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Showing 1 to 20 of 1842 Records
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2017 (1) TMI 1855
Penalty levied u/s 271(1)(c) - assessee's inaccurate claim of exemption u/s 11 - CIT(A) cancelling the penalty levied by concluding that assessee has not furnished any inaccurate particulars - HELD THAT:- The assessee has raised the false claim by furnishing the inaccurate particulars by claiming taxable income as Nil whereas the assessee was not entitled to claim the exemption because he was not having the registration u/s.12AA of the Act for the relevant assessment year.
In brief he was not having the exemption u/s.12AA of the Act for the relevant assessment year but sought the exemption u/s.12AAof the Act for the assessment year 2008-2009 wrongly and illegally.
No doubt in the said circumstances the provision of section 271(1)(c) of the Act is quite applicable and the law relied by the CIT(A) in his order i.e CIT Vs. Reliance Petroproducts [2010 (3) TMI 80 - SUPREME COURT] is no where applicable to the facts of the present case. CIT(A) has decided the matter wrongly and illegally therefore, the order in question is not liable to be sustainable in the eyes of law - Decided in favour of revenue.
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2017 (1) TMI 1854
Issues involved: Appeal against order of CIT (A) for assessment year 2000-01.
Details of the Judgment:
1. Reopening of Assessment u/s 147: The assessee, a consulting engineering company, claimed deduction u/s 36(1)(xi) for expenditure on making Computer Systems Y2K compliant. The AO reopened the assessment u/s 147, alleging that the deduction was wrongly claimed as the expenditure was capital in nature. The CIT (A) allowed the appeal, holding that the notice u/s 148 was barred by limitation as there was no failure on the part of the assessee to disclose material facts. The Tribunal confirmed this decision, stating that the reassessment proceeding was vitiated, bad in law, and not sustainable. The impugned notice u/s 148 was served after the expiry of four years from the end of the relevant assessment year, rendering it invalid.
2. Validity of Proceedings u/s 147: The AR challenged the assessment on grounds of validity of proceedings u/s 147, stating that the notice issued u/s 148 was vague and not served as per law. The CIT (A) held that the AO failed to dispose of the assessee's objection by a separate speaking order before proceeding further, as required by law. Citing relevant case law, the Tribunal upheld the CIT (A) decision, emphasizing that the notice u/s 148 was barred by limitation and the reassessment proceeding was not sustainable.
3. Change of Opinion: The AR contended that the proceedings were barred by limitation and constituted a change of opinion. The Tribunal agreed with the CIT (A) that there was no failure on the part of the assessee to disclose material facts necessary for assessment. The reassessment was deemed invalid as the AO did not make deeper investigation into the claim, and the notice u/s 148 was issued beyond the statutory time limit.
4. Final Decision: The Tribunal dismissed the Revenue's appeal, affirming the CIT (A) decision that the reassessment proceeding was vitiated, bad in law, and not sustainable. The impugned notice u/s 148 was deemed invalid due to being served after the prescribed time limit. The Tribunal upheld the decision that there was no failure on the part of the assessee to disclose material facts, rendering the reassessment proceeding untenable.
*Order pronounced in the open court on 25th January, 2017.*
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2017 (1) TMI 1853
100% EOU - clandestine removal - supply of goods without issuance of invoice - confiscation - penalty - Held that: - once the CT 3 certificate was issued the duty liability if at all arises stands shifted to the recipient who has issued the CT3 certificate and the appellant s clearances are covered by CT 3 is not chargeable to duty. I find that there is indeed delay in obtaining the CT3 certificate but same can be considered as procedural lapse.
SCN issued on 29-5-2000, at that time sub Rule 173Q (2) was not in force and the saving clause which was brought is Section 38A is effective from 11-5-2001 therefore there was no machinery provisions of sub rule (2) of 173Q on the date of issue of SCN, therefore confiscation of land, building etc is illegal accordingly, redemption find of ₹ 1 lacs is hereby dropped - As regard the redemption fine of ₹ 89,206/- on the confiscation goods valued of ₹ 3,56,825/-, I find that goods valued at ₹ 1,40,819/- were seized at premises of M/s. Volent Textile Mills Ltd at that stage, the goods did not belong to appellant therefore redemption fine cannot be demanded from appellant, however some redemption fine is warranted. Taking into consideration value of the goods seized at premises of M/s. Volent Textile Mills Ltd and other aspect I reduce the redemption fine of ₹ 89,206/- to ₹ 40,000/-.
