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Showing 141 to 160 of 1763 Records
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2016 (11) TMI 1627
Reopening of assessment u/s 147 - non deciding objections of the assessee against initiation of reassessment proceedings by passing a separate speaking order - HELD THAT:- AO has not passed any speaking order against the said objections so filed by assessee, which is a mandatory requirement as has been held by Hon'ble Apex Court in the case of M/s GKN Driveshafts (India) Ltd vs ITO [2002 (11) TMI 7 - Supreme Court] reopening order held void. - Decided in favour of assessee.
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2016 (11) TMI 1626
Complaint of defamation - Section 200 of the Code of Criminal Procedure, 1973 - offences punishable under Sections 500 and 501 read with Section 34 of the Indian Penal Code, 1860 - the petition filed by the Respondents Under Section 482 of the Code of Criminal Procedure has not been decided by the High Court on its merits - HELD THAT:- The case is remitted to High Court for reconsideration - We make it clear that all contentions which are available to the Appellant, including the maintainability etc. of the said petition, would be open to the Appellant which can be argued before the High Court and the High Court shall deal with the same - appeal allowed by way of remand.
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2016 (11) TMI 1625
TP Adjustment - comparable selection - HELD THAT:- Motilal Oswal Investment Advisors Pvt. Ltd is primarily in the business of Merchant Banking and, therefore, is not functionally comparable with the business of the assessee being investment advisory to its AE.
IDFC - assessee is engaged in business of providing investment research and advisory services to Bain Mauritius, on a non-exclusive and non-binding basis, in connection with potential investment opportunities in India. IDFC rendered Portfolio Management services for hybrid infrastructure portfolio, agriculture opportunities portfolio and farm fork portfolio. IDFC is registered as portfolio manager with SEBI. Thus, IDFC is functionally different from the assessee which is engaged merely in non-binding investment advisory support services. Since, IDFC is functionally different, we direct the AO to exclude the IDFC from the list of comparables
CRA Online Limited operated in two strategic lines of business, i. e. knowledge Process Outsourcing and information Services and Technology Solutions, with a list of reputed global and domestic clients.
we direct the AO to exclude above mentioned three comparables from the final list. Effective ground of appeal is decided in favour of the assessee.
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2016 (11) TMI 1624
The Supreme Court condoned delay, issued notice, and tagged the case with C.A. Nos. 5252-5254 of 2015. (2016 (11) TMI 1624 - SC)
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2016 (11) TMI 1623
Disallowance of commission expenses - assessee argued that the assessee wanted to adduce the additional evidence in support of his claim, therefore, the assessee should be allowed to produce the evidence before the AO in the interest of justice - HELD THAT:- No doubt these documents were not produced before the AO as well as before the CIT(A). But these documents seems relevant to decide the matter of controversy and to achieve the target of justice, therefore, in view of the said circumstances we allowed the additional evidence and direct the AO to consider the claim of the assessee accordingly by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, the finding of the CIT(A) on this issue has been ordered to be set aside and issue is directed to be restored to the file of AO to decide the matter a fresh in view of the above said observations and in accordance with law.- Appeal filed by the assessee allowed for statistical purpose.
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2016 (11) TMI 1622
Cancellation/Annulment of trade – guilty of gross negligence by not installing requisite checks and balances as there was punching of erroneous selling order – Whether mistake of punching erroneous sell order constituted ‘material mistake in trade’ and was annullable under Bye law 5(a) framed by NSE - HELD THAT:- In view of the decision of this Tribunal in the case of M/s. Emkay Global Financial Services Limited vs. National Stock Exchange of India Limited & Ors. [2015 (8) TMI 335 - SECURITIES APPELLATE TRIBUNAL MUMBAI] which is subsequent to the impugned decision, the Committee of NSE would rehear all the parties and pass fresh order on merits.
Accordingly, the impugned order is allowed to be withdrawn with liberty to the Committee of NSE to pass fresh order on merits. NSE is directed to give all the relevant trade and order logs to all the parties before passing the fresh order.
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2016 (11) TMI 1621
Low tax effect - monetary limit - HELD THAT: - Delay condoned. Leave granted. Tag with Civil Appeal [2018 (8) TMI 1825 - SC ORDER] wherein held as a last opportunity, four weeks' time is granted to the learned counsel for the appellant(s)to file affidavit of valuation and deficit court fees, failing which the appeals shall stand dismissed for non-prosecution.
