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Showing 221 to 240 of 1398 Records
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2020 (10) TMI 1178
Restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant has submitted sufficient evidence that it has been in operation during the period preceding strike off, therefore it could not be termed as a defunct company as per section 252 of the Act. Thus, taking into consideration the provisions of Section 252(1) of the Companies Act, 2013, which vests this Tribunal with a discretion where the Company, whose name has been struck off, and such Company is able to demonstrate that it is just to do so, can restore the name of the Company, in the Register and in the interest of all stakeholders, including the Appellant itself, who seeks restoration of the name of the Company in the register maintained by Registrar of Companies, the company deserve to be restored.
Appeal allowed.
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2020 (10) TMI 1177
CIRP proceedings against the personal guarantors to corporate debtors - Transfer of the Writ Petitions filed before High Courts to this Court - vires of Section 95, 96, 99, 100, 101 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Writ Petitions that are pending in the High Courts pertaining to the challenge to the Notification dated 15.11.2019 and related issues have to be transferred to this Court. Transfer of the Writ Petitions to this Court would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by this Court to avoid any confusion, and to authoritatively settle the law. Considering the importance of the issues raised in the Writ Petitions which need finality of judicial determination at the earliest, it is just and proper that the Writ Petitions are transferred from the High Courts to this Court.
The Writ Petitions are giving rise to the above Transfer Petitions which are pending before the High Courts to this Court. The Registries of the High Courts are directed to transmit the records of the Writ Petitions forthwith.
Petition allowed.
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2020 (10) TMI 1176
Land acquisition - Whether the finding of the learned single Judge that the agreement executed by and between the writ petitioners and the District Collector could be treated as an award in terms of Act, 2013? - HELD THAT:- The determination was done in terms of the provisions of the Act, 2013 and it also takes in acquisition of land on the basis of agreement. Thus, the condition contained under the agreements granting liberty to the writ petitioners to make claims on account of the act 2013 cannot be said to be a totally strange or alien condition. To put it otherwise, the said condition makes absolute sense, since it really intended to protect the interest of the land owners which has a clear correlation with the objective of Act, 2013 for payment of adequate and fair compensation, apart from other provisions for rehabilitation and resettlement, for ensuring that the cumulative outcome of compulsory acquisition should be that, affected persons become partners in the developmental activities. Having acted upon the unilateral agreement executed by the writ petitioners in favour of the District Collector and paid the compensation in terms of that agreement and secured possession of the land accordingly, the District Collector cannot turn around and attack the agreement stating that the District Collector is not bound by unilateral agreement executed by the writ petitioners. Admittedly, it is an essential condition of the agreement that while re-determining the value of the land surrendered by the writ petitioners under the provisions of the Act, 2013 and the Rules framed thereunder, the petitioners are entitled to get further compensation or package offered by the Government over and above the compensation already fixed and further that they would be eligible to receive the same. If there was no intention to act upon that part of the agreement, the District Collector should not have accepted the agreement in toto.
Having not done so, the District Collector is not at liberty to resile from the said essential term of the agreements. Above all, the requisitioning authority is the Corporation of Kochi and at the end of the day further compensation if any to be paid, the financial sufferer is the said Corporation and accordingly, looking from that angle, the appellants cannot be strictly termed as aggrieved persons.
Yet another contention advanced by the learned Senior Government Pleader, Sri. Tek Chand, is that in terms of Annexure A3 judgment produced along with the writ appeal, the writ petitioners are not at liberty to make any claims in terms of the determination of compensation as per Act, 2013, since no income tax was deducted consequent to the purchase of the land by the Government in terms of the agreement offered by the writ petitioners. However, the said issue is guided by Section 96 of the Act, 2013 dealing with exemption from income tax, stamp duty and fees, which stipulates that no income tax or stamp duty shall be levied on any award or agreement made under this Act, except under Section 46 and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of the same. Therefore, it is unequivocal that by virtue of the specific stipulation contained under section 96 of Act 2013, no income tax can be levied on any award or agreement. Which means, the appellants are not entitled to get any advantage on the basis of Annexure A3 judgment. Said so, we do not find any force in the said contention also.
