Abatement claim under Compounded Levy scheme - all the four machines were closed - Department has not allowed abatement by mentioning that the abatement is allowable by way of refund - HELD THAT:- It appears that in the case of TRIMURTI FRAGRANCES PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2015 (8) TMI 34 - CESTAT NEW DELHI] it was observed that this issue stands settled in favour of the appellant by the judgment of Hon’ble Allahabad High Court in the case of STEEL INDUSTRIES OF HINDUSTAN INDUSTRIAL AREA VERSUS CCE., GHAZIABAD [2013 (10) TMI 172 - ALLAHABAD HIGH COURT], wherein in respect of similar provisions regarding levy of duty on compounded basis in respect of iron and steel product, Hon’ble High Court had held that for claiming the abatement for the period of closure of the factory, depositing duty for the whole month is not a pre-condition and that in such cases the duty would be required to be paid only for the number of days for which a factory was working.
It may be mentioned that in the factory, there were only four machines. If four machines are sealed then certainly factory is closed for the purpose of production. From the impugned order, it is not clear that for what period the four machines were closed. In other words, when the factory was closed.
Matter remanded back to the adjudicating authority to decide the period for closure of the factory and allow the suo motto abatement but by providing reasonable opportunity to the appellant - appeal allowed by way of remand.
Validity of continuing suspension which had exceeded 90 days - charge sheet not issued - HELD THAT:- In Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT], the appellant had assailed his suspension even before issuance of the charge sheet. He had been suspended with effect from 30.09.2011 and the Supreme Court observed that the same “has been extended and continued ever since” - even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension.
There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules - It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry.
On a reading of Ajay Kumar Choudhary, the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant – before, or after the service of the charge sheet – if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months – if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government. No such consequence – of the automatic lapsing of suspension at the expiry of three months if the charge memo/ charge-sheet is not issued during that period, has been prescribed.
From a reading of the decision in Ajay Kumar Choudhary and Rule 10 of the CCS (CCA) Rules, it emerges that the government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny – not as in an appeal, but on grounds available in law for judicial review of administrative action.
There is no force in the submission of the respondent that the suspension of the respondent automatically lapsed since the charge sheet was not issued within the initial period of 90 days. Pertinently, the respondents suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016. Thus, the suspension of the respondent did not lapse under sub rule (7) of Rule 10 CCS (CCA) Rules.
In the facts of the present case, the impugned order was certainly not called for, revoking the suspension of the respondent. When the O.A. was preferred, the charge sheet had already been issued to the respondent on 01.03.2017 - The jurisdiction of the tribunal is confined to examining the administrative action of the government on the well established objective principles of judicial review and, where it considers necessary, to require the government to perform its statutory obligation to take a decision. In view of the aforesaid, the impugned order cannot be sustained and is, accordingly, set aside.
Reference of the disputes to Delhi International Arbitration Centre (DIAC) for initiating arbitration proceedings -Resolution of disputes between BHEL and respondent No. 2 (DRIPLEX) by conciliation not possible - disputing parties had also entered into an arbitration agreement - whether MSEFC could (u/Section 18 (3) of The Micro, Small and Medium Enterprises Development Act, 2006) refer the disputes for arbitration under the aegis of DIAC, considering that the disputing parties had also entered into an arbitration agreement?
HELD THAT:- It is at once clear that the provision of Section 18(3) of The Micro, Small and Medium Enterprises Development Act, 2006, do not leave any scope for a non-institutional arbitration. In terms of Section 18 (3) of the Act, it is necessary that the arbitration be conducted under aegis of an institution -either by MSEFC or under the aegis of any "Institution or Centre providing alternate dispute resolution services for such arbitration".
It is apparent from the plain reading of clause 30 (1) of arbitration agreement, that the DRIPLEX and BHEL had agreed to refer disputes to an arbitrator appointed by BHEL and this in material variance with the provisions of Section 18(3) of the Act. In this view, the contention that there is no conflict between the arbitration agreement and Section 18(3) of the Act, is not persuasive. The arbitration clause under the GCC provides for an arbitration by an arbitrator to be appointed by BHEL, which is repugnant to an institutional arbitration - Section 24 of the Act contains an non-obstante provision and, expressly provides that the provisions of Section 15 to 23 of the Act will have an overriding effect. Thus, the provisions of Section 18(3) of the Act cannot be diluted and must be given effect to notwithstanding anything inconsistent, including the arbitration agreement in terms of section 7 of the A&C Act.