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2016 (11) TMI 1620
Mnatanability of appeal - low tax effect - HELD THAT:- On perusal of the Circular No. 21/2015 dated 10.12.2015 and the materials available on record, we could not see whether the impugned case falls under any of the exceptions contemplated in the said Circular. Circular makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals also.
We find that the Circular is binding on the tax authorities. This position has been confirmed in the case of Commissioner of Customs vs Indian Oil Corporation Ltd [2004 (2) TMI 66 - SUPREME COURT] wherein examined the earlier decisions of the Apex Court with regard to binding nature of the Circulars and laid down that when a Circular issued by the Board remains in operation then the revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the statute. Hence we hold that the appeal(s) of the revenue deserve to be dismissed in terms of low tax effect vide Circular No.21 / 2015 dated 10.12.2015
No proper Notice issued u/s. 143(2) served on the assessee - AO claimed to have issued notice u/s. 143(2) for fixing the date of hearing on 23-11-09 and argued that such notice was served on a person by name Sh. M. Sankar who is neither authorized nor concerned person to receive on behalf of assessee - HELD THAT:- AO recorded the issuance of notice u/s. 142(1) on 19-7-2010 for fixing the hearing on 02-08-2010 and thereafter, according to assessment order, probably, after 26-08-2010 another notice for initiation of penalty proceedings u/s. 271(1)(b)of the Act was issued.
A person claiming to be representing the assessee as partner appeared before the AO for the first time on 10-12-2010 in response to notice issued u/s. 271(1)(b) of the Act and it concluded that the service of notice u/sec 143(2) on 30-09-09 and issuance of notice thereafter u/sec 142(1) of the Act was not in the knowledge of the assessee and as rightly contended by the Ld.AR notice u/sec 143(2) of the Act was not properly served on the assessee. We also find that there is a gap of one year between issuance of notice u/s. 143(2) and appearance of partner representing Assessee before the AO. Therefore, the order sheets of assessment record as filed by the assessee by way of paper book suggests that the assessee was not appeared before the AO in response to notice issued u/s. 143(2) of the Act as it was not in the knowledge of Assessee. Therefore, we hold that the statutory notice issued u/s. 143(2) of the Act was not properly served on the assessee, which is mandatory as per section 143(2) of the Act.
The notice as prescribed under sub section (2) of Section 143 of the Act was not properly served on the assessee. Thus, the assessment order dt: 30-12-2010 made u/sec 144 of the Act and as confirmed by the CIT-A is held to be invalid and it is quashed. - Decided in favour of assessee.
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2016 (11) TMI 1619
Service of notice by an affixture - mode of service of notice - Curable defect u/s 292BB - validity of assessment - No notice u/s 143(2) issued and served upon the assessee within the stipulated period prescribed in the proviso - wrong assumption of jurisdiction by the AO under section 143(2) - provisions of section 282 of the Act dealing with provisions relating to the service of notice - HELD THAT:- There is nothing to suggest that the assessee was intentionally hiding from the authorities for the purpose of avoiding service or there was any other good reason to conclude that the notice could not be served in an ordinary way. The inaction or delay on the part of the Assessing Officer in issuing notice under section 143(2) of the Act cannot be a ground to straightway effect service by affixture. Thus, in the instant case, the ordinary process not having been exhausted or carried out by the Assessing Officer, he was not justified in directly resorting to service of notice by an affixture merely because he had issued the notice at the last minute i.e. on 29//11/2011 so as to avoid the limitation expiring on 30/11/2001. Under these circumstances, we find ample force in the plea of the assessee on the issue of wrong assumption of jurisdiction by the Assessing Officer by issuing the instant notice under section 143(2) of the Act.
