Advanced Search Options
Case Laws
Showing 81 to 100 of 1750 Records
-
2016 (11) TMI 1675 - MADRAS HIGH COURT
Declaration of permanent injunction - declaration to declare his easementary right over the suit schedule cart track - permanent injunction restraining the defendants from interfering with his right of enjoyment of such easementary right - burden to prove - evidence to discharge the onus - Section 6(c) of the Transfer of Property Act, 1882 - HELD THAT:- An "easement" is a right conferred for the beneficial enjoyment of the dominant heritage and the owner of such dominant heritage is called dominant owner while the land in which such easement right is to be exercised is a servient heritage and that the owner of such servient heritage is called as servient owner - what cannot be transferred is only an easement exclusively without transferring the dominant heritage, namely, the land for which such easement right is conferred in the servient heritage. In other words, a transfer of dominant heritage would automatically pass the easement right also to the person in whose favour such transfer takes place. To put it more clearly, the easement right and dominant heritage cannot be transferred separately by segregating one from the other to two different persons, since such easementary right would automatically follow the right on the dominant heritage if such dominant heritage is transferred to another person - the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff - Decided against appellant.
One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during the pendency of the suit. He was impleaded as a party defendant only at a later point of time - Therefore, he is not competent to speak anything about the intention of the parties to Ex.A1. If the defendants 1 and 2 have not come forward to contest the suit and dispute the claim of the plaintiff, the 3rd defendant, a subsequent purchaser, cannot dispute the claim of the plaintiff, when such claim is based on the agreement under Ex.A1 entered into between the vendors of the plaintiffs and the defendants 1 and 2. In fact, the mischief mongers are the defendants 1 and 2 who dishonestly executed the sale deed in favour of the 3rd defendant in respect of suit 'B' Schedule, knowing fully well that they are bound by the terms of earlier agreement for easementary right under Ex.A1 fastened on such property.
The trial Court failed to consider all these aspects and erroneously dismissed the suit which the lower Appellate Court has set right by reversing such findings and decreeing the suit - the substantial questions of law raised in this appeal are answered against the appellant.
Appeal dismissed - decided against appellant.
-
2016 (11) TMI 1674 - ITAT CHENNAI
Maintainability of appeal - low tax effect - Effect of subsequent circulars - HELD THAT:- As tax effect for the impugned assessment years were less than Rupees Two lakhs and by virtue of Circular No.5/2008, dated 15.05.2008 of CBDT, the appeals will not maintainable.
Substitution of the earlier circulars with subsequent circulars would not in any way affect the applicability of earlier circulars, in so far as it covered direct tax matters other than income tax. Accordingly, we are of the opinion that appeals of the Revenue are not maintainable.
-
2016 (11) TMI 1673 - ITAT MUMBAI
Capitalisation of revenue expenditure - CIT(A) noticed that the assessee has incurred these expenditure as per contractual obligation in the joint venture project as per the agreement entered and held that the entire claim if allowable as revenue expenditure - HELD THAT:- As pointed out to us that the order passed by the ld. CIT(A) in A.Y. 2009-10 was challenged by the Revenue by filing appeal before the Tribunal and the Tribunal, [2016 (6) TMI 1399 - ITAT MUMBAI] has upheld the view taken by the ld. CIT(A).
As gone through the order passed by the co-ordinate Bench of this Tribunal and noticed that identical issue was considered by the Tribunal in para 14 of its order. We further noticed that the Tribunal upheld the view taken by the ld. CIT(A) in para 14.4 of its order. Consistent with the view taken therein, we uphold the order passed by the ld. CIT(A) on this issue. - Decided against revenue.
