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Showing 21 to 40 of 2074 Records
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2019 (3) TMI 2062
Addition u/s. 36(1)(va) r.w.s. 2(24)(x) - employees’ contribution to PF/ESI - HELD THAT:- We find that this issue is squarely covered against the assessee in the case of CIT vs. Merchem Ltd. [2015 (9) TMI 560 - KERALA HIGH COURT] wherein it was held that due date in the respective ESI/PF Act is the date to be considered for allowing deduction u/s. 36(1)(va).
We are inclined to reverse the order of the CIT(A) and restore that of the AO. Hence, employees’ contribution to PF/ESI after due date under the relevant PF/ESI Act is not eligible for deduction u/s. 36(1)(va) of the Act r.w.s 2(24)(x) of the Act. This ground of appeal of the Revenue is allowed.
Allowance of purported non-IPO expenses - CIT(A) erred in allowing the aforesaid expenditure u/s. 37(1) in AY 2008-09 which was incurred in earlier F.Y. 2006-07 and liability discharged in that year itself - HELD THAT:- We find that this issue came up for consideration in assessee’s own case in [2014 (3) TMI 1228 - ITAT COCHIN] wherein it was held Advertisement has to be carried on for the purpose of drawing interest of the general public for the subscription to the shares. Similarly market research expenses, as well as postal expenses for dispatch of various documents related to IPO are also directly linked to the public issue of shares. Similarly, journeys undertaken by the promoters and employees for the purpose of IPO are also related to IPO. Thus all the activities are directly and intricately linked with the initial public offer of shares, and, therefore, they are part and parcel of expenses pertaining to public issue of shares. The reliance place by the appellant on various case laws are distinguishable on fact as because none of the cases cited by the appellant deal with public issue of shares. Accordingly hold that the AO was justified in treating the entire expenditure as capital expenditure.
Allowance of Prior Period Expenses already offered to tax in AY 2009-10 - HELD THAT:- These expenses were not debited to the P&L account in the assessment year under consideration in 2008-09. However, it was charged to the P&L account of the subsequent assessment year 2009-10. The same was disallowed suo moto for the assessment year 2009-10 on the reason that it was relating to the assessment year 2008-09.
In our opinion, the incurring of expenses was not at all examined by the CIT(A) and he has also not examined whether provisions of section 43B would be applicable or not. AO has to examine the applicability of section 43B towards any fee payable to SEBI and also he is required to examine the nature of the expenditure whether capital or revenue. We are inclined to remit the entire issue to the file of the AO to re-examine and decide afresh. This ground of appeal of the Revenue is partly allowed for statistical purposes.
Professional and consultancy charges - capital OR revenue expenditure - HELD THAT:- Claim of the assessee that the entire expenditure incurred towards consultancy charges which resulted in enhancement of share capital is of revenue nature, is devoid of merit. In our considered opinion, expenses which are incurred in connection with increase in share capital base of the company, are obviously capital in nature.
This view of ours is fortified by the judgment of Brooke Bond India Ltd. [1997 (2) TMI 11 - SUPREME COURT] wherein it was held that any expenditure incurred by a company in connection with the issue of shares with a view to increase in share capital is directly related to the expansion of the capital base of the company, and in profit making. The order of the CIT(A) is in conformity with the judgment of the Supreme Court in the case of Brooke Bond India Ltd. cited supra. Hence, we do not find any infirmity in the order of the CIT(A) and the same is confirmed. This ground of appeal of the assessee is dismissed.
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2019 (3) TMI 2061
Computation of commission income - CIT(A) held that the assessee has not provided any evidence in support of his claim that the commission estimated at 2% of the deposits made is excessive - HELD THAT:- The assessee has relied on the order of this Bench in the case of Jaswant Singh [2018 (9) TMI 965 - ITAT KOLKATA], thus keeping in view the precedents (supra), and the facts and circumstances of the case we direct the Assessing Officer to estimate the income at 0.5% of the deposits as in our view, this would meet the ends of justice - Appeal of the assessee is allowed in part.
