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Showing 21 to 40 of 2062 Records
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2019 (1) TMI 2046
Application for impleading the petitioner as party defendant No. 9 dismissed - Order 1, Rule 10 read with Section 151, CPC - specific performance of agreement to sell - vendee lis pendens or not - constructive notice of pendency of the suit - HELD THAT:- It is true that vendee lis pendens has no right to be impleaded under Section 52 of Transfer of Property Act as the presence of subsequent vendee is not at all necessary for adjudication of the question between the plaintiff and the defendant.
Doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating party, but on those, who derive title pendente lite. This provision does not intend to annul the conveyance or the transfer to render it subservient to the right of a party to the litigation.
Since the controversy has arisen from a suit for specific performance in which petitioner has purchased the subject-matter of suit vide two sale deeds during pendency of the suit.
Application for impleading the petitioner under Order 1, Rule 10 read with Section 151, CPC is allowed and the petitioner being assignee by sale is ordered to be impleaded as party defendant No. 9 in the suit.
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2019 (1) TMI 2045
Wilful defaulters - diversion of funds - challenge to decision of the Review Committee of Axis Bank Ltd. constituted under Clause 3(c) of the Master Circular on wilful defaulters issued by the Reserve Bank of India on 1st July, 2015 - HELD THAT:- It will appear from Clause 2.5 (a) wherein the company and their entrepreneurs/promoters have been included, clearly demonstrate that the entrepreneurs and promoters of the company were intended to be brought within the ambit of wilful defaulters for the defaults of the company so that an entrepreneur or a promoter of a company engaged in acts which constitute wilful default are punished for the acts of the company. This is simply because the company does not function of itself but functions through a Board of Directors. The decision of the said company to divert funds was taken by its Board. The diversion of funds took place when the appellants were in the Board of the said company. The act of such diversion binds the appellants being entrepreneur/promoter who has a role in the decision making process of the company.
In the instant case, the appellants were the directors of the company at the relevant point of time when the diversion of fund took place. In fact, they were also directors when the company committed default and was declared NPA. Measures under SARFAESI Act were also taken against the company when they were in control and management. The company has failed to establish that it did not have the capacity to honour the obligations. The appellants have also not been able to discharge by adducing documentary evidence or otherwise that they were not even remotely connected with the acts of default and diversion of funds made by the company - Pre-loan negotiations were made through the appellants. The banks definitely relied upon the credibility of the appellants at the time of sanctioning the loan. The acts of the appellants while in the decision making process of the company has shattered the confidence of the banks which they had at the time of disbursing the loan.
The appellants were personally heard and their submissions were duly recorded. The diversion is admitted and the default of the said company is an admitted fact. The appellants being in control and management of the said company, therefore, cannot shirk their responsibility as to the default on the part of the said company.
There are no reasons to interfere with the orders impugned in the two appeals - appeal dismissed.
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2019 (1) TMI 2044
Initiation of separate Corporate Insolvency Resolution Process against subsidiary company - Appellant submits that a resolution plan has already been approved in the case of ‘Alok Industries Ltd.’ and the matter was placed before the Adjudicating Authority in July, 2018 for its approval under Section 31 of Insolvency and Bankruptcy Code, 2016, however, no decision has been taken by the Adjudicating Authority - HELD THAT:- The concerned Adjudicating Authority should decide the same immediately. If resolution plan has been filed in the case of ‘Alok Industries Ltd.’ and Resolution Professional of the said case has placed the approved resolution plan in respect of ‘Alok Industries Ltd.’ before the Adjudicating Authority, the concerned Adjudicating Authority is required to decide it preferably within three weeks.
The Corporate Insolvency Resolution Process initiated against ‘Alok Infrastructure Ltd.’ is stayed and the Resolution Professional, the Committee of Creditors and the Adjudicating Authority will continue with the same in accordance with law within the time specified in the law.
Appeal disposed off.
