enterprises on account of provision of software consultancy charges. The TPO while benchmarking the international transactions of the assessee found it not to be at arm’s length in view of the arithmetic mean of the comparable companies taken at 42.30% and proposed an addition - HELD THAT:- Admittedly, in case the said receipts are taxed in the hands of assessee for the year under consideration, there is enhancement of income, for which the requirement of law is that enhancement notice should be issued to the assessee before such an addition is made in the hands of the assessee. Further, in the case of the assessee, no such enhancement notice was issued to the assessee either by DRP or by Assessing Officer. Further, the plea of the assessee of recognition of revenue was in respect of determination of arm's length price of international transactions and the same was recognized for working out the margins of the assessee as compared to the margins of comparables. DRP has directed the Assessing Officer not to consider the said revenue of as receipts of assessment year 2009-10 for the purpose of TP adjustment, if any, to be made in assessment year 2009-10. The said amount does not result in addition as income in the hands of assessee for the captioned assessment year. Accordingly, we find no merit in the order of Assessing Officer in this regard and the addition of ₹ 3.01 crores is deleted. Before parting with the issue, we may also mention that the said receipts have been shown as part of the income of assessee in assessment year 2009-10. The ground of appeal No.5 raised by the assessee is thus, allowed.
Deduction in respect of amount collected towards environmental relief fund which was disallowed under section 43B of the Act - HELD THAT:- We find an identical issue arose before the Tribunal in assessee’s own case in assessment year 2006-07 the matter was set-aside to the file of Assessing Officer with a direction to decide the issue afresh and in accordance with law. The issue arising before us is identical to the issue before the Tribunal and in view thereof, we remit this issue back to the file of Assessing Officer to decide the same in line with the directions of the Tribunal in earlier year after affording reasonable opportunity of the hearing to the assessee. The ground of appeal No.6 raised by the assessee is thus, allowed for statistical purposes.
Non-granting of credit for self assessment tax paid by the assessee and non-credit of TDS allowed - assessee pointed out that the assessee has made an application for rectification under section 154 of the Act, which till date has not been disposed of - HELD THAT:- Accordingly, we direct the Assessing Officer to allow the claim of the assessee in accordance with law after verifying the claim of the assessee while computing income and tax payable thereon, pursuant to the order of Tribunal. The grounds of appeal raised by the assessee are thus, allowed.
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2016 (2) TMI 1334 - PUNJAB AND HARYANA HIGH COURT
Dishonor of Cheque - petitioners-complainant submits that the complaint was at post summoning stage and fixed for evidence of respondents-accused - section 142 of NI Act - HELD THAT:- Undisputedly, keeping in view the judgment passed by Hon’ble Apex Court in Dashrath Rup Singh Rathod’s case [2014 (8) TMI 417 - SUPREME COURT], complaint was ordered to be returned to the complainant for its presentation before the competent Court of jurisdiction. Subsequent thereto, the Ministry of Law and Justice (Legislative Department) issued the Negotiable Instruments (Amendment) Ordinance, 2015, which came into force on 15th June, 2015.
A perusal of section 142, transpires that after issuance of the Ordinance, 2015, offence under Section 138 of the Act shall be inquired into and tried only by a Court within whose local jurisdiction, if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated or if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of drawee bank where the drawer maintains the account, is situated. The aforesaid amendment appears to have been carried out to overcome the judgment captioned as Dashrath Rup Singh Rathod’s case.
Hon’ble Apex Court in para 20 of Dashrath Rup Singh Rathod’s case, has held that the cases where, post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Act, will proceed to continue at the place where they are filed.
The impugned order is not sustainable in the eyes of law - Petition allowed.
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2016 (2) TMI 1333 - ALLAHABAD HIGH COURT
Application for considering charging of interest at the lower rate is pending consideration - HELD THAT:- The matter is disposed off at this stage directing the competent authority to decide the petitioners' application by reasoned and speaking order after given them an opportunity of hearing within three months from the date of production of certified copy of this order.