In BHEL v. State of U.P. & others [2014 (2) TMI 1420 - ALLAHABAD HIGH COURT], a Division Bench of the Allahabad High Court had considered the case where the agreement between the disputing parties contained an arbitration clause, however, the MSEFC had decided to arbitrate the disputes under Section 18(3) of the Act. BHEL was also the petitioner in that case and, had approached the Court seeking that the proceedings before Uttar Pradesh State Micro and Small Enterprises Facilitation Council be set aside and the said Council be directed to decide BHEL's objection under Section 8 of the A & C Act - The Punjab and Haryana High Court in The Chief Administrative, COFMOW [2015 (1) TMI 1493 - PUNJAB AND HARYANA HIGH COURT]] had rejected the contention that provisions of Section 18 (3) of the Act for referring the disputes to arbitration would apply only where there was no arbitration agreement between the parties.
BHEL had proceeded on the basis that if the conciliation proceedings failed, the disputes would be referred to arbitration under the Act and, thus, they cannot be permitted to assail the orders passed by MSEFC under Section 18(3) of the Act. It was not BHEL's case, as is apparent from its replies filed before MSRFC, that reference to arbitration would necessarily have to be as per the agreement between the parties and not under the Act. Thus, they cannot be permitted to agitate this issue in these proceedings.
The petitions are dismissed with costs quantified at ₹ 25,000/- in each case.
Grant of protection during the process of moving application for Anticipatory Bail before the court - applicant fears that the drug mafia of the country from the States of Punjab and Haryana may harm her - HELD THAT:- The broad purpose of Section 438 Cr.PC is that where a person accused of commission of a non bailable offence is apprehending arrest, he may be afforded an opportunity to approach a High Court or a Court of Session for an appropriate order of bail before actual arrest. The two factors which entitle a person to seek shelter under Section 438 Cr.PC that firstly he must be under a reasonable apprehension of being arrested and secondly that such reasonable apprehension of arrest must arise on accusation of having committed a non bailable offence. Both these factors also determine the court in which an application under Section 438 Cr.PC can be filed.
Undoubtedly, anticipatory bail intrudes in the sphere of investigation of crime and some very compelling circumstances have to be made out for grant of anticipatory bail to the person accused of serious offences and the Court must be cautious and circumspect in exercising such power of a discretionary nature.
It is significant to notice that in the application it has been stated that a lookout notice has been issued in the entire country against the applicant and on 20.09.2017, the Haryana Police included the name of the applicant along with her photograph in the list of wanted persons. The fact that the lookout notice had been issued against the applicant makes it clear that the efforts of the police force to apprehend the applicant has not yielded results - keeping in view the facts and circumstances of the case that the applicant till now has evaded arrest, discretionary relief should not be granted to the applicant. It appears that the application is not bona fide and has been filed with a view to gain time. The prayer of the counsel for the applicant that protection be granted to him so that he may approach the High Court of Punjab and Haryana, is without merit as the applicant had the liberty to avail the remedy before the competent Court.
Estimation of income - Bogus purchases - onus to substantiate the purchases - HELD THAT:- As there could be no sale without purchase / consumption of material since assessee was engaged as real estate developers, which is material intensive. The sales turnover achieved by the assessee has not been disputed by the revenue and the payments were through banking channels. At the same time, the assessee could not produce any confirmations from any of the 25 alleged bogus suppliers and further notices u/s 133(6) could not be served due to non-availability of any of the party at the given address, which cast serious doubt on assessee’s claim.
The addition, which could be made, was to account for profit element embedded in these purchase transactions to factorize for profit element earned by assessee against possible purchase of material in the grey market and undue benefit of VAT against bogus purchases. We estimate the same @8% keeping in view the assessee’s nature of business and overall facts of the case. Accordingly, we sustain the addition to the extent of 8% of bogus purchases - Revenue’s appeal stands partly allowed.
