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2015 (8) TMI 1499 - THE SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Prima facie view contained in the ex-parte ad interim order sustained after hearing the appellants - exercise of the powers conferred upon under sections 11(1), 11(4) and 11B of the SEBI Act - HELD THAT:- The documents and details available on record, the prima facie view taken in the interim order is correct. Further, the directions of not collecting any funds from the investors under the existing schemes/existing company within the group and not to launch any new schemes or plans, is in the interest of lay investors who may fall in the trap of the alleged schemes of the Company. In so far as existing investors as concerned, SEBI has directed that the Company shall not dispose of or alienate any of the properties/assets obtained directly or indirectly through money raised by Citrus and not to divert the funds raised from public.
It was necessary for SEBI that such unauthorized collection of money be stopped immediately in order to prevent further damage to the general public by unregistered CIS activities. As the activities of the Company and its directors are prima facie found to be illegal and in violation of the SEBI directions, revoking the directions issued vide the interim order, at this stage will not be in the interest of the investors. Further, as also discussed above, in terms of the SEBI order dated August 21, 2015 in the matter of Royal Twinkle Star Club Limited, the directors of the Citrus namely Mr. Omprakash Basantlal Goenka, Mr. Prakash Ganpat Utekar, Mr. Venkatraman Natrajan and Mr. Narayan Shivram Kotnis cannot be permitted to carry out any fund mobilization activity. In view of the same, in my considered opinion revoking/modifying the directions issued vide the interim order in any form is not appropriate.
As also noted earlier the documents/details submitted by the Company have to be examined in detail, in the light of submissions made and the discussion in the interim order. In view of the same, I am convinced that the directions in the interim order in respect of the entities need to be continued, till further directions. These directions have been imposed in the interest of investors and to ensure that the noticees do not continue with the money mobilization activities through its plans/schemes. SEBI is directed to conduct an investigation into the operations of the Company, in order to form a final view as to whether the activity of the Company is in the nature of CIS as prima facie observed in the interim order. SEBI is advised to expeditiously conclude the investigation and proceed in accordance with law.
In exercise of the powers conferred upon me under sections 11(1), 11(4) and 11B of the SEBI Act, 1992 read with Regulation 65 of SEBI (Collective Investment Schemes) Regulations, 1996, hereby confirm the directions issued vide the SEBI interim order dated June 03, 2015 against Citrus Check Inns Limited, Mr. Omprakash Basantlal Goenka, Mr. Prakash Ganpat Utekar, Mr. Venkatraman Natrajan and Mr. Narayan Shivram Kotnis.
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2015 (8) TMI 1498 - DELHI HIGH COURT
Direction to pay defaulted amount - direction to applicant to pay a sum of ₹ 1,00,00,000 on or before 7.7.2015 out of a total principal amount of ₹ 4,00,00,000 with an interest @ 12% p.a. on the entire principal amount - HELD THAT:- The order dated 22.5.2015 was passed with the consent of the parties, wherein it was recorded that “It is also agreed between the parties that in the event of default of payment of 25% of principal amount within the time stipulated, the entire suit shall stand decreed.” Insofar as the said amount has not been paid, there is default of the aforesaid direction passed on 22.5.2015. There is no ground for extension of time, which, in any case, is opposed by the non-applicant.
Application dismissed.
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2015 (8) TMI 1497 - ITAT AHMEDABAD
Revision u/s 263 - understatement in the value of closing stock because the appellant has not debited the value of excise duty to Profit & Loss Account at the time of accounting purchases - assessment order being erroneous and prejudicial to the interest of the Revenue or not? - HELD THAT:- The assessee has stated before the ld.Pr.CIT which is not rebutted by the Revenue that there is no understatement in the value of closing stock because the appellant has not debited the value of excise duty to Profit & Loss Account at the time of accounting purchases and the excise duty component has been accounted and recognized separately in the financial statements as current assets for the year under consideration. There is another aspect of the matter also, the contention of the assessee is that MODVAT Scheme provides for instant credit of the input only on the raw-material consumed. The credit has a direct linkage with the consumption of the raw-material. It is obtained on the date when the raw material is purchased. Hence, it is clear that whether one applies the net method or the gross method the gross profit remains the same.
