|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1691 Records
-
2016 (7) TMI 1618 - ITAT MUMBAI
Addition u/s 68 - unexplained cash credits - onus to prove - HELD THAT:- No doubt the primary onus was on the assessee to satisfy the ingredients of Section 68 of the Act as the amount stood credited in its books but it was also incumbent on the revenue to have made enquiries, verification and examination of the loan creditors wherein complete details of the loan creditors were furnished by the assessee instead of merely relying on statement of Shri Surendra Mansukhlal Khandar incriminating assessee, which incriminating statement of Shri Surendra Mansukhlal Khandar had not stood the test of cross examination by the assessee - this matter needs to be set aside and restored to the file of the A.O. and if the A.O. found on verification that the amounts of loan borrowed by the assessee have been repaid by the assessee to the said loan creditors by account payee cheques through banking channel, the additions will stand deleted.
Additions on account of interest on these loans - HELD THAT:- We find that the AO has made additions based on notional interest being paid/payable by the assessee on these loans, we did not find any basis/justification for the same as per the facts emanating from the records. This issue is also set-aside to the file of the AO to be decided based on merits after bringing on record cogent material/basis for the said interest to be brought to tax as income of the assessee.
-
2016 (7) TMI 1617 - BOMBAY HIGH COURT
Failure on the part of Geodesic to redeem an amount on maturity date of Zero Coupon Bonds - siphoning of funds - amount misappropriated and / or siphoned off by the Respondent Company through its Directors - false statement had been made to this Court that the amount in excess of ₹ 1,000 Crores was available as deposited in the accounts of overseas subsidiaries - HELD THAT:- Today, this Court in Chamber, initially in the presence of all Advocates explained the importance of the role of these responsible high ranking officers, in a matter of this magnitude, which, borrowing the words of the Hon'ble Supreme Court, needs to be viewed seriously, and is considered as a grave offence, affecting the economy of the country as a whole, thereby posing a serious threat to the financial health of the country. This Court also pointed out to the Officers (of the ED & EOW) that though the Court appreciates the efforts made by the Agencies headed by them in tracing the funds, the creditors of the Company have till date been unable to even see a ray of hope as far as receiving the amounts which Geodesic (now under provisional liquidation), had promised to return to them. The Officers present before this Court informed the Court that they were extending their best efforts towards achieving this end, and as set out in their Confidential Reports were making all efforts to trace the funds which have been siphoned off / misappropriated by the Directors of the Company.
The Officers once again assured the Court that they would do their best in the matter and would endeavor to bring back into the coffers of the Official Liquidator appointed by this Court as the Provisional Liquidator of Geodesic, the huge sums of money belonging to the Company and at present lying abroad. They submitted that they would submit their further report within a period of two weeks from today, to this Court.
Since the present Order was required to be dictated and signed, the papers in the matter were retained in the Chamber - Stand over to 11th August, 2016.
-
2016 (7) TMI 1616 - BOMBAY HIGH COURT
Dispensation of procedure prescribed under Section 101(2) of the Companies Act, 1956 - Scheme for Reduction of Share Capital - HELD THAT:- No objector has come forward to oppose the proposed reduction - Filing and issue drawn up order is dispensed with.
Petitioner to publish notices in the same newspapers i.e. Free Press Journal in English language and Navshakti, in Marathi language both having circulation in Mumbai about registration of Order and minutes of reduction by the concerned Registrar of Companies, Maharashtra - Publication in Maharashtra Government Gazette is dispensed with.
-
2016 (7) TMI 1615 - BOMBAY HIGH COURT
Reduction of share capital - Section 101(2) of the Companies Act, 1956 - HELD THAT:- In view of the averment made in Paragraph 12 to 15 of the Affidavit in support of Summons for Direction, inter-alia stating that there are no Secured Creditors and that the proposed reduction of equity share capital would not in any way adversely affect the interests of any of the Applicant Company’s creditors or the ordinary operations of the Applicant Company or the ability of the Applicant Company to honour its debts in the ordinary course of business , and no compromise or arrangement is called for with any of the creditors of the Applicant Company as there is no reduction in the amount payable to any of the creditors of the Applicant Company.
The procedure prescribed under Section 101(2) of the Companies Act, 1956 is dispensed with.