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2016 (2) TMI 1332 - BOMBAY HIGH COURT
Seeking winding up of the respondent-company - order of admission was obtained without mentioning the relevant facts - violation of principles of natural justice - HELD THAT:- The petitioner has approached this Court to obtain a discretionary order. It also obtained discretionary order of admission on 16.03.2012 of admitting the Petition based on false averments in the Petition. It is a different matter that the order was later recalled. The indisputable fact is the petitioner had obtained an order on false averments to his knowledge. It is settled law that when a discretionary relief is obtained by misrepresentation, a dishonest litigant loses his remedy. There should be no concealment of material facts. The facts should be stated in a manner not to mislead the Court as to the true facts.
Inspite of the Courts repeatedly stating and reaffirming the principle that it is the duty of a party to bring to the notice of the Court all facts material and relevant to the issue, litigants continue in their efforts to obtain favourable orders from the court, even exparte, without disclosing all the material facts to the court. This Petition is an ideal example of how an order of admission was obtained without mentioning the relevant facts.
Petition dismissed.
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2016 (2) TMI 1331 - CALCUTTA HIGH COURT
Service of notice - order passed by the Commissioner of Customs (Preventive) on the ground that a notice for hearing dated August 4, 2015 was received by the assessee on August 11, 2015, one day after the scheduled date of hearing on August 10, 2015 - HELD THAT:- Since the facts are undisputed and it is evident that the petitioning assessee was prevented by sufficient cause from being represented at the hearing, the order impugned dated August 13, 2015 is set aside and the relevant Commissioner is requested to cause a fresh notice to be issued to the petitioning assessee for further hearing before passing an order in accordance with law.
Petition allowed.
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2016 (2) TMI 1330 - MADRAS HIGH COURT
Seeking to consider the Rectification Petitions - petitioner filed petitions under Section 84 of the TNVAT Act to revise the order and till date no orders have been passed - HELD THAT:- The respondent are directed to consider the petitions dated 22.12.2015 filed by the petitioner and pass orders on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of this order. It is needless to say that the respondent shall not proceed further in the matter till orders are passed in the Section 84 petitions.
The Writ Petitions are disposed of.
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2016 (2) TMI 1329 - ITAT CHENNAI
Reopening of assessment u/s 147 - Nature of expenditure - Disallowance of expenditure on construction of compound wall in place of replacement of Barbed wire fencing as capital expenditure - HELD THAT:- As disputed disallowance on the issue of allowability of expenditure of replacement of compound wall was not discussed as referred at page no.3 of assessment order. Since there is no opinion was formed at the time of regular assessment u/s.143(3) of the Act completed on 30.11.2010 and the assessee has filed objections to reopening of the Act and ld. Assessing Officer considered the objection of the assessee on the reopening of assessment and disposed off by separate order dated 22.01.2014. Considering all we dismiss the appeal on the ground of re-assessment.
Nature of expenditure - On Comparison with the provisions of Sec.37(1) and the nature of expenditure and the treatment of expenditure in the books of Accounts also factual circumstances and Apex Court decisions relied by the assessee the expenditure takes the characteristic of Revenue in nature though ld. Assessing Officer in his order has mentioned that this decision is not applicable for the issue in dispute as it pertaining to assessment year 1995-96 and 1997-98 and due to amendment in Sec.30 of the Act. Considering the factual circumstances the claim of the assessee fall under residual sec. of 37(1) were the expenditure has been incurred wholly and exclusively for the purpose of business and expenditure being a replacement cost to the existing asset which satisfy the functional test of revenue expenditure and also follow the jurisdictional High Court decision CIT vs. Southern Roadways Ltd [2007 (6) TMI 193 - MADRAS HIGH COURT]
we set aside the order of the Commissioner of Income Tax (Appeals) on this ground and Direct the Assessing Officer to allow the deduction of replacement of barbed wire fencing with compound wall as revenue expenditure - Decided in favour of assessee.
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2016 (2) TMI 1328 - ITAT RAJKOT
Assessment u/s 153A - Proof of incriminating material found in search - HELD THAT:- The assessee’s arguments are in tune with those made in the lower appellate proceedings that his regular assessment stood completed well before search and the AO ought not to have invoked section 153A in absence of any incriminating evidence. We find that he has also placed on record relevant panchnama drawn on 09-09-2011. The Revenue fails to rebut this factual position.
Thus initiation of section 153A proceedings in absence of any incriminating evidence is not sustainable. The same is accordingly quashed - Decided in favour of assessee.