Disallowance of part of interest expenditure by treating the same as relating to WIP - CIT(A) noticed that he has considered an identical issue in A.Y. 2009-10 and has accepted the claim of the assessee and accordingly by following the same, the ld. CIT(A) set aside the order passed by the A.O. on this issue - HELD THAT:- As decided in own case [2016 (6) TMI 1399 - ITAT MUMBAI] issue decided against revenue
Addition of notional interest to the rental income - A.O. took a view that notional interest on interest free deposit is required to be considered as part of rental income in order to arrive at a fair market value of rent u/s 23(1)(a) - A.O. computed the interest @ 12% on the interest free deposits and added the same to the rental income declared by the assessee - CIT-A Deleted the same by following his decision rendered for A.Y. 2009-10 - HELD THAT: - We have gone through the order passed by the co-ordinate Bench of this Tribunal for A.Y. 2009-10 [2016 (6) TMI 1399 - ITAT MUMBAI]and noticed that an identical issue was discussed by the Tribunal in para No. 7 of its order and in para No. 7.3 of the order, the Tribunal has upheld the view taken by the ld. CIT(A). We have also noticed that the ld. CIT(A) has followed the decision rendered by the Hon’ble Delhi High Court in the case of Asian Hotel Ltd. [2007 (12) TMI 274 - DELHI HIGH COURT]Accordingly, we uphold the order passed by the ld. CIT(A) in this year also on this issue.
Assessment of hire charges under the head income from house property - HELD THAT:- We noticed that the tribunal has rendered this decision [2016 (6) TMI 1399 - ITAT MUMBAI]wherein it was observed that the amenities provided by the assessee constituted an integral part of the premises, i.e., it was seen that the amenities provided by the assessee consisted of electrical panels, AHU rooms and fire control system, water tanks, elevator etc. In view of the above, the Tribunal has accepted the view of the ld. CIT(A) that these amenities constitute integral part of the house property. Since there is no change in facts, consistent with the view taken by the Tribunal in AY 2009-10, we uphold the order passed by the ld. CIT(A) in this year also on this issue.
-
2016 (11) TMI 1672 - ITAT CHENNAI
Exemption u/s 10A - STP I unit and non-STP unit are using the same infrastructure, employees, etc - According to the D.R., STP I unit has not satisfied the condition stipulated u/s 10A - HELD THAT:- Objection of the D.R. is that STP I unit and non-STP unit are using the same infrastructure, employees, etc as examined by this Tribunal in the assessee's own case, for the earlier assessment year, and this Tribunal found that the assessee is eligible for exemption under Section 10A of the Act. In view of the above order of this Tribunal, there is no reason to take a different view for the year under consideration. Therefore, by placing reliance on the order of this Tribunal for the earlier assessment year, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Exclusion of foreign currency expenditure from the export turnover - HELD THAT:- Even though no argument was advanced from either side, this Tribunal finds that both denominator and numerator shall be the same. Therefore, once the expenditure incurred in foreign currency was excluded from total turnover, the same is also to be excluded from export turnover. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Appeal filed by the Revenue is dismissed.
-
2016 (11) TMI 1671 - ITAT AHMEDABAD
TP Adjustment - upward adjustment of notional guarantee fees made by AO u/s 92CA - HELD THAT:- We find that this issue is now covered, in favour of the assessee, by a decision of the coordinate bench in the case of Siro Clinpharm Pvt Ltd Vs DCIT and vice versa [2016 (5) TMI 633 - ITAT MUMBAI] . While holding that no arm’s length price adjustment can be made in the hands of the assessee, on respect of corporate guarantees issued without incurring any costs,
As amendment in Section 92B, at least to the extent it dealt with the question of issuance of corporate guarantees, is effective from 1st April 2012. The assessment year before us being an assessment year prior to that date, the amended provisions of Section 92 B have no application in the matter. For this reason also, the impugned ALP adjustment must stand deleted. See ANSAL LAND MARK TOWNSHIP (P) LTD.[2015 (9) TMI 79 - DELHI HIGH COURT]- Decided in favour of assessee.
Disallowance u/s 14A - as per assessee no expenditure was incurred to earn such exempt income - HELD THAT:- We are inclined to accept the plea of the assessee to the extent that no part of interest expenses can be disallowed under section 14A inasmuch as the assessee indeed had interest free funds much in excess of investments yielding tax exempt income. Because of an inherent flaw in the formulae set out in rule 8D(ii), as noted by a coordinate bench in the case of ACIT Vs Champion Commercial Co Ltd [2012 (10) TMI 24 - ITAT, KOLKATA] and as approved by Hon’ble Delhi High Court in the case of PCIT Vs Bharti Overseas Pvt Ltd [2015 (12) TMI 1423 - DELHI HIGH COURT] application of this formulae does give incongruous result inasmuch as when no part of interest bearing funds are employed in investments yielding tax exempt income, there cannot be any disallowance of interest expenses.
