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Showing 1 to 20 of 1713 Records
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2020 (1) TMI 1720
Seeking to recall earler order - Section 37(2) of the Arbitration and Conciliation Act, 1996 - main contention of the appellant is that the respondents were all through aware that the property which was sought to be offered as security, before the Tribunal was mortgaged with Vijaya Bank - HELD THAT:- It is no doubt true that the Tribunal has negated the grounds on which the second application under Section 17 of the Act was filed by the respondents. The Tribunal has rightly come to a conclusion that the respondents were aware of the property being mortgaged with the Vijaya Bank. In fact, the prime security for the loan was the rent payable by the respondents and the Bank had been authorized by the appellant to receive the rent directly from the respondents. It is in this context that the Tribunal had held that the appellant was not guilty of any contempt. However, the question which the Tribunal was required to examine was primarily, how to secure the amount payable to the respondents in case they succeed in the arbitration proceedings.
Various complications that are linked to the property under the SARFAESI Act, were also brought to the notice of the Tribunal by the respondents. Thus, it is not enough for the appellant to contend that only because the respondents were aware of the encumbrances, the impugned order is erroneous. As rightly contended by the respondents if the fact of encumbrance would have been placed before the Tribunal in the first application, perhaps the Tribunal may not have accepted the undertaking of the appellant.
Having analyzed the impugned order, this court is of the opinion that no infirmity can be found in the exercise of discretion by the Tribunal under Section 17 of the Act.
Conclusion - i) The Tribunal has the discretion to modify its orders to ensure adequate security for claims, especially when new information about encumbrances is revealed. The scope of judicial review under Section 37 is limited to assessing whether the Tribunal's discretion was exercised arbitrarily or contrary to law. ii) This court is of the opinion that no infirmity can be found in the exercise of discretion by the Tribunal under Section 17 of the Act.
Appeal dismissed.
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2020 (1) TMI 1719
Seeking grant of bail under Section 439 of the Code of Criminal Procedure, 1973 - invocation of inherent powers under Section 482 of the Code - Whether the accused are entitled to be admitted to bail, that is the jurisdiction conferred on the Court in terms of Section 439 of the Code? - HELD THAT:- This Court in Davinder Pal Singh Bhullar [2011 (12) TMI 656 - SUPREME COURT] referred to a case reported as Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee & Anr. [1990 (3) TMI 377 - SUPREME COURT] wherein the Court observed that inherent powers under Section 482 of the Code cannot be exercised to do something which is expressly barred under the Code. It was held that inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The Code does not confer unlimited/unfettered jurisdiction on the High Court as the “ends of justice” and “abuse of the process of the court” have to be dealt with in accordance with law and not otherwise. The High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to bypass the procedure prescribed.
It was also held that the High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution of India at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an investigating officer mala fide or the matter is not investigated at all, but even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of due process as provided in the Code.
This Court in a judgment reported as Sangitaben Shaileshbhai Datanta v. State of Gujarat [2018 (10) TMI 1990 - SUPREME COURT] was examining a question where a court after grant of bail to an accused ordered the accused and their relatives to undergo scientific test viz. lie detector, brain mapping and Narco-Analysis. This Court held that direction of the court to carry out such tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements.
The learned Single Judge has collated data from the State and made it part of the order after the decision of the bail application as if the Court had the inherent jurisdiction to pass any order under the guise of improving the criminal justice system in the State. The jurisdiction of the Court under Section 439 of the Code is limited to grant or not to grant bail pending trial. Even though the object of the Hon’ble Judge was laudable but the jurisdiction exercised was clearly erroneous. The effort made by the Hon’ble Judge may be academically proper to be presented at an appropriate forum but such directions could not be issued under the colour of office of the Court.
Conclusion - i) The jurisdiction of the High Court under Section 439 is confined to bail-related matters, and any directions beyond this scope are outside its authority. ii) Inherent powers under Section 482 should be exercised sparingly and only in connection with matters directly related to the proceedings. iii) Judicial processes should not be used to address broader policy issues or governance matters beyond the legal framework of the case.
Appeal allowed.
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2020 (1) TMI 1718
Reopening of assessment - TP adjustment - interest on transaction of loan advanced by the appellant to its associated enterprise ('AE') in Italy - as submitted that assessee had not paid any interest for funds received from the holding company, which was advanced for the purpose of business and it has been clarified that sums were obtained from the holding company through internal accruals.