Plea raised by the Revenue is that the assessee had appeared before the Assessing Officer on 10/12/2001 and that on that basis it is sought to be canvassed that, in any case, assessee was aware of the notice under section 143(2) of the Act having been served on 29/11/2001 - as per assessee it is wrong on the part of the Revenue to contend that assessee attended before the Assessing Officer on 10/12/2001 in response to the notice issued under section 143(2) of the Act dated 29/11/2001. We find the aforesaid plea of the assessee quite potent and is in fact supported by the material on record. The Ld. Representative for the assessee had referred to a communication dated 10/12/2001 addressed to the Assessing Officer, wherein it has been communicated that the notice was received on 10/12/2001 itself, which ostensibly is the notice dated 6/12/2001 addressed to the Director of the company. Therefore, the aforesaid plea of the Revenue is misplaced and is hereby rejected.
Curable defect u/s 292BB - section 292BB, in any case, does not come to the rescue of the Revenue in the present case because it has been introduced by Finance Act, 2008 w.e.f. 01/04/2008 and it would not apply in the instant case.
Thus the notice under section 143(2) has not been served within the time and the mode prescribed under the Act and as a consequence, the impugned assessment framed under section 143(3) of the Act is void ab-initio. Accordingly, the assessment order dated 10.11.2003 is liable to be quashed. - Decided in favour of assessee
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2016 (11) TMI 1618
Validity of SCN - Refund of the amount deposited together with interest - Section 32 of the DVAT Act, 2004 - HELD THAT:- The notices in question even if they were served upon the assessee, do not conform the Rule that was issued much later in the year 2012. What is more disturbing to this Court, however, is that all seven notices produced and relied upon by the Revenue demand “zero” from the assessee and assessed turnover at “zero”. It is not only to the utter dismay of the Court but is entirely un-comprehensible and goes completely untenable.
The respondents are directed to process the petitioner’s application and pass appropriate orders within a week. Any amount deposited by the petitioner, shall be refunded after adjusting tax due together with interest payable in accordance with law within a period of two weeks.
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2016 (11) TMI 1617
Benefits of section 80P - Deduction u/s. 80P(2)(a)(i) - Unexplained cash credits u/s. 68 - Non granting of deduction u/s. 80P(2) - treating the unexplained credits as ‘income from other sources’ - HELD THAT:- Delay condoned. Leave granted.
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2016 (11) TMI 1616
The Supreme Court of India condoned the delay and granted leave for the case to be heard along with Civil Appeal No. 5091 of 2013.
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2016 (11) TMI 1615
Benefit of deduction u/s 80P(2) - assessee is a primary agricultural credit society - HELD THAT:- In the instant case, the assessee is a primary agricultural credit society registered under the Kerala Cooperative Societies Act, 1969. The certificate, which has been issued by the Registrar of Cooperative Societies, to the above effect, is placed on record.
CHIRAKKAL SERVICE CO-OPERATIVE BANK LTD. VERSUS THE COMMISSIONER OF INCOME TAX [2016 (4) TMI 826 - KERALA HIGH COURT] held that primary agricultural credit societies registered under the Kerala Cooperative Societies Act, 1969 are entitled to the benefit of deduction u/s 80P(2)(i)(a) of the Act. Since there is a certificate issued by the Registrar of Cooperative Societies stating that the assessee is a primary agricultural credit society, we hold that the assessee is entitled to the benefit of deduction u/s 80P(2)(a).
Granting deduction u/s 80P(2) for the addition made u/s 68 - HELD THAT:- We notice that the Assessing Officer while making the addition u/s 68 of the Act had brought the same to tax under the head ‘income from business’. Once the same is brought to tax as ‘income from business’, the said income is entitled to the benefit of deduction u/s 80P(2)(i)(a) of the Act . See THE KARAD MERCHANT SAH. CREDIT [2011 (2) TMI 1543 - ITAT PUNE] and BULDANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. [2013 (12) TMI 237 - ITAT NAGPUR]
The CBDT, in the recent circular no.37/2016 dated 2nd Nov 2016 has considered higher deduction u/s 80P on the enhanced profit as a result of disallowance of expenditure. The CBDT had clarified that, as a result of expenditure disallowance, there is a enhanced profit and the same is brought to tax as business income, deduction under Chapter VI-A need to be allowed on the enhanced profit. Thus we hold that the CIT(A) is justified in granting benefit of deduction u/s 80P(2)(i)(a) of the Act, as regard to addition u/s 68
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2016 (11) TMI 1614
Deduction u/s 80P(2)(a)(i) - assessee is a primary agricultural credit societies registered under the Kerala Cooperative Societies Act, 1969 - HELD THAT:- In the instant case, the assessee is a primary agricultural credit society registered under the Kerala Cooperative Societies Act, 1969. The certificate, which has been issued by the Registrar of Cooperative Societies, to the above effect, is placed on record. The Hon’ble jurisdictional High Court in assessee own case and other batch of cases had held that primary agricultural credit societies registered under the Kerala Cooperative Societies Act, 1969 are entitled to the benefit of deduction u/s 80P(2)(i)(a) of the Act. Since there is a certificate issued by the Registrar of Cooperative Societies stating that the assessee is a primary agricultural credit society, we hold that the assessee is entitled to the benefit of deduction u/s 80P(2)(a) of the I T Act.