When assessee an has interest bearing as also interest free funds available to him, as long as interest free funds are cover to such investments, it cannot be assumed that interest bearing funds are used for the purpose of tax exempt investments. The presumption thus is in favour of the assessee as a matter of routine, and unless it is proved to be incorrect. Accordingly, disallowance is to be deleted. - Decided in favour of assessee.
Disallowing advances written off as bad debts in the books - HELD THAT:- AO has proceeded on the assumption that the deduction is claimed as bad debts, and it was for this reason that he disallowed the claim on the ground that the related income is not shown to have been included in income of the earlier years. These small amounts have stated to become unrecoverable in the course of carrying on of the business. Given the facts of this case, and clear position that deduction was claimed for the business loss, the objection taken by the Assessing Officer was clearly unwarranted. The impugned disallowance cannot, therefore, be sustained - bearing in mind smallness of the amounts written off, we deem it and proper to delete the impugned disallowance. - Decided in favour of assessee.
-
2016 (11) TMI 1670 - ITAT CHENNAI
Computation of deduction u/s.10AA - excluding foreign exchange gain from the profits of the business - HELD THAT:- Foreign currency expenditure cannot be considered as part of export turnover and at the same time, it also cannot be formed part of the total turnover as held by ITO Vs. SAK SOFT LTD. [2009 (3) TMI 243 - ITAT MADRAS-D]. Accordingly, we direct the AO not to include the same in export turnover as well as total turnover while computing deduction u/s.10A of the Act. Accordingly, this ground of Revenue is remitted back to the file of AO to reconsider.
DRP directing the AO to include forex gain from profits of the business for computing deduction u/s.10AA - HELD THAT:- This issue came for consideration before the jurisdictional High Court in the case of CIT Vs. Pentasoft Technogies Ltd. [2010 (7) TMI 75 - MADRAS HIGH COURT] wherein held that gain due to fluctuation in foreign exchange rate directly related to export sales could not be treated as other than part of profit from export of the assessee. Accordingly, we do not find any infirmity in the direction of the DRP and the same is confirmed.
-
2016 (11) TMI 1669 - ITAT CHENNAI
Nature of expenditure - expenditure towards construction of compound wall, store room, underground sewage, design charges and temporary repairs to the building - revenue or capital expenditure - AO treated the expenditure as capital in nature and allowed depreciation at the rate of 10% - HELD THAT:- Admittedly, the assessee incurred expenditure for construction of compound wall, watch tower, godown, underground drainage, etc. This Tribunal is of the considered opinion that the assessee has constructed compound wall, sewage drain, godown, etc. for permanent use in the business. It cannot be said that the infrastructures created by the assessee are for temporary use of the assessee. Therefore, the Assessing Officer has rightly treated the expenditure as capital in nature and allowed depreciation at the rate of 10%. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
Disallowance u/s 14A r.w.r. 8D - Whether there was no direct expenditure under first limb of Rule 8D(2)? - Referring to limb (ii) of Rule 8D(2), the Assessing Officer found that under Rule 8D(2), disallowance was made - HELD THAT:- For the purpose of limb (ii), the Assessing Officer has to compute the disallowance by following the method prescribed under Rule 8D(2)(ii). Similarly, for the purpose of limb (iii), the Assessing Officer has to take 0.5% of the average of value of investment which resulted in income which would not form part of total income. Therefore, for the purpose of limb (iii) alone, the disallowance cannot be extended beyond the income which does not form part of total income. Rule 8D(2) provides disallowance of average of all the three limbs therein. Therefore, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.
-
2016 (11) TMI 1668 - ITAT MUMBAI
Unexplained cash credits u/s 68 - assessee had failed to furnish satisfactory explanation with regard to the identity of the parties and the source and genuineness of the transactions - HELD THAT:- Since it was a common point between the parties that the respondent-assessee is also a part of group of entities controlled by Mr. Mukesh Choksi, in our view, the aforesaid precedents are relevant to assess the income of assessee. In this view of the matter, we find that the CIT(A) made no mistake in coming to the impugned decision, which is in conformity with the position upheld by the Tribunal in the group concerns of the instant assessee. Therefore, we hereby affirm the order of CIT(A) and accordingly, Revenue fails in its appeal.