-
2016 (7) TMI 1613 - SC ORDER
Valuation of goods u/s 4 or 4A - Biscuits cleared to Municipal Corporation of Delhi under the National Programme of Nutritional Support of Primary Education - it was held by High Court that the biscuits supplied to MCD are not eligible for assessment in terms of Section 4A and consequently the demand of differential duty is clearly sustainable - HELD THAT:- The judgement of High Court upheld - SLP dismissed.
-
2016 (7) TMI 1612 - CESTAT NEW DELHI
CENVAT Credit - additional duty leviable under Section 3 of the Customs Tariff Act - N/N. 89/2005-Cus. dated 04.10.2005 - HELD THAT:- The fact is not under dispute that while assessing the Bills of Entry, the amount towards CVD and Cess have not been bifurcated by the Customs Authorities. Since, the entire disputed amount was reflected under the ‘CVD’ head in the Bills of Entry, taking of Cenvat Credit of such amount is in conformity with Rule 3 read with Rule 9 of the Cenvat Credit Rules - the Notification No. 89/2005-Cus. dated 04.10.2005 has specifically permitted an importer to avail Cenvat Credit of additional duty leviable under Section 3 of the Customs Tariff Act against the amount debited in the Duty Entitlement Passbook Script.
Since, no provisions of the Cenvat Statute have been contravened in this case, taking of disputed Cenvat Credit by the appellant is proper and justified - appeal Allowed - decided in favor of appellant.
-
2016 (7) TMI 1611 - DELHI HIGH COURT
Seeking unconditional release of imported goods - non-issuance of SCN within the mandatory time limit in terms of Section 110(2) of the Customs Act, 1962 - HELD THAT:- The Court is constrained to observe that there was no occasion for multiplicity of proceedings arising from the order dated 2nd June 2016 passed by this Court. If the Customs Department was aggrieved by any portion of that order, it could have proceeded to seek whatever remedies were available to it in accordance with law. There being no challenge to that order, the Department was bound to comply with it in letter and spirit - the Court directs that, in immediate compliance of its order dated 2nd June 2016, the goods in question shall be released to the Petitioner by the Customs Department unconditionally to the Petitioner through its authorized representative who will appear before the Deputy Commissioner of Customs at 11 am on 23rd July 2016. The Petitioner will furnish to the Deputy Commissioner Customs an undertaking by way of affidavit to fully cooperate in any proceedings that may be commenced under Section 124 of CA.
List on 29th August 2016.
-
2016 (7) TMI 1610 - BOMBAY HIGH COURT
Dishonor of Cheque - Discrepancies as regards the transaction for which the disputed cheque is alleged to be given - applicability of section 118 r/w with section 139 of the Act - HELD THAT:- It is now well settled that while the complainant is required to establish the case beyond reasonable doubt, the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of the cross examination of the witness of the complainant and any other material available on the record and it is not necessary that for this purpose the accused should enter into the witness box. The question really is about the extent to which such presumption can operate and, can the benefit of such presumption be availed when the case set up by the complaint, is found to be not substantiated. At the cost of repetition, it is necessary to state that the case is that the amount of ₹ 2.50 crores was paid as consideration for purchase of iron ore which transaction never materialized and towards refund of the part of the consideration the cheque was passed. The poof of such a case presupposes that the payment by the respondent/complainant to the petitioner/accused is proved. In the present case admittedly the payment is made to Chowgule and Company and not to the accused and as noticed earlier, even that aspect is not proved on record, as has been admitted by PW 1 on basis of the statement Exhibit 58.
Though the respondent claims that the said transaction is the same transaction as in Exhibit 51, the agreement on the contrary shows that it is between M/s. Grand Resources and the petitioner.
The findings as recorded by the Courts below are against the weight of the evidence and not borne out of the record and are clearly unsustainable - Criminal Revision application is allowed.
-
2016 (7) TMI 1609 - KARNATAKA HIGH COURT
Grant of anticipatory bail - maintainability of appeal before High Court without exhausting the remedy u/s.438 of Cr.P.C. before the jurisdiction Sessions Court - HELD THAT:- The intention of bringing out Section 438 Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.
The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.
It is also worth to note here that the Sessions Court and the High Court are concurrently empowered to grant bail u/s.438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.
The bail petition filed u/s.438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision.