The appellant have not made out any case, justifying interference in the judgment of the learned single Judge exercising the power under Section 5 of the Kerala High Court Act, there being no error in exercising the discretion conferred under Article 226 of the Constitution of India, or other legal infirmities - Appeal dismissed.
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2020 (10) TMI 1175
Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act - Whether the impugned order of conviction and sentence passed by the trial Court and confirmed by the First Appellate Court against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act suffer any illegality, impropriety or incorrectness?
HELD THAT:- There cannot be any dispute that once the issuance of the cheque and signature of the accused on the cheque are admitted, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of legally recoverable debt arises. Then the burden shifts to the accused to rebut the said presumption by acceptable evidence.
The accused/DW.1 in his cross-examination has uneqivocally admitted that the notice - Ex.P3 was served on him. If Shivanna and the complainant colluded with each other to commit fraud on the accused and presented the cheque which contains huge amount, in the ordinary course at the first instance the accused should have replied Ex.P3 denying the contents or his liability. Thereby, there was a deemed admission of the contents of the notice. That circumstance went against the accused - Either by way of reply to the notice or in the cross-examination of PW.1, there was no denial of lending capacity of the complainant. Even in the evidence of the accused, there was no denial of the lending capacity. Therefore, the contention of the learned counsel for the petitioner regarding the lending capacity is apparently untenable.
Considering the material on record and the judgment of the Hon'ble Supreme Court in RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT] regarding the presumption under Section 139 of the Negotiable Instruments Act, the Trial Court rightly rejected the defence of the accused and convicted him.
Revision dismissed.
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2020 (10) TMI 1174
Effective date of registration certificate - conversion of the provisional registration to a permanent registration - HELD THAT:- The procedure that had to be followed by the petitioner for obtaining a registration under the GST, in circumstances where he was already a registered dealer under the erstwhile KVAT Act, is the one prescribed in Rule 24 of the GST Rules. It is not in dispute that the petitioner applied for a registration in accordance with Rule 24 and was in fact granted a provisional registration as evident from Ext.P1 certificate dated 28.06.2017. It is also significant to note that thereafter, the provisional registration granted to the petitioner was not formally cancelled by the respondents by following the procedure envisaged under the Act for cancellation of the provisional registration. Under such circumstances, the petitioner continued to function under the provisional registration granted to him, although the absence of a permanent registration resulted in a situation where he could not upload the returns and other documents enabling him to claim input tax credit in respect of the tax paid stock of material that was available with him.
When the provisional registration granted to the petitioner was not cancelled through the procedure contemplated under the Act and Rules, and the respondents had granted a regular registration on 04.01.2020, the permanent registration must relate back to the date of the provisional registration and the petitioner ought to be entitled to upload the returns for the past period between the date of Exts.P1 and P3 and to avail eligible input tax credit based on the returns uploaded by him. This is more so because it is admittedly the case that there was no formal order canceling the provisional registration, that was communicated to the petitioner in terms of the Act and Rules.
The respondents are directed to amend the Registration Certificate issued to the petitioner so as to make it valid from 01.07.2017, and the petitioner is permitted to upload the returns for the period covered by Exts. P5, P6 and P7 statements, and to pay tax as well as claim input tax credit based on the returns so uploaded - petition allowed.
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2020 (10) TMI 1173
Interest on late payment of GST - Calculation of Interest - whether the interest could be demanded only on the net liability and not on gross liability? - HELD THAT:- Amendment to section 50 of the Central Goods and Service Tax Act, 2017 was introduced by Finance (No.2) Act, 2019 for charging interest on the net cash tax liability. The said amendment was made effective prospectively from 01.09.2020 vide the Central Government notification No.63/2020-Central Tax dated 25.08.2020. GST Council in its 39th meeting recommended that interest should be charged on the net cash tax liability with effect from 01.07.2017. Recommendation was made for making the amendment to section 50 retrospectively with effect from 01.07.2017. It is stated that retrospective amendment in the GST laws would be carried out in the due course through suitable legislation. After issuance of the notification dated 25.08.2020, views were expressed by tax payers that the said notification is contrary to the recommendation of GST Council to charge interest on the net cash tax liability with effect from 01.07.2017.