-
2016 (11) TMI 1667 - MADRAS HIGH COURT
Levy of compounding fee - release of detained goods alongwith vehicle - offence under Sections 71 (5) (a) and 71 (5) (b) of CST Act - HELD THAT:- This Court is not able to see any merit in the submissions made by the learned Special Government Pleader for the respondent. In the instant case, the goods were detained for one reason and the order demanding compounding fee was passed on different grounds, not related to detention and goods in transit. Further, the respondent cannot usurp the jurisdiction of the Assessing Authority. It is only the Assessing Authority, who can decide, whether tax is leviable, whether there is an attempt for evasion, whether the explanation of the owner / agent is acceptable, whether the documents that are carried with the goods are sufficient, etc.,
This Court is of the considered view that, since the respondent is not the Assessing Officer, he is not entitled to levy and demand any amount of tax, in addition to the tax payable on the value of the goods. Therefore, the impugned proceedings of the respondent is against the provisions of the Act and the Rules framed therefor - the impugned order demanding and collecting tax has no legs to stand - petition allowed.
-
2016 (11) TMI 1666 - TELANGANA HIGH COURT
Release of seized vehicle - HELD THAT:- The petitioner is permitted to make application to respondent No.3 for release of the seized vehicle. Respondent No.3 is directed to consider such application and pass appropriate orders as per G.O.Ms.No.3, Industries and Commerce (Mines.I) Department, dated 08.01.2015 as amended by G.O.Ms.No.5, Industries & Commerce (Mines.I) Department, dated 19.02.2015 for release of the seized vehicle, within a period of three days from the date of receipt of application.
Petition disposed off.
-
2016 (11) TMI 1665 - KARNATAKA HIGH COURT
Interest on the loan taken which is utilised for giving advances to the sister concerns - Tribunal held that the interest deduction claimed by the assessee is an allowable deduction on the premise that the loan was utilised by the assessee for giving advance to the sister concern - HELD THAT:- As decided in M/S. GOLF VIEW HOMES LTD [2016 (11) TMI 1664 - KARNATAKA HIGH COURT] activity of the assessee was also of acquiring property rights in sister concers, any advance given by the assessee them is to be treated for acquiring property rights and once it is treated as for acquiring property rights may be of a sister concern, it would be an allowable deduction under section 36 of the Income-tax Act, since it is for the business activity. - Decided in favour of assessee.
-
2016 (11) TMI 1664 - KARNATAKA HIGH COURT
Deduction of the interest on the loan taken which is utilised for giving advances to the sister concerns - Tribunal holding that the interest deduction claimed by the assessee is an allowable deduction - HELD THAT:- CIT (Appeals) was satisfied about the activity of the assessee as of construction of one building after another and acquiring of property rights in Diamond District and Platinum City - two sister concerns.
If such was the finding that the activity of the assessee was also of acquiring property rights in M/s. Diamond District and M/s. Platinum City, any advance given by the assessee to M/s. Diamond District and M/s. Platinum City is to be treated for acquiring property rights and once it is treated as for acquiring property rights may be of a sister concern, it would be an allowable deduction under section 36 of the Income-tax Act, since it is for the business activity.
The attempt on the part of the Revenue to contend that the finding arrived at by the Tribunal is perverse by misconstruing the order of Commissioner of Income-tax (Appeals) cannot be countenanced for three fold reasons as the Department itself before the Tribunal did not dispute the aforesaid finding of fact recorded by the Commissioner of Income-tax (Appeals) - it is not only at one place the aforesaid finding of fact is recorded but subsequently as observed earlier at two places similar factum is also recorded and when such finding of fact was not disputed and was also reiterated by the Commissioner (Appeals) and the said reiteration was also not disputed and the Tribunal has relied upon the same and has proceeded as an undisputed fact, such a view on the part of the Tribunal cannot be said to be perverse view.
When one talks about perversity, the test would be that no reasonable person would take such view. But if the view taken by the Tribunal is a possible reasonable view, such view cannot be said to be perverse. If the perversity is tested from the material on record, then also, we cannot accept the contention that the finding of fact so recorded by the Tribunal is perverse or without there being any material on record.
No perversity in the finding of the Tribunal in allowing the appeal of the assessee so far as the deduction of the interest on the loan taken which is utilised for giving advances to the sister concerns - Decided in favour of assessee.