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2016 (2) TMI 1327 - ITAT DELHI
Addition u/s 69B - Addition on basis of valuation report of the DVO - Onus to prove - HELD THAT:- Burden of proof lies upon the person who alleges that the apparent is not real. In the facts of the present case, the ld. Assessing Officer, therefore, must prove that the falsity of the entries/transactions in the books of accounts as maintained by the assessee, on the basis of material/evidences on record.
In the facts of the present case, as it is apparent from the assessment order that the ld. AO has not brought any evidence/material on record to show that the assessee has received more than what has been declared by him. AO has merely made an addition on the basis of the report obtained from the DVO without bringing any evidence on record. He has also not established that the details/evidences filed by the assessee are wrong. Under such circumstances, we do not find any infirmity in the findings of the ld. CIT(A) and the ld. CIT(A) has rightly deleted the addition made by the ld. Assessing Officer. We, therefore, dismiss the ground of appeal filed by the revenue.
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2016 (2) TMI 1326 - ITAT MUMBAI
Rectification of mistake u/s 154 - amount received against TDR/FSI as a capital receipt which is not chargeable to capital tax - HELD THAT:- Shri Bharat R. Patel who had claimed the sale of development right as a LTCG which was denied to him by the AO and treated the same as income from other sources, however, the same was allowed by CIT(A) in its order dated 30.03.2010. The assessee claimed the amount received against TDR/FSI as a capital receipt which is not chargeable to capital tax. However, the AO treated the same as income from other sources by concluding that it is not a transfer falling within the provision of section 45 of I.T. Act.
Though the assessee and his brother received the amount from builder but since beginning both the brother set up their different claim in respect of amount received under TDR agreement for the purpose of assessment. The case of assessee was considered by CIT(A) on which conceivably two opinion are available. Since Ld. CIT(A) has taken one of the possible views, his order cannot said to suffer from mistake apparent from record.
CIT(A) while exercising the power u/s. 154 of the Act are ignored the principle and basic scope of rectification of order as discussed in paras 5 to 8 supra. Hence, the order dated 20.07.2010 passed by CIT(A) is not sustainable under the scrutiny of law and the same is set-aside.
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2016 (2) TMI 1325 - ITAT CHENNAI
Condonation of delay - sufficient cause of delay - HELD THAT:- A casual or a negligent litigant who has acted with utter irresponsible attitude, cannot claim the condonation of delay in law when the right has accrued to the other side. The expression "sufficient cause" will always have relevancy to reasonableness. The actions which can be condoned by the Court should fall within the realm of normal human conduct or normal conduct of a litigant. It is neither expected nor can it be a normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables. How the power of condonation of delay is to be exercised, has been explained by the Apex Court in the case of Collector, Land Acquisition v Mst. Katiji And Others. [1987 (2) TMI 61 - SUPREME COURT]
We considering the factual aspects of the case, the delay in filing the appeal was not a wonton act as sworn in the affidavit by the director of the assessee company that they were under bonafide belief that Sec.154 petition was filed and the assessee is praying remedy u/sec154 with a hope that the matter will be solved but the ld.Assessing Officer rejected petition for various reasons observed in his order
We as a quasi judicial body draw support from the decision of Supreme Court in the case of Mela Ram & Sons [1956 (2) TMI 5 - SUPREME COURT] and we found there is sufficient cause considering the factual circumstances in the interest of justice, we direct the Commissioner of Income Tax (Appeals) to condone the delay and admit the appeal and adjudicate the grounds on merits after giving adequate opportunity of hearing to the assessee. Appeal of the assessee is partly allowed for statistical purpose.
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2016 (2) TMI 1324 - CHHATTISGARH HIGH COURT
Utilisation of CENVAT credit - reverse charge mechanism - HELD THAT:- The question of law as framed on behalf of the Appellant in the present appeal following COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS M/S NAHAR INDUSTRIAL ENTERPRISES LTD AND OTHERS [2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT] has already been decided by a Division Bench of this Court in Union of India v. Mohini Industries [2015 (3) TMI 702 - CHHATTISGARH HIGH COURTtaking the same view and additionally relying upon COMMISSIONER OF SERVICE TAX VERSUS HERO HONDA MOTORS LTD. [2012 (12) TMI 734 - DELHI HIGH COURT] holding that payment of service tax through reverse charge mechanism by utilisation of CENVAT credit was in accordance with law.
Appeal dismissed - decided against Revenue.
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