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Showing 241 to 260 of 1886 Records
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2017 (12) TMI 1650
Addition u/s 68 - sale proceeds of shares treated as income from undisclosed sources - rejecting the assessee’s claim of long term Capital Gains (LTCG) on sale of those shares - claim of exemption u/s 10(38) denied - Held that:- AO did not provide the copies of evidences received by him from Director of Investigations, Kolkata, based on which he made the addition to the assessee. The cross-examination of the persons whose statements were relied upon by the Investigation Wing and the Assessing Officer for making the addition were not provided to the assessee.
AO mechanically and arbitrarily followed the investigation report without establishing any link of the Report with the assessee and without any independent investigation on independent application of mind.The addition to income was done on presumption and assumptions without any authentic legal evidence. Issue is covered by case of Mahendra Kumar Baid [2017 (10) TMI 522 - ITAT KOLKATA] - Decided in favour of the assessee.
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2017 (12) TMI 1649
Prayer to consider the monthly return submitted on 19. 09. 2014 - Held that:- If a genuine mistake has crept-in, then, within the time permitted under the Statute, the dealer is entitled to file revised Form WW or revised return. In fact, this has been done by the petitioner and along with the revised Form WW.
This Court is of the view that the petition filed by the petitioner dated 21. 08. 2017 received by the State Tax Officer on the same day, should be considered on merits - the respondent should also take into consideration the revised monthly return submitted on 19. 09. 2014 - petition allowed.
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2017 (12) TMI 1648
Assessment in the name of the (by then) non-existent entity - distinguishing feature of this case is that after repeated remand, the AO completed the assessment after noticing that the matter had been centralized under Section 127 and further taken care to mention the name of the merged or amalgamated entity, i.e., Adhunik Technology Pvt. Ltd. - Held that:- The rationale for holding that even Section 292B is in applicable in all these cases consistently was that once the corporate entity is merged with another, i.e., transferee corporation or entity, the assessment had to be completed in the latter's hands. In the present case, the revenue despite being intimated did not complete the assessment in a composite manner in the hands of the Adhunik Technology Pvt. Ltd. Clearly they were notified about the development as the assessee was duty bound to. Despite that, the Revenue persisted in completing a separate assessment order in respect of an entity which was not in existence.
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2017 (12) TMI 1647
Reopening of assessment - non communication of the reasons - Held that:- In the instant case, the AO had issued notice u/s 148 and the assessee has complied with the notice and requested for reasons. The AO completed the assessment without communicating the reasons. Case of COMMISSIONER OF INCOME TAX VERSUS M/S TREND ELECTRONICS [2015 (9) TMI 1119 - BOMBAY HIGH COURT] to be followed.
We hold that the assessment made u/s 147 r.w.s. 143(3) without communicating the reasons is bad in law. Accordingly, the orders framed u/s 147 r.w.s. 143(3) are quashed and the appeal of the assessee is allowed. Since, we have quashed the assessment made u/s 143(3), we consider it is not necessary to adjudicate the grounds on merits. - Decided in favour of assessee.
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2017 (12) TMI 1646
Scope of SCN - Construction of Residential Complexes - liability of service tax on easement rights - only ground of the Revenue is that the impugned order travelled beyond the SCN and held on the taxability of the construction service itself - Held that:- The concurrent findings of the lower authorities on the issue of easement rights and the tax liability was not specifically contested with any substantial ground by Revenue; rather contest is only on other findings not relevant to the SCN - on the service tax demand with respect to consideration of easement rights, the findings by the lower authorities cannot be interfered with either on factual or legal basis - appeal dismissed - decided against Revenue.
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2017 (12) TMI 1645
CENVAT Credit - input services - Rent-a-Cab service - period 1-4-2013 to 28-2-2014 - Held that:- There is no dispute that appellant have availed Cenvat credit in respect of Rent-a-Cab service, which has been excluded from the definition of input service w.e.f. 1-4-2011 as per exclusion clause in the definition of input service therefore Cenvat credit on the Rent-a-Cab service is not admissible - credit cannot be allowed - appeal dismissed - decided against appellant.
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2017 (12) TMI 1644
Imposition of penalty - KVAT Act - inheritance of property of father - proceedings initiated by the respondents for realisation of the amounts covered by Ext.P7 order imposing penalty under the Act on the father of the petitioner from him - Held that:- The petitioner admits that he has inherited properties from his father. In so far as the petitioner has inherited properties from his father, the petitioner is liable to pay the amount covered by the order to the extent of the value of the properties inherited by him from his father.
The writ petition is disposed of permitting the petitioner to prefer appeal, if so advised.