-
2016 (11) TMI 1663 - ITAT PUNE
Computation of tax u/s 115JB - MAT credit utilization - MAT credit excluding Surcharge and Education Cess and not allowing the MAT credit utilization as claimed under section 115JAA - short allowance of credit on account of MAT credit i.e. restriction in the quantum of refund to be issued to the assessee - HELD THAT:- Issue of allowance of tax credit for tax paid on deemed income i.e. computation of eligible MAT credit arose before the Hyderabad Bench of Tribunal in Virtusa (India) (P) Ltd. Vs. DCIT [2016 (3) TMI 245 - ITAT HYDERABAD] held that the tax liabilities for normal provisions as well as MAT to be calculated with Surcharge and Education Cess and the assessee was entitled to total MAT credit adjustments i.e. against taxes and Surcharge and Cess. In this regard, reference was made to sub-section (5) to section 115JAA of the Act i.e. for setting o ff in respect of brought forward tax credit and it was held that the term used ‘tax’ included surcharge and AO cannot overlook these formats and (interpret it in his own method of calculating tax credit while making assessment u/s 143(1) of the Act.) proceed to calculate the MAT credit to compute assessment u/s 143(1) applying different methods when the proper and correct method as proposed by CBDT in ITR-6. The Assessing Officer is expected to follow the ITR-6 format to complete the assessment u/s 143(1) or 143(3) of the Act.
Thus we hold that the assessee is entitled to MAT credit utilization of ₹ 1.48 crores i.e. MAT credit including surcharge and education cess. Accordingly, we direct the Assessing Officer to re-compute the refund in the hands of assessee. The grounds of appeal raised by the assessee are thus, allowed.
-
2016 (11) TMI 1662 - SUPREME COURT
SEBI reiterated an ex-parte order - order was treated as a show cause notice in the facts of this case, and detailed directions were issued by this order - HELD THAT:- We have been informed by learned Senior counsel appearing for SEBI that the ongoing investigations will be completed within six months from today, provided the respondents before us cooperate. We accept the said submission and expect that the ongoing investigations will decide one way or the other whether the respondents floated a Collective Investment Scheme (CIS).
In the unlikely event that SEBI's investigation does not or is not complete within the period of six months from today, it is open for the respondents to ask for a variation of the order dated 24.08.2015 of SEBI from this Court.
We further add that in case any alienation or encumbrance of assets is sought to be made by the respondents, they cannot do so without the prior permission of SEBI.
-
2016 (11) TMI 1661 - ITAT CHANDIGARH
Non appearance on the date of hearing - assessee submitted that Shri Deepanshu Jain, who was to appear in this case on the date of hearing could not appear due to sudden demise of his grandfather on 27.06.2016 itself - HELD THAT:- Considering explanation of the assessee, we are satisfied that assessee’s counsel was prevented by sufficient cause from appearing on the date of hearing. Further, appeal of the assessee has not been decided on merits. Therefore, one more chance could be given to the assessee to argue the appeal on merits.
In this view of the matter, we recall our earlier order dated 27.06.2016 and restore the appeal of the assessee. The Miscellaneous Application is allowed.
-
2016 (11) TMI 1660 - ITAT CHENNAI
TP Adjustment - upward adjustment made on the value of its international transactions with its Associate Enterprises (‘’AEs’’) - MAM selection - Lower authorities selecting CUP method over TNM method - geographical difference between supplies made to Associated Enterprise and Non Associated Enterprise - HELD THAT:- When uncontrolled comparables are available internally on some of the items which was sold to Associated Enterprise then such comparables would form a separate class of its own. TPO had considered forty nine thread types for which there were internal uncontrolled transactions available for comparison. TPO had not made an adjustment for any of the other varieties of thread sales made by the assessee to its Associated Enterprise.