The central issue raised in the writ petition i.e., whether interest under section 50 of the Central Goods and Service Tax Act, 2017 is to be levied on the gross tax liability or on the next tax liability has been answered by the Board in the administrative instructions dated 18.09.2020 by categorically stating that the interest would be on the net cash tax liability for the period prior to the amendment i.e., from 01.07.2017 to 31.08.2020.
Respondents to intimate the petitioner about the quantum of interest payable on account of delayed payment of GST for the period under consideration in terms of the administrative instructions dated 18.09.2020 and the same shall be paid by the petitioner, if not already paid - Petition allowed.
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2020 (10) TMI 1172
Jurisdiction - Time Limitation for availment of Input Tax Credit - HELD THAT:- The instant matter does not fall within the subject matter assigned to this Bench. Therefore, let the matter be listed before the appropriate Division Bench, as per the present distribution of roster.
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2020 (10) TMI 1171
Validity of reopening of assessment u/s 147 - AO refusal to furnish of reasons for issuing notice under Section 148 - HELD THAT:- In GKN Driveshafts (India) Ltd [2002 (11) TMI 7 - SUPREME COURT] has held that when a notice under Section 148 of the IT Act is issued, the proper course of action for the noticee is to file return and if he desires to seek reasons for issuing notice, the AO is bound to furnish reasons within a reasonable time - On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the AO is bound to dispose of the same by passing a speaking order.
Considering the law laid down by the Hon'ble Supreme Court, it was really not open to the AO to refuse furnish of reasons for issuing notice under Section 148 of the IT Act. As a result of such refusal, the Appellant was deprived of the valuable opportunity of filing objections to the reopening of the assessment. The approach of the AO in this case was contrary to the law laid down by the Hon'ble Apex Court in GKN Driveshafts (India) Ltd. [supra] - Decided in favour of the Assessee
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2020 (10) TMI 1170
TP Adjustment - comparable selection - Tribunal adopting turnover filter of ₹ 200 crore - Tribunal holding that KALS Information Systems Ltd., Accel Transmatic Ltd., Tata Elxsi Limited and Lucid Software Ltd., cannot be taken as comparables on the basis of facts of different case for different assessee for different assessment year and directing the TPO to apply RPT filter of 15% - HELD THAT:- As assessee submits that the competent authority of USA and India have reached mutual agreement and on the basis of the aforesaid agreement, the AO has passed an Order giving effect to mutual agreement procedure vide order dated 15.12.2015. It is also pointed out that in view of the order passed by the Assessing Officer dated 15.12.2015, the substantial questions of law involved in this appeal have been rendered academic.
As revenue submits that the appeal may be disposed of with liberty to the revenue to revive the same, if occasion so arises. Appeal is disposed of with liberty as prayed for.
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2020 (10) TMI 1169
Correct head of income - gains arising on cashless exercise of stock options - taxable as income under the heads 'income from salaries' and 'short term capital gains' or 'long term capital gains' as claimed by the Appellant - Whether stock options did not constitute a 'capital asset' under Section 2(14) of the Act? - cashless exercise of stock options constitute transfer of a long term capital asset under Section 2(47) or not? - HELD THAT:- Assessee was an independent consultant to SiRF USA and was not an employee of SiRF USA at the relevant time. Thus, there was no relationship of employer and employee between the SiRF USA and the assessee and therefore, the finding recorded by the tribunal that the income from the exercise of stock option has to be treated as income from salaries is perverse as it is trite law that unless the relationship of employer and employee exists, the income cannot be treated as salary. [See: CIT VS. L.W.RUSSEL [1964 (4) TMI 4 - SUPREME COURT]
Revenue in case of several other assessee's have accepted the fact that on cashless exercise of option, there arises a income in the nature of capital gains. However, in the case of the assessee the aforesaid stand was not taken. It is also pertinent to mention here that nothing was brought to our notice that the view taken by the tribunal in the following cases has been challenged by the revenue. See SHRI KAMLESH BAHEDIA C/O ABOBE SYSTEM INDIA PVT. LTD [2014 (8) TMI 843 - ITAT DELHI], N.R. RAVIKRISHNAN [2018 (12) TMI 1255 - ITAT BANGALORE] and DR. MUTHIAN SIVATHANU [2018 (11) TMI 1112 - ITAT CHENNAI]
Thus in view of law laid down by the Supreme Court in Berger paints [2004 (2) TMI 4 - SUPREME COURT] it was not open for the revenue to take one stand in case of the assessee and to challenge the correctness of the same in case of other assessee. For this reason also, the revenue cannot be permitted to take a different view in this appeal. - Decided in favour of assessee.