Only challenge to reopening is that the revenue has erred in relying upon the survey proceedings and statement obtained from the M.D during the survey proceedings - HELD THAT:- Reliance on decision of S.Kadar Khan [2013 (6) TMI 305 - SC ORDER] is wholly irrelevant here. In the said decision, the exposition was that statement obtained on survey is not conclusive proof of addition to be made. We fail to understand how this decision renders reliance by the revenue upon survey proceedings as basis for reopening illegal. As it is settled law that at the time of reopening, there has to be a reasonable belief that income has escaped assessment, the same need not be proved to the hilt. Hence, assessee’s submission in this regard has no merit and they are liable to be dismissed.
TP Adjustment on interest on loan to AEs - The commercial expediency of a loan to subsidiary is wholly irrelevant in ascertaining arm's length interest on such a loan. There is indeed no bar on anyone advancing an interest free loans to anyone but when such transactions are covered by the international transactions between the associated enterprise, Section 92 of the Act mandates that the income from such transactions is to be computed on the basis of arm's length price.
It is amply clear that loan to the AE is international transaction and it needs to be benchmarked for ALP determination. As in the present case the entire amount has been written off as non-refundable. So the decision of KSS Ltd. does not help the case of the assessee. Rather it has been rightly relied upon by the ld. departmental representative in support of the proposition that interest free sums given to the AE dehors any cogent documentation of purpose are liable for determination of arm’s length price as per provisions of Section 92B Explanation C.
Loan has been converted into share application money - A.Y.2010-11 - Assessee has full control over the AE. It could not be said that giving further loans and considering it as share application advance can strengthen assessee’s control over the same. Hence, the plea that the loan was advanced as strategic shareholder function totally fails. Moreover it is not the issue of inordinate delay of conversion of share application money into share capital. The fact is that the issue of conversion into share capital was given a complete go by and subsequently the entire amount was written off as irrecoverable. Hence, the case laws relied by the assessee’s Counsel are in totally different context. Hence, this plea does not fortify the case of the assessee.
Application on interest rate on the said sum advanced - We hold that the arm’s length price computed by adopting the lending rate of banks in India is not sustainable. In this regard, we agree with the alternative submission of the assessee that the interest should be charged at LIBOR+200 bps. Such charging of interest has been approved by Hon’ble Jurisdictional High Court in several other case laws. We direct accordingly. It may not be out of place to mention that revenue’s insistence on application of bank rates in India will throw open the issue of assessee not incurring any expenditure on the funds for advancing the loan. As we have already held this issue is not to be considered for the computation of arm’s length price for an international transaction here.
Additional ground - assessee has raised the issue of arm’s length price of international transaction of interest free loans being computed on adhoc basis and not in accordance with Section 92C of the Income Tax Act - As we note that assessee has not provided any details whatsoever. Assessee has itself not done any benchmarking. Our decision as above has the mandate of Hon’ble Jurisdictional High Court in the case of Tata Autocomp systems Ltd [2015 (4) TMI 681 - BOMBAY HIGH COURT] Hence, this additional ground raised by the assessee is dismissed.
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2020 (1) TMI 1717
Revision u/s 263 - stamp duty valuation exceeds total consideration, hence higher stamp duty valuation should have been considered for taxation as per provisions of section 43CA - As per CIT(A) AO did not examine this crucial fact and as such assessment order was passed by the AO is erroneously in so far as it prejudicial to the interest of the Revenue - HELD THAT:- The assessee has given evidence of allotment and booking by allotment letter and payment through bank prior to registration. Thus the assessee has discharged the onus cast upon it. CIT cannot disbelieve the same on the ground that the bank statement of the buyers are not on record. In our considered opinion there is nothing on record to suggest that bank statement contained bogus entries. It is also not a case that the Revenue has received any information that the buyers have not issued cheque and bank statement of the assessee show entries which are related to some other transaction. Moreover, when these documents are on record and hence, this aspect has been duly examined by the Assessing Officer in our considered opinion there is no occasion for learned CIT to exercise u/s. 263 of the Act
As in compliance with sub-section 4 of section 43CA, the assessee has duly received sums through bank and allotment letter are also on record. Hence, when allotment letter/booking of the unit alongwith receipt of booking receipt through bank at an earlier period is already on record, the value at the time of registration is not to be applied.