As regard the penalty of ₹ 4, 24, 373/- imposed under Section 11AC on the appellant, I find that since the duty liability was reduced as discussed above the said penalty shall also stands reduced to the duty stand confirmed as per the above discussion.
Appeal disposed off - decided partly in favor of appellant.
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2017 (1) TMI 1852
Imposition of penalty u/s 11AC of the Central Excise Act - confiscation - CENVAT credit - assessee opted for exemption from payment of Central Excise duty in terms of N/N. 8/2003 dated 01.03.2003. While opting to avail SSI exemption benefit as stipulated in the above notification, the assessee is required to reverse the CENVAT credit on inputs lying in stock and on inputs contained in finished and semi finished goods lying in stock - the reversal of credit is in dispute in the present case - Held that: - The appellant had been filing regular returns reflecting the credit availed by them. So also they intimated their intention to avail benefit of SSI exemption by filing letter to the Department dated 05.04.2003. It is also to be considered that the N/N. 8/2003 dated 01.03.2003 was a new notification during that period After filing letter opting for SSI exemption, the respondent has filed the quarterly returns on 17.07.2003 showing the reversal of credit of ₹ 3,500/-. This return was scrutinized by the department only in January, 2004 Meanwhile, the Anti-Evasion Wing conducted search in the premises of respondent. Thus search was before scrutiny of returns. The notice was issued to the appellant not on basis of the returns filed by the respondent. It is for this reason that Commissioner (Appeals) has observed that the department could have conducted scrutiny of the returns which disclosed the reversal of credit and called for details from the respondent. That the mistake ought to have been pointed out to the respondent even before search and SCN as the mistake is only a remedial mistake.
In spite of the search conducted in the premises and verification of records done by the Anti-Evasion Wing of the Department, no case has been alleged against the respondent that the respondent availed wrong credit or that the respondent availed irregular credit with intent to evade payment of duty. This can only point to the conclusion that the credit availed by the respondent and the returns filed are proper and do not contain any discrepancy.
Non-maintenance of input stock cannot be a criterion to conclude suppression when the stock can be arrived at by the quantity in process and by quantity of final products.
Penalty set aside - appeal dismissed - decided against Revenue.
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2017 (1) TMI 1851
100% EOU - N/N. 52/2003-Cus. dated 31.3.2003 - The appellants have made use of aluminium ingots both imported as well as procured indigenously and sent them to job workers for converting the same into aluminium castings which were used in the further manufacture of automobile parts. During the course of production of automobile parts, aluminium scrap is generated - In respect of scrap generated beyond the norms of 6% in the impugned order customs as well as excise duty have been demanded in respect of quantum of ingots proportional to the excess quantum of scrap generated.
Whether such excess exemption is to be ignored or whether the duty is to be demanded on the portion of aluminium ingots lost in such excess wastage?
Held that: - the quantum of ingots which has been consumed towards wastage beyond the norm of 6% is to be considered as utilised beyond the scope of the permission for procurement of duty free inputs. However, since absolutely no evidence of diversion or suppression is on record, I find it difficult to sustain the charge of suppression and invoking the extended time limit for demand of such duty - All the demands are to be paid along with interest.
In the absence of any suppression, there is no justification for imposition of penalty and the same are set aside.
Appeal disposed off - decided partly in favor of appellant.
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2017 (1) TMI 1850
Recovery of interest - reversed CENVAT credit - goods destroyed and availed remission of duty whether in the facts and circumstances of the case, interest is applicable on the credit availed on the inputs, which were used in the manufacture of finished products, but later the finished goods were destructed being unusable, and remission of duty allowed on the finished goods? - interpretation of statute.
