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Showing 81 to 100 of 1842 Records
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2017 (1) TMI 1767
Revision u/s 263 - withdrawn the claim of deduction u/s. 10A - Revision on on the strength of the statement recorded at the time of survey proceedings - HELD THAT:- We find that the business activities of the assessee fit into the eligibility criteria for claiming the impugned deduction as per the above notification. We find that on the basis of certain discussion at the time of survey proceedings, the assessee formed a belief that she is technically wrong in claiming exemption u/s.10A of the Act which triggered for her request of withdrawal of the claim of deduction.
In our understanding of the facts relating to the business activities of the assessee qua the statement recorded at the time of survey, the assessee under a mistaken belief has accepted to withdraw the claim of deduction which she was otherwise legally entitled.
Commissioner should not have invoked the powers vested upon him u/s. 263 of the Act merely on the strength of the statement recorded at the time of survey proceedings. A conspectus reading of the statement recorded at the time of survey shows that there is no concession on fact. The concession is only in relation to the law and that too was under a wrong belief.
Commissioner further erred in directing the A.O. to withdraw the claim of deduction in subsequent assessment years also i.e. A.Ys. 2008-09, 2009-10 & 2010-11.
In our considered opinion, the ld. CIT ought to have verified independently the eligibility of the claim and the deduction permissible to the assessee. Considering the business activities of the assessee as explained during the course of the survey proceedings, in our understanding of the law, the assessee was very much eligible for the claim of deduction u/s. 10A - Decided in favour of assessee.
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2017 (1) TMI 1766
Assessment u/s 153A - addition of sundry creditors - HELD THAT:- We find that issue is covered in favour of the assessee by order of ITAT Chandigarh Bench in the group cases of the assessee namely M/s Heera Moti Agro Industries etc. [2016 (9) TMI 1318 - ITAT CHANDIGARH] in which the orders of authorities below were set aside and matter was restored to the file of Assessing Officer with direction to re-decide this issue by following the reasons for decision given by ld. CIT(Appeals) for assessment year 2003-04 whereby addition on identical issue have been deleted. The orders of authorities below are set aside and issue is remanded to A.O. The A.O. is, therefore, directed to follow order of the Tribunal in the case of M/s Heera Moti Agro Industries (supra) who shall re-decide this issue accordingly as is directed in this case. These grounds of appeal of the assessee are accordingly, allowed for statistical purposes.
Addition u/s 69A - Bogus purchases - unrecorded purchases on the basis of document No. 26 of Annexure A-23 of Delta 7 - HELD THAT:- As addition under section 69A could be made of unexplained income which is not recorded in the books of account and source of the same have not been explained. The facts noted above clearly show it was a credit purchase which according to submission of the assessee was rejected because it was of poor quality. Any how, when credit purchase is entered into books of account of M/s Heera Moti Spices Product and no payment have made by assessee and no further inquiry have been conducted from this party whether any payment have been made by assessee, the transaction remained of credit purchase which is also clear from the ledger account of the seller party as well as entry in the books of account of the assessee. In the absence of any payment proved by the Assessing Officer, it cannot be considered to be a case of unexplained money generated by the assessee. The assessee further explained before the ld. CIT(Appeals) that during the search, trading account was drawn up and closing stock was worked out in which no discrepancy was found by the search party as well and no adverse inference was drawn. These submissions of the assessee have no been rebutted by the authorities below therefore, no addition under section 69A could be made.
Addition based on seized documents - unexplained cash receipts - HELD THAT:- The document recovered during the course of search in the instant case was a dumb document. Thus, Tribunal rightly deleted the addition made by the Assessing Officer on account of undisclosed income on the basis of seized material.” The same facts are noted by Assessing Officer in the assessment order as per seized document. Therefore, in the absence of any evidence on record as to how Assessing Officer concluded that these figures are in lacs, it appears that the seized paper is dumb document, therefore, no addition should be made of this nature against the assessee. We, therefore, following decision of the Delhi High Court in the case of Girish Chaudhry [2007 (5) TMI 176 - DELHI HIGH COURT] and in the facts and circumstances of the case, set aside the orders of authorities below and delete the entire addition.