CIT was fully conscious of the fact as he has all the details of the stamp value, date of agreement/allotment and date of receipt of payment in assessee’s bank statement. Hence when despite being aware that addition in this regard is not permissible, he has asked the AO to further reexamine the issue by reference to the details available on record.
In our considered opinion by way of above order dehorse any cogent material or reasoning learned CIT is directed the AO to make roving inquiry to somehow or other dislodge evidences duly on record that provisions of section 43CA are not applicable in the facts of the case. Accordingly, in the background of the aforesaid precedent and discussion we set aside the order of learned CIT and decide the issue in favour of the assessee.
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2020 (1) TMI 1716
CENVAT Credit - input services - railway freight paid to Steel Authority of India Ltd. - contravention of Rule 3 read with Rule 9 of Cenvat Credit Rule, 2004 - HELD THAT:- In the facts and circumstances, the transfer of the property in the goods is effective from the moment the goods are loaded on rail by SAIL. Further, SAIL have paid the freight alongwith service tax on behalf of the buyer – appellant, and further paid such freight and service tax is separately shown in the invoice. Thus, SAIL has acted as a pure agent of the appellant by paying freight alongwith service tax. Further, there is no dispute as regards purchase and receipt of the inputs in the factory of the appellant. Further, there is no dispute of the appellant having paid to SAIL the full amount towards value of the goods alongwith freight and service tax thereon.
The appellant is entitled to cenvat credit on the input service being ‘railway freight’ - the impugned order is set aside - appeal allowed.
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2020 (1) TMI 1715
Penalty u/s. 271A/271B - failing to get the accounts audited as required u/s. 44AB - HELD THAT:- AO in the assessment order dated 25.03.2015 at para 6 has found that assessee is not maintaining any books of account. In such a scenario penalty u/s. 271A of the Act in contravention of sec. 44AA can be only levied and not u/s 271B of the Act.
We note that in Nirmal Kumar Jain [2016 (3) TMI 1454 - ITAT DELHI] has held that when the AO has found during assessment that assessee is not maintaining books of account, then penalty u/s 271B for not getting the books audited should not be levied.
Penalty u/s 271B ought not to have been levied against the assessee and since the CIT(A) has exercised his co-terminus power to levy penalty u/s 271A of the Act for not maintaining books of account, therefore, we restrict the penalty. Decided in favour of assessee.
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2020 (1) TMI 1714
Ad-hoc disallowance of unverifiable purchases - onus of providing evidences lies on the assessee to get deduction for expenditure incurred for the purpose of business - HELD THAT:-AO has not brought to fore as to what are the details for which vouchers and bills are missing. The lump-sum disallowances without pointing out exact amount cannot be appreciated. After going through the facts on record, since revenue has not determined the expenses for which bills have been missing, we hereby lower the disallowance to Rs.1 lac.
Addition on account of vehicle expenses, festival expenses, telephone expenses and conveyance expenses - disallowance by the AO which is 1/5th of these expenses - We hereby hold that 1/10t h of the telephone and vehicle expenses may be treated as personal expenses by the partners. The festival expenses are incurred for performing pooja at office premises and distribution of sweets to the office staff which is allowed as business expenditure. Hence, no disallowance is called for.
Disallowance @10% on account of travelling expenses, since no evidence has been brought on record, any element of non-business purpose, we hereby delete the disallowance made by the Assessing Officer.
TDS mismatch, the AO is directed to reconcile the TDS mismatch and due credit for the taxes paid.
Appeal of assessee is allowed.
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2020 (1) TMI 1713
Recovery of sales tax dues - lien on the property in favour of the State Government - HELD THAT:- This Bench has resolved the issue as per the Judgment ASREC (INDIA) LIMITED, A COMPANY VERSUS THE STATE OF MAHARASHTRA, THE OFFICE OF THE SALES TAX AND THE OFFICIAL LIQUIDATOR OF THE HIGH COURT OF BOMBAY AS THE OFFICIAL LIQUIDATOR OF M/S. CRYSTAL MIRAGE PVT. LTD. [2019 (12) TMI 633 - BOMBAY HIGH COURT]. It was held that the dues of a secured debtor rank above the dues of the State Government under the Maharashtra Sales Tax or a Value Added Tax.
The Petition is disposed of quashing the letter dated 14.03.2018.