Whether the petitioner has approached this Court with any such extraneous or special reason? - HELD THAT:- The conduct of A1 and the petitioner have to be tested during the course of full dressed trial. The only allegation against the petitioners herein who are A2 and A3 is that, they have threatened her with dire consequences of killing her if she enquire anything about A1 and that A1 to A3 have hatched conspiracy to do away with her life. These factual aspects have to be established during the course of full dressed trial. A1 has already been released on Bail, vide order dated 07.06.2016 - main allegation against A1 is that he has made attempts to kill her etc., But no such allegations are made against accused Nos.2 & 3 are concerned. Under the above said circumstances, there are no strong reasons to reject the bail petition to the present petitioners. In view of the same, the petitioners are entitled to be enlarged on bail on certain conditions.
The petitioners are entitled to be enlarged on bail - Petition allowed.
-
2016 (7) TMI 1608 - ITAT DELHI
Addition on account of Royalty - revenue or capital expenditure - AR supported the order of the AO and submitted that Baxter International Inc. USA was in effect an AE of the assessee and the payment of royalty was actually a payment for the purchase of trade-mark/technical know-how under the garb of royalty - HELD THAT:- As perused the License Agreement dated 27th October, 2003 specially clause 2 which specifically excludes the right of the licensee to grant sub licenses under Patent Rights, Trademark Rights and Software Copyright Rights to third parties unless so authorized by the Licensor. Clause 7 of the agreement safeguards the licensor’s right to protect the patent rights, trademark rights and software copyright rights and know-how rights. Clause 9 provides that either party can terminate either the whole or part of the agreement upon service of 30 days’ prior notice to the other party and that the initial tenure of the agreement is for ten years which is extendable for one year every year subject to the termination by notice by either of the parties. However, no where does the agreement mention that Patent/Trademark/Software copyright/know-how is being purchased by the licensee/assessee and that the assessee will have an unfettered right over the same. The ld. DR could not point out to any clause in the agreement which would suggest that there was a transfer of ownership right and that by virtue of the agreement the assessee will become the owner of such trademark/ patent/technical know-how. It is undisputed that the royalty expenditure is a recurring expenditure in the present appeals and is payable for every year the technical know-how/patent/trade-mark continues to be used.
In the case of CIT vs. Lumax Industries Ltd. [2008 (3) TMI 679 - DELHI HIGH COURT], the assessee company entered into an agreement with M/s Stanley Electric Co. Ltd. (SECL) on year to year basis for acquisition of technical knowledge. The assessee claimed the said payment as revenue expenditure. The Assessing Officer disallowed the claim holding that by virtue of the agreement, the assessee had derived an asset of enduring nature. On appeal, the CIT (A) allowed the assessee's claim holding that the expenditure incurred by the assessee was a recurring expenditure and not a capital expenditure. The Tribunal upheld the order of the CIT (A). On Revenue's appeal to the High Court held it to be revenue expenditure.
Depreciation on UPS - Whether UPS formed integral part of the computer system as the same was being used only with computers and not otherwise and hence depreciation was rightly allowable at 60% instead of 15% as allowed by the AO - HELD THAT:- CIT (A) has relied on the judgment of the Hon’ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT]while deleting the disallowance. The ld. DR could not cite any other judgment where a different view has been held. Hence, we find no reason to interfere and dismiss ground no. 2 of the Department’s appeal.
Accrual of income - Addition on account of interest income - HELD THAT:- The breakup of the interest pertaining to the AY 2006- 07, 2007-08, 2008-09 & 2009-10 credited by the bank in its account has been given by the appellant as noted -. Since the appellant did not have any right to claim the interest, it did not have any income accrued to it on account of interest in the Asst. Years preceding 2009-10. However, since the TDS was deducted on the interest credited by the bank, the appellant has taken credit on the same in the ITRs for the earlier Asst. Years. Since the appellant has declared the interest accrued for the entire period in the AY 2009-10 when it got the right to interest income ,the action of the AO in assessing the interest credited by the bank in the AY 2007-08 is not in order. Had the appellant not claimed TDS deducted by the bank in the respective assessment years, the TDS would have been lost. As per the appellant-for the Assessment Year 2008-09 the AO has not made any addition on this account. Therefore the addition made by the AO is deleted and the ground of appeal is allowed
-
2016 (7) TMI 1607 - ITAT INDORE
Addition u/s 40(a)(ia) - addition made on account of interest paid on EMI for purchase of vehicles - Assessee contended that since no amount was outstanding payable to the above parties as at the end of the year on 31st March, 2011, the assessee was not liable to deduct TDS from the payments made to the five parties during the year under consideration - HELD THAT:- We find that recently in RKP COMPANY VERSUS INCOME TAX OFFICER WARD 1, KORBA [2016 (7) TMI 447 - ITAT RAIPUR] similar issue decided in favour of assessee.