Assessment order is not erroneous. Moreover, it is undisputed fact that the Assessing Officer raised a specific query and reached to a conclusion that method adopted by the assessee has not caused any prejudicial to the Revenue since there is no understatement of closing stock. This conclusion of AO is not absurd or erroneous. Therefore, the exercise of Jurisdiction u/s.263 of the Act by ld.Pr.CIT fails.
In the case of Malabar Industrial Co.Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] has held that the CIT has to be satisfied of twin conditions, namely, (i) the order of the AO sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent, if the order of the ITO is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue, recourse cannot be had to s.263(1).
It is not pointed out by the ld.Pr.CIT as to what prejudice has caused to the Revenue. In the absence of specific finding by the ld.Pr.CIT, we cannot confirm his order revising the assessment order. Therefore, in our considered view twin conditions as laid down in Section 263 of the Act, i.e. order being erroneous so far it is prejudicial to the interest of Revenue are not satisfied - unable to sustain the findings of ld.Pr.CIT, same are hereby quashed. Therefore, the impugned order is set aside and quashed. Thus, grounds raised in the appeal are allowed.
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2015 (8) TMI 1496 - ITAT MUMBAI
Disallowance of expenditure by way of claims settled - HELD THAT:- Respectfully following the orders of the Co-ordinate Bench in assessee’s own case [ 2013 (9) TMI 633 - ITAT, MUMBAI] the disallowance made by the AO is deleted. These grounds are accordingly allowed.
Disallowance made u/s. 14A - HELD THAT:- Respectfully following the decision of the Co-ordinate Bench [2013 (9) TMI 633 - ITAT, MUMBAI] we hold accordingly and direct the AO to follow the findings/directions of the Tribunal given for A.Yrs 2000-01, 2001-02 and 2003-03. Ground No. 3.1 and 3.2 with all sub-grounds are accordingly allowed.
Disallowance of Legal and Profession Charges, disallowance of repairs and maintenance charges and disallowance of Repairs and Maintenance - Plant & Machinery - HELD THAT:- A perusal of the order of the First Appellate Authority show that the Ld. CIT(A) has called for a remand report from the AO. However, we find that the First Appellate Authority has decided these issues without waiting for the remand report. In our considered opinion and in the interest of justice and fair play, these issues need to be reconsidered at the assessment stage. We, therefore set aside these grounds to the file of the AO. The AO is directed to decide these issues afresh after giving a reasonable and fair opportunity of being heard to the assessee. Accordingly, ground No. 6, 8 and 11 are treated as allowed for statistical purpose.
Deduction u/s. 80HHC - confirmed the disallowance.
Deduction u/s. 80HHC relating to DEPB credits - HELD THAT:- In assessee’s own case in A.Y. 2003-04 the Tribunal following the order of the Hon’ble High Court of Gujarat in the case of Avani Exports Vs CIT [2012 (7) TMI 190 - GUJARAT HIGH COURT] has restored this issue to the file of the AO for denovo assessment on this claim of the assessee u/s. 80HHC of the Act. Respectfully following this finding of the Tribunal, we set aside this issue to the file of the AO to be decided afresh in the light of the findings given in A.Y. 2003-04. Accordingly, this ground is treated as allowed for statistical purpose.
Claim of deduction u/s. 80HHC - HELD THAT:- We set aside this issue to the file of the AO to be decided as per the directions of the Tribunal in A.Y. 2003-04 in the light of the decision of the Hon’ble Supreme Court in the case of Topman Exports Vs CIT [2012 (2) TMI 100 - SUPREME COURT] - This ground is allowed for statistical purpose.
Claim of deduction u/s. 80HHC - AO ought to have excluded from total costs - Direct costs attributable to exports and domestic sales of manufactured goods - HELD THAT:- Respectfully following the findings of the Tribunal in own case we decide this grievance in favour of the assessee. claim of deduction u/s. 80HHC which is without prejudice to assessee’s claim that unrealized export sale proceeds not excludible from trading export turnover.