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2020 (1) TMI 1712
Seeking a writ of prohibition against Competition Commission of India from exercising its jurisdiction under Competition Act, 2002 - vires of several Sections of the Act are under challenge before the Hon'ble Supreme Court of India, but no orders have been passed as on date - HELD THAT:- Undisputed fact is, the Act is in force as on date. Hence, no writ of prohibition can be issued against Statutory Commission from exercising its jurisdiction. Hence, petition is misconceived and it is accordingly dismissed.
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2020 (1) TMI 1711
CIRP process - related party - exclusion from participation in CoC - whether Appellants Spade Financial Services Limited, and it's wholly-owned subsidiary AAA Landmark Private limited are a related party to the corporate debtor AKME Projects Ltd.? - Section 5(24) and Section 21(2) Insolvency and Bankruptcy Code, 2016? - HELD THAT:- The close relationship of the key managerial person of the Corporate Debtor (Mr Anil Nanda) and Appellant (Mr Arun Anand) is quintessential. Based on the claim forms of the appellants, signed by Mr Arun Anand and the documents filed before the Adjudicating Authority, it is evident that Mr Arun Anand (Director of the Appellants) worked for Mr Anil Nanda, Corporate Debtor) for over 25 years and purported transactions from 2010 to 2013 were entered into vide Mr Arun Anand, who had worked as an employee for Escorts Limited/Nanda Group of Companies specifically Mr Anil Nanda including AKME Projects Limited the Corporate Debtor, and also held Key Managerial roles in the companies.
On perusal of the letter 25.10.2012, issued by Appellant No 2 to the corporate debtor, it is evident that Agreement Dt 25th Oct 2012 was merely a camouflage, and the Appellant No2 and corporate debtor AKME were partners in developing the project to be sold to third party for profit. Therefore the Appellant No 2 is Related Party to the corporate debtor in terms of Sec 5(24)(a) of the I& B Code 2016 - Thus, Appellant, No 2 is a related party to the corporate debtor in terms of Sec 5(24)(a) of the Insolvency and Bankruptcy Code 2016.
On perusal of the documents filed by the parties, it is also apparent that AKME Projects Ltd, i.e. Corporate Debtor, promoted by Sri Arun Anand and his son Mr Aditya Anand, being majority shareholder therein. The Arun Anand and his family members, i.e. his wife, his son and daughter are the majority shareholder in the Appellant SPADE Financial Services. The said Mr Arun Anand, Ms Renu Anand and Ms Gayatree Anand are the directors of the Appellant SPADE, while Appellant No 2, AAA Landmark is wholly owned subsidiary of it - Admittedly in the present case, ICD worth ₹ 26,55,00,000 was provided by Appellant No 1 SPADE to the corporate Debtor AKME bearing interest of 24%.No date is given when the ICD was given to the corporate debtor. It is mentioned that First ICD was given to the Corporate Debtor in mid of 2009, whereas MOU Dt 12.8.2001 shows that ICD were given by the Appellants when Appellant No 1 was a consultant to the corporate debtor. Thus it is clear that on the advice, directions or instructions of the Appellants, a director, partner or manager of the corporate debtor is accustomed to act. Therefore the Appellants are related party to the corporate debtor in terms of Sec 5(24)(h) of the Code.
The Adjudicating Authority has rightly excluded the Spade Financial Services Private Limited and AAA Landmark Private Limited for participation in Committee of Creditors - there are no reason to interfere in the order passed by the Learned Adjudicating Authority - appeal dismissed.
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2020 (1) TMI 1710
Revision u/s 263 - A.O had erroneously allowed the assesses claim for deduction u/s 80P(2)(d) on the interest income that was earned from the investments made with the co-operative bank - HELD THAT:- Though the co-operative bank pursuant to the insertion of sub-section (4) of Sec. 80P would no more be entitled for claim of deduction under Sec. 80P of the Act, however, as a co-operative bank continues to be a co-operative society registered under the Cooperative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies, therefore, the interest income derived by a co-operative society from its investments held with a co-operative bank would be entitled for claim of deduction under Sec.80P(2)(d) of the Act.
Interest income earned by a co-operative society on its investments held with a co-operative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act. Be that as it may, in our considered view as the A.O while framing the assessment under Sec. 143(3), dated 23.12.2017, had arrived at a plausible as regards the assesses entitlement under Sec. 80P(2)(d) on the interest income earned on its investments held with the co-operative banks, which view we find at the point of framing of the assessment was in conformity with that arrived at by the jurisdictional Tribunal in a host of judicial pronouncements, therefore, the said fact in itself would suffice to divest the Pr.CIT of his revisional jurisdiction under Sec. 263 in respect of the aforesaid issue.