Ad-hoc disallowance of 5% out of the total interest paid by the assessee on the deposits received from its members - AO while making the ad-hoc disallowance of interest paid had brought the same to tax under the head “income from business” - HELD THAT:- AO while making the ad-hoc disallowance of interest paid had brought the same to tax under the head “income from business”. Once the same is brought to tax as ‘income from business’, the said income is entitled to the benefit of deduction u/s 80P(2)(i)(a) of the Act.
The CBDT, in the recent circular no.37/2016 dated 2nd Nov 2016 has considered higher deduction u/s 80P on the enhanced profit as a result of disallowance of expenditure. The CBDT had clarified that, as a result of expenditure disallowance, there is a enhanced profit and the same is brought to tax as business income, deduction under Chapter VI-A need to be allowed on the enhanced profit. We hold that the CIT(A) is justified in granting benefit of deduction u/s 80P(2)(i)(a) as regard to interest that was disallowed. Accordingly, ground is rejected.
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2016 (11) TMI 1613
Refund of SAD - N/N. 102/2007 - mismatch of refund on the ground that there is mismatch in the description of the goods in the Bill of Entry and the one mentioned in the sales invoices - HELD THAT:- It is seen that Notification No. 102/2007, dated 14-9-2007 inter alia requires the importer to provide copies of sale invoices of the imported goods in respect of which refund is claimed along with documents evidencing payment of the special additional duty of Customs. It is imperative that match between these two documents is established that goods for which SAD has been suffered have indeed been sold. Only when subsequent sale is established there can be allowance of full benefit of notification since this is the very purpose of the said notification.
As per appellant's own admission, the goods being various grades of HDPE/LDPE/LLDPE granules, unless there is an acceptable match between description of the imported goods as given in the Bill of Entry and corresponding sale invoices, the identity of the goods will not be able to be established by the refund sanctioning authority. This being the case, discrepancy in description of goods was not in the nature of curable defect, the appeal is dismissed.
Appeal dismissed - decided against appellant.
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2016 (11) TMI 1612
Revision u/s 263 by CIT - Revision of orders prejudicial to revenue - allowability of payment on revision of pay scales as prior period expenses u/s 37 - unabsorbed overhead on capital works under “Miscellaneous Expenses” - CIT decided these two claims on merits - AO had no option in light of direction of CIT - HELD THAT:- AO, decided the matter in accordance with the directions of the CIT as he was indeed bound to. CIT, therefore, decided these two claims on merits. Even the other issues were decided by the CIT on merits. However, they are not relevant for the reasons already stated.
The Tribunal was, therefore, bound to consider the case on merits as well. We have come to the conclusion that the decision of the Tribunal on merits must be upheld. In view thereof, it was open to the Tribunal and it certainly is open to us to proceed on the basis that the proceedings under section 263 were valid. Once we proceed even on a demurer that the proceedings under section 263 are valid, we are entitled, indeed bound to consider the issues on merits.
Allowability of payment on revision of pay scales as prior period expenses u/s 37 - when the liability to pay the arrears arose? - whether the liability to pay the entire arrears arose in the assessment year in question, namely, 2009-10 or whether the liability arose to the extent of 40% in the AY 2009-10 and to the extent of 60% in the following AY 2010-11? - HELD THAT:- Tribunal rightly held that the entire liability was incurred in the assessment year in question; had been estimated with reasonable certainty and that it was not a contingent liability. The assessee was, however, liable to discharge a part of that liability at a future date. What is relevant is when the assessee’s decision that the amount was payable was taken. The provision for the payment of the salary including arrears was not a contingent liability. It arose on account of the sixth pay commission which was approved by the Haryana Government and adopted by the assessee. We are in agreement with this finding of the Tribunal.
