|
Advanced Search Options
Case Laws
Showing 61 to 80 of 2152 Records
-
2018 (9) TMI 2096
Denial of deduction u/s 54B - investment made in the purchase of the agricultural land in the name of his sons - HELD THAT:- Assessee being an old aged person and was not keeping well thought it prudent to buy the agricultural land in the name of his sons to avoid future family disputes relating to the inheritance of the property of the assessee after his death. The sale proceeds from the sale of agricultural land were duly invested in the purchase of agricultural land itself. We, therefore, do not find any justification on the part of the lower authorities in denying the claim of deduction the assessee u/s 54B of the Act.
In view of this, order of the lower authorities is hereby set aside and the AO is directed to allow deduction to the assessee u/s 54B of the Act in respect of the investment made in the purchase of the agricultural land in the name of his sons. Appeal of the assessee is hereby allowed.
-
2018 (9) TMI 2095
Income deemed to accrue or arise in India - whether the income earned from technical handling is duly covered by Article 8 of the Double Taxation Avoidance Agreement between India and Netherland and as such income accruing to assessee during the year under consideration is fully exempt from taxation in India and could not have been brought to tax in India? - HELD THAT:- After hearing both the sides we find that Tribunal in assessee’s own case for assessment years 2004-05 & 2005-06, passed has dealt and decided the identical issue relating handling services and technical handling services rendered by the assessee to other airlines in India in assessee’s own case while explaining the meaning of profit from the operation of ships and aircrafts in international traffic has took into consideration, the bye laws of international airlines technical pool (IATP) because this organization authorized its members to share air-crafts pooling, ground handling equipment and manpower all over the world.
ITAT has considered the relevant clauses of IATP manual and thereafter concluded that any receipt received by the assessee due to participation in the pool as provided in IATP manual and also explained in sub article 4 of Indo German DTAA will not be taxable in India under sub-Article 1 of Article 8. In the present appeals, there is no disparity on facts. Ld. DR except raising an argument that ground handling and technical handling services are different activities then operation of any air-craft in international traffic failed to bring any rules, regulations, byelaws for substantiating his contentions. - Decided in favour of assessee.
-
2018 (9) TMI 2094
Seeking permission to travel abroad to Philippines for a period of 10 days - revisionist was the Director of M/s Simbhaoli Sugars Ltd. and that his company has misappropriated more than Rs.100 crores which was meant to be distributed as credit to the farmers - HELD THAT:- The revisionist is an accused in the present case and is stated to be involved in huge financial scam of an amount of Rs. 100 crores approximately which according to the O.P. No.3-Bank has been embezzled by the said company. The investigation is still going on and the learned Special Judge (Anti-corruption) has expressed apprehension that there could be possibility of the accused-revisionist fleeing from the country so as to avoid his arrest (if required) during investigation or trial, in our view as well such a possibility may not be ruled, hence, there are no infirmity in the impugned order and are not inclined to give any relief to the revisionist.
The present revision is, hereby, dismissed.
-
2018 (9) TMI 2093
Unaccounted income - AIR information revealed that the assessee has had bank account with Yes bank Ltd. in which total deposits were seen including cash deposits - HELD THAT:- We find that the assessee is a salaried person and deriving salary from Kalyani Multilink Pvt. Ltd. The deposits appearing in the bank account under consideration has not been disclosed - pattern of deposits in bank account would show that these are there are some transaction in which cheque has been issued. There are debit entries in this bank account. The assessee has claimed that this bank account pertained to her business in trading. Ongoing through bank statement and facts of the case we observe that there are frequent transaction of cash as well as cheques.
On careful consideration of facts, we are of the view that entire deposits in bank account cannot be considered for addition. Since the bank account is reflecting deposits as well as withdrawals, hence, there is every likely that bank account has been used for unrecorded business transactions as claimed by the assessee. Therefore, it would be in the interest of justice that only profit eliminate @ 5% is considered for tax of total deposits - Therefore, the AO is directed to consider net profit @ 5% of total deposits which worked out to Rs. 91,600. Accordingly this addition of Rs. 14,76,614 is restricted to Rs. 91,600. This ground is therefore, partly allowed.