Claim of deduction u/s. 80HHC - claim of the assessee that in computing the total turnover following item should have been excluded as Sales tax and Excise duty - HELD THAT:- Issue decided in favour of assessee as relying on its own case.
Claim of deduction u/s. 80HHC - claim of the assessee that in computing profits of the business under Explanation (baa) 90% of net receipts and no gross receipts by way of commission earned and interest earned ought to be reduced - HELD THAT:- As decided in own case [2013 (9) TMI 633 - ITAT, MUMBAI] in the light of the decision of the Hon’ble Supreme Court in the case of ACG Associated Capsules Pvt. Ltd. Vs CIT [2012 (2) TMI 101 - SUPREME COURT] we decide this claim of deduction in favour of the assessee
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2015 (8) TMI 1495 - PUNJAB AND HARYANA HIGH COURT
Grant of licences and/or the change of land use - grant of license in anarbitrary manner and for illegal consideration - HELD THAT:- There are no merit in the argument that the grant of licence on the basis of first come first serve basis is fair, reasonable or transparent method. It is wholly immaterial that the licence is sought in respect of the land owned by them. The fact is that without licence, the Group Housing cannot be set up. The licence is a pre-requisite condition to develop a colony which is a privilege granted by the State and is largesse. In the absence of a licence, a land owner continues to be owner of the land. There is no compulsion for him to change the land use or to set up a colony, but once it is proposed to set up a colony, then the statutory conditions, pre-requisite for grant of a licence, are to be satisfied.
The principle of first come first served basis has led to an unholy race. The petitioners submitted their application dated 10.9.2010 which was received on 13.09.2010 soon after the finalization of the lay out plan on 25.08.2010. Some of the other aspirants submitted applications for licences on the day the Draft Development Plan was published on 4.10.2010. We find that the public notice does not give any starting time for submission of an application nor the last date. It is an open ended scheme. Any applicant can apply at any point of time. Such application would be considered if the density is available. It does not take into consideration as to whether the external developments have been completed or shall be completed by the time the constructed apartments in the Group Housing shall be offered for possession.
Since the licences have been granted on the basis of the doctrine of first come first served basis, which is not a fair, reasonable and transparent method, the licences granted to the private respondents, cannot be sustained - the licences granted to respondent Nos. 4 to 7 are cancelled - Petition allowed.
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2015 (8) TMI 1494 - ITAT INDORE
Revision u/s 263 - whether the seized documents show that some illegal gratification has been given to the assessee from Mukesh Sharma? - HELD THAT:- Tribunal has already examined the same papers in case of Shri Narottam Mishra. Therefore, this Tribunal cannot take a different view. Therefore, this matter is covered in favour of the assessee. It is well settled that if the same inquiry by the Assessing Officer in all original proceedings even if it inadequate that cannot flout the Commissioner with jurisdiction u/s 263 merely because he can form another opinion.
We are of the view that the assessee was served with details in specific questionnaire u/s 141 of the Income-tax Act, 1961. The assessee has also given the detailed submission regarding the admissibility of diary and AO has made the enquiry from the Executive Engineer. Various bank accounts were examined in detail. No investigation or unexplained entry was found by the Assessing Officer. Details of movable and immovable properties were called for by the Assessing Officer. Nothing adverse or unexplained was found.
The guidance was found from Jt. Commissioner of Income Tax u/s 144A was duly received and kept on record. The AO has during the course of assessment proceedings made a detailed enquiry of this loose slips/ dumb loose slips found with Mukesh Sharma. All these evidences have been classified in the form of table and primary evidence and evidence has been apprised as per Income-tax Act, 1961. The AO has made the assessment as per the CBDT guidelines and as per the CBDT guidelines, in the first stage, the AO acquainted with the appraisal report and seized material and took up the case for assessment and thereafter, the AO has made the detailed enquiry and after filing the return, the AO had accepted, prima facie, acceptable evidence and he has made a proper enquiry and after making the enquiry the AO has also called for his report u/s 144A of the Act and after getting the report of 144A, the AO has come to the conclusion that the assessee has not received any money. Whatever the documents are on the record are dumb document and on the basis of these documents, no addition can be made.