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2019 (1) TMI 2043
Deduction u/s. 80IA(4)(i) on storage tank MDI and storage tank EDA - AO's allegation is that storage tank is devoid of loading and unloading facility and same are not within the premises of Kandla Port Trust and held that MDI-storage tank, for which assessee has claimed deduction is not an enterprise as (a) it is incapable of doing independent business in absence of loading & unloading facility (b) no separate accounts has been maintained, as most of expenses are allocated on pro-rate basis - assessee stated that that there is difference in the nature of business in case of MDI storage tank and other tanks at the tank farm - HELD THAT:- Assessee stated that storage facility is for loading and unloading of chemical, a copy of storage and terminal agreement with M/s. Dow Chemical International Pvt. Ltd.,is also filed. And the storage tanks are connected with associated pumps, pipelines, connecting hoses, valves, metering and control devices and auxiliary equipment to carry out the loading and unloading functions. Thus, the MDI tanks are special tanks for specific liquid cargo hence has separate dedicated pipeline and pump for the same has been installed. The tanker vessels carrying on the specific chemicals come to Kandla Port for discharge of the cargo. The vessels are berthed at Oil Cargo Jetty and after necessary customs formalities; the cargo is unloaded in the storage tank through pipelines as per permission of Kandla Port Trust.
As we can see, that case of the assessee case is squarely falls under the clarification provided in Circular No. 10 of 2005. It is fact that storage tanks are an integral part of Port operations and it can't be utilized for any other non-port operations, Moreover, in AY 2013-14, the AO in his order u/s. 143(3) after physical verification of; the structure, categorically given his finding that the respondent qualified the condition of new infrastructural facility of having structures at the port for storage, loading and unloading.
Satellite image/map on the wikimapia.org clearly show the area/boundaries of Kandla Port, within which the Respondent has developed the structure, i.e., storage tanks. The AO's observation that the structure of Respondent is not part of port is incorrect and for Kandla port trust, commissioner of Custom has notified assessee as custodian and therefore the same is stipulated within the Custom Bonded Area i.e. port. Therefore, in our considered opinion, assessee is entitled for deduction u/s. 80IA(4)(i) being the profit from enterprise carrying on the business of developing/operating/maintaining infrastructure facilities i.e. port and also entitled for deduction. Thus, this ground of appeal is dismissed.
Addition u/s. 14A - assessee had investment in Shares for which no expenses have been allocated by the assessee - CIT(A) deleted addition - HELD THAT:- As seen assessee was having substantial interest free funds, it is fact that as per paper book interest free funds went into investment, which generated exempt income. Therefore, no disallowance can be made u/s. 14A as no interest bearing funds has been deployed to earn exempt income. A.O. had not demonstrated any nexus between the earning of exempt income for such income. Therefore, in our considered opinion, ld. CIT(A) has rightly granted relief to the assessee.
But disallowance made under Rule 8D(iii) are confirmed by lower authorities because assessee has not been able to prove one to one nexus of interest free funds as well as investment in securities because such investment require bank charges, clerical work and time of directors. Therefore, we are of the opinion that ld. CIT(A) has rightly confirmed the addition of Rs. 2,23,639/-.
Addition u/s. 40A(2)(a) r.w.s. 40A(2)(b) - Terminal Handling & Storage Charges paid to Shreeji Power & Insulator Pvt. Ltd.- HELD THAT:- Payment made to persons other than persons covered u/s. 40A(2)(b) were comparable and inter alia payment to the persons covered u/s. 40A(2)(b) was not excessive either in comparison to the other independent parties as well as to the market rate which can assumed as to nearer to the rates at which the said third parties are being paid. Therefore, in our considered opinion, ld. CIT(A) has rightly granted part relief to the assessee.
