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Showing 81 to 100 of 1886 Records
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2017 (12) TMI 1811
Deduction under the Service Tax claim written off - Whether assessee had relinquished the impugned claim which therefore, cannot be termed as normal business loss or a bad debt? - CIT-A deleted the addition as noted that the service tax paid on various export related services such as GTA Transport Services, technical testing and analysis service, port services etc. paid during the Financial Year 2006-07 to 2010-11 were reflected in the Balance Sheet under the head Service Tax Refundable Account - HELD THAT:- AO has not allowed the claim of the assessee on the reasoning that the appeal was not filed by the assessee against the order passed by the Service Tax Officer. We do not accept the argument of the Assessing Officer, due to the reason that orders passed by the Service Tax Officer are quasi-judicial orders as equivalent to an order of a Court and it is the duty of the assessee to follow the same. Filing of appeal is only a prerogative which is optional and which may or may not be exercised.
We also note that if the government does not refund the service tax, which is refundable to the assessee, then it would be a business loss to the assessee. That is, the assessee has entitlement on such amount and if the government does not refund him then it would be a loss in the hands of the assessee and in that situation the assessee write it off in the books and claims as bad debts.
In the assessment year under consideration, the assessee came to know that the government would not refund him, therefore he written off and claimed as bad debts in the books of accounts. We note that the Assessing Officer has not allowed the claim of the assessee on the reasoning that the appeal was not filed by the assessee against the order passed by the Service Tax Officer. We are of the view that the argument of the Assessing Officer is not tenable and cannot be accepted due to the reason that order passed by the Service Tax Officer are quasi judicial orders as equivalent to an order of a Court and it is the duty for the assessee to follow the same. Filing of appeal is only a prerogative which is optional and which may or may not be exercised. Since the Service Tax officer denied the payment by his order therefore assessee has written it off as bad debts. Therefore, we are of the view that assessee may write it off by debiting the said amount in profit and loss account as bad debts. Hence, we do not find any infirmity in the order passed by the ld. CIT(A) - Decided against revenue.
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2017 (12) TMI 1810
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Service of demand notice - HELD THAT:- When compromise was agreed to for a lesser amount (rupees fourteen lacs) and part payment thereof have already been made, it is not clear as to how the applicant can claim default of the entire original amount. The applicant has not come with clean hands and has not disclosed complete and correct facts of the case. The discloser in the requisite Form 5 is not full and true. Instead of claiming remaining unpaid settlement amount, if any, the applicant has claimed in Part-IV of Forrn-5 entire original due amount of ₹ 18,60,921, without mentioning the settlement and appropriation of payments already received
The demand notice under Section 8 of the Code was issued in the present case on 14.10.2017. The Respondent, however, has enclosed four receipts stamped and signed by the applicant firm, dated 02.01.2017, 30.01.2017, 07.02.2017 and 07.03.2017 respectively which clearly shows that the settlement and payments mentioned therein were made much prior to the issuance of demand notice under Section 8 of the Code - there is force in the contention of the Respondent No. 1 that the amount claimed in the application is not free from clear dispute.
When the claimed debt is not admitted by respondent the onus lies on the applicant to prove its claim. The applicant has not disputed the aforesaid receipts, relied upon by the respondent no. 1 company including the seal and signature of the applicant affixed therein - Admittedly there has been no admission of the claimed operational debt by the respondent. Confusion on the actual amount of default cannot be ruled out and there is clear dispute on the claimed amount of debt. Hence, the amount of claim raised by the applicant clearly falls within the ambit of disputed claim.
Application dismissed.
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2017 (12) TMI 1809
Validity of lease agreement entered - change in status of plots, for which lease was granted - validity of the order by which first petitioner is liable to pay 10% of the market value of the immovable property for the purpose of registering itself as a lessee of such immovable property with the first respondent - HELD THAT:- The legal entity to which the first respondent had granted the lease, in respect of the subject plots, does not exist in the manner and form as on the date of execution of the deed of lease, on the date of presentation of the writ petition. Such legal entity does not exist till date. The legal entity of the lessee has undergone a change. The first petitioner traces its rights to the immovable property demised under the deed of lease through the original lessee. The property covered under the deed of lease has travelled from the original lessee to different entities and ultimately to the first petitioner. Each of the entities, subsequent to the original lessee, are separate and distinct legal entities than that of the original lessee.
The deed of lease describes the original lessee as a legal entity which would deem to include its successors and assigns unless repugnant to the context. Clause (vii) of the lease deed prohibits assignment without prior written consent of the first respondent. The description of the original lessee to include its assigns in the lease deed would necessarily exclude any assignee of the original lessee, when the original lessee has acted in breach of Clause (vii).
A scheme of amalgamation or arrangement documents the compromise arrived at between the parties to the scheme inter vivos. A scheme may be between two or more companies. It may also be between a company and its shareholders or creditors. A proceeding for sanction of a scheme relating to a company under the Companies Act, 1956 is a proceeding in rem. A sanctioned scheme binds the company, its shareholders, creditors and all concerned in the affairs of the company - The transfer and vesting of the rights of the lessee in respect of the deed of lease in favour of the first petitioner is not binding upon the first respondent as the lessor. The first respondent by the impugned writing has demanded 10% of the market value to recognize the first petitioner as its lessee. Such a demand is in the contractual field. It is open to the first respondent to demand a consideration for the purpose of recognizing an entity as its lessee, in the given facts of the present case.