GP estimation - non rejection of books of accounts - addition by applying higher GP of 2.5% - HELD THAT:- Each year is separate year and merely because assessee agreed for addition in assessment year 2003-04, is no basis to make the addition against the assessee by enhancing the GP in subsequent years. Since books of account of the assessee have not been rejected, therefore, trading results cannot be disturbed by enhancing the GP. Further, the Assessing Officer compared GP of assessee from assessment year 2003-04, Assessing Officer ignored the fact that in preceding assessment year 2007-08, GP ratio of the assessee was 16.58% and in assessment year 2008-09, GP is 15.74% and there is no peak difference between the GP. Further, in preceding assessment year 2007-08, NP rate declared by the assessee was 1.36% and NP rate in assessment year under appeal 2008-09 is 2.36% which is higher as compared to the earlier year. Therefore, on these basis itself, addition is wholly unjustified. The ld. CIT(Appeals) in his findings admitted that assessee is in the business of manufacturing and trading of Masalas so maintenance of quantity details may not be feasible. Therefore, there was justification for not providing quantitative details/stsock.
The submissions of the assessee have not been rebutted through any evidence on record. The assessee also submitted before ld. CIT(Appeals) that search party had taken out inventory of the stock which was compared with the trading account drawn as on the date of search but no discrepancy had been found. Thee submissions of the assessee have also not been rebutted by the authorities below. Therefore, considering the above discussion and the totality of facts and circumstances, we are of the view addition is unjustified by enhancing GP rate by 2.5%. The orders of authorities below are, accordingly, set aside the addition is deleted on account of applying enhanced GP of 2.5%. This ground of appeal of the assessee is allowed.
GP Addition - seized papers contain the details of “amount jama” and “amount naam” - HELD THAT:- As against first seized paper, amount of ₹ 5 lacs have been shown as ‘Jama’ and against ‘naam’ payable amount of ₹ 20,12,955/- has been shown. The interest is also noted in the second seized paper. As against amount ‘jama’ in second paper, amount of ₹ 10 lacs have been shown and the amount of ₹ 19,31,819/- have been shown as amount ‘naam’ i.e. ‘payable’ and interest. Since no amount is paid by the assessee, therefore, payable amount could not be added against the assessee. Further, there is no evidence found of any interest paid by the assessee. Therefore, these additions would be wholly unjustified. However, the amount of ₹ 5 lacs and ₹ 10 lacs have been shown as amount ‘jama’ in both seized paper meaning thereby assessee paid this amount to the concern partly who have prepared the seized paper. Since assessee failed to explain the seized paper which were found from the possession during the course of search, therefore, ‘jama’ amount shall have to be considered as amount paid by the assessee to a third party. Therefore, addition to the extent of ₹ 15 lacs (5+10) shall have to be maintained. The assessee also failed to explain as to how GP rate should be applied on these transactions. As against the amount noted against ‘naam’ i.e. payable and interest, no evidence was found against the assessee that these amounts have been paid by the assessee. Further, the payable itself shows that no amount have been paid by the assessee against the narration ‘naam’. Addition cannot be made.
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2017 (1) TMI 1765
Disallowance u/s.14A r.w. Rule 8D of the I.T. Rules - Sufficiency of own funds - HELD THAT:- Since in the instant case admittedly the own capital of the assessee is much more than the investment towards capital in the partnership firms and shares of Indian Companies the income of which is exempt from tax, therefore no disallowance u/s.14A in the instant case is called for. We, therefore, set aside the order of the CIT(A) and direct the Assessing Officer to delete the disallowance made by him u/s.14A of the I.T. Act. Ground raised by the revenue is accordingly dismissed and the ground raised by the assessee on this issue is allowed.
Addition of capital gain - transfer of the capital asset and performance of various obligations - Co-ownership in asset - HELD THAT:- Admittedly the assessee along with other co-owners was having land admeasuring 70 acres situated at Wagholi and was not having 108 acres of contiguous land that had been agreed upon to be sold at the relevant time. Further the sale deed contained certain obligations on the part of the assessee and the co-owners to be fulfilled and the assessee has received only 50% of the consideration during the impugned assessment year.
We find from the letter addressed by Mr. Atul Chordia, Director of Wagholi Properties Pvt. Ltd.,in response to notice u/s.226(3) for recovery of dues in case of the assessee, he has categorically stated that the balance amount of ₹ 17.01 crores is payable only after fulfillment of certain conditions mentioned in the agreement. In our opinion, the contents of the agreement has to be read as a whole and the revenue cannot re-write the agreement.