Commissioner has directed to collect the original file from Indore Commissioner and Bhopal Commissioner, which do not suggest anything. We found that if the AO had initially any suspicion as to primary evidence, he could have himself corrected it by taking time to conduct the enquiry into this matter. After enquiry, he arrived at the conclusion that suspicion of unaccounted gratification received by the assessee by the piece of evidence found during the course of search were not adequate and sufficient to make addition. We are of the view that ld. Commissioner is not justified in his action and his case is duly covered by the decision of CIT vs. Ashish Rajpal, [2009 (5) TMI 18 - DELHI HIGH COURT] wherein it is held that if during the course of assessment proceedings, if the enquiry has been made by the Assessing Officer and if the sufficient enquiry is made, then it cannot be terms as prejudicial to the interests of revenue. Appeal of the assessee is allowed.
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2015 (8) TMI 1493 - ITAT KOLKATA
Disallowance being payment of commission which was duly supported by evidences - HELD THAT:- The strength of sales order is clearly done by the sales team who are moving in the market. These salesmen are the persons who try to arrange orders for the products of the principle. AO has called the director of the company only to record his statement by giving him notice u/s 131. It is quite possible that the company has various types of activities and working as commission agent is also a part and such companies work for many types of clients.
Quite possible a director might not be aware of names and details of all the clients of the company. The AO should have enquired through the sales man of the commission agent or through the buyers of the products of the assessee in order to verify the actual commission given to M/s.Wide Angle Packaging System (P)Ltd for doing the sales on behalf of the assessee against commission. The assessee has paid commission by account payee cheque. Due TDS paid, identity of the commission agent is verifiable which are sufficient evidence on record to prove the genuineness of the transaction and creditworthiness and identity of the so called commission agent. The entire commission is allowable. This ground of appeal is allowed.
Disallowance made by AO from 15% to 10% out of various revenue expenses - HELD THAT:- Looking into the nature of the expenses in which there is always a possibility to inflate the expenditure as well as expenses to some extent incurred for personal purposes also. CIT(A) has also restricted the disallowance from 15% to 10% in the interest of justice and as such find no infirmity in the order of the CIT(A). Thus this ground of appeal is dismissed.
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2015 (8) TMI 1492 - ITAT AHMEDABAD
Disallowance of interest expenses - FAA assumed that assessee must have incurred 95% of this income as expenditure on interest and, therefore, only to that extent, interest expenditure is to be allowed - HELD THAT:- Assumption by FAA is not the requirement in law, the requirement is that expenditure must be laid down by the assessee wholly and exclusively for earning of income. The expression wholly refers to quantum of expenditure and exclusively refers to the object and purpose of expenditure.
Though these expressions are not used in section 57 but the overall meaning of section 57 is also to the same effect that, the expenditure ought to be incurred for earning income which is assessable under the head “income from other sources”. If the logic of CIT (Appeals) is accepted, then, in each and every case, expenditure would be allowed only, when there is resultant income. In other words, there cannot be any loss in any activity which results “income from other sources”.
All the details were before CIT(Appeals) but instead of pin pointing any concrete diversion of interest bearing funds CIT (Appeals) only assumed that some funds might have been used by the assessee for some other purposes. The department has been consistently accepting the claim in earlier years and in subsequent years. It appears that in the beginning, assessee has more income under the head “income from other sources” as than the interest expenditure, but in Assessment Year 2006-07, 2007-08 and 2009-10, the interest expenditure was more than income, in spite of that loss under the head “income from other source” was allowed by the ld. Assessing Officer in scrutiny assessment.
Thus considering the past history and stand of the revenue itself, we are of the view that AO has erred in making the disallowance. CIT (Appeals) also failed to appreciate that total expenditure is to be allowed which is incurred wholly and exclusively for earning income. It cannot be restricted in proportion of income. We allow the ground of appeal raised by assessee and consequently reject the ground raised by the revenue. The assessee is entitled to expenditure of ₹ 1,09,29,139/- claimed by him.