The liability, in the case before us, arose in the assessment year 2009-10. Sixty percent of it was liable to be discharged in the next assessment year. It is, undoubtedly, estimated with more than just reasonable certainty. The liability was, therefore, not a contingent one but one in praesenti. A part of it was to be discharged at a future date. The judgment supports the assessee’s case. - Decided in favour of assessee.
Allowability of Misc. expenses - assessee has charged the administrative expenses incurred on construction staff at 14% to capital work and repair and maintenance as per accounting policy. The system was adopted from the PWD. The remaining expenses were charged to revenue expenditure as unabsorbed overhead on capital works under miscellaneous expenses in the profit and loss account - HELD THAT:- This was the first time that the Department had not accepted the assessee’s case. The Tribunal found on facts that the CIT (Appeals) had not pointed out any defect in the assessee’s accounting policy. This was disclosed in the return. It was not contended that the assessee had not disclosed the true and proper income. Thus, a substantial question of law in this regard does not arise. This question is, therefore, also answered against the Department/Revenue and in favour of the assessee.
Perversity of Tribunal order - grossly overlooked the material evidence/information on record - HELD THAT:- It is apparent that the order of the Tribunal does not suffer from any perversity. Even on issue No.3, the Tribunal has taken a possible view. This question is, therefore, also answered in favour of the assessee
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2016 (11) TMI 1611
Following question of law arises for consideration:-
“Did the Income Tax Appellate Tribunal (ITAT) fell into error in interfering with Commissioner of Income Tax (Appeals) [CIT (A)] findings with respect to the contentions made under Section 263 A of the Income Tax Act, 1961, in the circumstances of the case ”
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2016 (11) TMI 1610
Whether the Tata Ryerson Ltd. (assessee), who ceases to be manufacturer of excisable goods under section 2(f) of the Central Excise Act, 1944 with effect from 02/03/2005 in view of Board's Circular No.811/8/2005-CX dated 02/03/2005, was permitted under law to take Cenvat Credit, on or after 02/03/2005, on the excisable goods (i.e. HR/CR Coils) which were received by them from Tisco after payment of duty, for slitting and cutting, since Rule 3 of the Cenvat Credit Rules, 2004 allowed only manufacturer of excisable final product to take credit?
HELD THAT:- It appears that HR Coils – the goods which are prepared by the respondent, is not an exempted goods at all as per definition given under Rule 2(d) of the Cenvat Credit Rules, 2004. Hence, there is no applicability of Rule 6(1) of the Cenvat Credit Rules, 2004, whatsoever arises. Moreover, it appears that the preparation of the HR Coils by the respondent is not manufacturing of goods at all, because, it is simply cutting, slitting and strengthening of HR Coils purchased from Tata Steel.
Appeal dismissed - decided against Revenue.
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2016 (11) TMI 1609
Levy of penalty u/s. 271AAA - due date of filing Return of income u/s. 139(1) has already expired before the search - HELD THAT:- The search u/s. 132 was conducted on 26.08.2008 and the due date of filing the Return of income of assessee is 31.07.2008 and the assessee has filed the Return of income on 17.10.2008, which is after the due date of Return of Income u/s. 139(1) and in compliance to the provisions of section 271AAA. The specified the previous year applicability for the year ended is 31.03.2008 and the present assessment year being assessment year 2008-09, and the due date u/s. 139(1) being 31.07.2008 and whereas search u/s. 132 took place on 26.08.2008 and the due date of filing Return of income u/s. 139(1) has already expired before the search.
Hence, the penalty cannot be initiated. CIT(A) does not have the power to give directions to levy penalty u/s. 271AAA on undisclosed income. Since, the orders of the Assessing Officer on penalty merged with the appellate authority, we are of the opinion that order of CIT(A) cannot be sustained and in the interest of justice, we dismiss the order of CIT(A) and allow the grounds of the assessee.
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2016 (11) TMI 1608
The High Court of Madras issued a notice to the respondent company, returnable on 23.12.2016, and ordered service to be effected via private mode. The matter will be listed before the Court immediately after service is completed.
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