Unexplained cash credit u/s 68 - HELD THAT:- We find that the assessee has filed confirmation bank statement and copy of return of income of her husband but the bank statement of her husband shows that there is cash deposits of Rs. 2 Lakh before issue of cheques to the assessee. Further the total income shown by her husband is only Rs. 98,000. Hence, the depositor has no capacity to advance such amount of loan. Therefore, the addition so made needs to be confirmed in the case of Umesh Krishnani [2013 (8) TMI 79 - GUJARAT HIGH COURT] - Hence, we do not have any reason to differ with decision of Ld. CIT (A), therefore, same upheld. Accordingly, this grounds of appeal is therefore, dismissed.
-
2018 (9) TMI 2092
Estimating the income from undisclosed turnover - Undisclosed deposit to the bank account - HELD THAT:- Keeping in view the provision of s. 44AD of the Act and amount of turnover undertaken by the assessee during the relevant period, we are of the considered opinion that the entire amount deposited to the bank account of the assessee by the respective purchasers cannot be treated as income of the assessee only profit element therein can be treated as income of the assessee from Jari business. Therefore, in our considered opinion, the all possible leakage of revenue would be covered if, the profit/income earned from the Jari business is estimated @ 10% of total turnover of the assessee and we direct the AO to calculate the income of the assessee accordingly on the turnover of Rs. 11,84,036/-. Accordingly, ground No.1 of the assessee is dismissed and ground No.2 of the assessee is partly allowed.
-
2018 (9) TMI 2091
Unexplained cash deposited in savings bank account - estimation of profit/income earned from the Jari business - HELD THAT:- As per provision of s. 44AD of the Act, 8% of turnover or gross receipts of the assessee in the previous years on account of such business shall be deemed to be the profits and gains of such business chargeable to tax under the head “profit and gains of business or profession”. From the copy of bank account, it is discernable that the assessee has withdrew and deposited very small amounts and the peak was Rs. 34,623/- as on 18.03.2008, but the same cannot be treated as the only income earned from the Jari business of the assessee.
Keeping in view the provision of s. 44AD of the Act and amount of turnover undertaken by the assessee during the relevant period, we are of the considered opinion that the entire amount deposited to the bank account of the assessee by the respective purchasers cannot be treated as income of the assessee only profit element therein can be treated as income of the assessee from Jari business. Therefore, all possible leakage of revenue would be covered if, the profit/income earned from the Jari business is estimated @ 10% of total turnover of the assessee and we direct the AO to calculate the income of the assessee accordingly.
From the copy of bank statement, we observe that on 31.03.2007 there was balance of Rs. 401/- only which was brought forward to the present financial year and thereafter, on 05.04.2007, the amount of Rs. 20,000/- was deposited and thereafter, balance reached to Rs. 20,401/-. Hence, we observe that there was a very meager amount of Rs. 401/- in the beginning of financial year and hence, the peak of Rs. 34,623/- as on 18.03.2008 is also be treated as an amount of undisclosed investment of the assessee for conducting Jari business as no business can be done without any capital. Therefore, AO is also directed to make addition of peak amount to the income of the assessee. Accordingly, remaining sole ground of the assessee is partly allowed and AO is directed to re-compute the taxable income of the assessee as directed above.
-
2018 (9) TMI 2090
G.P. addition - admitted facts in the statement of Director u/s 132(4) - average GP rate which will be applied in the present case will be 12 per cent - HELD THAT:- Delay condoned. Leave granted.