Addition of cost of improvement on account of long term capital gain - HELD THAT:- Assessee while offering capital gain on sale of a plot of land had claimed cost of improvement for ₹ 10,84, 275/-. The Assessing Officer rejected the additional cost to the extent of ₹ 6 lacs. On appeal, ld. Commissioner of Income Tax (Appeals) allowed the claim of assessee on the ground that payment was made through account payee cheque for the construction made. The detail of material and other evidence were produced on the record. Contrary to this finding of fact recorded by the Commissioner of Income Tax (Appeals), nothing was pointed out to us during the course of hearing, therefore, we do not find any merit in this ground of appeal. It is rejected.
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2015 (8) TMI 1491 - ITAT AHMEDABAD
Addition of expenditure towards interest - CIT-A allowed part deduction - revised return filed - In the original return, a loss was claimed which was reduced in the alleged revised return - HELD THAT:- There cannot be any loss in any activity which results “income from other sources”. All the details were before the CIT(Appeals) but instead of pin pointing any concrete diversion of interest bearing funds; ld. CIT (Appeals) only assumed that some funds might have been used by the assessee for some other purposes.
The department has been consistently accepting the claim in earlier years and in subsequent years. It appears that in the beginning, assessee has more income under the head “income from other sources” as than the interest expenditure, but in AY 2006-07, 2007-08 and 2009-10, the interest expenditure was more than income, in spite of that loss under the head “income from other source” was allowed by the AO in scrutiny assessment. Thus considering the past history and stand of the revenue itself, we are of the view AO has erred in making the disallowance. Ld. Commissioner of Income Tax (Appeals) also failed to appreciate that total expenditure is to be allowed which is incurred wholly and exclusively for earning income. It cannot be restricted in proportion of income. We allow the ground of appeal raised by assessee and consequently reject the ground raised by the revenue. The assessee is entitled to expenditure claimed by him.
Addition of of long term capital gain - cost of improvement claimed - HELD THAT:- As gone through the record carefully. Section 48 of the income tax act, 1961 provides that income chargeable under the head ‘capital gains, shall be computed by deducting from the full value of consideration received or accrued as a result of the transfer of the capital asset, the amounts namely (a) expenditure incurred wholly and exclusively in connection with such transfer (b) the cost of acquisition of the asset and the cost of any improvement thereof. The assessee while offering capital gain on sale of a plot of land had claimed cost of improvement for ₹ 10,84, 275/-. AO rejected the additional cost to the extent of ₹ 6 lacs. On appeal, ld. Commissioner of Income Tax (Appeals) allowed the claim of assessee on the ground that payment was made through account payee cheque for the construction made. The detail of material and other evidence were produced on the record.
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2015 (8) TMI 1489 - MADRAS HIGH COURT
Grant of interim injunction - restraint from selling/alienating or creating any third party rights in the assets and investments of the respondent company - HELD THAT:- The impugned order passed would immobolise the day-to-day affairs of the appellant company and that the order was passed without giving an opportunity to the appellant though the respondent had earlier taken several adjournments, this Court is of the view that, without going into the merits of the case, it would be appropriate to remit the matter to the Company Law Board.
The matter is remitted to the Company Law Board at New Delhi for hearing Company Petition after affording opportunities to both the parties and to pass appropriate orders on merits and in accordance with law. The interim order dated 10.7.2015 passed by this Court would continue till the disposal of the Company Petition.
Appeal disposed off.
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2015 (8) TMI 1488 - ITAT AGRA
Scrutiny under CASS - addition based on the confession made by assessee - addition of sum introduced as capital of the partners of the firm - A.O. also disallowed interest - CIT(A)-II, Agra who dismissed the appeal in limine by holding that no appeal is maintainable since the Assessment Order was passed on the confession of the assessee - HELD THAT:- In the assessment order status of the assessee was mentioned as individual whereas the ld. Counsel for the assessee contended that the status of the assessee is a firm. We also find that the additions were made purely based on the confession made by assessee without investigating to the facts of the case. Therefore ends of justice would be met if the case is restored back to the file of AO for denovo assessment, after affording due opportunity of being heard to the assessee. - Appeal filed by the assessee is allowed for statistical purposes.