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2019 (3) TMI 2060
Assessment of stamp duty - determination of the market value for the purposes of computing the stamp payable - HELD THAT:- If there is no fair market valuation obtained by the Court, or no authenticated copy of a valuation is submitted along with the sale certificate, then the adjudicating authority must resort to the usual provisions mentioned in the Rules and in the Act.
At a practical level it will thus be necessary for the Deputy Sheriff to ensure that on each occasion when a sale certificate is lodged for adjudication as to stamps, it is accompanied by an authenticated copy of the applicable valuation. That authentication will be done by the Prothonotary and Senior Master of the High Court at the time of issuance of confirmation of sale certificate and it is the sale certificate as accompanied by the valuation that will be taken up.
Every sale certificate lodged for registration will be accompanied by a copy of the applicable valuation (or, if there are multiple valuations, all such valuations most recent in time) authenticated by the Prothonotary & Senior Master - In the present case, the valuation obtained was roughly in the region of more than Rs. 30 crores. A copy of that valuation report authenticated by the Prothonotary and Senior Master will be forwarded to the authority within one week.
The Prothonotary & Senior Master will issue an authenticated copy of the valuation within two weeks. The Deputy Sheriff will, within one week, furnish a copy of that valuation to the Prothonotary & Senior Master along with the original so the Prothonotary & Senior Master’s authentication.
Application disposed off.
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2019 (3) TMI 2059
Prayer for a direction to the respondents 1 and 2 to consider the reply given by petitioner to the SCN - Violation of principles of natural justice - HELD THAT:- When the petitioner has given reply dated 03.01.2019 giving detailed reasons, the same has to be considered on merits by passing a reasoned order, therefore, recording the submission made by the learned Standing Counsel appearing for respondents 1 and 2 that the reply will be considered.
The writ petitions are allowed and the respondents 1 and 2 are directed to consider the reply given by the petitioner, on merits and pass a detailed order within a period of four weeks from the date of receipt of a copy of this order.
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2019 (3) TMI 2058
Maintainability of Anticipatory bail application under SC/ST Act - High Court Registry rejected numbering of the petition and dismissed the Anticipatory Bail Petition on the issue of maintainability under SC/ST Act - HELD THAT:- The nature of judicial function is well settled under our legal system. Judicial function is the duty to act judicially, which invests with that character. The distinguishing factor which separates administrative and judicial function is the duty and authority to act judicially. Judicial function may thus be defined as the process of considering the proposal, opposition and then arriving at a decision upon the same on consideration of facts and circumstances according to the Rules of reason and justice.
The act of numbering a petition is purely administrative. The objections taken by the Madras High Court Registry on the aspect of maintainability requires judicial application of mind by utilizing appropriate judicial standard. Moreover, the wordings of Section 18A of the SC/ST Act itself indicates at application of judicial mind. In this context, the statement of the Attorney General is accepted, that the determination in this case is a judicial function and the High Court Registry could not have rejected the numbering.
The High Court Registry could not have exercised such judicial power to answer the maintainability of the petition, when the same was in the realm of the Court. As the power of judicial function cannot be delegated to the Registry, the order cannot be sustained, rejecting the numbering/registration of the Petition, by the Madras High Court Registry. Accordingly, the Madras High Court Registry is directed to number the petition and place it before an appropriate bench.
Petition disposed off.
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2019 (3) TMI 2057
Right of third party to challenge the award of the Lok Adalat before the High Court - litigating sides had excluded the third party from the litigation - HELD THAT:- The property situated in Survey No. 104 which is known as Vadjai area, was the suit property in the 2000 suit for partition and separate possession and the same survey number involving a larger area of land in Vadjai area was the suit property in the 2017 suit, in which these Petitioners were excluded. As such, if at all there is any fraud played by the Plaintiff (Bhausaheb) or the Defendants (Kondabai and Lahanabai) in the 2017 suit, it relates to the property Survey No. 104 in Vadjai area and which, therefore, fortifies the contention of the Petitioners that the property admeasuring 3 Acres 35 Gunthas, which was subject matter of the 2000 suit is the suit property in the 2017 suit, which is shown to be admeasuring 7 Acres 19 Gunthas.