Unexplained cash credit - loan amount availed by the assessee from the sister concern - HELD THAT:- From the materials on record, CIT (Appeals) and Tribunal both had come to the conclusion that the assessee had produced the copy of PAN card, address confirmation, copy of the return and the bank statements of the payee for the present assessment year as well as in the earlier assessment year where such an issue had cropped up. Essentially, Commissioner of Income Tax (Appeals) as well as the Tribunal held that the assessee established the genuineness of transaction, creditworthiness of payee and the source of the payment. The issue hinges on appreciation of material on record. No question of law arises.
Gambling - Horse Racing - whether a horse-race run on the turf of the club is a game of ‘chance' or a game of "mere skill"? - HELD THAT:- Delay condoned.
Income taxable in India - Income received for executing the Offshore Supply Contract - offshore Supply contracts were 'carried and concluded' outside India - HELD THAT:- The issue stands covered in favour the assessee by the orders of the Tribunal for the AY. s. 2007-08, 2008-09, 2011-12 [2017 (4) TMI 758 - ITAT MUMBAI] as held since, supply of materials and equipments under the off-shore supply contracts were carried out and concluded outside India, the receipts from offshore supply contracts cannot be deemed to accrue or arise in India as per section 9(1) and DTAA provisions and accordingly, not chargeable to tax. The receipts thereof do not form part of receipts for the purpose of computational provisions of section 44BBB. Explanation-4 could not overcome the limitation imposed by Explanation-l(a) to section 9(i)(i) and hence, the impugned income do not form part of business receipts for computation of income u/s 44BBB . Decided in favour of assessee.
Deduction u/s 80P(2)(a)(vi) denied - income of the society has nothing to do with the collective disposal of the labour of its members but is entirely from out of the price realised by it for the sale of toddy through the society's own toddy shops -assessee purchase of toddy from its members and non- members on payment of the agreed remuneration and its sale through the toddy shops established by the society itself - income of the society has nothing to do with the collective disposal of the labour of its members but is entirely from out of the price realised by it for the sale of toddy through the society's own toddy shops - HELD THAT:- Respectfully following the said decision of Hon'ble High Court in assessee’s own case for assessment year 2008-09 and 2009-10 [2014 (1) TMI 1080 - ITAT COCHIN] we do not find any illegality or infirmity in the order of the CIT(A) denying the deduction to the assessee under section 80P(2)(a)(vi) of the Act. We, therefore, confirm the order of CIT(A) dismissing the appeal of the assessee in both the assessment years.
Levy of octroi on natural gas imported by the petitioner Oil and Natural Gas Commission within the municipal limits of the first respondent - whether natural gas was covered by unamended Entry 22(a)? - HELD THAT:- Even without amending Entry 22(a), the Municipal Corporation had power to levy octroi on natural gas. Now we turn to the challenge to the provisions of the impugned Ordinance and the impugned Act. We have already quoted the relevant part of the impugned amendment. The impugned amendment amends clause (a) of Entry 22 by substituting the words “petroleum products” by the words “petroleum products including natural gas and liquified petroleum gas”. It seeks to make the said amendment retrospective by specifically providing that the words “shall be and shall be deemed to have been substituted with effect from 1st day of April 1978”. Thus, the amendment seeks to clarify that the natural gas was always included in the petroleum products covered by Entry 22(a). In the Statement of objects and reasons appended to the impugned amendment, it is stated that natural gas was always implicitly included in Entry 22(a) as it is a part of the petroleum products. It further records that doubts were expressed whether natural gas and liquified gas were included in petroleum products. Therefore, an amendment is sought to be made though natural gas was already included and it is made retrospectively with effect from 1st April 1978 when the Municipal Corporation started levying octroi on natural gas or liquified gas products.
The clear position of law is that every statute is presumed prima facie prospective unless expressly or by necessary implication it is given retrospective operation. But such presumption is not applicable to the declaratory or explanatory statues. Such statutes are made to supply an obvious omission or to clear up doubts as to the meaning of the provision or term or expression in the enactment. It is well settled that if the statute is curative or merely declaratory of the previous law, its retrospective operation is generally intended and is always open for the legislature to make enactments having retrospective operation - Law is very well settled that in case of a taxing statute, the powers of the legislature are different in the sense that more latitude is available to the legislature in the matter of fiscal statutes.