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2020 (10) TMI 1168
Disallowance u/s 14A r.w.r. 8D - Non recording of satisfaction by AO - HELD THAT:- Assessing Officer has not rendered any finding with regard to incorrectness of the claim of the assessee either with regard to its accounts or with regard to the fact that he is not satisfied with the claim of the assessee in respect of such expenditure in relation to exempt income as is required in accordance with Section 14A(2) of the Act for making a disallowance under Rule 8D. Thus, from perusal of the relevant extract of the order passed by the Assessing Officer, the tribunal has rightly concluded that the Assessing Officer has not recorded the satisfaction with regard to the claim of the assessee for disallowance under Section 14A read with Rule 8D(2) - Decided in favour of assessee.
Disallowance under Rule 8D(2)(II) while making the disallowance under Section 14A - whether interest expenses incurred cannot be directly attributed to any particular income or receipt, provision of rule 8D(2)(ii) automatically becomes applicable? - HELD THAT:- In The 'CIT VS. RELIANCE UTILITIES AND POWER LTD.', [2009 (1) TMI 4 - BOMBAY HIGH COURT] has held that where interest free funds exceed the value of investments, it can safely be inferred that investments have been made out of interest free funds and no disallowance under Section 14A towards any interest expenditure can be made. Similar view was taken in CIT VS. HDFC BANK LTD., [2014 (8) TMI 119 - BOMBAY HIGH COURT]
On perusal of the balance sheet the finding has been recorded that assessee has received an amount of ₹ 146.52 Crores as advances from customers, which are interest free and the reserves and surpluses are to the tune of ₹ 882,67 Crores. Thus, it has been held that all the aforesaid amounts are interest free funds and are sufficient to make tax free investments and therefore, the finding of the Assessing Officer that overdraft facility was directly used for making tax exempt investments have been reversed. The tribunal has affirmed the aforesaid finding. Thus, concurrent findings of fact have been recorded on the aforesaid issue, which could not be demonstrated to be perverse. Therefore, no interference is called with the aforesaid concurrent findings of fact in this appeal under Section 260A - Decided in favour of assessee.
Disallowance u/s 36(1)(iii) - tribunal deleted addition holding that the advances to its subsidiaries were in the normal course of business, for business purposes - whether the funds from the overdraft account were utilized to make interest - free advances for acquiring lands, property advances? - HELD THAT:- The assessee had to pay advances to the land owner for the purposes of entering into Joint Development Agreement for development of real estate projects, therefore, the advances are business advances and cannot be treated as non business or capital advances. The tribunal has held that reserves and surplus earned by assessee company is approximately to the extent of ₹ 994.92 Crores as against total advances and deposits of ₹ 248.24 Crores. Thus, the tribunal has found that the assessee's own fund are far in excess of advances and deposits made during the year and has held that CIT (Appeals) has rightly deleted the disallowance of interest. The aforesaid concurrent findings of fact are based on meticulous appreciation of evidence on record and by no stretch of imagination can be said to be perverse. - Decided in favour of assessee.
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2020 (10) TMI 1167
Income recognition - 'unearned income' - scrutiny under Computer Aided Scrutiny Selection (CASS) - Change of accounting method - Accounting Standard - 9 Applicability - as per AO assessee to be an insurance company by treating it as outside the purview of Accounting Standard - 9 - HELD THAT:- Assessee in the instant case has changed invoice method to proportionate completion method. Till 31.03.2007, the assessee used to recognize revenue immediately on raising of invoice, even though, the service under the contract is not completed or substantially completed. The assessee is involved in execution of more than one act i.e., rendering service in the entire year, therefore, it adopted the proportionate completion method. The revenue from service transactions usually recognized as the service is performed either by proportionate completion method or completed service contract method. The assessee is therefore, rightly adopted proportionate completion method as it is engaged in rendering service in the entire year. The assessee in the instant case is covered by Accounting Standard - 9 as it does not deal with revenue of insurance companies arising from insurance contracts.