Disallowance of depreciation on windmill - assessee has claimed depreciation in respect of the common power evacuation charges - As per AO charges were paid to the Suzlon Energy for common power Evacuation infrastructure facility on sharing basis and these charges were not refundable and clear from this bill that respondent has not acquired any asset by paying these charges on which it can claim depreciation - as per AO assessee cannot claim depreciation @ 80% on windmill but assessee stated that in respect of the entire windmill inclusive of civil, electrical items because a powerful thrust of air at any point of time - HELD THAT:- As we can see, the ld. A.O. has unnecessarily adopted a very restrictive view wherein he has resorted to dissect the purchase value of the entire windmill assembly in various sub components i.e. land, machinery, labour charges, right to access, etc. and has opined that 80% depreciation will be available only to the windmill proper mentioned in the Depreciation Schedule in the IT Rules. Erecting and operating windmill assembly is not limited to installing a windmill turbine only. Bringing windmill in existence and making it operational requires fulfillment of various sub components like installing and fabricating accessory machineries, electric fitting, civil constructions, hiring labours, getting permission, documentations, getting access to the land, getting power connecting, getting power output connection, getting access to pooling station.
As decided in case of CIT vs. Parry Engineering and Electronics Pvt. Ltd [2014 (12) TMI 752 - GUJARAT HIGH COURT] wherein it is held that windmill are entitled for depreciation and decided the matter on favour of the assessee.
Disallowance of expenditure incurred on consideration for lease land - business expenses or not? - HELD THAT:- Assessee has made this payment to Kandla Port Trust as Windmill land charges and same are for business purpose. Therefore, such amount cannot be disallowed and ld. CIT(A) has rightly allowed the claim of the assessee.
Addition u/s. 41(2) - amount shown outstanding for such a long period - HELD THAT:- As before lower authorities and before us, assessee could not submit any explanation that why these amounts had been shown outstanding for such a long period and what steps have been taken by the assessee to recover these amounts and even before us assessee could not explain about the list in details. Therefore, we dismiss this ground of appeal by the assessee.
Disallowance of staff welfare expenses and travelling expense on the alleged ground of personal element - HELD THAT:- Since assessee has not submitted any details with lower authorities and even before us, assessee has not submitted any plausible explanation for not submitting details of expenditure of this amount. Therefore, we dismiss this ground of appeal.
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2019 (1) TMI 2042
Rejection of Application u/s. 80G - assessee has been granted registration u/s. 12AA and the registration continues till date and the aforesaid registration has not been cancelled by the Commissioner of Income Tax - HELD THAT:- We find that the Agra Bench of the Tribunal in the case of Dr. Gyanendra Goel Foundation [2018 (3) TMI 1893 - ITAT AGRA] after relying on the decision of Hiralal Bhagwati [2000 (4) TMI 14 - GUJARAT HIGH COURT] in similar circumstance has held that when the CIT has granted registration u/s. 12AA after examining genuineness of activities of Trust, and the registration granted has not been revoked or cancelled then it is not proper for CIT to reject application of Trust for benefit of exemption u/s. 80G by holding that the activities of the Trust were not genuine.
Before us, the Revenue has not pointed out any contrary binding decision nor has placed any material on record to demonstrate that the aforesaid decision of Agra Bench of Tribunal has been set aside by the higher judicial forum - We therefore set aside the order of LD. CIT and direct the granting of approval to assessee u/s. 80G of the Act. Thus the grounds of the assessee are allowed.
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2019 (1) TMI 2041
Addition u/s 68 - bogus LTCG - penny stock transaction - HELD THAT:- As we find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall.
We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). The allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore consequently fail.
Assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. Neither these evidences were found by the AO nor by the ld. CIT(A) to be false or fictitious or bogus nor the AO had issued any notice to the brokers for confirmation.
The facts of the case and the evidence in support of the evidence clearly support the claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. It is to be kept in mind that suspicion how so ever strong, cannot partake the character of legal evidence.
Thus we hold that the ld. CIT(A) was not justified in upholding the addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 of the Act. We therefore direct the AO to delete the addition.
Commission @ 5% disallowed as unexplained expenses of commission u/s. 69C - As we after having held the purchase and sale of shares of LDPL is genuine the question of disallowance of commission expenses does not arise and, therefore, directed to be deleted.