Held that: - I do not find any stipulated therein, requiring the assessee to reverse the interest on the amount of CENVAT credit availed on the inputs that were used in manufacture of finished goods allowed to be destroyed after permitting remission of duty under Rule 21 of Central Excise Rules, 2002. It is settled principle of law that the taxing statute to be read as it is without addition or subtraction of the words to cull out the meaning - reliance placed in the case of M/s. Greatship (India) Ltd. Versus Commissioner of Service Tax, Oil and Natural Gas Company Ltd. [2015 (4) TMI 1006 - BOMBAY HIGH COURT], where it was held that It is equally settled that a taxing statute is required to be strictly construed. Common sense approach, equity, logic, ethics and morality have no role to play while interpreting the taxing statute.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1849
Capital gain computation - Section 50C applicability - property transferred through oral family settlement - whether sec 50C would not apply in the case of the assessee because no Sale Deed is registered and that Section 50C of the Act was amended w.e.f. 01.10.2009 adding the word 'assessable'? - Held that:- No sale deed has been registered and the property was taken by the nephews of the assessee through verbal family settlement in the month of January,2008 which was confirmed by the judgement of the Civil Court dated 07.03.2009. Therefore, in the case of the assessee, no consideration has been assessed by the Stamp Valuation Authority. Since no sale deed or agreement have been registered in the case of the assessee, therefore, provisions of Section 50C would not apply in the case of the assessee. The word 'assessable' has been inserted in Section 50C Act w.e.f. 01.10.2009 therefore, the amended provisions would not apply to assessment year under appeal i.e. 2009-10.
Merely the assessee has shown capital loss in the return of income would be of no consequence when Section 50C of the Act is not applicable in the case of the assessee. In this view of the matter, it is clear that provisions of Section 50C of the Act would not apply in the case of the assessee, therefore, no long term capital gain could be computed as is done by the authorities below in the case of the assessee.
The authorities below have failed to take note of the fact that the plaintiffs Vinay Verma etc. have mentioned in the plaint that the family settlement take place between the parties i.e. the nephews of the assessee and the assessee in the month of January,2008 and since then, the plaintiffs are in ownership and in possession of the property. The claim of the plaintiffs have been admitted by the assessee as defendant in that suit by admitting the claim of the plaintiffs and prayed that decree may be passed accordingly. The Civil Court, on the basis of these facts, admitted the claims of the plaintiffs and decreed the suit for declaration vide judgement dated 07.03.2009 therefore, it is clear that the property was transferred in the month of January,2008 through oral family settlement, therefore, assessee rightly contended that no long term capital gain arise in assessment year 2009-10 because this may pertain to preceding assessment year 2008-09. Therefore, on this point also, the addition against the assessee is wholly unjustified.
Thus we are of the view no capital gain arise in the case of the assessee in assessment year under appeal. - Decided in favour of assessee
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2017 (1) TMI 1848
Valuation - rejection of declared value - Held that: - the importer appellant has not been able to justifiably explain the difference in the basic price (excluding the accessories, when subject goods viz. cars are identical), not considering the accessories of steel items attached with the goods in question - The lower authorities have considered the basic price and secondly, the exchange rate fluctuation do not justify the existing price difference. The appellant also mentions that difference in ex-works price of particular AUDI car was subject to the prevailing cost of production, transportation charges, existing tax structure for export - The appellant has not been able to give proper accountal of such difference(s) in the prevailing cost of production , transportation charges, existing tax structure for export etc. during the relevant period - appeal dismissed - decided against appellant.
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2017 (1) TMI 1847
Levy of penalty u/s 271(1)(b) - assessee was subjected to search u/s 132, consequently, the assessment proceedings u/s 153A was initiated - A.O. held that the assessee failed to appear on the date of hearing and also failed to seek adjournment - Held that:- We find force in the arguments of the assessee for the reason that the A.O. has given insufficient time to gather voluminous information for a period of seven years. We further observed that the assessment was finally completed u/s 143(3) r.w.s. 153A of the Act, after fully supplied with all material facts required for assessment proceedings. Hence, we are of the view that the initial failure becomes technical, which does not warrant levy of penalty u/s 271(1)(b) of the Act.
