|
Advanced Search Options
Case Laws
Showing 101 to 120 of 1763 Records
-
2016 (11) TMI 1668
Unexplained cash credits u/s 68 - assessee had failed to furnish satisfactory explanation with regard to the identity of the parties and the source and genuineness of the transactions - HELD THAT:- Since it was a common point between the parties that the respondent-assessee is also a part of group of entities controlled by Mr. Mukesh Choksi, in our view, the aforesaid precedents are relevant to assess the income of assessee. In this view of the matter, we find that the CIT(A) made no mistake in coming to the impugned decision, which is in conformity with the position upheld by the Tribunal in the group concerns of the instant assessee. Therefore, we hereby affirm the order of CIT(A) and accordingly, Revenue fails in its appeal.
-
2016 (11) TMI 1667
Levy of compounding fee - release of detained goods alongwith vehicle - offence under Sections 71 (5) (a) and 71 (5) (b) of CST Act - HELD THAT:- This Court is not able to see any merit in the submissions made by the learned Special Government Pleader for the respondent. In the instant case, the goods were detained for one reason and the order demanding compounding fee was passed on different grounds, not related to detention and goods in transit. Further, the respondent cannot usurp the jurisdiction of the Assessing Authority. It is only the Assessing Authority, who can decide, whether tax is leviable, whether there is an attempt for evasion, whether the explanation of the owner / agent is acceptable, whether the documents that are carried with the goods are sufficient, etc.,
This Court is of the considered view that, since the respondent is not the Assessing Officer, he is not entitled to levy and demand any amount of tax, in addition to the tax payable on the value of the goods. Therefore, the impugned proceedings of the respondent is against the provisions of the Act and the Rules framed therefor - the impugned order demanding and collecting tax has no legs to stand - petition allowed.
-
2016 (11) TMI 1666
Release of seized vehicle - HELD THAT:- The petitioner is permitted to make application to respondent No.3 for release of the seized vehicle. Respondent No.3 is directed to consider such application and pass appropriate orders as per G.O.Ms.No.3, Industries and Commerce (Mines.I) Department, dated 08.01.2015 as amended by G.O.Ms.No.5, Industries & Commerce (Mines.I) Department, dated 19.02.2015 for release of the seized vehicle, within a period of three days from the date of receipt of application.
Petition disposed off.
-
2016 (11) TMI 1665
Interest on the loan taken which is utilised for giving advances to the sister concerns - Tribunal held that the interest deduction claimed by the assessee is an allowable deduction on the premise that the loan was utilised by the assessee for giving advance to the sister concern - HELD THAT:- As decided in M/S. GOLF VIEW HOMES LTD [2016 (11) TMI 1664 - KARNATAKA HIGH COURT] activity of the assessee was also of acquiring property rights in sister concers, any advance given by the assessee them is to be treated for acquiring property rights and once it is treated as for acquiring property rights may be of a sister concern, it would be an allowable deduction under section 36 of the Income-tax Act, since it is for the business activity. - Decided in favour of assessee.
-
2016 (11) TMI 1664
Deduction of the interest on the loan taken which is utilised for giving advances to the sister concerns - Tribunal holding that the interest deduction claimed by the assessee is an allowable deduction - HELD THAT:- CIT (Appeals) was satisfied about the activity of the assessee as of construction of one building after another and acquiring of property rights in Diamond District and Platinum City - two sister concerns.
If such was the finding that the activity of the assessee was also of acquiring property rights in M/s. Diamond District and M/s. Platinum City, any advance given by the assessee to M/s. Diamond District and M/s. Platinum City is to be treated for acquiring property rights and once it is treated as for acquiring property rights may be of a sister concern, it would be an allowable deduction under section 36 of the Income-tax Act, since it is for the business activity.