A.O had erroneously worked out the tax liability of the assessee under the normal provisions as against the alternate minimum tax (ALT) - As specifically provided in clause (i) of sub-section (2) to Sec. 115JC, the ‘total income’ of the assessee is not to be increased by the deduction claimed under Sec. 80P. On a perusal of the calculation of the ‘adjusted total income’ as per ITNS, we find, that the A.O had worked out the same by increasing the total income of the assessee by the amount of deduction that was claimed by the assessee under Sec.80P of the Act. As such, on the basis of his aforesaid working, the A.O had erroneously calculated the ‘adjusted total income’ at ₹ 1,13,55,916/- as against the correct amount of ₹ 57,39,674/-. In the backdrop of the aforesaid facts, we find substantial force in the claim of the Ld. A.R that the observation of the Pr.CIT that the tax liability of the assessee as per AMT was higher than that worked out on its ‘normal income’, is based on incorrect working of the A.O in the ITNS. In sum and substance, a correct working of the AMT on the ‘adjusted total income’ of ₹ 57,39,674/- is clearly found to be lower than the tax liability of the assessee under the ‘normal provisions’. On the basis of the aforesaid facts, we are of a strong conviction that as the calculation of the tax liability by the A.O under the ‘normal provisions’ at ₹ 19,47,515/- [₹ 57,39,670/- (normal income) x 30% (+) Surcharge and E.cess] is higher than the correct amount of AMT viz. [₹ 57,39,674/- (adjusted total income) x 18.5%], therefore, the calculation of the tax liability by the A.O as per the ‘normal provisions’ at ₹ 19,47,515/- cannot be held to be prejudicial to the interest of the revenue. Accordingly, on the basis of our aforesaid deliberations, we are of the considered view that the Pr.CIT is in error in concluding that the saddling of the assessee with the tax liability under the normal provisions had rendered the assessment order passed by the A.O under Sec. 143(3), dated 23.12.2017 as erroneous, insofar it was prejudicial to the interest of the revenue.
We set aside the order passed by the Pr.CIT under Sec. 263 of the Act and restore the assessment framed by the A.O vide his order passed under Sec. 143(3) - Decided in favour of assessee.
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2020 (1) TMI 1709
Issues Involved:1. Determination of total income and Arm's Length Price (ALP) in respect of international transactions. 2. Inclusion and exclusion of comparables for ALP determination. 3. Margin computation errors and re-examination of comparables. 4. Exclusion of certain companies from the final set of comparables by the CIT(A). Summary:1. Determination of Total Income and ALP:The assessee's substantial grievance was against the upward adjustment of Rs. 3,70,12,100/- made by the Assessing Officer/TPO, determining the total income at Rs. 3,94,73,751/- against the returned income of Rs. 24,61,650/-. The dispute revolved around the inclusion and exclusion of certain comparables while determining the Arm's Length Price (ALP) in respect of international transactions with AE. 2. Inclusion and Exclusion of Comparables for ALP Determination:CAT Technologies Ltd: The assessee contended that this company should not be comparable due to its diverse activities, including medical transcription and job portal services, with no segmental information available. The ITAT directed its exclusion, considering its significant abnormal growth in profit and functional dissimilarity. Persistent Systems Ltd: The assessee objected to its inclusion due to the absence of segmental accounts and significant difference in OP/TC margins. The ITAT excluded this company, noting the lack of segmental reporting and functional dissimilarity. Tata Consultancy Limited (TCS): The assessee argued against its inclusion due to its diversified business activities and significant R&D expenditure. The ITAT directed its exclusion, considering its significant brand value and turnover disparity. Thirdware Solutions Limited: The assessee objected to its inclusion due to revenue from various sources and lack of segmental accounts. The ITAT directed its exclusion, considering the functional dissimilarity and absence of segmental reporting. 3. Margin Computation Errors and Re-examination of Comparables:The ITAT directed the TPO to re-examine the correct margins of Goldstone Technologies Limited and Sasken Technology Limited, as pointed out by the assessee. The TPO was also directed to re-examine the employee cost of CG VAK Software & Exports Ltd and SIP Technology and include them in the final set of comparables if the criteria were met. 4. Exclusion of Certain Companies from the Final Set of Comparables by the CIT(A):Bodhtree Consulting Ltd: The CIT(A) excluded this company due to its abnormal profit during the F.Y. under consideration, which was not considered by the TPO. The ITAT upheld this exclusion, noting the volatility in profit. Infosys Ltd: The CIT(A) excluded this company based on the decision of the Hon'ble High Court of Delhi in the case of Agnity India Technologies Pvt. Ltd, which held that Infosys Ltd is not a proper comparable due to various factors, including risk profile and revenue ownership. The ITAT upheld this exclusion, noting the functional dissimilarity and turnover disparity. Conclusion:The appeal of the assessee in ITA No. 1542/DEL/2015 was partly allowed for statistical purposes, and the appeal of the Revenue in ITA No. 1608/DEL/2015 was dismissed.