Assessee appeal allowed.
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2019 (1) TMI 2040
Taxability of interest on income tax refund received - PE in India - whether should be taxed as per Article 11 of the India Switzerland DTAA @ 10% or payment of interest is inextricably connected with the company's permanent establishment in India and is therefore assessable as per Article 7 of the DTAA?” - HELD THAT:- Revenue very fairly states that this issue stands concluded against the Revenue and in favour of the Respondent Assessee by the decision of this Court in Director of Income Tax (International Taxation) v/s. Credit Agricole Indosuez [2015 (6) TMI 974 - BOMBAY HIGH COURT] and CIT v/s. Tech. Mahindra Ltd., [2016 (3) TMI 248 - BOMBAY HIGH COURT]
Thus the question as framed does not give rise to any substantial question of law. Thus, not entertained.
Appeal admitted on the substantial question of law at (a) - Whether on the facts and circumstances of the case and in law, the Tribunal is correct in upholding the decision of CIT (A) that international shipping profits are covered by Article 22 of the IndiaSwitzerland Treaty?
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2019 (1) TMI 2039
Validity of revision u/s 263 - Period of limitation - as per CIT provisions of sec. 115JB do not provide for reduction of Debenture Redemption Reserve from the Net Profit - Debenture Redemption Reserve was merely an appropriation from such net profit and was a transaction on Capital Account and hence the same is not allowable as deduction under the provisions of the Income tax Act - Whether revision order as barred by limitation? - HELD THAT:- There is merit in the contentions of Ld A.R, i.e., since the issue of DRR sought to be revised by CIT is covered by the original assessment order dated 30-12-2011, the time limit available to revise the original order is 31.3.2014, whereas the CIT has passed the impugned order on 26-03-2018. Hence we find merit in the contention of the assessee that the impugned revision order is barred by limitation.
Debenture Redemption Reserve deductibility in computation of book profit u/s 115JA - In the case of Raymond Ltd [2012 (4) TMI 127 - BOMBAY HIGH COURT] has held that the Debenture Redemption Reserve is an ascertained liability and is deductible from Net profit for the purpose of computing Book Profit u/s 115JA of the Act. The claim made by the assessee as well as allowed by the AO gets support from the decision rendered by the jurisdictional High Court. CIT has taken the view that the Hon’ble Bombay High Court has not considered the decision rendered by Hon’ble Supreme Court in the case of National Rayon corporation [1997 (7) TMI 113 - SUPREME COURT] in proper perspective and further observed that the Hon’ble Bombay High Court did not consider the fact that the Debenture Redemption Reserve operates in Capital field and hence appropriation of profit is not deductible for tax purposes.
Accordingly, the Ld Pr. CIT has taken the view that the decision rendered by Hon’ble Bombay High Court is per incurium. Whatever may be the reasoning given by Ld Pr. CIT, it cannot be denied that the Ld Pr. CIT has taken different view in the matter, without noticing that the decision rendered by jurisdictional High Court is binding on him also. On the contrary, the claim made by the assessee as well as allowed by the AO gets support from the decision rendered by the jurisdictional High Court, meaning thereby, the AO has followed binding decision of the jurisdictional High Court, which cannot be found fault with.
It is well settled proposition of law that merely because the Ld Pr. CIT is holding a different view in the matter, the assessment order cannot be termed as erroneous and prejudicial to the interests of revenue, unless it is shown by him that the view taken by the AO is not in accordance with the law or against the binding precedents. In this regard, we may refer to the decision rendered in the case of Grasim Industries Ltd. [2010 (2) TMI 4 - BOMBAY HIGH COURT] by taking into account the law laid down by the Hon'ble Supreme Court in the case of Malabar Industrial Co Ltd. [2000 (2) TMI 10 - SUPREME COURT] Decided in favour of assessee.