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2017 (12) TMI 1643
Scheme of Amalgamation - Tribunal discretion to reject the amalgamation - Held that:- The Tribunal below has enough expertise to look into the Scheme of Amalgamation and can also see whether it is not just and fair to all shareholders. It has a duty to act in public interest. In the matter of company, it needs to see if it is in the interest of all the shareholders and the company.
In the light of this it is desirable not to look into the mathematical details but a broad look at the scheme of amalgamation. If it shows that there are wide variation in the valuation as can be achieved, it will be desirable that expertise available in the Tribunal has to look so that unfair advantage does not flow to one of the group of shareholders or the other.
We are noting in this case that the net worth as reported by the Tribunal below is ₹ 22.32 lakhs and the valuation at ₹ 5.05 crores is having a considerable variation making it imperative to have a broad look into it. The look by the Tribunal into the issue may not be looking into too much mathematics of the scheme and may be in the best interest and protection of the stakeholders. After noticing the same the Tribunal has come to the conclusion that the Scheme of amalgamation is beneficial to the promoters only. The Tribunal has justified its discretion to reject the amalgamation. We do not find mitigating factors to differ with the same.
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2017 (12) TMI 1642
Recovery of salary and dues - lockout of the company - Held that:- It is directed that the State Government shall submit an evaluation report relating to the entire material which is lying in the factory premises and also for the said purpose - the Official Liquidator is directed to act provisionally attached to this Court and conduct along with the Officers of the State Government the said evaluation thorough evaluation experts and submit the report to this Court on 4.1.2018 - List again on 4.1.2018.
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2017 (12) TMI 1641
Disallowance u/s 14A - assessee has been made investment of interest bearing funds in the partnership firm profit of which was exempt - Held that:- As decided in M/S. SWASTIK COAL CORPOATION PVT. LTD., INDORE [2016 (3) TMI 1333 - ITAT INDORE] it has to be necessarily held that once the appellant has earned substantial taxable income from investment in partnership firm and the Exempt Income earned being merely 3% of the substantial taxable income earned by the appellant the disallowance has to be made in the ratio of Exempt/Taxable income and accordingly, disallowance made under rule 8D has to be proportionately reduced. The disallowance made is hereby directed to be reduced accordingly and appellant shall get consequential relief. We uphold the action of the CIT(A) in restricting the addition to the ratio of exempt income to taxable income. - Decided against revenue.
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2017 (12) TMI 1640
Oppression and mismanagement - increase in share capital - Held that:- In the Board Meeting held on 22nd June, 2015, the Petitioner was given minutes of the meeting of the Board of Directors of the 1st Respondent Company held on 1st September, 2014, statement of Profit and Loss Account, Balance Sheet and Cash Flow Statements for the year ended 31st March, 2015 without notes. Apart from the said documents, there is no material placed on records by the Respondents to suggest that before 22nd June, 2015, the Petitioner had knowledge about the increase in share capital.
Increase in the share capital from ₹ 1 lac to ₹ 2 lacs of the 1st Respondent Company that took place on 21st December, 2009 and from ₹ 2 lacs to ₹ 3 lacs on 28th September, 2010 as illegal and set aside the allotment of 2500 shares to 4th Respondent on 29th January, 2010 and to the 5th Respondent to 11th Respondent on 18th January, 2011 and allotment of 2500 shares to 11th Respondent on 4th July, 2013 has been also declared illegal and set aside.
Apart from that, the transfer of shares of 1st Respondent to 2nd Respondent having set aside in addition to order for the allotment of shareholders of the shares of the 12th Respondent by duly following the procedures laid down under the Companies Act and Articles of Association, no interference is called for. We are of the view that apart from the just and proper order passed by the Tribunal, it has also passed consequential reliefs of setting aside illegal allotment and therefore, no further relief can be granted to the Petitioner.
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2017 (12) TMI 1639
Deduction u/s 80P(2)(d) - interest received by the assessee from co-operative banks - Held that:- There are divergent views on this matter.
The Hon’ble Karnataka High Court has expressed the view that the deduction u/s 80P(2)(d) would not be available in respect of interest income received from co-operative bank, whereas the Hon’ble Himachal Pradesh High Court has held that the said deduction would be available. The Hon’ble Supreme Court has held in the case of Vegetable Products Ltd [1973 (1) TMI 1 - SUPREME COURT] that if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. By applying the said principle, the view taken in KANGRA CO-OPERATIVE BANK LTD. [2008 (8) TMI 193 - HIMACHAL PRADESH HIGH COURT] which is in favour of the assessee, is required to be adopted in this case. Accordingly hold that the interest income earned by the assessee from Co-operative banks, which are basically co-operative societies carrying on banking business, is deductible u/s 80P(2)(d) - decided in favour of assessee.