As in the instant case the right to receive the consideration is on fulfillment of certain obligations. Further, the assessee has offered the balance amount to tax in A.Y. 2014-15 as business income - we are of the considered opinion that assessee is liable to capital gain tax only on 50% of the consideration that has been received during the year. We, therefore, set aside the order of the CIT(A) and allow the grounds raised by the assessee.
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2017 (1) TMI 1764
Retrial of the case - whether there was serious irregularities in the prosecution case thereby necessitating retrial and whether the irregularities pointed out by the High Court are such as resulting in miscarriage of justice thereby constraining the High Court to set aside the judgment of the Sessions Court and direct for retrial? - HELD THAT:- In ZAHIRA HABIBULLA H SHEIKH AND ANR. VERSUS STATE OF GUJARAT AND ORS. [2004 (4) TMI 629 - SUPREME COURT], [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat.
The High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the Accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. The High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained.
The matter is remitted back to the High Court for consideration of the matter afresh - Appeal allowed by way of remand.
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2017 (1) TMI 1763
Appointment of Shri Karnail Singh, IPS, to the post of Director, Enforcement - Compliance with Fundamental Rule 56 or not - Section 25 of the Central Vigilance Commission Act, 2003 - HELD THAT:- A perusal of Clause(d) of Section 25 reveals, that the appointment of the Director, Enforcement could not be for a period less than two years from the date on which an incumbent assumes his office.
A statutory rule can never override a legislative enactment, and as such, the date of superannuation would have no consequence whatsoever with reference to Clause (d), which is explicit and clear - The mandate contained in Section 25 of the Act, leaves no room for any doubt, that even if there had been a legislative enactment to the contrary, the instant provision, mandating a period of not less than 2 years, from the date on which the incumbent assumes office, could not have been varied.
The instant petition is disposed of with a direction to the respondent – Union of India to issue a fresh order of appointment, in consonance with, and in compliance of Section 25(d) of the Act, within one week from today.
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2017 (1) TMI 1762
Deduction u/s 54 - new residential Flats as been purchased jointly in the name of the assessee and that of her daughter, had thus rightly been restricted by the CIT(A) to the extent of 50% of the total investment - HELD THAT:- In light of the binding force of the judgment of the Jurisdictional High Court in the case of Prakash Vs. ITO [2008 (9) TMI 234 - BOMBAY HIGH COURT] the entitlement of the assessee towards claim of deduction u/s 54, in light of the fact that the aforesaid new residential Flats No. 1508 and 1509 had been purchased jointly in the name of the assessee and that of her daughter, had thus rightly been restricted by the CIT(A) to the extent of 50% of the total investment at ₹ 83,08,250/- (i.e. 50% of ₹ 1,66,16,500/-). Thus finding no reason to take a different view, we herein uphold the order of the CIT(A) and dismiss the appeal of the assessee.
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2017 (1) TMI 1761
Determination of the levy under Section 115QA - ‘buy-back’ under Explanation (i) to Section 115QA (1) - petitioner claims an interim order to suspend the demand made - as per revenue nature of the buyback far exceeds the stipulations, that has been ever applied to the petitioner had it proceeded under Section 77A of the Companies Act. In these circumstances, being a devise, the Revenue was entitled to ignore it and subject the transactions to levy - HELD THAT:- The non-obstante clause in Section 115QA of the Act restricts the nature of the levy to the transactions defined by the provision itself. The transactions defined are those covered by Section 77A of the Companies Act. Significantly, the Parliamentary intent to cover all manners of share acquisition by the Company of its own shares, is evident from a subsequent amendment to Section 115QA of the Act, when it explained the meaning of ‘buy-back’ in the First Explanation by not alluding merely to Section 77A of the Companies Act but all other provisions of law. That this provision was not given retrospective effect, in this Court’s opinion, further strengthens the petitioner’s submissions.
In view of these prima facie reasons, the Court is of the opinion that the impugned demand to the tune it seeks to recover levy under Section 115QA of the Act should not be enforced till the next date of hearing. It is so directed. List on 28.03.2017.