List along with SLP [2018 (8) TMI 2092 - SC ORDER]
-
2018 (9) TMI 2089
TDS u/s 194A - Motor Accidents Claims - Liability of Insurance Company to deduct income tax at source (TDS) on the interest paid on the compensation paid under Motor Vehicles Act, 1988 - as per HC Interest paid along with the compensation as a result of the order of the Tribunal or of the superior Court is not liable for TDS - HELD THAT:- Permission to file SLPs is granted. Delay condoned.
We do not find any merit in these petitions. The Special Leave Petitions are accordingly dismissed. The question of law is, however, left open.
Pending applications, if any, shall stand disposed of.
-
2018 (9) TMI 2088
TDS u/s 194J - Addition u/s 40(a)(ia) - Non deduction of TDS on payment of subscription & technology fee - CIT-A deleted the addition - HELD THAT:- As decided in own case [2018 (7) TMI 2052 - ITAT KOLKATA] the said amount was towards the reimbursement of the expenses, which was in fact incurred on behalf of the assessee and there was no profit element. That being so, we decline to interfere with the order of Id. C.I T.(A) deleting the aforesaid addition.
TDS u/s 194I - Addition u/s 40(a)(ia) - non deduction of TDS on payment of rent for computer - a similar deduction on account of rent eimbursed to DTTIPL was claimed and allowed by the AO in scrutiny assessment for the A.Y.2008-09 - HELD THAT:- As decided in own case [2018 (7) TMI 2052 - ITAT KOLKATA] assessee had reimbursed its share of the rent for the laptops to DTTIPL and no tax is deductible at source on such payments. As it is a well settled legal position, as discussed by ld CIT(A) also that factual matters which permeate through more than one assessment year, if the Revenue has accepted a particular view or proposition in the past, it is not open for the Revenue to take a entirely contrary or different stand in a later year on the same issue, involving identical facts unless and until a cogent case is made out by the Assessing Officer on the basis of change in facts
Payment of indemnity insurance expense - Proof of allowable business expenditure - HELD THAT:- As decided in own case [2018 (7) TMI 2052 - ITAT KOLKATA] the expenditure on professional indemnity insurance has been incurred wholly and exclusively for the purpose of business and is an admissible deduction. That being so, we decline to interfere with the order of Id. C.I T.(A) deleting the aforesaid addition.
Revenue appeal dismissed.
-
2018 (9) TMI 2087
Equality of opportunity in matters of public employment - Claims of Scheduled Castes and Scheduled Tribes to services and posts - HELD THAT:- It is easy to see the pattern of Article 46 being followed in Article 16(4) and Article 16(4-A). Whereas “backward classes” in Article 16(4) is equivalent to the “weaker sections of the people” in Article 46, and is the overall genus, the species of Scheduled Castes and Scheduled Tribes is separately mentioned in the latter part of Article 46 and Article 16(4-A). This is for the reason, as has been pointed out by us earlier, that the Scheduled Castes and the Scheduled Tribes are the most backward or the weakest of the weaker sections of society, and are, therefore, presumed to be backward.
It can be seen that when seats are to be reserved in the House of the People for the Scheduled Castes and Scheduled Tribes, the test of proportionality to the population is mandated by the Constitution. The difference in language between this provision and Article 16(4-A) is important, and we decline the invitation of the learned Attorney General to say any more in this behalf.
The conclusion in M. NAGARAJ & ORS VERSUS UNION OF INDIA & ORS. [2006 (10) TMI 420 - SUPREME COURT] that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in INDRA SAWHNEY ETC. ETC VERSUS UNION OF INDIA AND OTHERS, ETC. [1992 (11) TMI 277 - SUPREME COURT] is held to be invalid to this extent.
Application disposed off.
-
2018 (9) TMI 2086
Classification of services - project/ work executed for hydro-electric project alongwith material - classifiable under ‘Works Contract Service’ or under CICS - whether the said work falls under the exclusion clause under the definition of works contract service? - construction made by the respondent-assessee for educational institution (not for commercial purpose).