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2017 (12) TMI 1638
Disallowing the benefit of substantial expansion u/s 80IC(2) - benefit of substantial expansion is allowable only to the undertaking which were existing as on 07.01.2003 - Held that:- A perusal of the order of the Assessing officer reveals that the Assessing officer has not disputed that the assessee unit has carried out substantial expansion as provided under clause (b) of sub section (2) read with clause (ix) of sub section (7) of section 80IC.
Almost similar view has also been taken in the case of ‘M/s Stovekraft India vs. Commissioner of Income Tax’ (2017 (12) TMI 69 - HIMACHAL PRADESH HIGH COURT) we may clarify that the Revenue has not disputed, (a) the units having carried out substantial expansion within the definition of the Section, (b) their entitlement and extent of deduction would be dependent upon interpretation of the relevant provisions.
We, therefore, do not find any justification at this stage to give the Assessing officer a second innings to re-examine undisputed facts. - Decided in favour of assessee.
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2017 (12) TMI 1637
Sale of the land - agricultural land - capital asset u/s 2(14) - sale of the land was not for agricultural purpose but for construction of flats - whether a particular land sold is agricultural land or not is to be determined as per the definition provided in Sec.2(14)(iii)? - Held that:- When the facts in the assessee’s case are examined in line with the provisions of Sec.2(14)(iii), it shows that the nearest Taluk being Chinglepet Taluk Kancheepuram District and the village Taiyur shows that a population of only 7609 and the distance from the Chinglepet is 23.5 kms and the distance from Kancheepuram is 64.1 kms.
A perusal of the Chitta & Adangal shows the names of the assessee and the Kist having been paid as agricultural land and the Village Administrative Officer certified as specifying both single crop and double crop. The assessee has placed such substantial evidences and this is not rebutted by the AO in respect of the nature of the land, as to whether it is agricultural or not?
AO has read into only the Sale Agreements and no other documents. Admittedly, the assessee is entitled to sell his land for the best possible price that can be generated, but if the nature of the land is agriculture, the same cannot be brought under the definition of capital asset for the purpose of levying long term capital gains. Further, what has been sold by the assessee is not converted lands. This being so, in the present case, as it is noticed that the land sold by the assessee is agricultural land, we are of the view that the same is not giving rise to any long term capital gains in the hands of the assessee. The findings of the CIT(A) and the AO on this issue stands reversed. - Decided in favour of assessee.
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2017 (12) TMI 1636
TPA - benchmarking of transaction through the combined transaction approach by applying of TNMM or CUP - Held that:- AO/TPO has not rebutted the basis adopted in the TP report for adopting TNMM and they failed to indicate the reasons for rejecting the TNMM as the most appropriate method. Further, they have been incorrectly applied the CUP method without bringing out any comparable on record. It is contrary to Rule 10B(2) of the I.T. Rules, 1962. Similarly, it is also his arguments that the assessee had filed voluminous documents to establish that the IGS were needed by the assessee and are not duplicative in nature.
All those details filed before the TPO/DRP were completely ignored. It is also his argument that the Department cannot question the commercial expediency of the transactions. In our opinion and considering the totality of the facts of the case, the matter requires a fresh adjudication at the level of the Assessing Officer/TPO in the light of the various evidences produced before them and in the light of the decisions relied on by the assessee before us. We, therefore, restore the entire issue to the file of the Assessing Officer/TPO with a direction to decide the issue afresh in accordance with law after giving due opportunity of being heard to the assessee. We hold and directly accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. Assessee appeal allowed for statistical purposes.