The attempt on the part of the Revenue to contend that the finding arrived at by the Tribunal is perverse by misconstruing the order of Commissioner of Income-tax (Appeals) cannot be countenanced for three fold reasons as the Department itself before the Tribunal did not dispute the aforesaid finding of fact recorded by the Commissioner of Income-tax (Appeals) - it is not only at one place the aforesaid finding of fact is recorded but subsequently as observed earlier at two places similar factum is also recorded and when such finding of fact was not disputed and was also reiterated by the Commissioner (Appeals) and the said reiteration was also not disputed and the Tribunal has relied upon the same and has proceeded as an undisputed fact, such a view on the part of the Tribunal cannot be said to be perverse view.
When one talks about perversity, the test would be that no reasonable person would take such view. But if the view taken by the Tribunal is a possible reasonable view, such view cannot be said to be perverse. If the perversity is tested from the material on record, then also, we cannot accept the contention that the finding of fact so recorded by the Tribunal is perverse or without there being any material on record.
No perversity in the finding of the Tribunal in allowing the appeal of the assessee so far as the deduction of the interest on the loan taken which is utilised for giving advances to the sister concerns - Decided in favour of assessee.
-
2016 (11) TMI 1663
Computation of tax u/s 115JB - MAT credit utilization - MAT credit excluding Surcharge and Education Cess and not allowing the MAT credit utilization as claimed under section 115JAA - short allowance of credit on account of MAT credit i.e. restriction in the quantum of refund to be issued to the assessee - HELD THAT:- Issue of allowance of tax credit for tax paid on deemed income i.e. computation of eligible MAT credit arose before the Hyderabad Bench of Tribunal in Virtusa (India) (P) Ltd. Vs. DCIT [2016 (3) TMI 245 - ITAT HYDERABAD] held that the tax liabilities for normal provisions as well as MAT to be calculated with Surcharge and Education Cess and the assessee was entitled to total MAT credit adjustments i.e. against taxes and Surcharge and Cess. In this regard, reference was made to sub-section (5) to section 115JAA of the Act i.e. for setting o ff in respect of brought forward tax credit and it was held that the term used ‘tax’ included surcharge and AO cannot overlook these formats and (interpret it in his own method of calculating tax credit while making assessment u/s 143(1) of the Act.) proceed to calculate the MAT credit to compute assessment u/s 143(1) applying different methods when the proper and correct method as proposed by CBDT in ITR-6. The Assessing Officer is expected to follow the ITR-6 format to complete the assessment u/s 143(1) or 143(3) of the Act.
Thus we hold that the assessee is entitled to MAT credit utilization of ₹ 1.48 crores i.e. MAT credit including surcharge and education cess. Accordingly, we direct the Assessing Officer to re-compute the refund in the hands of assessee. The grounds of appeal raised by the assessee are thus, allowed.
-
2016 (11) TMI 1662
SEBI reiterated an ex-parte order - order was treated as a show cause notice in the facts of this case, and detailed directions were issued by this order - HELD THAT:- We have been informed by learned Senior counsel appearing for SEBI that the ongoing investigations will be completed within six months from today, provided the respondents before us cooperate. We accept the said submission and expect that the ongoing investigations will decide one way or the other whether the respondents floated a Collective Investment Scheme (CIS).
In the unlikely event that SEBI's investigation does not or is not complete within the period of six months from today, it is open for the respondents to ask for a variation of the order dated 24.08.2015 of SEBI from this Court.
We further add that in case any alienation or encumbrance of assets is sought to be made by the respondents, they cannot do so without the prior permission of SEBI.
-
2016 (11) TMI 1661
Non appearance on the date of hearing - assessee submitted that Shri Deepanshu Jain, who was to appear in this case on the date of hearing could not appear due to sudden demise of his grandfather on 27.06.2016 itself - HELD THAT:- Considering explanation of the assessee, we are satisfied that assessee’s counsel was prevented by sufficient cause from appearing on the date of hearing. Further, appeal of the assessee has not been decided on merits. Therefore, one more chance could be given to the assessee to argue the appeal on merits.
In this view of the matter, we recall our earlier order dated 27.06.2016 and restore the appeal of the assessee. The Miscellaneous Application is allowed.