Also a similar issue has been considered by this bench, in assessee’s husband case [2016 (10) TMI 552 - ITAT VISAKHAPATNAM]wherein the coordinate bench of this Tribunal, under similar set of facts has held that the explanations offered by the assessee that she could not attend as on the date of hearing because of insufficient time given by the A.O. to collect voluminous information appears to be reasonable and bonafide - Decided in favour of assessee.
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2017 (1) TMI 1838
Bogus claims for agricultural income - AO held that 65% was bogus claim and only 35% of the agricultural income was accepted to be correct - CIT(A) held that the claim for agricultural income was genuine and Assessee was entitled to claim deduction/exemption of 90% of the income claimed as agricultural income and 10% would be the expenses for generating agricultural income - ITAT in its order has made certain observations with regard to the correctness of the order indicating that it was not satisfied with the order of the CIT (Appeals).
HELD THAT:- Assessee before the ITAT had made a submission that with a view to avoid unnecessary litigation and peace of mind, he was ready and willing to accept the order of the AO. He also filed three handwritten letters/notes in this regard with respect to the three different Assessees. Thereupon, ITAT permitted the counsel to withdraw the Appeals since he was ready to comply with the order of the AO.
Appeal of the Revenue did not survive and it was also dismissed. Now, the only submission of Appellant is that the counsel for the Assessee has made this statement without informing or without taking any consent of the Assessee. In our considered view, the Appellant cannot be permitted to urge that his Counsel had no instructions. The remedy, if any, of the Assessee lies in taking action against the Counsel but not in filing the Appeal. No substantial question of law arises in this Appeal.
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2017 (1) TMI 1837
Criminal conspiracy with bank officials and cheated the complainant by submitting glossy, unsigned, fudged and inflated balance sheet to avail over draft facilities of Rs. 250 Lakhs which resulted in a wrongful loss to the Bank -Vicarious liability of petitioner for the action done by her husband - petitioner should be discharged from the criminal proceedings under Section 239 Cr.PC. or not - HELD THAT:- The investigation reveals that from the statement of witnesses and material documents containing the memorandum of association of the Company, wherein the petitioner and her husband has been shown as Directors of the Company. The petitioner had requisite knowledge regarding process of application to obtain overdraft facility of Rs. 250 lakhs from the Indian Bank - When there is specific allegations raised against the petitioner at the stage of framing of charges, this Court has to look into as to whether the prima facie materials are available to proceed the case against the petitioner. At this stage, if there is a strong suspicion is available against the accused, the Court cannot conduct roving enquiry and the Court can only look into the materials available on records.
Considering the entire facts and circumstances of the case, this Court has also comes to the conclusion that prima facie materials are available. The allegations shown in the charge sheet and from other documents produced with police report under Section 173 Cr.PC there are materials available to proceed the case against this petitioner. This Court finds there is no illegality, infirmity or perversity in the order passed by the learned Additional Chief Metropolitan Magistrate, Chennai, in dismissing the discharge petition filed by the petitioner and the same does not warrant any interference by this Court.
The criminal revision stands dismissed.
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2017 (1) TMI 1836
Addition u/s. 56(2)(vii) - gift in contemplation of death - ‘gift’ having taken effect much prior to the date of death, with the moneys having been in fact utilized by the assessee for investment in immovable properties as well as in his business - whether gift admittedly received from a person who does not fall within the definition of ‘relative’ as given in the section (vide Explanation (e) thereto)? - HELD THAT:- We restore the matter back to the file of the AO to enable the assessee an opportunity to establish his case with reference to our findings. AO has not examined this aspect, and both the expenditure and, consequently, the amount of gift, if any, is indeterminate.
Where and to the extent the assessee is able to prove the expenditure incurred – whether by himself or by the donor (who may also incurred a part of the expenditure), the same would stand excluded as a gift and, thus, as a gift assessable u/s. 56(2)(vii), though is liable to be assessed u/s. 69C to the extent the source of the expenditure, incurred for the current year, remains unproved.
The estimate of the total expenditure incurred over the years, i.e., during the currency of the illness, which shall have to precede this exercise, is to be an informed estimate, based on medical history, reports, prescriptions, bills, etc. – a matter of record. A similar estimate in respect of the medical treatment and nursing of the donor’s aunt may also be made, to the same effect and in the same manner. Further, where (and to the extent) the total expenditure falls short of the gift amount the same is surely a gift for the love, care and affection bestowed by the assessee on the donor and his aunt. The same would though, for the reasons afore-stated, not be a gift/s in contemplation of death, and assessable u/s. 56(2)(vii).