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2017 (1) TMI 1760
Disallowance of claim of loss from pension fund business - HELD THAT:- As the amended provisions of section 10(34) of the Act, whereby the words “other insurer engaged in pension fund” are included, we find that the finding of the CIT (A) on the first issue is fair and reasonable. As such, the judgment of the Hon‟ble High Court of Bombay in the case of LIC of India Ltd [2011 (8) TMI 47 - BOMBAY HIGH COURT] is directly on the issue. Accordingly, the claim of the loss of Pension Fund is an allowable claim
Treatment to dividend income exempt u/s 10(34) of the Act qua the exclusion for computation of income of insurance business - HELD THAT:- Qua the provisions of section 44 of the Act, we find that the finding of the CIT (A) in para 5.3 of his order is fair and reasonable as the same is taken based on the various binding judicial precedents in the cases of LIC vs. Addl. CIT. [1977 (11) TMI 25 - BOMBAY HIGH COURT], ICICI Prudential Insurance vs. ACIT; [2012 (11) TMI 13 - ITAT MUMBAI], and SBI Life Insurance Company Ltd vs. CIT etc [2014 (5) TMI 1067 - ITAT MUMBAI] Accordingly, we affirm the order of the CIT (A) on this issue too. Thus, both the issues raised by the Revenue are allowed in favour of the assessee.
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2017 (1) TMI 1759
Addition for the losses incurred by the appellant - certain transactions ending up with loss entered into with three parties namely Aryavart Commodities Pvt. Ltd. (ACPL), Jay Jewellers and S. K. Jewellers in relation to sale of gold items - Assessee is in the business of trading in gold, silver, bullion, gold ornaments and diamonds - CIT(A) making detailed submissions which mainly emphasized on the fact that the impugned transactions entered into with the above referred three parties are not covered under the provisions of section 40A(2)(b) of the Act as these three parties are not sister concerns falling under the provisions of section 40A(2)(b) - HELD THAT:- We find that during the course of assessment proceedings ld. Assessing Officer selected 15 transactions out of which one each was Jay Jewellers and S. K. Jewellers and 13 transactions with ACPL. All these 15 transactions took place between 3.11.2008 to 28.3.2009 having one common factor that in all these 15 transactions gold bars purchased during the day were sold at a lower rate giving rise to losses.
Assessing Officer ignoring the assessee’s submissions that the gold prices are very volatile and the impugned transactions were entered in the normal course of business took a view that assessee has been unable to justify that there was actually so much fluctuation in the gold and diamond market in these days due to which sales were made at such lower prices. Ld. Assessing Officer also took a view that these three impugned parties are related/sister concerns of the assessee and losses have been intentionally manipulated by the assessee
From going through the series of judgments of Hon. Supreme Court and Hon. Jurisdictional High Court it contemplate that if there is no challenge to the transactions entered in the books or to the genuineness of the entries, then it is not open on the side of Revenue to contend that what is shown in the transactions/entries is not the real state of affairs. In the instant case also we find that Revenue has miserably failed to make any attempt or to prove that entries made in the books are not genuine nor any other adverse material has been placed on record to show that the impugned loss was false and assessee has received more consideration than the actual transaction of sale. Further even in the independent enquiries conducted on the alleged three parties it ended up without giving any iota of evidence against the assessee as the same have nowhere been highlighted in the assessment order
AO was erroneous as he has selected only few transactions on which only loss has incurred without giving cognizance to the fact that assessee has gained in other transactions with the impugned parties which are very well evidenced with the independent itemwise transaction details forming part of the books of account of assessee - AO also failed to point out any mistake in the alleged transactions except mentioning that the loss has been incurred. He completely failed to appreciate that every assessee has his own style of doing business and more specifically in the kind of business assessee is entered into it is well established that there is regular fluctuations in the prices of gold/silver/diamonds and jewellery due to which profit/loss are incurred.
In the present case when the assessee is maintaining regular books of account which are audited and all transactions are fully supported by bills and vouchers, impugned transactions have taken place through banking channels, confirmations have been received from the alleged parties no adversity has been found in the statements recorded by the Revenue of the alleged parties, quantitative records are regularly maintained, similar transactions have not been disputed even in the subsequent assessment u/s 143(3) of the Act as supported by the copy of the order u/s 143(3) of the Act for Asst. Year 2012-13 framed on 13.2.2015. We, therefore, hold that the impugned 15 transactions giving rise to loss are genuine and cannot be termed as colourable with the intention of evasion of tax - Decided in favour of assessee.
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2017 (1) TMI 1758
Disallowing interest paid on borrowed funds by assessee to the extent interest free loan given for the purpose of business - HELD THAT:- We are of the view that the observation of the AO that the assessee had advanced loans even before assessee had became a major share-holder is factually incorrect. The submission of the assessee that to diversify into new business, Sentosa Resorts Pvt Ltd was formed and the assessee has advanced loans to it on account of commercial expediency has not been controverted by Revenue by placing any material on record.