Works contract service or not? - HELD THAT:- A perusal of the order in original and other documents shows that contracts in dispute are composite contracts in which both goods are supplied and services are provided. Further on the composite nature of contracts, involving supply of goods and services, there is no dispute raised by the Revenue. The issue that composite contracts involving supply of goods and services, are ‘works contract’ has been settled by the Apex court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. Further, the Hon’ble Supreme Court has held that only contracts of service simpliciter without involving goods, will be covered in the sub clauses of 65(105) - thus, the service in dispute which are composite in nature, are correctly classified under ‘works contract service’.
Commissioner has correctly dropped the demand for the period prior to 01.06.2007 as the works contract were not taxable prior to 01.06.2007. For the period post 01.06.2007 also demand cannot be confirmed under ‘Commercial or Industrial Construction service’ under which demand was proposed in the show cause notice, as such lead will cover only service contract simpliciter, not the composite contract. Thus, the demand is not maintainable under ‘Commercial or Industrial Construction service’ for the entire period in dispute.
Whether the construction of Hydro Electric project is not in respect of tunnels or dams, and thus not excluded from entry of ‘Commercial or Industrial Construction Service’ or ‘works contract service’? - HELD THAT:- In the present case in the order in original, the Commissioner has discussed in detail that services in question are in respect of dams and tunnels. Since the services provided in dispute are in respect of dam and tunnel, the same is excluded from the definition of ‘Commercial or Industrial Construction Service’, and not taxable. Thus, the order passed by the Commissioner is correct and maintained, on this issue.
Demand of service tax on construction of educational institute - HELD THAT:- Revenue has not appreciated the definition of Commercial or Industrial Construction service. A perusal of definition shows that to decide the taxability under said service, user of the building, so constructed, is relevant. Clarification has been issued by CBEC Circular No. 80/10/2004-ST, dated 17.09.2004, wherein it is clarified that leviability of service tax would depend upon whether the building or civil structure is used or to be used for commerce or industry - Revenue in the appeal has not produced any evidence to show that building constructed by the Respondent are not used for educational purpose and same are used for commercial purpose. In the absence of any evidence, the finding of the Commissioner is correct and maintained. Moreover, the ground on which appeal is filed is not sustainable in terms of the definition itself.
The appeals filed by the Revenue are dismissed and cross-objection filed by the respondent is disposed of.
-
2018 (9) TMI 2085
Seeking permission to withdraw the petition - Refund of amounts deposited with the Revenue under Central Sales Tax Act, 1960 read with Maharashtra Value Added Tax Act, 2002 - refund sought on the ground that this deposit done during the course of a search was not justified, as it was contrary to the provisions of the Acts - HELD THAT:- The petition is allowed to be withdrawn with liberty to urge the contentions raised herein before the Authorities, who are in the process of assessing the revised returns / regular returns for the Financial Years 2011-12 to 2016-17.
The petition is disposed as withdrawn with the aforesaid liberty.
-
2018 (9) TMI 2084
Maintainability of petition - Jurisdiction - appropriate forum - Disaffiliation of the petitioner's Association by the respondent No. 2 - affiliation granted to respondent No. 3 - HELD THAT:- The reading of the Clause 21 of the Constitution and Bye-Laws discloses that the Suits/Legal actions against the respondent No. 2 i.e. Federation shall be instituted only in the courts at Chennai where the Registered Office of the respondent No. 2 is situated. Hence a body which is affiliated to the respondent No. 2 subscribes to the said Clause 21 and thereby admits to the ouster of jurisdiction of all courts except the courts at Chennai - thus, there are substance in the preliminary objection raised by the learned Senior Counsel on behalf of the respondent No. 2 as regards territorial jurisdiction to entertain the above writ petition.