True, the burden of proof in case of the deeming provision of s. 69C, as for others, viz. 69, 69A, 69B, et. al., is on the Revenue, so that it is only where the factum of the assessee being the owner of any property, investment, etc., or of having incurred expenditure is established by the Revenue, that the assessee can be called upon to explain the nature and source thereof, failing which only the deeming shall have effect.
In the instant case, however, the fact of incurring expenditure emanates only from the document furnished and relied upon by the assessee in furtherance of his case. We have also, albeit for different reasons, expressed our concurrence in-as-much as if the ‘gift’ is toward reimbursement or in consideration of the expenditure incurred, the same cannot - to that extent, be possibly considered as a gift, so as to fall within the purview of s. 56(2).
The expenditure having been admittedly incurred by the assessee, it is only he who can therefore furnish information in its respect, furthering his case in the matter. That sec 69C may have applicability where the source of the expenditure, incurred during the current year, is not proven, is a different matter altogether. At the same time, in the absence of the assessee showing the factum of the expenditure incurred by him, i.e., failing to exhibit the same, its mention in the deposition by the ‘donor’ is merely a surreptitious mention, to therefore no legal effect. We have already clarified that where the expenditure is to a part extent, the balance shall operate to be a gift, qualifying as such, which though would not be a gift in contemplation of death.
Purchases in cash u/s. 40A(3) - assessee’s case is that in all cases the payments were for business expediency; the sellers’ insisting on the same, so that in case of non-payment thus, he would stand to loose business - HELD THAT:- The section is cast in near absolute terms, with the excepting categories provided for under proviso to s. 40A(3A), stating the consideration of, inter alia, business expediency, per r. 6DD. The assessing authority has clearly stated that none of these excepting circumstances, which are exhaustive, are applicable in the facts and circumstances of the case, with the CIT(A) finding no reason to, in view of the undisputed facts, differ with him. There is no estoppel against law. The terms of a contract must therefore yield to the law, made explicit per s. 40A(4). Rather, any contract which is inconsistent with the public policy or the express provision of law is not valid in law. The plea that the sellers insisted on cash payment – itself unproved, is thus not a legally valid argument, even as pointed out by the AO with reference to s. 40A(4).
We find no infirmity in the invocation of the provision by the Revenue in the instant case. There is no excess of the legislative intent or abuse of the judicial process in the instant case. We decide accordingly, and the assessee fails.
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2017 (1) TMI 1835
Termination of services - entitlement to be allowed to successfully complete the period of probation - qualification requirements for the post of Senior Stenographer - HELD THAT:- The submission of learned counsel for the respondent NBCC that the petitioner had accepted the offer of appointment knowing full well about the condition, cannot put the petitioner in an in advantageous position, inasmuch as, the petitioner admittedly was searching for his bread and butter, and he was not in the equal footing with the NBCC for negotiation. He was offered the appointment letter with that condition, and he had no option but to accept the same, otherwise the only consequence that was to follow, was that the petitioner, who is a visually handicapped (partially blind) person, had to loose his job. The NBCC is a 'State' within the meaning of Article-12 of the Constitution of India, and it was not expected from it to impose such arbitrary and unreasonable conditions, unless it is the case of the NBCC, that it is the normal practice in the NBCC that all the Sr. Stenographers are required to pass the proficiency tests in shorthand and typing in both the languages, which fact is neither pleaded nor argued.
The imposition of the condition in paragraph 16 of the offer of appointment dated 16.1.2008, as contained in Annexure-3 to the writ application, requiring the petitioner to qualify in the test in English shorthand and typing as well, is absolutely illegal and arbitrary and cannot be sustained in the eyes of law, which we hereby, quash. The impugned order passed by the Central Administrative Tribunal, only so far as it directs that the period of probation of the petitioner shall continue and he shall not be entitled to get any increment and promotion in future so long as he fails to clear the proficiency test in English shorthand and typing, is also hereby, set aside.