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2017 (12) TMI 1635
Addition u/s 68 - share application money received treating it as unexplained - assessee has failed to offer any explanation with regard to the credits found in the nature of share capital and share premium - Held that:- All the given evidences go to prove an undoubted fact that these companies are not paper companies and recognized with business activity. The assessee also filed affidavit form the directors of subscriber companies, wherein thy have explained the reasons for not receiving communication sent by the AO u/s 133(6). They further stated in the affidavit that they have subscribed to the share capital of the company and also furnished supporting evidences to justify investment in share capital of the company - The assessee has furnished bank statement of subscribers wherein we do not find any instance of cash deposits or transfer from other companies prior to the date of transfer to the assessee company - AO was incorrect in treating share capital alongwith share application money as unexplained cash credit u/s 68
Coming to the observation of the AO with regard to the issue of shares at a premium merit in the findings of the AO for the reason that the issue of shares at a premium and subscription to such shares is within the knowledge of the company and the subscribers to the share capital and the AO cannot have any role to play as long as the assessee has prove the genuineness of transactions. We further notice that the AO cannot question the issue of shares at a premium and also cannot bring to tax such share premium within the provisions of section 68 of the Act, before insertion of Proviso to section 68 by the Finance Act, 2012 wef 01-04-2013 which evident from the fact that the Hon’ble Bombay High Court has held that Proviso inserted to section 68 is retrospective in nature. Therefore, we are of the considered view that the AO has treated share capital and share premium as unexplained credit u/s 68 of the Act, on flimsy grounds ignoring all evidences filed by the assessee. - decided against revenue
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2017 (12) TMI 1634
Reopening of assessment - absence of fresh tangible material - Held that:- Appellate Commissioner had set aside the reassessment. The assessee had appealed against the reassessment made primarily on the basis of incorrect TDS claim but, in the opinion of the AO, could not have been made. CIT(A) and the ITAT have concurrently ruled that the reassessment notice, in the absence of fresh tangible material, was not error in law.
We see nothing wrong in the impugned order which is consistently enunciated by the Supreme Court on the issue. No substantial question of law arises.
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2017 (12) TMI 1633
Addition of undisclosed income - income estimated on hawala business of transporting cash from one place to another as per modus operandi as admitted by the assessee - Held that:- The addition on estimate basis on mere presumption and surmises, that too, in a search assessment cannot be upheld. As correctly observed by the FAA, neither during the search and seizure operation any incriminating material was found to indicate that the assessee was involved in hawala transaction to justify addition in these assessment years nor the AO has brought any material or documentary evidence even during the post search proceedings to justify such estimation.
Therefore, the addition made for A.Y.2007–08 to A.Y.2012–13 on estimate basis by extrapolating the entrie/ figures found in the seized material pertaining to A.Y.2013–14 is legally unsustainable. As far as A.Y.2013–14 is concerned, we find from the material on record that the assessee furnished a working as per which the addition which can be made considering the total working days even as per the rate of commission adopted by the Assessing officer at 0.30% per ₹ 1 lakh would be ₹ 12,00,000/– and ₹ 6,00,000/– if commission rate of 0.15% per lakh as adopted by the assessee is considered. Learned CIT(A) accepting assessee’s claim has estimated the commission income for post search period at ₹ 6,00,000/– and sustained the addition to that extent. Conclusion of the First Appellate Authority to be on a reasonable basis hence, do not see any reason to interfere with the same. - Decided against revenue.
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2017 (12) TMI 1632
Appeal dismissed on the ground of time bar - assessments of Bills of Entry were done prior to 1-12-2009 and the appeals were filed before the Commissioner (Appeals) only on 10-3-2010 - Held that:- All the six Bills of Entry were assessed and communicated to the appellant on various dates which were prior to 1-12-2009 and the appeals were filed before the Commissioner (Appeals) on 10-3-2010 only. This is much beyond the time-limit prescribed under the Act for filing appeals before the lower appellate authority - the request to issue a speaking order has been given to the department which is dated 22-3-2010. This letter is after filing the appeal before the lower appellate authority. It can be reasonably inferred that such letter was given as afterthought to circumvent the delay in filing the appeal.
Appeal dismissed - decided against appellant.
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2017 (12) TMI 1631
Interest income received on FDRs - whether fixed deposits as purchased on account of business exigencies, therefore the same may be treated as business income? - Held that:- Wherever the FDRs are purchased on account of business exigencies, the interest generated thereon would be business income and not income from other sources. But in the instant case, it is not borne out from the orders of lower authorities whether all FDRs are purchased for business exigencies or not. Therefore, we restore the matter to the file of the AO to examine the nature of FDRs and its purpose and to give a specific finding whether the FDRs were purchased for business purposes or not. If it is purchased for business purposes, the interest income earned thereon shall be treated as business income and not income from other sources in the light of aforesaid judgments of jurisdictional High Court.
MAT applicability - applicability of provisions of section 115JB to the assessee as engaged in the business of generation of power - Held that:- Since it has been repeatedly held by the different Benches of the Tribunal and Hon’ble High Court of Kerala that where the assessee is governed by different Acts and Rules, and is not required to prepare its profit & loss account and balance sheet as per Part II & III of Schedule VI to the Companies Act, the provisions of section 115JB cannot be invoked against him. In the light of this legal position, we are of the view that the revenue authorities wrongly invoked the provisions of section 115JB of the Act, therefore the order of the CIT(Appeals) is not sustainable in the eyes of law. Accordingly, we set aside the order of CIT(Appeals) in this regard.
Appeal of the assessee is partly allowed for statistical purposes.
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