We do find that atleast for eight items among these forty nine thread types, mentioned at Sl. No.27,28,30,35,37,38,39 & 44, there was negative differences adjustment which were ignored by the TPO, in the work out at annexure A of its order. When a class of items are considered for adjustment, the negative effect of some of the items therein cannot be ignored. As for contention of the assessee is that there were geographical difference between supplies made to Associated Enterprise and Non Associated Enterprise, there is a clear finding by the ld. DRP that assessee was catering to Asian countries and Associated Enterprise were located in Sri Lanka, Mauritius, Pakistan and Egypt and Non Associated Enterprises were located in Srilanka, Bangladesh, Malawi etc with not much of a geographical difference. Viz-a-viz volume discount mentioned by the ld. Authorised Representative, ld. DRP had given a clear finding that there were substantial sales in alteast in five items falling in the table appearing in para 2.10 of its order. Considering all these, we are the opinion that lower authorities were justified in selecting CUP method over TNM method. However, as mentioned by us, computation of the Arms Length Price adjustment required on forty nine number of items mentioned in the order of TPO requires to be reworked, so that negative amounts are also considered for aggregation and for working out the Arms Length Price adjustment that is required. For this limited purpose of recalculation, we remit the issue back to the file of the Assessing Officer/TPO.
Downward adjustment on commission paid to its Associated Enterprises - payment was for agency commission or management commission fees - HELD THAT:- As already noted by us the orders on which commission was paid was only on items sold to group concerns and not to any third parties. There is much strength in the argument of the ld. Departmental Representative that in such a situation onus of the assessee was much more than in a scenario where orders on which commission was received were on supplies to third parties. Assessee had failed to discharge this. Consolidation of fragmented orders could have been done by the assessee itself and did not require services of an Associated Enterprise or knowledge of any sublims stalls. When assessee was unable to bring on record anything to show for what reason agency commission was paid, in our opinion there arose an exceptional circumstance where by Arms Length Price could be taken as Nil. As for decision of the Delhi Bench of the Tribunal in the case M/s. McCann Erickson India (P) Ltd [2012 (7) TMI 728 - ITAT, DELHI] strongly relied by the ld. Authorised Representative, assessee therein was able to demonstrate the type of services, description of service and benefits received by the it from its Associated Enterprise. Further, the payment was not agency commission but management commission fees. In the host of other judicial decisions relied by the ld. Authorised Representative also the question dealt was on the management fees and not on agency commission. In these circumstances, we do not find any reason to interfere with the orders of the lower authorities
-
2016 (11) TMI 1659 - ITAT CUTTACK
Unexplained cash credit u/s.68 - Unsecured loan received - HELD THAT:- Source of deposit of cash by the loan creditor Shri Simachal Panda could not be satisfactorily explained by the assessee either before the Assessing Officer or before the ld CIT(A) or even before me. Thus, the creditworthiness of the loan creditor Sri Simachal Panda could not be proved. Hence, find no good reason to interfere with the order of the ld CIT(A) and, therefore, this part of ground of appeal is dismissed.
Laon from Late Banamali Besoyee, it is observed from the bank statement of United Bank of India, B.D.Pur placed at page 5 of PB that ₹ 4 lakh was advanced out of agricultural loan obtained from UBI and thus, the creditworthiness of the loan creditor is proved for advancing the loan of ₹ 4 lakh to the assessee. Hence set aside the orders of lower authorities on this issue and delete the addition - Ground No.1 of the appeal is partly allowed.
Addition u/s.68 for deposit of cash and cheque in the bank - assessee failed to explain the source of the same - HELD THAT:- Source of the deposit also could not be explained before the ld CIT(A). Before us A.R. submitted that the deposit of ₹ 8 lakhs in the bank was the sale proceeds from the business of the assessee of fruits and bricks. However, he could not place any evidence on record to substantiate his claim. Therefore, the argument of the ld A.R. of the assessee that entire ₹ 8 lakhs cannot be treated as income of the assessee but the income embedded of such receipts from the business of fruits and bricks of the assessee of ₹ 8 lakhs could only be treated as income of the assessee, cannot be accepted
Assessee could not produce the creditors before the Assessing Officer for examination - action taken by the Assessing Officer to secure the appearance of the creditors before him. In our considered view, in the above circumstances, CIT(A) was not justified in confirming the additions action taken by the Assessing Officer to secure the appearance of the creditors before him. In my considered view, in the above circumstances, the ld CIT(A) was not justified in confirming the additions Under the Income tax Act, the power has been conferred on the Assessing Officer to secure the presence of a person and no power has been conferred upon the assessee by exercise of which he can compel the creditors to appear before the Assessing Officer. - Decided in favour of assessee.