Further, the second proviso appended to Section 40(a)(ia) by the Finance Act, 2012, w.e.f. 01.04.2013, provides that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVIIB, on any such sum, but is not deemed to be an assessee in default under the first proviso to sub Section (1) of Section 201, then for the purpose of this sub Section (1) shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso.
We find that the assessee filed certificates from the Chartered Accountants of the five payee companies before the ld. CIT(A) to contend that as the payee companies have shown the amount of interest in the return of income filed and paid due taxes thereon, therefore, in view of the second proviso to Section 40(a)(ia) of the Act, no disallowance was exigible in the case of the assessee u/s 40(a)(ia) of the Act. The ld. CIT(A) has not adjudicated on this plea of the assessee while confirming the disallowance made by the AO.
Hon'ble Delhi High Court in the case of CIT vs. Ansal Land Market Township Private Limited [2015 (9) TMI 79 - DELHI HIGH COURT] has held that second proviso to Section 40(a)(ia) of the Act is declaratory and curative and has retrospective effect. Therefore, we hold that the disallowance cannot be made u/s 40(a)(ia) of the Act on this count also. Thus, this ground of appeal of the assessee is allowed.
Addition under the head “unsecured loan” and interest paid thereon - HELD THAT:- In the instant case, there was some enquiry made by the DDIT in the case of Shri Shailendra Biyani, where it was found that the company did not have the creditworthiness to advance loan and that the Directors of the Company did not appear before the DDIT. This information and material was not confronted to the assessee by the AO during the course of the assessment proceedings or even during the course of first appellate proceedings. Therefore, the said material cannot be used or read against the assessee, as the same has not been controverted to the assessee.
We rely on a very recent decision of H. R. Mehta vs. ACIT, [2016 (7) TMI 273 - BOMBAY HIGH COURT] wherein held that on a very fundamental aspect, the Revenue was not justified in making addition at the time of reassessment without having first given the assessee an opportunity to cross examine the deponent on the statement relied upon by the ACIT. Quite apart denial of an amount of cross examination, the Revenue did not even provide the material on the basis of which the Department sought to conclude that the loan was bogus transaction.
This is not having been done, the denial of such opportunity goes to the root of the matter and strikes at the very foundation of the reassessment and, therefore, renders the orders passed by the CIT(A) and the Tribunal vulnerable.
We hold that the addition of unsecured loan and interest paid thereon was not justified in the present case as the material collected in the case of Shri Shailendra Biyani in the case of the M/s. East West Finvest India Limited was neither confronted to the assessee nor the assessee was allowed any opportunity of cross-examination of the giver of the statement. - Decided in favour of assessee.
-
2016 (7) TMI 1606 - SUPREME COURT
Seeking for adjournment of the case - earlier also several adjournments were sought and granted - proceedings in the suit got arrested as if "time" had been arrested - HELD THAT:- In the case at hand, the examination-in-chief continued for long and the matter was adjourned seven times. The Defendant sought adjournment after adjournment for cross-examination on some pretext or the other which are really not entertainable in law. But the trial Court eventually granted permission subject to payment of costs. Regardless of the allowance extended, the Defendant stood embedded on his adamantine platform and prayed for adjournment as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The non-concern of the Defendant-Petitioner shown towards the proceedings of the Court is absolutely manifest. The disregard shown to the Plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command.
In the case at hand, it can indubitably be stated that the Defendant-Petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake! Arise! Oh Partha" is apt here to be stated for guidance of trial courts.
SLP dismissed with costs which is assessed at ₹ 50,000/-.
-
2016 (7) TMI 1605 - ITAT PUNE
Addition on account of accrued interest on Non-Performing Assets (NPAs) - HELD THAT:- We find that similar issue as before us arose in ITO Vs. Shankarrao Mohite Patil Sahakari Bank Ltd. [2016 (3) TMI 910 - ITAT PUNE] and in ITO Vs. Samarth Sahakari Bank Ltd [2016 (3) TMI 910 - ITAT PUNE] relating to assessment year 2011- 12, order dated 10.02.2016 and Kolhapur Mahila Sahakari Bank Ltd. Vs. ITO [2014 (1) TMI 1728 - ITAT PUNE], relating t o assessment year 2009-10, vide order dated 29.01.2014. The Tribunal in turn following the ratio laid down by the Pune Bench of Tribunal in ACIT Vs. Osmanabad Janta Sahakari Bank Ltd. [2015 (3) TMI 886 - ITAT PUNE]
The Hon’ble Bombay High Court in CIT Vs. M/s. Deogiri Nagari Sahakari Bank Ltd. [2015 (1) TMI 1218 - BOMBAY HIGH COURT] has laid down the proposition that the interest accrued on NPAs is not taxable in the hands of assessee, in view of the guidelines issued by the RBI.