In the light of the law laid down by the Honourable Supreme Court in BHARGAVI CONSTRUCTIONS & ANR. VERSUS KOTHAKAPU MUTHYAM REDDY & ORS. [2017 (9) TMI 1731 - SUPREME COURT] and STATE OF PUNJAB & ORS. VERSUS SHRI GANPAT RAJ [2006 (9) TMI 556 - SUPREME COURT], that the third party would be covered by the meaning "aggrieved person" and as is held by the High Court of Andhra Pradesh in the matter of Batchu Subba Lakshmi [2009 (12) TMI 1064 - ANDHRA PRADESH HIGH COURT], such a third party can challenge the Lok Adalat award provided the ground of fraud and misrepresentation is, prima facie, made out.
The impugned Lok Adalat award is quashed and set aside - petition allowed.
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2019 (3) TMI 2056
Maintainability of petition - availability of alternative remedy - Violation of principles of natural justice - opportunity of hearing not provided to petitioner - HELD THAT:- As seen from the impugned assessment order, the petitioner has not been afforded the right of personal hearing by the respondent. Further, on merits no explanation was given by the petitioner in his reply dated 06.05.2015 to the pre revision notice dated 22.04.2015, but he has simply stated that in view of the pendency of Special Leave Petitions before the Supreme Court challenging the amendment made by the Government of Tamil Nadu, based on which the proposal for revision of assessment has been made, he has not given any explanation on merits.
Further under the revision of assessment order, the petitioner has been assessed to pay Rs.14,47,431/- with huge penalty of Rs.21,71,147/- - this court is of the considered view that that the impugned order dated 09.11.2015 passed by the respondent has to be quashed.
The impugned assessment order dated.09.11.2016 passed by respondent against the petitioner is hereby quashed and matter is remanded back to the respondent for fresh consideration and the respondent shall pass final orders in accordance with law - the writ petition is disposed of by way of remand.
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2019 (3) TMI 2055
Revision u/s 263 - assessee was subjected to reassessment proceedings u/s 147 - estimation of income on bogus purchases - assessee was saddled with estimated addition of 12.5% by AO - Pr.CIT noted that the assessee was not maintaining any quantitative register and could not substantiate the delivery of the material and therefore, the full disallowance was to be made as against 12.5% estimated by AO keeping in view the decision Hon’ble Apex Court rendered in N.K.Proteins Ltd [2017 (1) TMI 1090 - SC ORDER] - HELD THAT:- We find that the co-ordinate bench of this Tribunal in the cited case of Rajal Enterprises [2018 (10) TMI 2028 - ITAT MUMBAI] when the assessee was able to link the purchases with corresponding sales, the logical conclusion which one can arrived at is, the assessee might not have purchased goods from the declared source but from some other parties. In that event, only the profit element embedded in the bogus purchases can be considered for addition. Therefore, the decision of the AO to restrict the addition to 10% of the bogus purchases is in tune with the consistent view of the tribunal and different high courts in similar nature of cases. That being the case, in our view, the exercise of power under section.263 of the Act in the facts of the present case is invalid. Accordingly, the impugned order passed by the leaned PCIT under section 263 of the Act deserves to be quashed. Decided in favour of assessee.
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2019 (3) TMI 2054
Application for Anticipatory Bail u/s 438 of the Code of Criminal Procedure, 1973 - inquiry initiated by the Directorate of Revenue Intelligence - HELD THAT:- Taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also considered the aspects that; (i) the applicant was called for interrogation pursuant to the summons issued by the respondent department and the applicant had cooperated with the investigation and his statement was recorded twice on 20.7.2018 and 16.8.2018; (ii) another importer is protected by Division Bench of this Court by passing interim order; (iii) another importer viz.Deepak Agarwal is released on regular bail by this Court vide order dated 7.12.2018. In the said order, this Court has observed that the offence under the Customs Act is compoundable and the maximum sentence is of seven years; (iv) so far as the said accused is concerned, it is also observed that during the course of investigation, remand of the said applicantaccused was not sought and entire investigation is based on documents; (v) entire quantity of alleged high-speed diesel as per the report is lying in the custody of the respondent department, therefore, I am inclined to exercise the discretion in favour of the applicant.