This writ application is accordingly, allowed.
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2017 (1) TMI 1834
Classification of goods - prickly heat powder sold under the brand name Nycil - Constitutional Validity - words "including medicated talcum powder" as found in Entry 127 of the First Schedule to the Kerala General Sales Tax Act, 1963 during the period from 01/04/1992 to 31/12/1999 and the words "including medicated talcum powder" as found in Entry 144 to the KGST Act during the period from 1/1/2000 to 31/3/2005 - violative of Articles 14, 19(1)(g) and 265 of the Constitution of India or not - HELD THAT:- From 01/4/92 to 31/12/1999, under Sl. No. 79, medicines and drugs including allopathic, ayurvedic, homeopathic, sidha and unani preparations and glucose I.P. were taxed at 8%, whereas under Sl. No. 127, shampoo, talcum powder including medicated talcum powder, sandalwood oil, ramacham oil, cinnamon oil and other perfumeries and cosmetics not falling under any other entry in the schedule was taxed at 20%. From 1/1/2000, Sl. No. 127 had been changed to 144 and the tax was imposed at 20%. It is apparent from the Schedule that the rate of tax is not fixed on the basis of HSN Code whereas rate of tax has been specified based on specific entry made in the Schedule. The petitioner's product apparently is a medicated talcum powder and it is so found by Division Bench of this Court in S.T. Revn. Nos. 164/2007 and 172/2008 [2008 (9) TMI 845 - KERALA HIGH COURT].
It is settled law that a legislative provision cannot be struck down by this Court lightly. Fiscal measures adopted by the Government in a taxing statute cannot be termed as arbitrary, however, harsh it may be. Despite contending that the provision is unconstitutional, no facts are placed to arrive at such a finding.
This Court will not be justified in interfering with the Entry by which medicated talcum powder has been included in the Schedule to the KGST Act by which tax is levied at 20% - there are no reason to grant the reliefs prayed for -- petition dismissed.
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2017 (1) TMI 1833
Exemption u/s 11 in view of amended provisions of section 2(15) - surplus earned from business activities of Micro Financing - HELD THAT:- As decided in own case [2016 (11) TMI 1759 - ITAT CUTTACK] 2011-12 Tribunal while adjudicating the issue held that the undisputed facts are that the assessee is a society registered u/s 12A of the I.T.Act. During the year under appeal, the assessee was, inter alia, engaged in the activity of “micro finance”. In this activity, the assessee secured loan from banks and advanced loan to Self Help Groups as also carried out in earlier years. CIT (A) held that the surplus generated is eligible for deduction u/s. 11 of the Act. In holding so, ld CIT (A) followed the orders of his predecessors passed in the case of the assessee itself for the earlier assessment years 2009-10 and 2010-2011.
Before us D.R. could not point out that the orders passed in the earlier years by the ld CIT (A) were reversed by any higher authority on an appeal filed there against. Also further find that in view of the decisions of Bharatha Swamukhi Samsthe [2008 (12) TMI 310 - ITAT BANGALORE] and Spandana (Rural & Urban Development Organisation) [2010 (2) TMI 1166 - ITAT VISAKHAPATNAM] the activity under consideration falls under the expression “relief to poor” as envisaged under section 2(15) of the Act. Therefore, simply because an activity undertaken in commercial line in pursuance to furtherance of the object of society to poor does not make the activity non-charitable within the meaning of section 2(15) of the Act. No good reason to interfere with the conclusion of the ld CIT (A). Hence, this ground of the revenue is dismissed.
Disallowance of provision of loan loss as the same has neither been expended nor any amount loan has become bad during the previous year - Revenue has brought no material on record to show that the provision of bad debt was not bonafide. Therefore, as relying on National Association of Software and Services Companies [2012 (5) TMI 204 - DELHI HIGH COURT] find no good and justifiable reason to interfere with the order of the CIT (A), which is hereby confirmed. Hence, this ground of appeal of the revenue dismissed.