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2019 (1) TMI 2038
TP Adjustment - comparable selection - Info Edge (India) Ltd., Media Reserarch Users Council, MMTV LTD, Power Systems Operation Corpn. Ltd. and TSR Darashaw - HELD THAT:- From the annual reports of each of the comparables contested by the Revenue it can be seen that comparables are functionally dissimilar to the assessee company. These comparables are considered in case of Adobe Systems India Pvt. Ltd [2018 (7) TMI 741 - ITAT DELHI] for the same Assessment Year 2011-12 and from the perusal of the Tribunal’s order it can be seen that these comparables are functional different than assessee’s company.
The assessee company is engaged in provisions of marketing support services to Teijin-Japan and other group companies, while the comparables are functionally different from the assessee companies which can be seen from the Annual reports of each of the comparables. The DRP has given proper direction for excluding these comparables contested by the Revenue. The Ld. DR also was not able to demonstrate that the functional profile of these comparables is similar to that of assessee company. Therefore, the appeal filed by the Revenue is dismissed
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2019 (1) TMI 2037
Department appeals against relief given by CIT(A) - Addition u/s 69A - CIT(A) deleted the addition - Revenue is aggrieved by the order of ld. CIT(A) in respect of the relief given by him - HELD THAT:- As per the recent announcement of Central Board of Direct Taxes (CBDT) dated 11.07.2018 (Circular No. 3 of 2018), no Department appeals are to be filed against relief given by ld. CIT(A) before the Income Tax Appellate Tribunal unless the tax effect, excluding interest, exceeds Rs. 20 lakhs and it further states that the instructions will apply retrospectively to the pending appeals also.
In the present case, since it is an undisputed fact that on the additions which are in dispute, the tax effect is less than Rs. 20 lakhs and in the absence of any material placed on record by the Revenue to demonstrate that the issue in the present appeal is covered by exceptions provided in para 10 of the aforesaid CBDT Circular, monetary limit prescribed by the instructions of the aforesaid CBDT Circular would be applicable to the present appeal of the Department.
We therefore hold the present appeal of Revenue to be not maintainable on account of low tax effect - grounds of the Revenue are dismissed.
Additions have been made in the case of assessee on “protective basis” - HELD THAT:- When the assessment where substantive additions have been set aside, assessment in the case of assessee in whose hands the protective additions does not stand. Thus, the appeal assessee is allowed sans merit.
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2019 (1) TMI 2036
Seeking directions of this Tribunal to disclose the details and status of the Bank Guarantees/letter of credits issued by the Applicant on behalf of Corporate Debtor - Rule 11 of NCLT Rules, 2016 r/w Section 60 of IBC, 2016 - HELD THAT:- The main petition filed by Corporate Applicant is admitted and IRP is appointed. The Applicant being a Financial Creditor will be included in the CoC to be constituted by IRP. Being a member of CoC, the Applicant can gather information through IRP regarding details of Bank Guarantees invoked. The amount covered by Bank Guarantee if invoked will be included in the claim due to the Applicant. Therefore, at present there is no need to direct the Corporate Applicant to furnish the details of Bank Guarantee so invoked by beneficiaries and it is always open to the Applicant to gather information since Corporate Applicant triggered CIRP against it - Application disposed off.
Maintainability of application - fraudulent intention to stall the proceedings initiated before DRT - initiation of CIRP u/s 10 of the Insolvency and Bankruptcy Code, 2016 - default in repayment of loans borrowed from various financial creditors - HELD THAT:- The Corporate Applicant has to establish for admission of Petition filed under Section 10 of IBC, 2016 that existence of debt, occurrence of default and Corporate Applicant is not disqualified under Section 11 of the Code. If Adjudicating Authority is satisfied that there is debt payable by Corporate Applicant to Financial Creditors and that the Corporate Applicant committed default and that Corporate Applicant is not disqualified under Section 11, then Adjudicating Authority has no option but to admit the Petition, unless it is incomplete, in which case the Corporate Applicant is to be accorded time to rectify the defects - The Adjudicating Authority admits this Petition under Section 10 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code, with directions imposed.