In the result, the present application is allowed - At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
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2019 (3) TMI 2053
Seeking dispensation of deposit of 25% of the award amount as it is required to be deposited under Section 105 of the Act - Section 151 of Code of Civil Procedure, 1908 - HELD THAT:- It is clearly seen that deposit of 25% of award amount is statutory requirement before filing the appeal. The 1st respondent-KAT has no discretion to waive payment of such deposit. In that view of the matter, the application which is filed in I.A.No.3 is rejected by the KAT. On going through the reasons assigned for rejection of the application in I.A.No.3, the same appears to be just and proper. Therefore, question of interfering with the same does not arise.
This writ petition is dismissed.
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2019 (3) TMI 2052
Extension of the age of retirement for medical practitioners covered by AYUSH from 62 years to 65 years, as in the case of allopathic doctors - HELD THAT:- In judgment dated 24.08.2017 passed in a batch of original applications including one bearing No. 2712/2016 titled Dr. Santosh Kumar Sharma vs. Union of India & Ors. [2018 (11) TMI 1950 - DELHI HIGH COURT], which involved exactly the same question, the CAT had ruled in favour of the AYUSH medical practitioners and held that they are entitled to benefit of the retirement age of 65 years at par with allopathic doctors working for the government.
Following the decision made by the Co-ordinate Bench in North Delhi Municipal Corporation vs. Santosh Kumar Sharma & Ors., and in other matters mentioned above the present petition stands dismissed, on the grounds and for the reasons already considered and decided by the Co-ordinate Bench in the aforesaid matter.
Petition dismissed.
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2019 (3) TMI 2051
SSI Exemption - clubbing of clearances for determining value of clearances - Whether the value of duty paid engine fitted chassis supplied by owner of chassis for manufacture / fabrication of body on such chassis has to be included for determining aggregate value of clearance for the purpose of Notification No. 8/2003 dated 01 March, 2003? - Extended period of limitation - suppression of facts or not - HELD THAT:- It is apparent that the transaction between the appellant and the supplier of the duty paid Automobile chassis was on principal to principal basis and, therefore, the consideration charged for the body building by the appellant from the supplier of duty paid automobile chassis will constitute the transaction value for the purpose of valuation of excisable goods for the purpose of charging the duty of excise.
The transaction between the appellant and its principal manufacture i.e. supplier of duty paid automobile chassis is only for fabrication charges which the appellant undertook on the duty paid chassis of the automobile. It is beyond comprehension as to how the value of the excisable product which has been manufactured by some other assessee / person and which is duty paid can be included in the aggregate value of the clearances of small scale industry manufacturer, which is only undertaking the fabrication work of body. Only fabrication charges of the body which have been built on the duty paid chassis need to be taken for determining the aggregate value of the clearance for the purpose of Notification No. 8/2003 dated 01 March, 2003 as that is the transaction value between the chassis supplier and the body building unit. Thus, the demand under the show cause notice and impugned order in appeal is legally not sustainable.
Extended period of limitation - suppression of facts or not - HELD THAT:- The show cause notice was issued on 18 February, 2014 by invoking the extended time proviso under section 11 A of the Central Excise Act, 1944 by alleging that the appellant had indulged in fraud, suppression of facts, mis-representation with an intent to evade duty. None of these elements are present in the present case. The Department has also not adduced any evidence to support its claim that the appellant indulged in any of the activities, such as fraud, misrepresentation, suppression etc. with an intent to evade payment of duty. The issue at hand is primarily a matter of interpretation and same cannot be taken as suppression of facts with a malafide intent to evade payment of duty. Thus, the demand under the impugned Show cause notice is also barred by limitation, and therefore, the demand of Central Excise duty is also legally not sustainable.
The impugned order in appeal deserves to be set aside and is set aside - Appeal allowed.