-
2016 (11) TMI 1660
TP Adjustment - upward adjustment made on the value of its international transactions with its Associate Enterprises (‘’AEs’’) - MAM selection - Lower authorities selecting CUP method over TNM method - geographical difference between supplies made to Associated Enterprise and Non Associated Enterprise - HELD THAT:- When uncontrolled comparables are available internally on some of the items which was sold to Associated Enterprise then such comparables would form a separate class of its own. TPO had considered forty nine thread types for which there were internal uncontrolled transactions available for comparison. TPO had not made an adjustment for any of the other varieties of thread sales made by the assessee to its Associated Enterprise.
We do find that atleast for eight items among these forty nine thread types, mentioned at Sl. No.27,28,30,35,37,38,39 & 44, there was negative differences adjustment which were ignored by the TPO, in the work out at annexure A of its order. When a class of items are considered for adjustment, the negative effect of some of the items therein cannot be ignored. As for contention of the assessee is that there were geographical difference between supplies made to Associated Enterprise and Non Associated Enterprise, there is a clear finding by the ld. DRP that assessee was catering to Asian countries and Associated Enterprise were located in Sri Lanka, Mauritius, Pakistan and Egypt and Non Associated Enterprises were located in Srilanka, Bangladesh, Malawi etc with not much of a geographical difference. Viz-a-viz volume discount mentioned by the ld. Authorised Representative, ld. DRP had given a clear finding that there were substantial sales in alteast in five items falling in the table appearing in para 2.10 of its order. Considering all these, we are the opinion that lower authorities were justified in selecting CUP method over TNM method. However, as mentioned by us, computation of the Arms Length Price adjustment required on forty nine number of items mentioned in the order of TPO requires to be reworked, so that negative amounts are also considered for aggregation and for working out the Arms Length Price adjustment that is required. For this limited purpose of recalculation, we remit the issue back to the file of the Assessing Officer/TPO.
Downward adjustment on commission paid to its Associated Enterprises - payment was for agency commission or management commission fees - HELD THAT:- As already noted by us the orders on which commission was paid was only on items sold to group concerns and not to any third parties. There is much strength in the argument of the ld. Departmental Representative that in such a situation onus of the assessee was much more than in a scenario where orders on which commission was received were on supplies to third parties. Assessee had failed to discharge this. Consolidation of fragmented orders could have been done by the assessee itself and did not require services of an Associated Enterprise or knowledge of any sublims stalls. When assessee was unable to bring on record anything to show for what reason agency commission was paid, in our opinion there arose an exceptional circumstance where by Arms Length Price could be taken as Nil. As for decision of the Delhi Bench of the Tribunal in the case M/s. McCann Erickson India (P) Ltd [2012 (7) TMI 728 - ITAT, DELHI] strongly relied by the ld. Authorised Representative, assessee therein was able to demonstrate the type of services, description of service and benefits received by the it from its Associated Enterprise. Further, the payment was not agency commission but management commission fees. In the host of other judicial decisions relied by the ld. Authorised Representative also the question dealt was on the management fees and not on agency commission. In these circumstances, we do not find any reason to interfere with the orders of the lower authorities
-
2016 (11) TMI 1659
Unexplained cash credit u/s.68 - Unsecured loan received - HELD THAT:- Source of deposit of cash by the loan creditor Shri Simachal Panda could not be satisfactorily explained by the assessee either before the Assessing Officer or before the ld CIT(A) or even before me. Thus, the creditworthiness of the loan creditor Sri Simachal Panda could not be proved. Hence, find no good reason to interfere with the order of the ld CIT(A) and, therefore, this part of ground of appeal is dismissed.
Laon from Late Banamali Besoyee, it is observed from the bank statement of United Bank of India, B.D.Pur placed at page 5 of PB that ₹ 4 lakh was advanced out of agricultural loan obtained from UBI and thus, the creditworthiness of the loan creditor is proved for advancing the loan of ₹ 4 lakh to the assessee. Hence set aside the orders of lower authorities on this issue and delete the addition - Ground No.1 of the appeal is partly allowed.