Following the same parity of reasoning, we hold that no addition is warranted on account of interest accrued on NPAs. Accordingly, we uphold the order of CIT(A) in deleting the addition made on account of interest accrued on NPAs. The grounds of appeal raised by the Revenue are thus, dismissed.
-
2016 (7) TMI 1604 - ITAT MUMBAI
Tax deducted on the service charges paid for the services provided by Visa/Mastercard International - payment was not an expenditure in the hands of the assessee and had not been incurred for the purpose of the assessee’s business and consequently, the TDS paid was not an allowable deduction - HELD THAT:- In the course of assessment proceedings, the Assessing Officer noticed that assessee had paid tax in respect of the charges for services provided by Visa/Mastercard International on the ground that such an expenditure was borne out of contractual obligation. The claim of the assessee was that in terms of the agreement with Visa/Mastercard International, assessee was required to bear the tax liability on payment made by assessee to such companies and, therefore, during the year under consideration an amount was claimed as business expenditure on this count. The Assessing Officer, however, disallowed the expenditure on the basis of his stand in the earlier years.
CIT(A) noticed that the Tribunal in the assessee’s own case for 2012 (7) TMI 155 - ITAT, MUMBAI], [2012 (9) TMI 1065 - ITAT MUMBAI] and [2013 (5) TMI 532 - ITAT MUMBAI]has deleted such addition and following the aforesaid precedents, he has since deleted the addition in the instant year also.
A common point between the parties that the precedents relied upon by CIT(A) in order to delete the addition continue to hold the field and they have not been altered by any higher authority. As a consequence, in view of the aforesaid precedents, there is no error on the part of CIT(A) in deleting the addition, which we hereby affirm. In the result, appeal of the Revenue for Assessment dismissed.
-
2016 (7) TMI 1603 - SUPREME COURT
Claim of compensation form United India Insurance Company Limited and India Transport Organization - amount claimed on the ground that there had been shortage/loss of 'All Aluminium Alloy Conductor' (AAAC) wire, which was supplied by the complainant to the Power Grid Corporation of India Limited (PGCIL) - Trucks shortage - transit-loss - HELD THAT:- In the instant case, the insurer was in custody of the policy. It had prescribed the Clause relating to duration. It was very much aware about the stipulation made in Clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertainable because conditions enumerated in duration Clause were not satisfied - In our considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee.
Loss as arising from surveyor's report - HELD THAT:- Though the said aspect has not been gone into by the National Commission, yet we find, the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case, the exercise of revisional jurisdiction by the National Commission is a limited one - we have perused the surveyor's report and scrutinized the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable.
The judgment and order passed by the National Commission in the batch of appeals is set aside - We have been apprised that 50% of the amount was deposited and the Appellant has withdrawn the said amount. The balance amount along with interest, as directed by the State Commission, shall be paid by the insurance company within four months from today - appeal allowed.
-
2016 (7) TMI 1602 - SUPREME COURT
Violation of principles of Natural Justice - Rejection of the Election Petition - application filed by her under Order VII Rule 11 of The Code of Civil Procedure, 1908 not disposed off and was posted along with the main petition - denial of opportunity to file written statement - HELD THAT:- Once an application is filed under Order VII Rule 11 of the CPC, the court has to dispose of the same before proceeding with the trial. There is no point or sense in proceeding with the trial of the case, in case the plaint (Election Petition in the present case) is only to be rejected at the threshold. Therefore, the defendant is entitled to file the application for rejection before filing his written statement. In case, the application is rejected, the defendant is entitled to file his written statement thereafter. But once an application for rejection is filed, the court has to dispose of the same before proceeding with the trial court.
The procedure adopted by the court is not warranted under law. Without disposing of an application under Order VII Rule 11 of the CPC, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside.