In the case of S.A. Builders Limited [2006 (12) TMI 82 - SUPREME COURT]has held that the expression “commercial expediency” is of one wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. It further held that the expenditure may not have been incurred under any legal obligation but yet it is an allowable business expenditure if it was incurred on grounds of commercial expediency. It held that the true test is whether the amount advanced to subsidiary or associated company or any other party was advanced as a measure of commercial expediency. If so, interest was deductible - no disallowance of interest could have been made by AO. We therefore set aside the order of AO and thus, the ground of assessee is allowed.
Disallowing expenditure u/s 14A & Rule 8D - there is no tax free income claimed in the return filed to appreciate various case laws brought to their notice during the assessment proceedings - HELD THAT:- Presumption of investments to be out of interest free funds is established and therefore no disallowance on account of interest could be made by invoking the provisions of Sec.14A r/w Rule 8D of IT Rules 1962. As far as the disallowance of other expenses under Rule 8D is concerned, it is assessee’s submission that the investments on which the disallowance u/s 14A has been made has not yielded any tax free income The aforesaid submission of the assessee has not been controverted by the Revenue. We find that ld. CIT(A) has relied upon CBDT Circular No.5/2014 dated 11.02.2014 to hold that even when assessee has not earned any tax free income, provisions of Sec.14A are applicable. At the same time we find that the Hon’ble Delhi High in the case of Cheminvest Ltd. Vs. CIT reported in [2015 (9) TMI 238 - DELHI HIGH COURT] has held that provisions of Sec.14A will not apply if no exempt income is received or receivable during the relevant previous year. We are of the view that no disallowance of u/s 14A could be made in the present case. Thus, this ground of the assessee is allowed.
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2017 (1) TMI 1757
Jurisdiction - impugned order has been passed by an Officer, who was not vested with the jurisdiction to hear and adjudicate upon the matter - Absolute Confiscation - Gold Bits - HELD THAT:- The Commissioner of Appeals and the Joint Secretary of the GOI, who exercised the power of the revisional authority, hold the same rank.
Having regard to the observations made in M/S NVR FORGINGS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 7 - PUNJAB AND HARYANA HIGH COURT], where it was held that the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law, the contention of the petitioner will have to be sustained.
Petition disposed off.
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2017 (1) TMI 1756
Validity of G.O. Ms. No. 186 Co-operation Food & Consumer Protection Department dated 16.08.2000 - review of common order - seeking direction to respondents to allow the salary and other allowances including terminal benefits in terms of the concluded settlement under Section 12(3) of the Industrial Disputes Act 1947 - HELD THAT:- Tamil Nadu Co-operative Societies Rules, 1988, have been framed in exercise of powers conferred by sub-section (1)(2) & 3 of Section 180 of Tamil Nadu Co-operative Societies Act, 1983 [Tamil Nadu Act 30 of 1983] and in supersession of all the Rules made under Tamil Nadu Co-operative Societies Act, 1961 [Tamil Nadu Act 53 of 1961) and under the Tamil Nadu Co-operative Land Development Banks, 1934 (Tamil Nadu Act X of 1934). Rule 149 of the Tamil Nadu Co-operative Societies Rules, 1988, sets out the conditions of service etc. of paid officers and servants of societies - While framing Rule 149, Government have dealt with cadre strength, classification of various categories of posts, qualifications required thereof, for each post, method of recruitment, minimum time scale of pay, the authorities competent to impose punishment etc., Bare reading of Rule 149, as it stood in 1988, in our view, does not indicate that the government have conferred any right on the society, to fix time scale of pay to any post, classified in Rule 149.
From 1995 onwards, every society was mandated to frame, special bye-laws, with the prior approval of the Registrar of the Co-operative society. Subsequently, Rule 149(1) has been amended by G.O.(Ms). No. 373, Cooperation, Food and Consumer Protection (CJ1) Department, dated 29.10.2002, by which the expression in Rule 149(1) "with the prior approval of the Registrar", has been substituted with the expression "with the prior approval of the Government" - Thereafter, Rule 149(1) of the Tamilnadu Co-operative Societies Rules, 1988, underwent another amendment in G.O.(Ms). No. 251, Co-operation, Food and Consumer Protection (CJ1) Department dated 07.08.2007, restoring the original position that the expression "with the prior approval of the Government", would be substituted, "with the prior approval of the Registrar".
Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam's case, [2008 (1) TMI 986 - MADRAS HIGH COURT] has been decided, considering the objects of the Co-operative Societies Act, 1983, rules made thereunder, directions issued by the Government from time to time, on the aspect of framing of special bye-laws for the purpose of classification of posts, scale of pay, etc., and taking note of the vital factors, nature of business, volume of transaction and financial position of the society - Analysising the judgment of Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam's case, we are of the considered opinion that Tamil Nadu Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam's case, has laid down the law to be followed, as a precedent and the observations made therein, cannot be said to be obiter dicta and therefore, the contention to the contra, are not tenable.
Thus, merely because, at paragraph No. 10 of the common order made in W.A. Nos. 1103 and 1104 of 2008 dated 25.09.2008, [2008 (9) TMI 1020 - MADRAS HIGH COURT] the Hon'ble Division Bench has used the expression, "with prior approval of the State Government" and not "with the prior approval of the Registrar", that would not give rise to a cause for review and set aside the common order, made in W.A. Nos. 1103 and 1104 of 2008 dated 25.09.2008. Usage of the expression, "with the prior approval of the Government" could have been made, due to an inadvertent typographical mistake. Typographical mistake, if any made, would not give rise to a cause to contend that the entire judgment has to be reviewed.
The appellants have not made out a strong case, to review of the common order - review application disposed off.
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2017 (1) TMI 1755
Correct head income - Classification of rental income received by the assessee from the commercial complex - Charging of rental income as Business income and allow the expenditure - HELD THAT:- As relying on M/S KEYARAM HOTEL PVT. LTD. AND VICE-VERSA [2016 (6) TMI 427 - ITAT CHENNAI] direct the Assessing Officer to assess 75% of the income of the assessee as income from house property and 25% as income from Business and allow the related expenditure and partly allowed the ground of the assessee.
Disallowance u/s 14A of the Act r.w.r. 8D - HELD THAT:- AO made disallowance u/s. 14A of the Act by fixed percentage 0.5%. Whereas, the Ld. CIT(A) considered these facts and Directed the Assessing Officer to re-calculate based on the provisions of section 14A r.w.r. 8D as they are mandatorily applicable. Therefore, we are not in inclined to interfere with the order of the CIT(A) and upheld the same and allow the ground of the assessee for statistical purpose
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2017 (1) TMI 1754
Claim made by the Appellants and Respondents in respect of two items of property - rightful possessor of property - HELD THAT:- The equity will work out in case each party is satisfied with one item. As far as the Respondent Nos. 1 to 5 are concerned, we are informed that they are residing there with a small house in 6 biswas of land. However, it is submitted that in case the Respondent Nos. 1 to 5 are given 17 biswas of land in Sector 4, Shimla, though according to them, the same is much less in value, the Respondent Nos. 1 to 5 are willing to give a quietus to the litigation, which started in the year 1985.
The Appellants shall be entitled to 6 biswas of land (Khasra No. 19/1 Village Pateog) along with structure thereon, if any, in Sector 2 of New Shimla and Respondent Nos. 1-5 shall be entitled to have 17 biswas of land (Khasra No. 600/25 and 602/25 Village Pateog Pargana Jajhot, Tehsil and District Shimla) in Sector 4 - The Respondent Nos. 1-5 shall handover vacant possession of the 6 biswas of land along with structure thereon, if any, within a period of ten months.
Appeal allowed.
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2017 (1) TMI 1753
Declining the leave to the Appellants to withdraw the suit - HELD THAT:- In the present case, the Appellants have filed the suit describing the suit property as Survey No. 192/9 but the Respondents are said to have transferred the patta for the suit property settling as Survey No. 192/14. The defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a "formal defect" within the meaning of Order XXIII Rule 1(3)(a) Code of Civil Procedure.
In the facts and circumstance of the case, the trial court considered the allegation set out in the application as a ground for withdrawal. The view taken by the trial court that the suit suffered from a formal defect to allow the Appellants to withdraw the suit with permission to institute a fresh suit, is correct. The High Court was not right in interfering with the discretion exercised by the trial court, permitting the Appellants to withdraw the suit with liberty to file a fresh suit.