Seeking directions of this Tribunal to restrain 1st and 2nd Respondents from dissipating with the Secured Assets, pursuant to recovery proceedings initiated by both the Respondents under SARFAESI Act, 2002 - HELD THAT:- The prayer sought by the Applicant cannot be granted since Financial Creditors are proceeding against the guarantors for recovery of debt due by Corporate Applicant by sale of the properties given as a security by Guarantors. Since main petition filed by Corporate Applicant under Section 10 is admitted and IRP is appointed, then the reliefs prayed by the Applicant cannot be granted. The Financial Creditors are entitled to proceed against the guarantors. The Corporate Applicant has not right to stop the Financial Creditors to proceed against it for recovery of the debt due from the sale of assets given as security - Petition filed under Section 10 is misconceived and is therefore, dismissed as not maintainable.
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2019 (1) TMI 2035
Seeking re-instatement in the service - Withdrawal of withdrawal slip of the customer - Conviction from the offence or not - HELD THAT:- The appellant was never convicted of an "offence" within the meaning of clause 2. Question of facing disciplinary action in terms of clause 3 could not have arisen. In view of the fact that the appellant had not been dismissed from service based on any conviction recorded by the criminal court, the entirety of clause 3, which deals with "offences" and other situations flowing therefrom, did not have any application in this case. He was proceeded against in terms of clauses 1, 5, 6, 11 and 12 and having suffered the order of removal from service based on the report of the enquiry officer, the order of acquittal recorded by the criminal court could not have been made by him the basis for seeking reinstatement in service.
There are no reason to uphold the conclusion of the learned presiding Judge of the Hon'ble Division Bench that clause 3 applied to the facts and circumstances before His Lordship and the appellant was entitled to the benefit of sub-clause (d) thereof.
The writ petition of the appellant deserved an order of dismissal but not for the reasons assigned by the learned Single Judge and the companion Judge of the Hon'ble Division Bench - The reference is answered accordingly.
Appeal dismissed.
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2019 (1) TMI 2034
Seeking to be impleaded as petitioner/decree holder in OMP - HELD THAT:- It is well settled that a party claiming itself to be a beneficiary under a decree cannot seek execution of the decree in its own name. Reliance can be placed on the ratio in ‘Lalmani Kuer Vs. Raghubansi Devi [1944 (2) TMI 27 - PATNA HIGH COURT] to the effect that a beneficiary who alleges himself to be the real decree holder has no locus to claim that he is entitled to execute the decree in his own name.
Furthermore, the question of liability inter se of the applicant and the decree holder as also the question as to in whose favour the award is to be executed are beyond the scope of the present OMP (Enf.). It is settled proposition of law that questions between two parties who both claim to represent the same party are beyond the scope of Section 47 CPC.
Application disposed off.
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2019 (1) TMI 2033
CENVAT Credit of service tax paid - input services - Outdoor Catering Services availed by them for their employees for the period post 1st April, 2011 - HELD THAT:- The Cenvat Credit of Service Tax on Outdoor Catering Services is not available to the appellant and as such, denial of the same is upheld. However, in as much as the issue was interpretational and there were decisions in favour of the assessee prior to the Larger Bench decision in the case of M/S. WIPRO LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-III. [2018 (4) TMI 149 - CESTAT BANGALORE - LB] as also in their case reported as M/s Hindustan Coca-Cola Beverages Pvt. Ltd. [2018 (9) TMI 1117 - CESTAT CHENNAI], there are no justification for imposition of penalty upon them.
As such, the same is set aside and appeal is disposed of accordingly.