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2019 (3) TMI 2050
Duty drawback - time limitation - absence of a provision for time limitation in Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 - HELD THAT:- In the instant case, the two shipping bill Nos. 11 and 29, dated 18.07.1986 and 13.02.1987, wherein the sanctioned letter fixing erroneous rate was made on 17.10.1987. The recovery letter came to be issued on 04.04.1989 and adjudication came to be made on 16.10.1989. The withdrawal was shown on 04.05.1990 and the show cause notice was issued on 28.05.1990. The only explanation given in the impugned order in the revision is that since Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 does not prescribe a time limitation, the ground of limitation cannot be relied upon.
Section 28 of the Act relates to recovery of duties, short levies duties or erroneously refunded within its prescribed time limitation of six months from the relevant date, from the date of notice. Though the section relates to recovery of duties, an analogy can be drawn from the said provisions for identifying what a “reasonable time” could be in a case of this nature, since Rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 has been framed by invoking the powers conferred under Customs Act. By drawing an analogy from Section 28 of the Customs Act and applying it to the facts of the present case it is seen that the notice, being one made after a period of six months, cannot be held to be done within a reasonable time.
This Court is of the view that the impugned orders passed in these Writ Petitions are liable to be rejected on the ground of delay - Petition allowed.
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2019 (3) TMI 2049
Restoration of appeal - HELD THAT:- It is mentioned that adjournment notices will not be issued by the Tribunal hereafter and the parties are advised to take note of the adjournment dates from the official website of the CESTAT.
Dictated and pronounced in open court.
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2019 (3) TMI 2048
CENVAT Credit - input services - Outdoor Catering Services - HELD THAT:- The issue of availment of Cenvat Credit in respect of Outdoor Catering Services stands held against Appellant in their own case reported as M/S HINDUSTAN COCA-COLA BEVERAGES PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, HAPUR [2019 (1) TMI 2033 - CESTAT ALLAHABAD] where it was held that the Cenvat Credit of Service Tax on Outdoor Catering Services is not available to the appellant and as such, denial of the same is upheld.
The issue stands settled against them in their own case - the demand is confirmed - As regards the penalty, the same is set aside - appeal disposed off.
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2019 (3) TMI 2047
Provision made and expenses not actually accrued - warranty expenses booked by the assessee under the head ‘provisions for warranty expenses’ disallowed - as per AO liability had not been ascertained or incurred - AO has held that these expenses were not ascertained and were adhoc in nature which could not be claimed as expenses for the year under consideration - HELD THAT:- The expenses had been claimed under the head’ warranty expenses’ and the assessee had been claiming this consistently on the same basis as a contractual liability.
We note that the provision was made as per Note 27(D) to the balance sheet. The assessee company had written back sum under the head ‘ Excess Provision Written back and shown as ‘ Other income’ for the impugned assessment year.
Coming to the judgment in the case of Bharat Earthmovers [2000 (8) TMI 4 - SUPREME COURT] allowability of a liability has to be judged as
1. a business liability has to definitely arise in the accounting year.
2. there should be certainly about the incurring of the liability.
3. it should also be capable of being estimated with reasonable certainty though the actual quantification may not be possible.
4. the liability has to be allowed although the liability may have to be quantified and discharged at a future date.
It would have to be seen whether the facts of the case of the assessee meets with the criteria settled by the Hon’ble Supreme Court.
On perusal of the facts of the case it is seen that the liability had definitely arisen in the accounting year and there was certainty about this. The appellant company had made a reasonable estimate of claiming at 0.5% of sales based on past expenses and technical estimates. The appellant company also stated that on the expiration of the warranty period the balance amount is offered for tax as income. Decided against revenue.