It is open for the assessee to change the method of accounting and the burden is on the department to prove that the method invoked is not correct and that such a method distorts the profits of a particular year. The aforesaid burden has not been discharged by the revenue in the instant case. Besides that, the revenue has accepted the change in the method of accounting in subsequent Assessment Years viz., 2010-11, 2011-12 and 2012-13, therefore, there is no justification on the part of the Assessing Officer to change the method adopted by the assessee and to determine the income on estimate basis. - Decided in favour of assessee.
Entitlement to follow accounting standard 9 for revenue recognition in respect of TPA fee received from insurance companies - As held that business of a third party agent is insurance business as third party agent makes payments to the hospital / individuals policy holders, therefore, Accounting Standard - 9 is not applicable in the fact situation of the case - HELD THAT:- Regulation 3 prescribes the health services, which may be provided by a third party agent to an insurer under the agreement in connection with health insurance business. Section 2(9) of the Insurance Act defines the expression 'insurer' which includes insurance company. Thus, it is evident that the third party agent and the insurance company are different entities. Therefore, the finding recorded by the tribunal that the assessee's business activities do not fall under the business of insurance company is correct. - Decided in favour of assessee.
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2020 (10) TMI 1166
Assessment framed u/s 153A - Warrant of Authorization was issued jointly - HELD THAT:- Whether the assessee had produced the Warrant of Authorization or the Panchanama can only be ascertained by the Tribunal. Therefore, in the facts and circumstances of the case, we deem it appropriate to quash the Order passed by the Tribunal and to remit the matter to the Tribunal for decision afresh in accordance with law.
All contentions of both the parties are kept open on merits of the matter.
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2020 (10) TMI 1165
Entitled for deduction u/s 10B - whether the assessee in the instant case, has complied with the requirements as laid down in Section 10B(2)? - Whether assessee is formed by splitting or reconstructing of business - tribunal dismissing the appeal preferred by the revenue by holding that the assessee is entitled for deduction under Section 10-B - HELD THAT:- Question whether or not assessee has complied with the conditions mentioned in Section 10B(2) of the Act in order to enable him to claim deduction under Section 10B of the Act is essentially a question of fact. From close scrutiny of the orders passed by the Commissioner of Income Tax (Appeals) as well as the tribunal, it is evident that the aforesaid findings are based on meticulous appreciation of evidence on record. The tribunal has affirmed the findings of fact recorded by the tribunal on the basis of meticulous appreciation of evidence on record, which by no stretch of imagination can be said to be perverse.
Even before the tribunal, the revenue was not able to rebut any of the findings recorded by CIT (Appeals) by adducing any evidence to the contrary. The concurrent findings of fact do not suffer from any perversity warranting interference of this court in exercise of powers under Section 260A.
So far as the submission made on behalf of the revenue that the assessee has failed to comply with the condition viz., that it was not formed by transfer of a new business or machinery or plant previously used for any purpose, suffice it to say that Supreme Court in Bajaj Tempo Limited [1992 (4) TMI 4 - SUPREME COURT]while interpreting Section 15C of Income Tax Act, 1922, which corresponds to Section 80J of the Act, dealt with the expression 'not formed' and has held that the aforesaid expression means that the undertaking should not be in continuation of old unit but emergence of a new unit.
There are concurrent findings of fact that the assessee is a new export oriented unit, therefore, the aforesaid submission does not deserve acceptance. Similarly, the contention that the submission made by the revenue that its contention that assessee had adopted colorable devise for tax evasion has not been dealt with also needs to be stated, to be rejected of the order passed by the Commissioner of Income Tax (Appeals), the Commissioner of Income Tax (Appeals) on the basis of material available on record has negated the aforesaid contention raised on behalf of the revenue and the order passed by the Commissioner of Income Tax (Appeals) has been upheld by the tribunal. Thus, the first two substantial questions of law are answered against the revenue and in favour of the assessee.