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2017 (1) TMI 1832
Validity of additions based on valuation report - Referring the matter to DVO without first rejecting the books of account - Whether ITAT erred in holding that the books of account has to be rejected before referring to the D.V.O. u/s 142A? - HELD THAT:- A similar question has already been decided by this Court against Revenue in M/s Sahyog Jan Kalyan Samiti, Kanpur) decided [2016 (9) TMI 1668 - ALLAHABAD HIGH COURT]following Supreme Court judgment in Sargam Cinema [2009 (10) TMI 569 - SC ORDER] wherein held Matter could not refer to the Departmental Valuation Officer without the books of account being rejected. Decided in favour of assessee.
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2017 (1) TMI 1831
Revision u/s 263 - CIT found Default in assessment completed u/s 153A - CIT directed the Assessing Officer to pass fresh assessment order as it is clear negligence of the AO ignoring the material document found and seized, which become the base for invoking the provisions of section 263 - HELD THAT:- As relied on by assessee in the case of Shri V.R. Venkatachalam v. ACIT (2015 (7) TMI 736 - ITAT CHENNAI), it was a fact that the AO proposed that the assessment completed u/s 153A be revised u/s 263 as the AO could not examine the issues due to paucity of time. After invoking of jurisdiction u/s 263 CIT directed the AO to pass fresh assessment order which was completed under section 153A r.w.s. 143(3) of the Act though there was no incriminating materials found during the course of search under section 132 of the Act. Therefore, after considering the entire facts of the case, and when the ld. CIT himself agreed that findings for assessment year 2006-07 having cascading effect on the subsequent assessment years i.e., from 2007-08 to 2012-13, the Tribunal annulled the orders passed u/s 263 of the Act and allowed the appeals of the assessee.
The above case relied on by the ld. Counsel for the assessee has no application to the facts of the present case because, in the present case, the ld. PCIT has independently, on verification of assessment records found that the information contained in the seized document which was seized during the course of search under section 132 of the Act has been omitted by the Assessing Officer while framing the assessment under section 143(3) r.w.s. 153A of the Act dated 15.03.2014.
Thus PCIT has rightly invoked the provisions of section 263 of the Act and directed the Assessing Officer to redo the assessment. We find no infirmity in the order passed by the ld. PCIT and accordingly, the ground raised by the assessee is dismissed.
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2017 (1) TMI 1830
Deduction u/s. 80IA - Assessee company a developer OR contractor - As argued assessee company has not made an agreement with Central or State Government, local authorities or any other statutory body for the purpose of developing infrastructure facility as required under the law and relied on the CBDT circular no. 717 issued in August, 1995, and came to a conclusion that due to financial, managerial hardship of the Government by applying commercial principles in operation of infrastructure facilities for massive expansion and qualitative improvement in infrastructure of the company - HELD THAT:- AO main contention that the assessee is only the contractor and not a developer but the person who develops the infrastructure facilities pursuant to contract with the State Government shall be considered as developer. We found the co-ordinate bench decision of East Coast Constructions [2011 (9) TMI 1091 - ITAT CHENNAI] and BT Patil [2013 (11) TMI 197 - ITAT PUNE] and Om Metal Infra Projects (2008 (12) TMI 744 - ITAT JAIPUR) and ABG Heavy Industries Ltd. [2010 (2) TMI 108 - BOMBAY HIGH COURT] has considered similar activities performed by the assessee company is developing infrastructure i.e., conceptualization of designs, Level of investment should be considered to be called as developer.
We found that the assessee company undertakes the entire responsibility from concept to Commissioning of developing the entire facility. Based on customer specifications, conceives the designs and technical plans, chooses the technology required for treatment of the effluents and executes the project through a skilled team of more than 250 - 300 engineers. The work performed includes the basic design of the plant, detailed engineering, procurement of equipment and components, delivery of supplies at site, civil construction of the structure, installation of equipment at site, interfacing through piping and cables, testing and commissioning and subsequent O&M.
Thus assessee has demonstrated the investments of the company in project from the assessment year 200-03 to 2007-08 consisting of Receivables, margin money with the bank, and Bank guarantees for performance guarantee. These financial aspects prove that the assessee company has funded finances in infrastructure and execution of projects. We are of the opinion that the assessee has complied the conditions u/s. 80IA(4) of the Act and demonstrated the funding of the projects with financial statements. Decided in favour of assessee.