Addition u/s.68 for deposit of cash and cheque in the bank - assessee failed to explain the source of the same - HELD THAT:- Source of the deposit also could not be explained before the ld CIT(A). Before us A.R. submitted that the deposit of ₹ 8 lakhs in the bank was the sale proceeds from the business of the assessee of fruits and bricks. However, he could not place any evidence on record to substantiate his claim. Therefore, the argument of the ld A.R. of the assessee that entire ₹ 8 lakhs cannot be treated as income of the assessee but the income embedded of such receipts from the business of fruits and bricks of the assessee of ₹ 8 lakhs could only be treated as income of the assessee, cannot be accepted
Assessee could not produce the creditors before the Assessing Officer for examination - action taken by the Assessing Officer to secure the appearance of the creditors before him. In our considered view, in the above circumstances, CIT(A) was not justified in confirming the additions action taken by the Assessing Officer to secure the appearance of the creditors before him. In my considered view, in the above circumstances, the ld CIT(A) was not justified in confirming the additions Under the Income tax Act, the power has been conferred on the Assessing Officer to secure the presence of a person and no power has been conferred upon the assessee by exercise of which he can compel the creditors to appear before the Assessing Officer. - Decided in favour of assessee.
-
2016 (11) TMI 1658
Legality of the proceedings under Section 340 of the Code of Criminal Procedure, 1973 - grant of interim injunction - High Court, on account of the contradictory stand taken by the appellant herein who was the first respondent before the High Court took the view that the conduct of the appellant has affected the administration of justice, and therefore, it was expedient in the interests of justice to file a complaint against the appellant under Section 340 of the Code.
HELD THAT:- The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code (45 of 1860); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution.
In the interests of justice the matter needs to be laid to rest. The appeal is hence allowed. The impugned order to the extent of initiation of the proceedings under Section 340 of the CrPC is set aside - decided in favor of appellant.
-
2016 (11) TMI 1657
Revision u/s 263 - assessment made by AO is set-aside with the directions to the Assessing Officer to complete the assessment afresh by taxing interest income earned by its units entitled for deduction u/s.80IC, under the head “Income from other sources”- HELD THAT:- It is not a case of a total set aside of assessment, but to a limited extent, so that it has to be modified to the stated extent only. The AO in the revised assessment is to interfere with the assessment only to the stated extent and, further, in doing so is only giving effect to the said directions by the ld. CIT. Clause (c) of Explanation 1 to section 263(1) is, again, specific, excluding parallel exercise of jurisdiction by the Administrative and the Appellant Commissioner. Once, therefore, the ld. CIT has, in exercise of his power of revision, held the interest income as assessable under section 56, the matter cannot be re-agitated before or revisited by the Appellant Commissioner, whose view is thus in accordance with the clear mandate of law. Reference in this context, explaining the clear position of law, may be made to the decision in the case of CIT v. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME COURT] being in fact clarified, in a similar fact situation, in the case of Herdillia Chemicals Ltd. (1995 (12) TMI 411 - BOMBAY HIGH COURT), so that the matter can only be said to be no longer res integra, being squarely covered by both, the clear position of law as well as said binding decisions. This is precisely the reason for our stating, at the outset, of the assessee as having no case. The assessee’s appeal having been upheld by us as not maintainable, the question of adjudicating its grounds assailing the assessment on merits does not arise.
Order u/s.263 filed only on 03.09.2015 which is time barred by 458 days - In our clear view, even as expressed during hearing, the assessee had clearly, and presumably, only on the basis of a legal opinion, taken a conscious decision not appeal against the revision order, passed with reference to and relying on several decisions, including by the Apex Court. No reasonable, much less sufficient, cause has been advanced for condonation of delay
We have already expressed that the impugned order stands passed relying on several decisions, including by the Apex Court. The assessee could not make out a prima facie case, i.e., on the merits of the impugned directions issued by the ld. CIT, before us, with we on the contrary observing the assessee to have taken a conscious decision accepting the same. The said decision would thus also have no application in the present case. The instant appeal is not maintainable, and is accordingly dismissed. We decide accordingly.