-
2016 (11) TMI 1658 - SUPREME COURT
Legality of the proceedings under Section 340 of the Code of Criminal Procedure, 1973 - grant of interim injunction - High Court, on account of the contradictory stand taken by the appellant herein who was the first respondent before the High Court took the view that the conduct of the appellant has affected the administration of justice, and therefore, it was expedient in the interests of justice to file a complaint against the appellant under Section 340 of the Code.
HELD THAT:- The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code (45 of 1860); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution.
In the interests of justice the matter needs to be laid to rest. The appeal is hence allowed. The impugned order to the extent of initiation of the proceedings under Section 340 of the CrPC is set aside - decided in favor of appellant.
-
2016 (11) TMI 1657 - ITAT MUMBAI
Revision u/s 263 - assessment made by AO is set-aside with the directions to the Assessing Officer to complete the assessment afresh by taxing interest income earned by its units entitled for deduction u/s.80IC, under the head “Income from other sources”- HELD THAT:- It is not a case of a total set aside of assessment, but to a limited extent, so that it has to be modified to the stated extent only. The AO in the revised assessment is to interfere with the assessment only to the stated extent and, further, in doing so is only giving effect to the said directions by the ld. CIT. Clause (c) of Explanation 1 to section 263(1) is, again, specific, excluding parallel exercise of jurisdiction by the Administrative and the Appellant Commissioner. Once, therefore, the ld. CIT has, in exercise of his power of revision, held the interest income as assessable under section 56, the matter cannot be re-agitated before or revisited by the Appellant Commissioner, whose view is thus in accordance with the clear mandate of law. Reference in this context, explaining the clear position of law, may be made to the decision in the case of CIT v. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME COURT] being in fact clarified, in a similar fact situation, in the case of Herdillia Chemicals Ltd. (1995 (12) TMI 411 - BOMBAY HIGH COURT), so that the matter can only be said to be no longer res integra, being squarely covered by both, the clear position of law as well as said binding decisions. This is precisely the reason for our stating, at the outset, of the assessee as having no case. The assessee’s appeal having been upheld by us as not maintainable, the question of adjudicating its grounds assailing the assessment on merits does not arise.
Order u/s.263 filed only on 03.09.2015 which is time barred by 458 days - In our clear view, even as expressed during hearing, the assessee had clearly, and presumably, only on the basis of a legal opinion, taken a conscious decision not appeal against the revision order, passed with reference to and relying on several decisions, including by the Apex Court. No reasonable, much less sufficient, cause has been advanced for condonation of delay
We have already expressed that the impugned order stands passed relying on several decisions, including by the Apex Court. The assessee could not make out a prima facie case, i.e., on the merits of the impugned directions issued by the ld. CIT, before us, with we on the contrary observing the assessee to have taken a conscious decision accepting the same. The said decision would thus also have no application in the present case. The instant appeal is not maintainable, and is accordingly dismissed. We decide accordingly.
-
2016 (11) TMI 1656 - ITAT INDORE
Addition on account of long-term capital gain - Sale of a residential house - Interest in property - Section 50C applicability - assessee had transferred the land and building, which was under his possession as mentioned in the sale deed HELD THAT:- Since the assessee has transferred his interest in the land and building under consideration, therefore, consideration arising out of such transfer is definitely chargeable under the provisions of Income-tax Act, 1961. In the aforesaid case, by declaring sale as null and void, the land remained in the possession of the owner, who had transferred the said land in defiance of the statutory provisions, whereas in the case of the assessee, he has transferred his ownership and by virtue of Court’s order dated 01.03.2013, the assessee has not remained the owner of the land and building, but already received consideration in respect of the property. Since the underlined asset transferred is being land and building, therefore, provision of Section 50C are very much applicable. In view of these facts, we are of the considered opinion that the AO and ld. CIT(A) have justified in their action, hence, no interference on our part is required.
Taking cost of the market value of the property as on 01.04.1981 in place of cost of acquisition while computing the capital gain - HELD THAT:- AO has considered the indexation cost of acquisition at ₹ 40,920/- as against actual cost of ₹ 6,000/- while computing the capital gains. Therefore, we are of the view that the benefit of indexation has already been allowed by the AO. Hence, this ground of appeal is rejected.
........
|