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2015 (8) TMI 1487 - ITAT KOLKATA
Addition of bogus sundry creditors u/s 41 - setting off of the same amount in AY 2001-02 - HELD THAT:- The provision of Sec. 41(1) comes into operation where the assessee has incurred a trading liability and trading liability has been allowed as a deduction in any earlier year, and something has, later on, being recovered in respect of such liability or such liability has either been remitted or has seized to exist.
Hon'ble jurisdictional High Court in the case of CIT v S.K. Reference Ltd [1994 (1) TMI 278 - CALCUTTA HIGH COURT] has held that where the liability to pay commission on sugarcane was later allowed as deduction pursuant to State Government’s Ordinance which was later enacted into Act, provision for such liability cannot be taxed by invoking the provision of Sec. 41(1) of the Act on the mere ground that amount allowed was returned back to profit and loss account, unless such liability was remitted or seized to exists.
In the present case, the liability very much in existence in on account of sundry credit and this is trading liability and once it is not seize to exist, or remitted, the mere non-existence of the parties cannot be added as an ‘income’ of the assessee. Accordingly, this appeal of assessee is allowed on merits.
Set off of sundry creditors and carried forward from earlier year, as the appeal for AY 2000-01 has already been allowed in favour of assessee, this will not be treated as ‘income’ for AY 2001-02. Hence, these two appeals of assessee are allowed.
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2015 (8) TMI 1486 - MADRAS HIGH COURT
Provisional release of detained consignment - imported goods, Furnitures - section 110A of Custom Act 1962 read with Customs (Provisional Duty Assessment Regulations) 2011 - HELD THAT:- Provisional release in terms of Section 110 A of the Customs Act, 1962 read with Customs (Provisional Duty Assessment) Regulations 2011 could have been made, followed by further proceedings. Hence, the detained consignment shall be released on payment of ₹ 2,59,688/- being 50% of the differential duty and for the remaining 50% of the differential duty, a bond be executed by the petitioner and on such compliance, the goods shall be released forthwith - Petition disposed off.
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2015 (8) TMI 1485 - ITAT CHANDIGARH
Penalty levied u/s 271(1)(c) - deemed dividend addition u/s 2(22)(e) - as alleged true particulars of income were not furnished by the assessee in its return - CIT-A deleted the addition - HELD THAT:- It is the case of the assessee that he was under a bonafide impression that since it(partnership firm-m/s Quixotic Healthcare)was not a shareholder in M/s Preet Remedies Pvt. Ltd,the advance given by M/s Preet Remedies Pvt. Ltd, could not be treated as deemed dividend in its hands u/s 2(22)(e) of the Act..This belief was based on decisions of the ITAT in the case of ACIT vs V. Bhaumik Colour (P) ltd [2008 (11) TMI 273 - ITAT BOMBAY-E] .In our view this submission offered by the assesse had considerable force since there were also decisions by the Delhi High Court in the case of CIT Vs. Ankitech P. Ltd. [2011 (5) TMI 325 - DELHI HIGH COURT] and CIT Vs. Hotel Hilltop, [2008 (3) TMI 310 - RAJASTHAN HIGH COURT] which held that to bring to tax any amount as deemed dividend as per the provisions of section 2(22)(e) ,it is essential that the recipient of the amount must be a shareholder of the company. Moreover the AO has not stated as to why the ratio promulgated in the case referred to by the assessee would not apply to the him. We are therefore satisfied that the assesses explanation in regard to taxability of this amount in its hands is probable and true.
Explanation of the assessee that he had no intention to either conceal or furnish inaccurate particulars of income is quite probable and true in the state of law set out. The assessee has ,therefore, discharged his onus of proof under Explanation 1 to section 271(1)(c) of the Act and shown that there was no willful or gross neglect on his part in returning the correct income. We are also satisfied that the assessee had disclosed all relevant particulars relating to his income and there was neither any concealment of income nor furnishing of inaccurate particulars of income. Addition made applying deeming provisions would not disclose it to be a case of filing inaccurate particulars of income.