Rule 25 is applicable when the importer after following the procedure of the said Rules either fails to pay octroi or the octroi paid is short or when such octroi after having been paid has been erroneously refunded due to inadvertence, error, collusion etc. In such cases, Rule 25 provides that the person primarily liable to pay such tax or difference of tax shall pay the amount of tax or deficiency on receipt of a demand issued within three months of the date of the import or payment of tax as the case may be. The present case is of complete evasion of payment of octroi. It is not the case of the petitioner that the petitioner followed procedure of filling in forms and claiming that octroi was not leviable on natural gas. There is no provision under the said Act which provides for a period of limitation or outer limit within which octroi could be levied or collected from the date of its import. Rule 25 is merely an enabling provision which enables the Municipal Corporation to take steps for recovery of octroi in the contingencies which are covered by the said Rule. By no stretch of imagination Rule 25 can be interpreted to mean that in a case of a person who evades octroi by clandestinely importing articles subject to octroi and who fails to follow the procedure laid down by the Octroi Rules is liable to pay octroi only within a period of three months from the date of import of goods and, therefore, after expiry of the said period of three months, the Municipal Corporation is powerless to take steps for recovery of octroi from the person who has evaded payment of octroi.
This petition filed in the year 1989 was admitted and interim relief was granted. Thereafter this petition was dismissed and the said order of dismissal was set aside by the Apex Court. Moreover, we are dealing with a public sector undertaking which was earlier a Commission established under a central statute. Though we are not inclined to entertain this petition on merits, it is not a case where a direction can be issued to the petitioner to pay interest - Petition dismissed.
Admissibility of appeal - HELD THAT:- Tax Appeal is ADMITTED for consideration of the following substantial question of law.
Whether Hon’ble Tribunal committed error in setting aside the demand of Central Excise duty in respect of utilization of Cenvat credit of Basic Excise Duty for discharge of Education Cess payable on finished goods for the period July, 2009 to March, 2010 during which the assessee was availing the benefits of area based exemption under Notification No. 39/2001-C.E., dated 31-7-2001?
Disallowance of CENVAT Credit - tax charged by provider of foreign travel, research & development and outward courier services - period between June 2013 and January 2014 - HELD THAT:- Admittedly, the foreign travel expenses were incurred for staff to travel abroad for business purposes. Appellant is a manufacturer and the business of manufacturing does not preclude activities relating to manufacture outside the country. Likewise, the courier was entrusted with dispatch of documents and correspondence from the office of the appellant which can be presumed to have been in connection with its principal activity. Furthermore, it is inconceivable that research & development could have been in connection with anything other than manufacture.
It would appear that the disallowance were on frivolous grounds without considering the nature of the services - Appeal allowed.
Loss from Jeevan Suraksha Fund - income includes loss thus the loss form Jeevan Suraksha Fund can be set off against taxable income of the assessee corporation despite the fact that Jeevan Suraksha is covered u/s 10(23AAB) - Whether non-obstante clause in section 44 of the Act is not extended to section 10(23)AAB? - HELD THAT:- Hon'ble High Court [2011 (8) TMI 47 - BOMBAY HIGH COURT] clearly held that the object of insert in section 10(23AAB), as per Board Circular No.762 dated 18/02/1998, was to enable the assessee to offer attractive terms to the contributors. The order of the Tribunal with respect to section 10(23AAB) that the loss incurred from the pension fund like Jeevan Suraksha Fund has to be excluded while determining the accrual surplus from the insurance business u/s 44 of the Act cannot be faulted, resultantly, the issue was decided in favour of the assessee. We don’t find any infirmity in the conclusion of the First Appellate Authority. Thus, the impugned grounds are dismissed.
Dividend income of the assessee hold as exempt u/s 10(34) - As identical issued is covered by the decision in the case of ICICI Prudential Insurance Co. Ltd. [2012 (11) TMI 13 - ITAT MUMBAI] therefore, we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal), resultantly, this ground of the Revenue is also fails.