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2019 (1) TMI 2032
Benefit of exemption notification 01/2011-CE or 02/2011-CE - import of Muriate of Potash - appellant has not manufactured but has imported the goods and hence it is impossible to verify whether any CENVAT credit has been availed or not and therefore no exemption notification is available to them - HELD THAT:- It is true that any exemption notification must be strictly construed against the assessee who is claiming the benefit of the same. In this case, the only point of dispute is whether or not the CENVAT credit has been availed for the goods in question. It is not in dispute that the goods have been imported and therefore were manufactured outside India. The CENVAT Credit Rules, 2004 or CENVAT Credit Rules, 2002 are framed under the Central Excise Act, 1944. This Act applies to the whole of India but not beyond. When the Central Excise Act itself does not extend outside India, neither will the CENVAT Credit Rules. Therefore, it is impossible for anyone outside India to avail the benefit of CENVAT credit. Therefore, in respect of imports, it is impossible that the condition of CENVAT credit not being availed is not fulfilled.
This has been decided by the Hon’ble Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT] - following the ratio of the judgment of the Hon’ble Apex Court and hold that the appellant is entitled to the benefit of the exemption notifications 01/2011 & 02/2011- CE in respect of their imports.
The impugned orders are set aside and the appeals are allowed.
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2019 (1) TMI 2031
Direction to District Education Officer, Primary Education, Udaipur that the petitioners be adjusted against the post of Teacher Gr.-III, Level-II - HELD THAT:- In the case of SUKHLAL MEGHWAL S/O LOGAR LAL MEGHWAL VERSUS STATE OF RAJASTHAN, DIRECTOR, DEPARTMENT OF SECONDARY EDUCATION, GOVERNMENT OF RAJASTHAN, BIKANER, RAJASTHAN., JOINT DIRECTOR, SCHOOL EDUCATION, UDAIPUR DIVISION, UDAIPUR. [2018 (12) TMI 1981 - RAJASTHAN HIGH COURT] this Court, inter alia, directed It would be required of the Joint Director, School Education, Udaipur Division, Udaipur to pass a speaking order dealing with the grievance of the petitioner.
The writ petition filed by the petitioners is also disposed of with the similar directions as given in the case of Sukhlal Meghwal.
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2019 (1) TMI 2030
Apparent mistakes in the impugned Tribunal order - Disallowance of expenditure at 10% of total expenditure on an estimate basis - HELD THAT:- This disallowance was confirmed by CIT (A) on this basis that on the issue of estimated disallowance in the absence of complete details no being available, the estimated disallowance appears to be reasonable and not excessive. When the assessee carried the matter in appeal before the Tribunal, the Tribunal held that the AO has made disallowance of 10% of the total indirect expenses debited in P&L account only whereas as per the Tribunal, the expenses of Rs. 2 Lakhs on account of commission paid, Rs. 14,29,951/- being interest in respect of Sundaram Finance Housing Loan and Rs. 4,19,981/- being Processing Fee in respect of Loan from Sundaram Finance are not allowable at all but the Tribunal is not supposed to increase the disallowance while deciding the appeal of the assessee and therefore, it was held that no inference is called for in the order of CIT(A) on this issue.
Hence it is seen that this is the ultimate decision of Tribunal as per the impugned Tribunal order that no inference is called for in the order of CIT (A) and hence, these observations of the Tribunal that the assessee has no business income or that the interest and processing fees of loan are in respect of housing loan etc. do not affect the ultimate decision of the Tribunal that no inference is called for in the order of CIT (A).
We find that as per the P&L account of the assessee available assessee has declared income on account of Creditors Written Off, Director Remuneration, Dividend Received, Interest received from Banks, Interest Received – K.G. Enterprises and Profit on Sale of Shares. Hence from these six headings of income credited in the P&L account, it is clear that in the present year, no business income is there. Hence this observation of Tribunal that there is no business income in the present year is not incorrect.
Second alleged mistake that the interest paid to Sundaram Finance is not in respect of Housing Loan - We find that the assessee has himself stated in P&L account available on page no. 41 of the paper book that Interest-Sundaram Finance Housing Loan-Rs. 14,29,951/- and therefore, this observation of the Tribunal is also not incorrect when this interest of Rs. 14,29,951/- is in respect of Housing Loan even as per the nomenclature given to it by the assessee himself in P & L Account. Regarding the amount of Rs. 4,19,981/-, the assessee himself stated in the P&L account available on page no. 41 of the paper book that Processing Fee – Loan Sundaram Finance – Rs. 4,19,981/- and since, the only loan from Sundaram Finance is Housing Loan, this observation of the Tribunal is also not incorrect. Hence find no apparent mistake in the Tribunal order.