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2020 (1) TMI 1705
Seeking condonation of delay of 67 days in filing the appeal - HELD THAT:- The statement of the learned counsel for the appellant/CCI was recorded to the effect that it was ready to furnish all the documents of the investigation available with it to the respondent herein, except for those with respect to which a party had claimed confidentiality, without it being treated as a precedent. The very same fact had weighed with the learned Single Judge at the time of passing the impugned order on 29.9.2016.
In view of the said statement made on behalf of the appellant/CCI, duly recorded by the learned Single Judge in the order dated 02.12.2015, there are no merit in the submission made that the order dated 02.12.2015 or for that matter, the impugned order dated 29.9.2016, shall have wide ramifications or shall be treated as a precedent in the future.
There is no justification to modify the impugned order in the light of the statement made by learned counsel for the appellant/CCI on 2.12.2015, as noted in the order dated 2.12.2015. Thus, even on merits, no case for interference is made out by the appellant/CCI.
The application for seeking condonation of delay is dismissed as meritless and as a sequel thereto, the appeal and the pending application are also dismissed.
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2020 (1) TMI 1704
Permission to Applicant to withdraw the amount of Rs. 8,00,00,000 deposited with the Prothonotary and Senior Master along with the interest accrued thereon to the extent payable under the Award up to the date of withdrawal - HELD THAT:- It is true that an execution against HDIL is presently stayed but this is not an application for execution, nor is it, within the meaning of Section 14(1)(d), an application for 'the recovery of any property by an owner or lessor where such property is occupied by or is in the possession of corporate debtor'. To read only the words 'recovery of any property' as Ms Patil does, but not to read the rest of clause (d) is materially incorrect.
The provisions regarding a moratorium cannot possibly apply to such cash deposits made in this Court. As Mr Dwarkadas for Nahar Builders put it, money has no colour. Once it is deposited in Court no party can automatically claim any right to it without an adjudication by a Court. There is no dispute that there is an unchallenged and unsatisfed award in favour of Nahar Builders against HDIL. There is also no dispute that an amount of Rs. 8 crores is available with this Court.
There is no bar to this application for withdrawal. The application for withdrawal cannot be conceivably be considered a suit, proceeding or execution within the meaning of Section 14(1)(a).
Application disposed off.
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2020 (1) TMI 1703
Reopening of assessment - statutory requirement of Section 151 - as argued approval for re-opening by the Pr. CIT was deemed as mechanical and lacking proper satisfaction - unexplained cash deposits - HELD THAT:- Approval for re-opening of the assessment was given by Pr. CIT in a mechanical manner and without application of mind and does not meet the statutory requirement of Section 151 of the Act. Thus re-opening of assessment is bad in law.
AO has not applied his mind to the information received prior to recording of reasons, that the assessment should be re-opened. The fact is that the bank accounts do not belong to the assessee. This is accepted by the AO. No verification is done by the AO to the information received.
As decided in SIGNATURE HOTELS (P) LTD. [2011 (7) TMI 361 - DELHI HIGH COURT] information given by Director of Income-tax (Investigation), that amount received by assessee from other company was nothing but accommodation entry and assessee was beneficiary, was not sufficient to reopen assessment when Assessing Officer did not apply his, own mind to that information.
Appeal of the assessee allowed by quashing the re-opening of assessment made u/s 148.
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2020 (1) TMI 1702
Dishonour of Cheque - existence of a legally enforceable debt or liability - rebuttal of presumption u/s 139 of NI Act - Acquittal of accused - HELD THAT:- The standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden.
There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case.