Denial of opportunity to file written statement - Alleged attempt on the part of the appellant for delaying the trial of the Election Petition - HELD THAT:- The said Application does not come within the purview of any of the situations under Order VII Rule 11 (a) to (f) of the CPC. Therefore, the application is rejected - the appellant is given an opportunity to file written statement in the Election Petition within two weeks from today.
Appeal disposed off.
-
2016 (7) TMI 1601 - ITAT TRIBUNAL
Non-providing reasonable opportunity of being heard by the learned CIT(A) before deciding the appeal - prayer was made in the ground to restore the issue to the file of the learned CIT(A) - HELD THAT:- We accept the submission of the assessee that the appeal may be restored to the file of the learned CIT(A). We, therefore, in the interest of justice and equity, direct the learned CIT(A) to decide the appeal after giving due opportunity of being heard to the assessee.
Appeal is allowed for statistical purposes.
-
2016 (7) TMI 1600 - ITAT MUMBAI
Charging of interest u/s 234C - point of dispute by the assessee is that while processing such return under section 143(1) interest u/s 234C was levied on account of shortfall in payment of advance tax on first and second installments, due on 15/09/2011 and 15/12/2011, in respect of gift of ₹ 10.00 crores claimed to have been received on 17/12/2011 - HELD THAT:- Section 209 of the Act provides the computational mechanism of calculating advance tax to be paid. Notably, section 209 envisages calculation of advance tax based on the ‘estimate of current income’ . A reading of section 209 would reveal that in order to calculate the amount of advance tax payable, an assessee is liable to estimate his income. Facts of the present case clearly show that the gift of ₹ 10.00 crores, which has been received by the assessee on 17/12/2011 could not have been foreseen by the assessee so as to enable him to estimate such income for the purpose of payment of advance tax on an anterior date, may it be 15/09/2011 or 15/12/2011.
In such a situation, the decision of the Hyderabad Bench of the Tribunal in the case of ACIT v. Jindal Irrigation Systems Ltd. [1995 (8) TMI 97 - ITAT HYDERABAD-A] relied upon by the appellant, clearly militates against charging of interest under section 234C of the Act. Therefore, in this background, the levy of interest under section 234C of the Act in the present case is untenable.
Plea of the Revenue that charging of interest under section 234C of the Act is mandatory in natures is concerned, the same in our view, cannot lead to a situation where levy of interest can be fastened even in situations, where there is impossibility of performance by the assessee. Charging of interest would be mandatory, only if, the liability to pay advance tax arises upon fulfilment of the parameters, which in the present case is not fulfilled on account of the peculiar fact situation. Thus, such plea of the Revenue is untenable. Decided in favour of assessee.
-
2016 (7) TMI 1599 - ITAT AMRITSAR
Validity of reopening of assessment u/s 147 - invocation of the jurisdiction u/s 148 on the basis of AIR information - entries relating to investment in Mutual fund etc. - HELD THAT:- Assumption of jurisdiction u/s 147/148 on the basis of AIR information was illegal inasmuch as it was simplify in the domain of suspicion and for verification of the source of investment made in Mutual funds, which is impermissible u/s 148. Section 148 does not permit verification, as rightly contended, as the same falls in the domain of section 143(2), after the return is filed. It is an undisputed fact on the record, that but for the AIR information, there was no other material with the AO to reach the requisite satisfaction u/s 148(2).
The above reasons are no reasons in the eyes of law, inasmuch as the source of investment is yet to be verified and explained, and it cannot be held as income escaping assessment for the purposes of section 148. For such a verification, the AO is to assume normal jurisdiction under section 143(2), after the return is filed. It is only during such regular assessment proceedings, that the source can be questioned, and deemed to be income u/s.68/69, in case no satisfactory explanation is offered by assessee.
In the absence of verification/explanation of the assessee in the course of assessment proceedings, it is premature to assume the same as 'income', much less for the purposes of section 148. Therefore, the AIR information is no tangible material to empower the AO to reach the requisite satisfaction as envisaged u/s 147/148. - Decided in favour of assessee.
-
2016 (7) TMI 1598 - SC ORDER
TPA - AMP expenses - Existence of an international transaction - whether the Revenue has been able to discharge the initial onus of showing that there was an international transaction concerning the Assessee and its foreign AEs - benchmarking analysis by evaluating the AMP expenses incurred by the Assessee in relation to its total sales vis-à-vis its comparables - HELD THAT:- Application for exemption from filing certified copy of the impugned order is allowed.
Delay condoned.
........
|