-
2016 (11) TMI 1656
Addition on account of long-term capital gain - Sale of a residential house - Interest in property - Section 50C applicability - assessee had transferred the land and building, which was under his possession as mentioned in the sale deed HELD THAT:- Since the assessee has transferred his interest in the land and building under consideration, therefore, consideration arising out of such transfer is definitely chargeable under the provisions of Income-tax Act, 1961. In the aforesaid case, by declaring sale as null and void, the land remained in the possession of the owner, who had transferred the said land in defiance of the statutory provisions, whereas in the case of the assessee, he has transferred his ownership and by virtue of Court’s order dated 01.03.2013, the assessee has not remained the owner of the land and building, but already received consideration in respect of the property. Since the underlined asset transferred is being land and building, therefore, provision of Section 50C are very much applicable. In view of these facts, we are of the considered opinion that the AO and ld. CIT(A) have justified in their action, hence, no interference on our part is required.
Taking cost of the market value of the property as on 01.04.1981 in place of cost of acquisition while computing the capital gain - HELD THAT:- AO has considered the indexation cost of acquisition at ₹ 40,920/- as against actual cost of ₹ 6,000/- while computing the capital gains. Therefore, we are of the view that the benefit of indexation has already been allowed by the AO. Hence, this ground of appeal is rejected.
-
2016 (11) TMI 1655
Revision u/s 263 - HELD THAT:- There was no occasion for the Assessing Officer to make any inquiry and the Assessing Officer accepted the return without proper inquiry as a result of which substantial amount of taxable income was not brought to tax. We also hold that no rule of universal application can be laid down for exercise of revisional powers u/s 263 of the act. It will depend on the facts of each and every case but the Commissioner of Income Tax must be satisfied of existence of twin conditions that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. - Decided against assessee.
-
2016 (11) TMI 1654
The Supreme Court's judgment in 2016 (11) TMI 1654 - SC Order, by Mr. Dipak Misra and Mr. Amitava Roy, JJ., condoned delay, issued notice, and tagged with SLP (C) Nos. 6735-6740 of 2016.
-
2016 (11) TMI 1653
TP Adjustment on account of AMP expenses - International transaction - HELD THAT:- On perusal of the order of the TPO, it emerges that while holding the AMP expenses to be an international transaction, he did not have the benefit of the judicial precedents now available for consideration, in some of which the transaction of AMP has been held as an international transaction, in others as not an international transactions, while still in some others, the matter has been restored for fresh consideration in the light of the judgment in Sony Ericsson [2015 (3) TMI 580 - DELHI HIGH COURT] in which the AMP expenses as an international transaction has been accepted.
Respectfully following the predominant view of the Hon’ble High Court, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to the file of TPO/AO for a fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If, on the other hand, the international transaction is found to be existing, then the TPO would determine the ALP of such an international transaction in the light of the relevant judgments of the Hon’ble High Court, after allowing a reasonable opportunity of being heard to the assessee.
-
2016 (11) TMI 1652
Disallowance u/s. 14A - whether the disallowance u/s. 14A could exceed the exempt income derived by the assessee? - HELD THAT:- Provisions of section 14A of the Act are very clear in considering expenditure which were incurred for earning any income which do not form part of total income. So going by the plain language of the section it could be safely concluded that the legislature intended only to disallow the expenditure that were incurred for earning exempt income. The legislature never intended to disallow the expenditure which is more than the exempt income derived by the assessee.
We also draw support from the decision of the Hon’ble Delhi High Court in the case of Joint Investments Pvt. Ltd. Vs. CIT [2015 (3) TMI 155 - DELHI HIGH COURT] wherein it has been held that the disallowance u/s. 14A of the Act cannot exceed the exempt income. Respectfully following the said decision, we direct the AO to restrict the disallowance u/s. 14A of the Act to ₹ 102/- and allow the ground of appeal raised by the assessee. Appeal of the assessee is allowed.