Whether negative reserves has an impact of reducing the taxable surplus, as per form-1 therefore, corresponding adjustment for negative reserves need to be made to arrive a taxable surplus? - HELD THAT:- Issue decided in favour of assessee as relying on own case High Court vide order dated [2015 (9) TMI 1718 - BOMBAY HIGH COURT]. Assessing Officer had no power to modify its accounts after Actuarial valuation is done.
Addition made on account of interim bonus paid - Whether no deduction on account of interim bonus is required to be made from the total surplus as per the regulation of IDRA, the provisions of Act are not applicable in the case of the assessee? - HELD THAT:- If section 28 of the Life Insurance Corporation Act, 1956 is analyzed, with respect to surplus from life insurance business and its utilization, it is clear that 95% of such surplus or such higher percentage thereof, as the central government may approve shall be allocated to or reserve for life insurance policy holders of the corporation and after meeting the liability of corporation, if any, which may arise u/s 9, the reminder shall be paid to the Central Government or if the Central Government so direct, shall be utilized for such purposes and in such manner as the government may determine. Considering the clear language of the section, we direct the Assessing Officer to examine the factual matrix/utilization of the surplus and decide in accordance with law. The assessee be given opportunity to substantiate its claim. Thus, this ground is allowed for statistical purposes.
Applicability of provisions of section 115-O r.w.s 115Q - HELD THAT:- The Tribunal in a later decision dated 10/07/2013 [2013 (7) TMI 1204 - ITAT MUMBAI] followed the decision of Assessment Year 2006-07 - No contrary decision was brought to our notice by the Revenue, thus, we find no infirmity, in the order of the First Appellate Authority, on this issue also, therefore, this ground is dismissed, resultantly, the appeal of the Revenue is partly allowed for statistical purposes.
Addition made on account of income from shareholders funds credited directly to the shareholders account - HELD THAT:- As decided in assessee own case [2017 (3) TMI 1904 - ITAT MUMBAI] payment made by the assessee to the Central Government could not be treated as dividend within the ambit of definition clause 2(22) of the Act, that provisions of section 115-O of the Act were not applicable, that assessee could not be declared as assessee in default u/s.115 Q of the Act. In our opinion, in the case relied upon by the AR of the assessee, question of taxability of particular items of income under the head income from other sources was not before the Tribunal. Therefore, upholding the order of the FAA we decide Ground of appeal against the assessee.
Maintainability of petition - Appealable order or not - Central Excise Act, 1944 - HELD THAT:- In the present case Customs, Excise and Service Tax Appellate Tribunal has passed an order which is impugned in the present case and the same is appealable under the provisions of Central Excise Act, 1944.
Resultantly, admission is declined with a liberty to file an appeal in accordance with law.
Suit for specific performance of contract - owner of suit property by way of adverse possession, as alleged or not - entitlement for the relief of injunction or not - time limitation - valid transfer of title in favour of the plaintiff or not? - estoppel from filing the present suit against the defendants, on account of his own acts, deeds and acquiescence or not - whether suit is not properly valued for the purpose of court fee and jurisdiction?
HELD THAT:- It is well settled by now that a finding of fact itself may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said findings, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread - Hon'ble Apex Court in DR. RATHNA MURTHY VERSUS RAMAPPA [2010 (10) TMI 909 - SUPREME COURT], has specifically held that High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by Courts below are found to be perverse. It has further been held in the case supra that there is no absolute bar on the re-appreciation of evidence in those proceedings; however, such a course is permissible in exceptional circumstances.
In the instant case, this Court, after having carefully perused the communications Ex. PW-1/L to Ex./PW-1/O issued by the vendor, has no hesitation to conclude that the vendor had repeatedly extended time for execution of sale deed and at no point of time he conveyed to the plaintiff with regard to his intention, if any, of not selling the property in terms of original agreement Ex. PW-1/A. Since, after expiry of time period specified in agreements Ex. PW-1/A and Ex. PW-1/E, vendor himself had been requesting for extension of time coupled with the fact that the plaintiff had good relations with the vendor, there was no occasion, as such, for plaintiff to send communication specifically accepting therein the request for extension of time made by the vendor. Rather, it can safely be inferred from the communication sent by the vendor that requests, repeatedly made by him, were accepted and acted upon by the plaintiff.