The order of the trial court is restored with modification to the effect that the cost imposed on the Appellants is enhanced from ₹ 3,000/- to ₹ 10,000/- - appeal allowed.
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2017 (1) TMI 1752
Loss as a speculation loss - Loss as incurred on squaring off of erroneous trades executed on behalf of the clients and devolved on the appellant - allocation of expenses to the loss incurred on squaring off of erroneous trades - HELD THAT:- Looking at the turnover and assessee’s commission income, operational default by assessee’s huge staff cannot be held as unreasonable. The assessee’s total income is a loss and not a positive figure. The accounts are duly audited and follow the established rules and norms. The loss caused by operational default of the employees cannot be treated as loss on account of speculation activity of the assessee and such loss represents normal business exigencies. Such type of business exigencies cannot be assumed to be speculative activity so much to attract explanation to section 73.
Expenses incurred by the appellant relate to its normal broking activity - HELD THAT:- Since it is held that there no speculation activity carried on by the assessee consequently; there is no justification in disallowing the same expenditure assuming speculation activity. Besides assessee has demonstrated that expenditure disallowed represent institutional fees and other incidental expenses, which has not be factually disallowed by the authorities below. In view thereof, both the disallowances are deleted and the assessee’s grounds are allowed.
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2017 (1) TMI 1751
TDS u/s 194J - Addition u/s 40(a)(ia) - no TDS has been deduced on secondment charges under the head “Personnel cost” - HELD THAT:- As transaction charges paid by the assessee to the stock exchange constitute "fees for technical services" covered under section 194J of the Act and, therefore, the assessee was liable to deduct tax at source while crediting the transaction charges to the account of the stock exchange.
Since both the Revenue and the assessee were under the bona fide belief for nearly a decade that tax was not deductible at source on payment of transaction charges, no fault can be found with the assessee in not deducting the tax at source in the assessment year in question and consequently disallowance made by the Assessing Officer under section 40(a)(ia) of the Act in respect of the transaction charges cannot be sustained. We make it clear that we have arrived at the above conclusion in the peculiar facts of the present case, where both the Revenue and the assessee right from the insertion of section 194J in the year 1995 till 2005 proceeded on the footing that the assessee is not liable to deduct tax at source and in fact immediately after the assessment year in question, i.e., from the assessment year 2006-07 the assessee has been deducting tax at source while crediting the transaction charges to the account of the stock exchange.
We also find that the issue is covered by the decision of ITAT, Bangalore bench in the case of IDS Software Solutions (India) (P) Ltd. [2009 (1) TMI 363 - ITAT BANGALORE-A] wherein the facts discussed as regards to where the assessee entered into a secondment agreement‘ with a US Company and obtained the services of an employee and the question arose whether the reimbursement by the assessee to the US Company of the salary paid by the US Company was chargeable to tax as - fees for technical services.
As held that though the US Co was the employer in a legal sense but since the services of the employee had been seconded to the assessee and since the assessee was to reimburse the emoluments and it controlled the services of the employee, it was the assessee which for all practical purposes was the employer. Accordingly, the salary reimbursed to the US Co was not chargeable to tax. Though the person deputed by the US Co was a technical person, the consideration paid under the secondment agreement was not ―fees for technical services‖ because the fact that the seconded employee was responsible and subservient to the payer (assessee) and was required to also act as officer or authorized signatory or nominee of the assessee made it inconsistent with an agreement for providing technical services.
Compensation from customers - assessee was following mercantile system of accounting, and hence, the compensation receivable from the customers was required to be accounted on accrual basis - HELD THAT:- Assessee stated that this issue has already been remitted back to the file of AO in the immediate preceding year exactly on identical facts by Tribunal in assessee‘s own case [2014 (1) TMI 536 - ITAT MUMBAI] for Asst. Year 2008-09 and on similar line if the issue is remitted back to the file of the AO that will suffice the matter. On query from the bench, ld. Sr. DR has not objected to the stand of the assessee. Hence, we direct the AO to decide the issue in term of the principles laid down. This issue of revenue‘s appeal is allowed for statistical purposes.