Deemed dividend - Additional substantial question of law - Reserve and surplus show as accumulated profit - HELD THAT:- tribunal held that the Commissioner of Income Tax (Appeals) rightly directed the Assessing Officer to verify the claim of the assessee in this regard. The tribunal has taken into account the decision of the Supreme Court in Goetz India Ltd., supra and has held that the aforesaid decision does not restrict the powers of the higher authorities to consider the revised claim and the tribunal and has rightly placed reliance on decision of the Supreme Court in 'NATIONAL THERMAL POWER CORPORATION VS. CIT' [1996 (12) TMI 7 - SUPREME COURT]. Thus, on the facts of the case and in view of the finding recorded by the tribunal in para 12 of the order, the additional substantial question of law framed does not arise for consideration. The same is answered accordingly.
Commissioner of Income Tax (Appeals) has recorded a finding that there are no accumulated profits available in the books of accounts of FFIPL. The aforesaid finding has been affirmed by the tribunal and it has been held that admittedly, the reserve and surplus amount does not show any accumulated profit but the amount shown is loss as well as premium on securities. Thus, the aforesaid issue is also recorded by concurrent findings of fact, which cannot be termed as perverse. - Decided in favour of assessee.
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2020 (10) TMI 1164
Premium for hedging foreign exchange fluctuations on loans - capital expenditure u/s 43A - depreciation claim - appellant's business is a capital loss by treating it as capital expenditure u/s 43A when an asset was purchased in India - Tribunal having held that the premium on forward contract was not liable as Revenue expenditure, the same is to be added to the cost of the capital assets on which depreciation is to be allowed is not a correct proposition, since there is no provision under the Act which allows such expenses - as contended that the assets was purchased in India based on the loan taken in Indian Currency only and the premium paid on forward contract is not even remotely connected with the cost of the asset and therefore, allowing depreciation does not arise - HELD THAT:- Initially the loan was borrowed by the assessee from State Bank of India in Indian Currency, subsequently, the loan was converted into a Foreign Currency loan and the assessee has paid the premium of ₹ 1.9 lakhs and mark the premium paid over a period of three years and one-third of premium to the extent of ₹ 36,33,333/-.
It cannot be said that the loan borrowed in Foreign currency is not even remotely connected with the cost of the asset when it is an admitted position that the loan was borrowed for acquiring a capital asset. Therefore, the assessee cannot be put to disadvantage on both grounds.
So far as the claim of the assessee that the expenses is Revenue in nature, it was rejected by the Tribunal and we have confirmed the said decision M/S. CONTINUUM WIND ENERGE (INDIA) PVT. LTD. (FORMERLY KNOWN AS M/S. SURAJBARI WINDFARMS DEVELOPMENT PVT. LTD.) [2020 (10) TMI 420 - MADRAS HIGH COURT] .
So far as the claim for depreciation, the Tribunal rightly took note of the facts of the case and observed that the loss suffered in Foreign Exchange Fluctuations would definitely increase the cost of the project to the extent of loss suffered by the assessee. Tribunal was right in allowing the plea of depreciation raised by the assessee. - Decided against the Revenue.
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2020 (10) TMI 1163
Writ appeal by revenue - Claim of the Assessee was allowed in the writ petition - Revision u/s 264 - CIT rejected the claim for deduction u/s 54 - Assessee deposited partial amount in the capital gain deposit account with State Bank of India, and partial spent on construction activity - Writ Appeal filed by the revenue has become infructuous owing to the fact that the 1st appellant has passed an order u/s 264(7) dated 20.02.2020 and granted relief to the assessee - HELD THAT:- Order passed by the 1st appellant dated 20.02.2020 that it has not been passed without prejudice to the rights of the department in pursuing the Writ Appeal against the order in the writ petition. In fact, the 1st appellant records in the order that taking cognizance of the direction issued by the High Court, assessee was heard and in pursuant to the Court's decision, the additional cost of construction incurred by the assessee for claiming deduction under Section 54 of the Act was allowed and then, relief has been granted.
Revenue cannot pursue this appeal after implementing order passed in the writ petition. However, we take note of the argument of Mr. Prabhu Mukunth Arunkumar, learned standing counsel for the appellant with regard to the legal issue, which has been decided by Writ Court by following the decision in K.Ramachandra Rao [2015 (4) TMI 620 - KARNATAKA HIGH COURT]. On that issue, we are of the primafacie view that finding rendered in Humayun Suleman Merchant, appears to reflect the correct position of law.