In any case ,without prejudice to what has been stated above, the displacement of presumption raised against the assessee by the Expl. 1 to section 271(1)(c) amounts to concealing particulars of income. AO in the present case has levied penalty for furnishing inaccurate particulars of income . The AO therefore is apparently satisfied that the Expl 1 to section 271(1)(c) is not attracted in the assesses case for the levy of penalty.
Hon’ble Supreme court in CIT Vs. Reliance Petroproducts Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT] has held that disallowance of the claim in the assessment proceedings could not be the sole basis for levying of penalty under Section 271(1)(c) of the Act. - Decided in favour of assessee.
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2015 (8) TMI 1484 - ITAT AHMEDABAD
Amount disclosed by the assessee during the course of survey as eligible for grant of deduction under section 80IB(10) - HELD THAT:- As decided in M/S. SHREE PADMAVATI DEVELOPERS [2012 (9) TMI 977 - ITAT AHMEDABAD] that manufacturing and sale of Board paper and craft paper happened to be the only source of income of the assessee, therefore the amount disclosed consequence upon the search partakes the character of business income and eligible for the deduction u/s.80IB/80IA of the I.T.Act. In the present case, the assessee has admitted that the impugned amount was part of the sale consideration received in cash at the time of booking of flats and, therefore, the amount had direct and proximate connection with the normal business of construction activity, hence eligible for the deduction u/s.80IB(10)
Also as decided in M/S. SHETH DEVELOPERS (P) LTD. [2012 (8) TMI 159 - BOMBAY HIGH COURT] no question of application of section 68, 69 and 69A, 69B and 69C of the said Act arises as the same has not been invoked by the Department. It is an admitted position between the parties as reflected even in the order the Assessing officer that undisclosed income was in fact received by the respondent in the course of carrying out its business activities as a builder. The same was returned by the respondent as income arising from profits and gains of business or profession and the same was accepted by the department unlike in the matter of Fakir Mohmad Haji Hasan [2000 (8) TMI 44 - GUJARAT HIGH COURT]
We are of the opinion that the issue in dispute is squarely covered in favour of the assessee by the above decision. The ld.First Appellate Authority has rightly considered the amount disclosed by the assessee during the course of survey as eligible for grant of deduction under section 80IB(10) of the Income Tax Act. Accordingly, this ground of appeal of the Revenue is dismissed.
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2015 (8) TMI 1483 - MADHYA PRADESH HIGH COURT
Deduction u/s 80IB(10)(a) - whether issuance of completion certificate, after the cut off date by the Local Authority but, mentioning the date of completion of project before the cut off date, fulfil the condition specified in clause (a) of Section 80IB (10) read with Explanation (ii) thereunder - HELD THAT:- In the leading case [2015 (10) TMI 2384 - MADHYA PRADESH HIGH COURT] and connected cases decided today by a separate Judgment holding that if housing project approved on or after 1st April, 2004, the assessee can avail of the benefit provided completion certificate issued by the Local Authority is within four years from the end of the financial year in which the concerned housing project was approved by the Local Authority. If this condition is not fulfilled, the assessee who maintains work in progress accounting method and has claimed deduction under Section 80IB(10)(a) must suffer the consequence of disallowance or withdrawal of the benefit claimed by him on that count.
These appeals are allowed by setting aside the impugned judgment of the Tribunal with regard to the deduction claimed by the assessee u/s 80IB(10)(a) and instead the decision of the AO to disallow the said deduction is upheld.
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2015 (8) TMI 1482 - ANDHRA PRADESH HIGH COURT
Maintainability of petition - alternative remedy of appeal - HELD THAT:- As a matter of fact, the petitioner has already preferred an Appeal in A.R.No.129/2013 before the STAT, Visakhapatnam but on account of financial stringency, the petitioner could not comply with the condition of pre-deposit.