In the facts of the present case when there is existence of Clause 21 which have been adverted to herein, the jurisdiction of the other courts except the courts at Chennai in respect of any suits/Legal action which are brought against the respondent No. 2 are ousted. Though the reliefs have also been sought against the respondent No. 2 the same would also not confer jurisdiction as the reliefs against the respondent No. 3 can be said to be incidental reliefs to the reliefs which are stated in the earlier part of this order.
Hence the writ petition are not entertained on the ground of territorial jurisdiction. However, the petitioner are permitted to invoke the jurisdiction of the courts at Chennai for the reliefs sought.
Petition disposed off.
-
2018 (9) TMI 2083
Confiscation - imposition of redemption fine and personal penalty - goods are re-exported - mis-declaration to the extent that the description stated in the Bill of Entry was parts of mobile phones whereas the import was found to be of complete mobile phones - enhancement of assessable value - HELD THAT:- The order by the original authority that goods should be redeemed and be re-exported is contradictory because if the goods are re-exported then the appellant will not have ownership of the goods and for such goods on which he does not have ownership he is made to pay redemption fine and if he does not pay redemption fine, the goods are Government's property in terms of Section 126 of Customs Act, 1962. In that situation, the order to re-export cannot be enforced by the appellant.
The original authority had option of either ordering re-export of the goods without confiscation of the same or he had option of confiscating the goods and giving an option to redeem the same on payment of redemption fine. Since the goods are re-exported the confiscation of the goods is set aside and therefore automatically the imposition of redemption fine does not become sustainable. The imposition of redemption fine is also set aside. Further the penalty imposed under Section 112(a) of Customs Act, 1962 is reduced to Rs. 50,000/-.
Appeal allowed in part.
-
2018 (9) TMI 2082
Places of religious worship can be acquired under the State's sovereign power of acquisition or not - violation of Articles 25 or 26 of the Constitution or not - whether right to practice, profess and propagate religion guaranteed Under Article 25 does not extend to the right of worship at any and every place of worship? - protection Under Articles 25 and 26 of the Constitution is to religious practice which forms an essential or integral part of the religion or not - whether a practice may be a religious practice but not an essential and integral part of practice of that religion? - reference to the Larger Bench.
HELD THAT:- Considering the Constitutional importance and significance of the issues involved, the following need to be referred to a larger Bench:
(a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?
(b) Whether the test for determining the essential practice is both essentiality and integrality?
(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?
(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?
The Registry is directed to place this matter before the Hon'ble Chief Justice of India for appropriate orders.
-
2018 (9) TMI 2081
Dishonor of cheque - compounding of offences - compromise arrived at between the parties - HELD THAT:- So far as the compromise between the parties, under which the petitioner can take recourse, is concerned, the same has already been held to be finally revoked by this Court, with further liberty to the respective parties; to prosecute their criminal cases against each other. Therefore, by any means, it would not have been possible for the trial Court to give effect to any kind of agreement/compromise or consent; on the part of the complainant on its own.
Whether the application filed by the petitioner for compounding of the offence under Section 138 of Negotiable Instruments Act, would have been allowed even without consent of the complainant? - HELD THAT:- The trial Court has rightly rejected the application for compounding moved by the petitioners; for the lack of necessary consent from the complainant. This Court does not find any illegality or infirmity in the order passed by the trial Court.
In the present case, admittedly, there is no consent for compounding on the part of the complainant, therefore, it was impermissible for the trial Court to permit compounding merely on unilateral application moved by the petitioner/accused. Hence the trial Court has not committed any illegality by declining the application for compounding.
Petition dismissed.
-
2018 (9) TMI 2080
Rectification of mistake - Tribunal has inadvertently mentioned assessment year as 2009-10 in the cause title against the correct assessment year is 2012-13 - HELD THAT:- Having carefully examined the miscellaneous application vis-à-vis the order of the Tribunal, we find the Tribunal has wrongly mentioned the assessment year against cause title of the order. Therefore, we modify the same and we hold that the assessment year 2009-10 is replaced by 2012-13.