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2019 (3) TMI 2046
Validity of revision u/s 263 - Challenging the jurisdiction of Ld. PCIT in passing the impugned order questioning validity of assessment order passed by AO u/s 143(3) r.w.s. 144C(13) - non-disposal of aforesaid jurisdictional issue by learned Pr. CIT - HELD THAT:- We find that the identical ground has already been decided [2018 (7) TMI 2330 - ITAT MUMBAI] in view of non-disposal of aforesaid jurisdictional issue by learned Pr. CIT which is purely legal issue which goes to the root of the matter as to whether learned Principal CIT is competent and empowered to invoke its revisionary powers within provisions of Section 263 with respect to the assessment order of the AO which is passed u/s 143(3) r.w.s. 144C(13) of the 1961 Act in pursuance of direction issues by learned DRP .Several other contentions were also raised in grounds of appeal on merits but keeping in view the jurisdictional issue involved in this appeal which were raised before learned Principal CIT and which was not disposed of by learned Principal CIT in its revisionary order dated 28.03.2016 passed u/s. 263 of the 1961 Act , we consider it appropriate and deem fit to restore this matter back to the file of learned Principal CIT for disposal of this jurisdictional ground which is a legal ground as to competence of learned Pr. CIT to revise an assessment order passed by the AO u/s 143(3) r.w.s. 144C(13) in pursuance to directions given by learned DRP and which in our considered view goes to the root of the matter , along with all other grounds raised by the assessee to decide de-novo in proceedings u/s. 263 more so when both the parties have also agreed and conceded that this matter needs be restored to the file of learned Principal CIT for disposal of the jurisdictional ground and other grounds as the said jurisdictional issue despite being raised by the assessee before learned Pr. CIT in proceedings conducted u/s 263 was not decided by learned Pr. CIT vide its order dated 28.03.2016 passed u/s 263 of the 1961 Act.
Thus we apply the same findings in the present case which are applicable mutatis mutandis in the present case and restore the issues back to file of learned PCIT for deciding afresh with similar directions as were given above.
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2019 (3) TMI 2045
Validity of judgment of conviction delivered by the trial Court - Courts below failed to take note of the fact that statement of accused under section 313 of Cr.P.C. was recorded based on the sworn statement, which was recorded before taking cognizance and proceeded erroneously - HELD THAT:- All the Procedure adopted to the lower court is erroneous. The lower appellate Court also failed to notice the said fact and erroneously confirmed the judgment of the lower appellate Court.
Having taken note of the procedural irregularity committed by the Courts below, the impugned order needs to be set aside and the matter is required to be remanded back to the lower Court to consider the matter afresh in accordance with law by giving an opportunity to the present petitioner and also if any need arises, by giving an opportunity to the complainant also dispose of the matter in accordance with law.
The matter is remanded back to the trial Court to consider the matter afresh, on merits, in accordance with law - Revision petition allowed.
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2019 (3) TMI 2044
Cancellation of competitive examination conducted for appointment to the post of Lecturers in various disciplines in the Government Polytechnic Colleges - mal-practices committed by the outsourcing agency, entrusted with the work of evaluation, by using the scanned images of the OMR Sheets - tampering - HELD THAT:- The Board without doing any kind of homework or detailed study to decide as to whether it would be possible to segregate the tainted candidates from the non-tainted ones, cancelled the examination and the very selection to the detriment of those who were not in any way responsible for tampering with the scanned copies of the OMR Sheets. We are of the considered view that the learned single Judge at the Madurai Bench was correct in the finding that the Board should have segregated the tainted candidates from non-tainted candidates and proceeded with the selection process, instead of cancelling the entire examination. The learned Single Judge at the Principal Bench was not justified in taking a view contrary to the view taken by a Coordinate Bench in the very same subject matter.
The order passed by the learned single Judge at the Madurai Bench confirmed - the notification issued by the Teacher's Recruitment Board pursuant to the decision taken on 8 February 2018 for cancelling the examination conducted on 16 September 2017 on the basis of the notification No. 06/17 dated 28 July 2017 is quashed.
Appeal allowed.
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2019 (3) TMI 2043
Time limit for set off of unabsorbed depreciation - AO observed that Sec. 32(2) does not permit depreciation to be carried forward for more than eight years - HELD THAT:- As carefully considered the order passed by the Coordinate Bench in [2018 (4) TMI 1422 - ITAT AHMEDABAD] as held restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y. 1997-98 up to the A.Y. 2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever.
Thus carry forward of unabsorbed depreciation concerning impugned assessment years could be set off in subsequent years without any set time limit. See Gujarat Lease Finance Ltd [2017 (5) TMI 1555 - ITAT AHMEDABAD] Decided in favour of the assessee.
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