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2020 (10) TMI 1162
Entitled for deduction u/s 80IA(4) - Container Freight Station constitutes an 'inland port' - HELD THAT:- This Court in Assessee's own case [2019 (11) TMI 1483 - MADRAS HIGH COURT] has decided the questions of law against the revenue.
In M/S CONTAINER CORPORATION OF INDIA LTD. [2018 (5) TMI 359 - SUPREME COURT] both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term ‘Inland Ports' is used differently under Section 80-IA.
All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. Actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places. - Decided against revenue.
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2020 (10) TMI 1161
Deductions u/s 54 - assessee has not completed the construction before 16.05.2014 - Tribunal held that the withdrawals made from the capital gains accounts of the assessee was not used towards construction of a residential house - submission of the appellant / assessee that the said aspect was also not properly appreciated by the Tribunal - HELD THAT:- AO has not given elaborate reasons as to why the assesseee was not entitled for deduction under Section 54 of the Act. It is the submission of the learned counsel that decision of the Division Bench of this Court in Commissioner of Income Tax V. Sardarmal Kothari [2008 (6) TMI 15 - MADRAS HIGH COURT] would come to the aid of the assessee.
Order passed by the Tribunal this aspect has not been dealt with in a proper perspective, especially when CITA has given elaborate reasons as to why the assessee is entitled for deduction under Section 54 of the Act.
We are inclined to interfere with the order passed by the Tribunal, at the same time, we propose to remand the matter to the assessing officer for fresh consideration since other issues have also been remanded to the assessing officer for re-adjudication. Appeal filed by the assessee is allowed and matter is restored to the file of the assessing officer to decide the claim of the assessee for deduction under Section 54.
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2020 (10) TMI 1160
Disallowance u/s 36(1)(iii) - assessee had advanced interest bearing funds without charging any interest - Whether Tribunal was right in not considering the fact that the matching principle in terms of income and expenditure is not applicable when cash system of accounting is followed as sine qua non for allowability of expenditure there should be nexus between the income and expenditure reported for the year in question as applicable in terms of Sections 36 and 37 ? - HELD THAT:- As decided in own case [2019 (4) TMI 570 - MADRAS HIGH COURT] when the cash system of accounting was adopted by the Assessee, an Investment Company, whose business is only to borrow and lend or invest, the same cannot be said to be not in the business interest or commercially expedient for the purpose of business and the concept of 'Matching Principles', which has been applied by the Assessing Authority and the CIT (A) in the present case, was not really applicable.
It is not for the Revenue authorities to substitute their own wisdom or notion about the rate of interest agreed to between the parties, including the group companies and, as such, the finding of fact about commercial expediency or absence thereof is a finding of fact, out of which, no substantial question of law can be said to be arising, requiring our consideration under Section 260A of the Act. Moreover, since in the case of Assessee company itself, this Court has only decided on similar facts earlier and dismissed the Revenue's Appeal, we do not find any reason to take a different view of the matter for the Assessment Years in question before us. - Decided against revenue.
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2020 (10) TMI 1159
Discount on issue of debenture - deduction allowed in proportion to which discount has been written off in the books of accounts over a period of five years - Whether discount was required to be spreadover in proportion to the percentage of redeeming of such debenture and to be allowed only to the extent of discount charged off in the relevant year? - as appellant following the mercantile system of accounting has incurred the expenditure of discount on issuance of debenture, was it not liable to be allowed in the same year in full as revenue expenditure - HELD THAT:- Assessee has not incurred an expenditure of ₹ 5 Crores but has merely issued debentures at a discount. The redemption of debenture takes place in stages over a period of time and discount on debenture results in enduring benefit during the period of debentures - expenditure incurred in creating an enduring benefit does not create any asset or add value to existing asset. There was no creation of capital asset, which would result in an advantage of enduring benefit by discount on debentures. Therefore, the assessee is entitled to deduction from the income for the current year only which is liable to be redeemed in the first year as against the entire discounts.
The benefit of discount to the assessee is instant as assessee paid lesser amount as against the amount which was actually payable and therefore, the aforesaid benefit has to be offered to tax in the same year. The tribunal therefore, has rightly placed reliance on MADRAS INDUSTRIAL INVESTMENT COPORATION LTD. [1997 (4) TMI 5 - SUPREME COURT]
Substantial questions of law are answered against the assessee.
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9911796707