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2019 (1) TMI 2029
Entries made in the revenue records in relation to the disputed land - Mutation in revenue records - HELD THAT:- The law on the question of mutation in the revenue records pertaining to any land and what is its legal value while deciding the rights of the parties is fairly well settled by a series of decisions of this Court.
This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question - It is not in dispute that the civil suits in relation to the land in question are pending in the Courts between the parties. Therefore, it would not be proper to embark upon any factual inquiries into the question as to whether the entries were properly made or not and at whose instance they were made etc. in this appeal. It is more so when they neither decide the title nor extinguish the title of the parties in relation to the land.
There are no merits in this appeal - appeal dismissed.
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2019 (1) TMI 2028
Levy of Service Tax - service rendered prior to 16.10.1998 i.e. prior to introduction of Service Tax on CA services - services rendered by the appellant in the capacity of sub contractor - denial of exemption of notification no. 59/98-ST for the period prior to 01/08/2002 - Interest and penalty.
Demand of Service Tax of Rs. 12065/- on the service rendered prior to 16.10.1998 i.e. prior to introduction of Service Tax on CA services - HELD THAT:- The Service Tax is leviable on the date of provision of service, the CA service was not taxable at the time of provision of service, even though the payment was received subsequent to the introduction of Service Tax. Accordingly, the demand of Rs. 12,065/- is set aside.
Demand of Service Tax Rs. 17,485/- in respect of services rendered by the appellant in the capacity of sub contractor - HELD THAT:- There was a circular dated 31.10.1996, according to which the sub contractor need not pay the Service Tax when the main contractor discharges the service tax on the gross value including the value of the service provided by the sub contractor. In view of the circular, the bonafide belief entertained by the appellant is correct. Therefore, the demand of Rs. 17,485/- is hit by limitation and the same is set aside only on time bar without going into the merit of the case.
The demand of Service Tax of Rs. 88,625/- denying exemption of notification no. 59/98-ST for the period prior to 01/08/2002 - HELD THAT:- Demand of Rs. 86,625/- was raised on the service of management consultancy service which was admittedly exempted under notification 59/98-ST and by amendment notification 15/2002-ST. Though the exemption was withdrawn by inserting the explanation but that cannot be applied retrospectively. Therefore, during the relevant period before amendment dated 01/08/2002, the service provided by CA in respect of management consultancy services was exempted. Accordingly, the demand of Rs. 88,625/- is also set aside.
Interest and penalty - HELD THAT:- Since, demand itself is not maintained, the penalty and interest are also not sustainable.
Appeal allowed.
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2019 (1) TMI 2027
Addition u/s 68 - bogus transactions of purchase and sale of shares for the purpose of laundering his undisclosed income - Assessee’s contention is that he has purchased shares through broker via BSE and shares were part of Demat account and payments have been made through banking channel and he is merely an investor - HELD THAT:- A.O. has made detailed and comprehensive enquiry with regard to NCL Research Ltd. share, assessee has filed Contract Note and shares were purchased through broker via BSE, payments have been made through banking channel and held for around two years in the demat account of the assessee and long term capital gain was claimed by the assessee.
We consider that the assessee could not appear before the ld. Pr. CIT, Therefore in the interest of justice, we consider it to appropriate that one more opportunity of hearing should be granted to the assessee.
As before passing any order, ld. Pr. CIT may also be consider the order passed in case of Smt. Minu Gupta vs. [2018 (12) TMI 1962 - ITAT KOLKATA]
We restore this case to the file of Pr. CIT for deciding de novo after examination of details to be submitted by the assessee and after affording adequate opportunity of being heard. Appeal filed by the Assessee is allowed for statistical purpose.
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