Disallowance u/s 14A r.w.r.8D(2)(ii) - assessee‘s suo-mottu disallowance being expenditure for earning the exempt income by the assessee - As submitted before us by the ld.AR that the bank charges were deducted by the banks for the various transactions/collections of money entered into in the ordinary course of business and in no way constituted the part of interest expenses as per the provisions of section 2(28A) - HELD THAT:- We are of the opinion that the interest for the purpose of working out the disallowance under section 2(28A) includes only interest on the money borrowed and any fees or charges paid on the said borrowings which is availed by the assessee and not bank charges which are charged by the bank for rendering various services like making payments and collection on behalf of the assessee relating to business of the assessee wholly and exclusively. We are therefore, not inclined to accept the findings of the ld. CIT(A) in para 6.3 of its order and accordingly set aside the order of the ld. CIT(A) as being wrong and contrary to law. The AO is directed to delete the disallowance.
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2017 (1) TMI 1750
Reopening of assessment u/s 147 - Reopening after expiry of a period of four years from the end of the relevant assessment year - assessee has not filed relevant details - HELD THAT:- Assessee admittedly filed the Profit & Loss account and other details which are required for completing the assessment. Therefore, it cannot be said that there was any negligence on the part of the assessee. Merely because the Assessing Officer could not examine the Profit & Loss account filed by the assessee in the course of regular assessment, that cannot be a reason to say that the assessee has not filed relevant details.
This Tribunal is of the considered opinion that when the assessee provided all the relevant details before the Assessing Officer and the Assessing Officer has also completed assessment under Section 143(3) of the Act, it cannot be said that there was any negligence on the part of the assessee. Therefore, reopening of assessment beyond the period of four years from the end of the relevant assessment year is outside the scope of Section 147 of the Act. In view of the above, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. Appeal filed by the Revenue is dismissed.
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2017 (1) TMI 1749
Levy of service tax - clearing and forwarding agency - perform various duties like clearing cement unloading from railway, stacking storage, dispatch, realising sale proceeds, maintaining records, promoting the cement sales of the client and furnishing periodical records etc. - HELD THAT:- The respondent acting as C & F agent is liable for discharging service tax on the consideration received for such work. However, incidental to such work they were, in terms of contract, obliged to carry out certain other work. The expenses for the same were reimbursed on actual basis based on documentary evidence. Since these were reimbursed on actual basis, the impugned order held them as not to be considered for service tax purpose to tax the activity of C & F Agent.
The valuation and tax liability of C & F agent service has been a subject matter of dispute. The Tribunal in various decisions held that if the C & F agent is carrying out certain activities incidental and claims the expenses on actual basis, the same are not includible in the taxable consideration. These expenses may be like go-down rent, carting and shifting charges, transportation, maintenance of staff and other establishment for the client etc. Reference can be made to the decision of the Tribunal in the case of SANGAMITRA SERVICES AGENCY VERSUS COMMISSIONER OF C. EX., CHENNAI [2007 (7) TMI 33 - CESTAT, CHENNAI]. The Tribunal held that reimbursable expenditures towards freight, labour, electricity, telephone etc. are not includible.
Business auxiliary service relating to promotion of clients business - HELD THAT:- The overall commission received by the respondent is subjected to tax. We are not informed about any part of commission not being subjected to tax, to be covered under BAS. In the absence of such specific finding, we are not in a position to interfere with the impugned order.
Appeal dismissed - decided against Revenue.
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2017 (1) TMI 1748
Refund of service tax paid - services used for export of goods - agency charges - ground rent - weighment & wharfage charges - denial on the ground that these services are not specifically included in N/N. 17/2009-ST dated 6.7.2009 and also on the ground that appellant has failed to produce Chartered Accountant’s certificate required under the notification - HELD THAT:- The Tribunal has been consistently taking the view that various services rendered within the port are to be considered as port service which finds mention in the Notification No. 41/2007 dated 6.10.2007 as well as 17/2009 dated 6.7.2009 - Reliance can be placed in the case of M/S SRF LTD. VERSUS C.C.E., JAIPUR-I [2015 (9) TMI 1281 - CESTAT NEW DELHI] and M/S. SHIVAM EXPORTS, M/S. MECSHOT BLASTING EQUIPMENT (P) LTD. AND M/S. SHREE RAM INDUSTRIES VERSUS CCE JAIPUR [2016 (2) TMI 259 - CESTAT NEW DELHI] - the refund claims are allowed in respect of these services except GTA services.
GTA Services - HELD THAT:- The appellant has submitted that they are in possession of documentary evidence regarding payment of service tax as well as to correlate such payment to the shipping bills under which the goods have been exported - matter remanded to the original adjudicating authority for verification of such claims.
Appeal allowed in part and part matter on remand.
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