-
2016 (11) TMI 1651
Income accrued in India - receipts of the assessee from DSSPL towards sale of software products - deeming provisions under section 9(1)(vi) - DTAA between India and USA - HELD THAT:- It is not disputed by the Revenue that payments received by the assessee from DSSPL were based on same regional support agreements between assessee and DSSPL which was considered by the Co-ordinate Bench of this Tribunal in [2011 (9) TMI 207 - ITAT, CHENNAI] . So the payments received by the assessee during the relevant assessment year from DSSPL was of the same nature as what were received by it from the said concern in the previous year relevant to assessment years 2002-03 to 2006-2007. In its order dated 16.09.2011, this Tribunal had followed the decision of Special Bench in the case of Motorala Inc. vs. DCIT [2005 (6) TMI 226 - ITAT DELHI-A]
Co-ordinate Bench had in its orders for the earlier years relied on the DTAA between India and USA for construing the meaning of the term Royalty which was available in Article 12(3). It is not disputed that the said definition had not undergone any change despite the amendment to Sec. 9(1)(vi) brought in through Finance Act, 2012. It is trite law that an assessee can fall back on the DTA when it is more advantageous to it. Hon’ble Delhi High Court in the case of Infrasoft Ltd [2013 (11) TMI 1382 - DELHI HIGH COURT] had clearly held that subsequent amendment to Sec. 9(1)(vi) of the Act in so far as it relates to definition of Royalty was not relevant when an assessee relied on DTAA provisions which were more beneficial to it. In the circumstances, following decisions of Co-ordinate Bench of earlier years, we are of the opinion that the receipts of the assessee from DSSPL could not have been considered as Royalty in the hands of the assessee liable for taxation in India. Addition made stands deleted. - Decided in favour of assessee
-
2016 (11) TMI 1650
Disallowance of expenditure - Income is taxed out information arising out of seized material - HELD THAT:- Details were furnished regarding expenses of ₹ 35.00 lakhs before the AO and the ld. CIT(A) also. The claim of expenses of ₹ 35.00 lakhs is against unaccounted receipts as per the same seized material of ₹ 156.12 lakhs as noted by the CIT (A) in para-3 reproduced above. This is not the case of AO that this claim of the assessee regarding expenses of ₹ 35.00 lakhs against unaccounted receipt of ₹ 156.00 lakhs is excessive or unreasonable.
The objection is regarding supporting evidence. Un-accounted expenditure, supporting evidences may not be available in most of the cases but since the expenses are noted in the same seized material as per which the receipt is being taxed of ₹ 156.00 lakhs and the claim of such expenses is not excessive and unreasonable and no specific defect has been pointed out by the authorities below in the claim except asking for supporting evidence, we are of the considered opinion, that the assessee was able to establish the incurring of expenditure by way of notings in the seized material and furnishing of the details of the expenses item wise and this is not the case of the revenue that such details are not as per the notings in the seized material. Hence, we delete this disallowance. Accordingly, ground no.2 to 4 are allowed.
-
2016 (11) TMI 1649
Reopening of assessment u/s 147 - assessee had not filed his return for the impugned assessment year - HELD THAT:- Order dated 09.02.2015 disposing of assessee’s objection to reopening reads that the said return had not been filed u/s.139(1) - CIT(A) on the other hand is of the view that the said return was not filed with the Assessing Officer issuing Section 148 notice. The fact however remains that the filing of assessee’s return in question is not otherwise in dispute.
We put up a specific query to Ld. Departmental Representative to prove that assessee’s residential status or his ward is different in the above stated return or in Section 148 notice or in reassessment. He could not point out such difference. It has further come on record that assessee had also received acknowledgement of his return from department’s end forming part of the paper book.
We quote hon’ble jurisdictional high court in Manish Kumar Pravinbhai Kiri vs. ACIT [2016 (1) TMI 787 - GUJARAT HIGH COURT] holding that the only reason of non filing of return forming basis of the impugned reopening in such circumstances stands belied. We thus accept assessee’s challenge to validity of the reopening and conclude that the Assessing Officer’s above stated reasoning goes contrary to the record. The same is accordingly quashed rendering assessee’s other ground on merits as infructuous.
............
|
9911796707