In the case at hand, as has been already concluded that stipulation of time, if any, in the agreements was to commence after redemption of property by vendor from the bank concerned and sale deed was fully dependant upon the redemption of property which was admittedly redeemed on 8.9.2001. There is no document, suggestive of the fact that communication, if any, was ever sent by the vendor-predecessor-in-interest of the defendants or thereafter by defendants intimating therein factum with regard to redemption of suit property to enable the plaintiff to do his part in terms of agreement in question - after having bestowed its thoughtful consideration to the pleadings, evidence vis-à-vis impugned judgments and decrees passed by both the Courts below, is of the view that both the Courts below erred in concluding that suit for specific performance having been filed by the plaintiff is/was barred by limitation.
Thus, there is total mis-appreciation, misconstruction of evidence, be it ocular or documentary, adduced on record by respective parties and findings returned by the Courts below are erroneous and perverse, it sees valid reason to interfere in the concurrent findings of fact recorded by both the Courts below - appeal allowed.
Seeking time to file an additional affidavit to indicate as to how the goods imported were utilized - HELD THAT:- The additional affidavit be filed within a period of two weeks from today. Counter affidavit be filed within a period of four weeks thereafter. Rejoinder, if any, be filed within a period of two weeks thereafter.
CENVAT Credit - inputs/capital goods - Cement and Asbestos sheet - credit denied on the ground that these are neither input nor capital goods in terms of Rule 2(k) or Rule 2(a) of the Cenvat Credit Rules, 2004 during the period September, 2009 to April, 2010 whereas show cause notice has been issued on 23.09.2011 - extended period of limitation - HELD THAT:- Considering the facts that the issue of availment of cenvat credit on these goods was in dispute and the same has been resolved by the Larger Bench of this Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. In that circumstances, extended period of limitation is not invokable.
In the similar facts in the case of M/S. KM SUGAR MILLS LTD. VERSUS CCE & ST, ALLAHABAD [2014 (11) TMI 1084 - CESTAT NEW DELHI] this Tribunal held that in such circumstances the extended period of limitation is not invokable - Admittedly, the show cause notice has been issued in the matter by invoking extended period of limitation. In that circumstances, the show cause notice is barred by limitation.
Reopening of assessment u/s 147 - Period of limitation - Applicability of provisions of section 150(1) - HELD THAT:- As in the order passed by the ITAT for the AYs 2001-02 to 2004-05 [2017 (2) TMI 854 - ITAT HYDERABAD] the Tribunal decided the matter by holding that section 150(1) of the Act can be invoked only when there is a direction to bring the balance of interest to tax in the earlier assessment years whereas there is no such direction in the order passed by the ITAT for the A.Y. 2006-07. It deserves to be noticed that section 150(1) refers to “finding or direction”.
The Division Bench of the ITAT, while disposing of the appeal for the AYs 2001-02 to 2004-05, appears to have been of the view that in the absence of any specific direction section 150(1) cannot be invoked, probably by assuming that there is no difference between the expression “finding and direction”. Since this is an order passed by the Division Bench and that too in the assessee’s own case in the earlier years, respectfully follow the same to hold that the provisions of section 150(1) were wrongly invoked by the Assessing Officer. Under these circumstances, the reopening of the assessment is treated as bad in law and the assessment is hereby set aside. Appeal filed by the assessee is allowed.
Denying the exemption claimed u/s 54EC - Capital gain not to be charged on investment in certain bonds - Learned counsel contended that he is entitled for the benefit of the investment which has been made in the subsequent date - whether word used is ‘whole’ and the two investments which have been made are within six months and the whole capital gain is invested in two different financial years? - HELD THAT:- Taking into account the object of Section 54EC is to give benefit to the assessee to invest in the Government bond and where proviso came for the first time on 01.4.2007 providing benefit of 50 lacs each of the transaction of the property the view taken by the Tribunal is just and proper.
We are not in agreement with the view taken by the Madras High Court [2014 (11) TMI 54 - MADRAS HIGH COURT]. The benefit is qua one transaction. It cannot have for different financial years. The purpose is to have investment for benefit of long term capital and once there is interpretation put forward by the basic connotation of law, in that view of the matter, we are affirming the view of the Tribunal. Decided against the assessee.
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