The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal cannot be interfered with. There are no fault with the judgment of the Trial Court.
Appeal dismissed.
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2020 (1) TMI 1701
Nature of receipts - carbon receipts - revenue v/s capital receipt - ITAT upholding the order of the CIT(A) for deleting the addition - HELD THAT:-is already considered by us in [2020 (1) TMI 258 - GUJARAT HIGH COURT] by the order of even date and accordingly, the appeal stands dismissed so far as Question No.2(A) is concerned.
Additional depreciation - plant and machinery used for less than 182 days - CIT(A) allowed additional depreciation of 10% for the assessment year 2011-12 adopting purposive approach to the issue - HELD THAT:- On perusal of the provision of Section 32(1) of the Act and proviso thereto read with Section 32(1)(iia) it is clear that the assessee can claim additional depreciation at the rate of 20% of the actual cost of the plant and machinery purchased during the financial year - Such allowance of the depreciation can be claimed only to the extent of 10%, if the plant and machinery purchased by the assessee is used for less than 182 days. Accordingly, the assessee has claimed the additional depreciation to the extent of 10% only for Assessment Year 2010-11, and therefore, the claim of remaining 10% additional depreciation is made for the Assessment Year 2011-12.
Assessee can claim remaining additional depreciation of 10% in the assessment year 2011-12. The legislature has also thought it fit to clarify the situation by inserting third proviso to Section 32(1) by the Finance Act, 2015 with effect from 01.04.2016. According to third proviso to Section 32(1) of the Act, the assessee can claim the remaining additional depreciation in the subsequent assessment year.
Thus, both the authorities below have rightly held that the assessee is entitled to remaining additional depreciation of 10% - Decided against revenue.
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2020 (1) TMI 1700
Reopening of assessment u/s 147 - determination of the indexed cost of capital asset sold as determined by the AO - Whether market value fixed by the Sub-registrar at Rs. 250/- per sft cannot be applied against the cost of construction estimated by the Registered Valuer? - AR submitted before us that the entire addition was due to the fact that the assessee had failed to produce evidence with respect to the cost of acquisition / construction of his immovable property and pleaded by stating that one more opportunity may be provided.
HELD THAT:- We do not appreciate the fact that the assessee had failed to produce the required evidence before the ld. AO at the time of assessment proceedings and further failed to do so before the first appellate authority, considering the prayer of the assessee, in the interest of justice, we hereby remit the appeal back to the file of the Ld. AO with directions to accept and examine any fresh evidence produced by the assessee and thereafter decide the matter in accordance with law and merit afresh.
Also direct the assessee to co-operate with the ld. Revenue Authorities in their proceedings failing which the ld. Revenue Authorities shall be at liberty to adjudicate the issue based on the materials on record. Appeal of the assessee is allowed for statistical purposes
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2020 (1) TMI 1699
Job-work - manufacture of “Cadbury Perk with Glucose Energy” on behalf of M/s Mondelez - benefit of N/N. 03/2006 (Sl. No. 19) - Inclusion of dealer’s margin, RD markup and post manufacturing expenses claimed by the appellant in assessable value - extended period of limitation - demand of differential duty alongwith interest - imposition of penalties - it was held by CESTAT that 'There is no evidence on record to show that this actually pertains to R&D expenses. Therefore, inclusion of R&D mark up in the assessable value is not sustainable and it deserves to be set aside.'
HELD THAT:- There are no reason to interfere with the impugned order dated 6 August 2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, Regional Bench, Hyderabad.
Appeal dismissed.
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2020 (1) TMI 1698
Validity of Notice u/s 142 (1) - violation of natural justice - notice was digitally signed by the AO at 4.59 p.m on 17.12.2019 calling upon the petitioner to furnish the details by 11.30 a.m. on the following date on 18.12.2019. The petitioner responded to the same, the following date at about 16.24 hours i.e, at 4.24 p.m. on 18.12.2019 .
HELD THAT:- The impugned order came to be passed by the assessing officer and was digitally signed by him at 4.28 p.m on the following date without hearing the petitioner. It is evident that the impugned order was passed as against the Principle of Natural Justice. We also find sufficient grounds to interfere.
The impugned order is therefore setaside and the case is remitted back to the respondent to pass speaking order after considering the representation of the petitioner filed on 18.12.2019 along with the reply to the petitioner before the assessing officer who was incharge of the case earlier.
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