Ground No. 3.3 raised before the Tribunal relating to entitlement of enhanced deduction under section 10AA of the Act has escaped the attention of the Tribunal while disposing the appeal - So far as non-adjudication of ground No. 3.3 is concerned, we find that this ground is left to be adjudicated by the Tribunal. We, therefore, direct the Registry to refix this appeal for hearing of ground No. 3.3 which is extracted hereunder for the sake of reference.
Miscellaneous application filed by the assessee stands allowed and we direct the Registry to fix this appeal for hearing on ground No. 3.3 on 15.10.2018.
-
2018 (9) TMI 2079
Addition u/s 36(1)(va) - disallowance as assessee had not deposited the Employees Contribution to EPF, ESI and labour welfare fund within the prescribed due date although the payment was made before the due date of filing of the return - HELD THAT:- After hearing the Ld. representatives of the parties, we noted that the Ld. CIT(A) inter alia has followed the decision in the case of ‘CIT Vs. Hernia Embroidery Mills (P) Ltd.’[2013 (2) TMI 41 - PUNJAB AND HARYANA HIGH COURT] which has further followed the decision in the case of ‘CIT Vs. Alom Extrusions Ltd.[2009 (11) TMI 27 - SUPREME COURT] We find no infirmity in the order of the CIT(A) on this issue and the same is, therefore, upheld.
Disallowance of ‘bank charges’ - HELD THAT:- CIT(A) has considered the explanation of the assessee that bank charges were incurred to process the Working Capital Loan Application of the assessee. These facilities were used to meet the day to day requirement of the funds for the business of the company. CIT(A) considering the submissions and further relying upon his decision for the assessment years 2008-09 and 2009-10 on this issue, has held that the same was not a capital expenditure but was Revenue expenditure. We do not find any infirmity in the order of the CIT(A) on this issue also and the same is accordingly upheld.
Addition u/s 14A r.w.r. 8D - assessee has submitted that the total disallowance made during the year u/s 14A read with rule 8D(2)(iii) has exceeded the total dividend income earned by the assessee during the year - HELD THAT:- Considering the above submissions, the decision of ‘CIT, Faridabad Vs. Lakhani Marketing Inc. [2014 (7) TMI 44 - PUNJAB AND HARYANA HIGH COURT] and .‘Cheminvest Ltd Vs. ITO’ [2015 (9) TMI 238 - DELHI HIGH COURT] are squarely applicable, wherein, it has been held that the disallowance under section 14A cannot exceed the total exempt income earned by the assessee during the year. In view of this, we do not find any infirmity in the order of the CIT(A) on this issue and the same is upheld.
Addition u/s 36(i)(iii) - Interest on investment in sister concerns - HELD THAT:- CIT-A correctly deleted addition by the Ld. CIT(A) observing that assessee had made investment in shares of its sister concern out of his own funds and that no borrowed funds were used for making such investment.
-
2018 (9) TMI 2078
Winding up of company - company petitions have been preferred against the respondent claiming debts due to the companies which have not been settled - HELD THAT:- This court is satisfied that case for winding up is made out.
All company petitions are admitted. The Official Liquidator attached to this court is appointed as provisional liquidator with directions to take over all assets of the respondent company and submit report to this court before the next date.
-
2018 (9) TMI 2077
Addition u/s 36(1)(iii) - excess interest paid over interest received - HELD THAT:- The similar addition was in Assessment Year 2008-09 and 2009-10 [2016 (5) TMI 1218 - ITAT MUMBAI] and on appeal the order of ld. CIT(A) deleted the addition/ disallowance and on further appeal before Tribunal the order of the CIT(A) was sustained. The assessee also furnished the copy of order of Tribunal [2016 (5) TMI 1218 - ITAT MUMBAI] before ld CIT(A). The ld. CIT(A) by following the order of Tribunal dismissed the appeal of Revenue. - Decided in favour of assessee.
........
|
9911796707