Forex exchange loss - Whether foreign currency is held as a capital asset or as fixed capital such profit or loss would be of capital nature? - HELD THAT:- We find the loss due to forex exchange difference as on the date of balance sheet is expenditure falls u/s. 37(1) of the Act. The outstanding liability relating to the import of raw material based on closing rate of foreign exchange and if any difference by loss or gain arising on conversion liability should be routed through profit and loss account. Hence, we do not find any infirmity in the order of the CIT(A) and upheld the same and dismiss the ground of the Revenue. In the result, the Revenue appeal is dismissed.
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2017 (1) TMI 1829
Interference with the process issued against the accused Respondents on the private complaint filed by the wife of the deceased Bapu Nivrutti Gund - Probity of evidence - HELD THAT:- The High Court in the impugned judgment seems to have embarked on a virtual trial of the case though it was entertaining an application Under Section 482 Code of Criminal Procedure/Article 227 of the Constitution of India for quashing of the order taking cognizance and the complaint as a whole. The probity of the evidence tendered by the complainant's witnesses prior to issuance of process was even gone into by the High Court.
Having regard to the settled principles of law, the approach of the High Court not considered to be correct in law. At the stage at which the case was poised for consideration, it was beyond the jurisdiction of the High Court to have embarked upon the exercise that was undertaken. As the same appears to be in clear excess of jurisdiction, the order of the High Court is set aside and it is directed that the complaint proceedings against the accused Respondents be continued from the stage where the same was interdicted.
The order of High Court set aside - appeal allowed.
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2017 (1) TMI 1828
Applicability of provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 - land is acquired under the provisions of KIAD Act - HELD THAT:- The entire move on the part of the Appellants was bonafide one, though there was an accidental slip on their part that insofar as Respondents are concerned, no consent to the amount of compensation fixed was given by them. It appears that the Appellants-authorities did not proceed further to determine the compensation in respect of Respondents' land as they nurtured a bonafide belief that with the fixation of compensation as per the Minutes dated 9th September, 2005 all the land owners, including the Respondents, had agreed with the same and, therefore, no further exercise was required. Had the Appellants-authorities been more careful, they would have noticed that insofar as Respondents herein are concerned, they are not the consenting parties. In that event, they could have brought them on board with other land owners by taking their specific consent as well or proceeded further Under Section 29(3) of the KIAD Act.
Taking these factors into consideration, the learned Single Judge vide his judgment dated 9th November, 2012 permitted the Appellants to proceed on the basis of the Gazette notification dated 15th June, 2005 acquiring the land and determine the compensation by making an award in this behalf. By this process, Appellants were allowed to proceed afresh to determine the compensation Under Section 29(2) of the KIAD Act by reaching an agreement with the Respondents, and failing which to refer the case to the Deputy Commissioner Under Section 29(2) for determination of the amount of compensation. The learned Single Judge, by adopting this course of action, specifically rejected the contention of the Respondents herein to quash the proceedings.
The Division Bench of the High Court by the impugned judgment, however, has quashed the acquisition proceedings itself holding that they have lapsed. For this purpose, the High Court has taken aid of Section 24 of the New LA Act - This approach of the High Court is found to be totally erroneous. In the first instance, matter is not properly appreciated by ignoring the important aspects mentioned in para 24 above. Secondly, effect of non-applicability of Section 11A of the Old LA Act is not rightly understood.
Having regard to the aforesaid raison d'etre for non-application of the Old LA Act, on the parity of reasoning, provision of Section 24(2) of the New LA Act making Section 11A of the Old LA Act would, obviously, be not applicable.
The view taken by the learned Single Judge was correct in law which should not have been interfered with by the Division Bench in the impugned judgment. It is significant to state that insofar as direction of the Single Judge is concerned that was accepted by the Appellants herein, as the Appellants did not challenge the same. It is the Respondents which had filed the intra court appeal. Thus, Appellants by their aforesaid conduct, are satisfied with the order of the learned Single Judge in directing them to determine the compensation.
The direction passed by the Single Judge with a direction to the Appellants authorities to fix the compensation in accordance with the provisions of Section 29 of the KIAD Act, restored - appeal allowed.
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