Considering the fact that the petitioner has already preferred an appeal in A.R.No. 129/2013 before the STAT, Visakhapatnam which is said to have been pending adjudication, we are inclined to dispose of the writ petition with the direction that petitioner shall comply with the condition of pre-deposit as provided under the relevant provisions of the Act, within a period of six weeks from the date of receipt of a copy of this order, and on such compliance, the STAT, Visakhapatnam shall take the appeal in A.R.No. 129 / 2013 said to have been preferred by the petitioner, on file and dispose of the same on merits.
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2015 (8) TMI 1481 - UTTARAKHAND HIGH COURT
Area based exemption - fiscal benefits as have been notified in the Government Notification No. 1 (10)/2001-NER, dated 7-1-2003 and Notification No. 49/2003, dated 10-6-2003 and Notification No. 50/2003, dated 10-6-2003 - Inclusion of Khasra No. 115-M, 24-Aa, 41-M, 42-M, 31, 39, 40, 45-M, 149-Da, 161-B, 25-B, 161-M total area 1.127 hectares of village Shivlalpur, Tehsil, Kashipur Ramnagar, District Nainital in the No. 50, dated 10-6-2003 issued for the units carrying on the industrial activities in non-industrial areas.
HELD THAT:- Insofar as the khasra numbers of the petitioner’s unit and the petitioner’s unit are concerned, they do not find mention either in the original Notification or in the amended Notification dated 19-5-2005. It is quite clear that the petitioner cannot claim the benefit of the said Notification. The Learned Senior Counsel for the petitioner does not dispute that a notification under the Excise Act is the species of subordinate legislation.
Petition dismissed.
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2015 (8) TMI 1480 - KARNATAKA HIGH COURT
Reopening of assessment u/s 148 - whether the reason given in the assessment order for the assessment year 2001-2002 could constitute to be a valid reason for reopening, even when the said order itself has been set aside on 20.03.2005 by the Tribunal, which was seven months prior to the issuance of the notice u/s 148? - HELD THAT:- No reasonable person can form an opinion to reopen an already concluded assessment on the basis of an assessment order of a subsequent year, which has already been set aside by the Tribunal and attained finality.
In the present case, as the assessment order for the year 2001-02 had itself been set-aside by the Tribunal much prior to the issuance of notice under Section 148, which was issued on the basis of the assessment order for the year 2001-02, in our considered opinion, there existed no reason for issuance of the notice under Section 148. The reopening of assessment for the assessment years 1999-2000 and 2000-2001 in the case of assessee, cannot be justified in law. Question No.1 is thus answered in favour of the assessee and against the Revenue.
Rejection of books of accounts - calculation of agricultural income as had been done in the case of N.G. Pai, by the same AO for the same assessment year, which was calculated at the yield of 14 Quintal per acre and the price of arecanut at ₹ 10,000/- per quintal, in which case the income of the assessee would be over ₹ 25 lacs, which is much higher than claimed by him - HELD THAT:- The Tribunal has, without giving any cogent reason, set aside the order of the Appellate Commissioner and restored the order of the AO, even though the Tribunal has noticed that the agricultural income for a closer assessment year 2001-02 was ₹ 20,41,000/- which has been affirmed by it, yet the same has not been taken to be a material basis for arriving at an income of the assessee for the assessment year in question i.e., 2003-04, where the assessee had disclosed his agricultural income of ₹ 21,93,569/- which was merely ₹ 1.5 lacs more than the income accepted two years earlier in 2001-02.
In view of the aforesaid, we are of the opinion that the Tribunal was not right in reversing the finding of the Appellate Commissioner, and restoring the estimation of income by the AO. In the facts and circumstances of the case, the second substantial question of law as framed in these appeals is also answered in favour of the assessee and against the Revenue.
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2015 (8) TMI 1479 - DELHI HIGH COURT
Release of goods - petitioner submitted that although the Supreme Court stayed the operation of the said judgment, yet it granted release of the goods and, therefore, the same order should be passed by this Court - HELD THAT:- We are afraid that we cannot accept this argument inasmuch as the Supreme Court has stayed the operation of the said judgment on which the petitioner places reliance. The powers of the High Court are not equivalent to those of the Supreme Court and it is also not clear as to under which circumstances the goods were directed to be released in that case.
Renotify on 22.02.2016.
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