The impugned reasoned Order dated July 31, 2014, therefore, cannot be said to suffer from any infirmity warranting an interference under Article 226 of the Constitution of India - Petition dismissed.
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2017 (12) TMI 1808
Refund of the TDS amount with admissible interest - HELD THAT:- As relying on case of S. Thiagarajan's case [2009 (8) TMI 531 - KARNATAKA HIGH COURT] Though the learned Standing Counsel for the Revenue contends that the said decision is not applicable to the facts of the present case, we are not able to take a contra view. In the said case, the Karnataka High Court has categorically held that it is an obligation cast on the Revenue to effect the refund, without calling upon the assessees to apply for refund the claim. The learned Standing Counsel is not in a position to state as to whether the order of the order of the Karnataka High Court has been reversed by the Division Bench or the Hon'ble Supreme Court and, moreover, he is not contra view. Moreover, the contention of the learned Standing Counsel that the Chief Commissioner has no power to condone the delay sustained in view of the decision of the Hon'ble Supreme Court in the earlier round of litigation.
Thus, following the above decision, these writ petitions are allowed, the impugned orders are set aside and the respondents are directed to refund the amount to the petitioner/assessee with interest payable as per the provisions of the Income-tax Act within a period of eight weeks from the date of receipt of a copy of this order.
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2017 (12) TMI 1807
Offence under PMLA - allegation of forgery - it was held by High Court that filing of complaint and taking cognizance thereof is unsustainable - HELD THAT:- There are no reason to interfere with the impugned order in the exercise of our jurisdiction under Article 136.
The Special Leave Petition stands dismissed.
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2017 (12) TMI 1806
Conversion of dealership of a petrol pump initially allotted in favour of the Respondent No. 1 under the discretionary quota of the Departmental Minister concerned - allotment of the retail outlet dealership to the Respondent on compassionate ground by the Departmental Minister for Petroleum from his Special Discretionary Quota - pleaded stand of the Corporation that despite the cancellation of the dealership of the Respondent, her land was still available, flies in the face of the determination to the contrary as recorded in the judgment and order dated 29.08.1997 and only reflects the pre-determined mind of its functionaries for reasons unknown, though inferable - HELD THAT:- It is no longer res integra that a public authority, be a person or an administrative body is entrusted with the role to perform for the benefit of the public and not for private profit and when a prima facie case of misuse of power is made out, it is open to a court to draw the inference that unauthorized purposes have been pursued, if the competent authority fails to adduce any ground supporting the validity of its conduct - In re, the duties, responsibilities and obligations of a public authority in a system based on Rule of law, unfettered discretion or power is an anathema as every public authority is a trustee of public faith and is under a duty to hold public property in trust for the benefit of the laity and not for any individual in particular.
Jurisprudentially thus, as could be gleaned from the above legal enunciations, a public authority in its dealings has to be fair, objective, non-arbitrary, transparent and non-discriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be unregulated or unbridled. Any decision or action contrary to these functional precepts would be at the pain of invalidation thereof. The State and its instrumentalities, be it a public authority, either as an individual or a collective has to essentially abide by this inalienable and non-negotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations.
In the present case, the dealership of the Respondent had been cancelled being vitiated by favoritism due to exercise of fanciful discretion of the Departmental Minister, which was neither approved nor condoned. Nevertheless, the Corporation visibly did not act in terms of the judgment and order of the High Court of Delhi in initiating the fresh process for auction. This led to the challenge to the faulty advertisement dated 05.10.1998 and the corrigendum dated 13.10.1998, the operation whereof to start with was stayed and thereafter the Respondent was permitted to continue with the dealership and eventually she was directed to be awarded a fresh dealership by converting the existing dealership under its policy dated 12.02.2004. The dealership of the Respondent having been cancelled w.e.f. 01.12.1997, though the operation of the auction notice and the corrigendum thereto had been stayed and she had been allowed to run the outlet, we fail to comprehend as to how all these could be construed to signify that her dealership did subsist from the date of the impugned judgment and order. There was thus no scope for conversion of the existing dealership to a new dealership as ordered.
The dealership of the Respondent at her present location stands cancelled w.e.f. 01.12.1997. The Corporation would now take immediate steps to this effect as permissible in law without fail. The Corporation would also initiate a fresh process for award of new distributorship/dealership in the area and at a location to be determined by it, if it considers it necessary in public interest strictly in conformity with law and the constitutionally recognized norms of transparency, objectivity and fairness.
The Corporation after completing this exercise would submit a report before this Court for further orders, if necessary - Appeal allowed.
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2017 (12) TMI 1805
Ex-parte order of CIT-A - Assessment u/s 153A - HELD THAT:- The notice for hearing was given less than even 10 days before the scheduled date of hearing. As for the CIT(A)’s observations about statement of facts, we have noticed that the assessee was not specifically put to notice in this regard and thus, the assessee did not have any effective opportunity for making up this deficiency. When it was put to the Departmental Representative whether he has any objection to the matter being remitted to the file of the CIT(A) for adjudication on merits, he did not have much to say, but left the matter to the bench. Shri Aseem Thakkar, the assessee has assured us that, on the matter being remitted to the file of the learned CIT(A) for adjudication de novo, he will ensure strict compliance with the notice of hearing and that the remanded proceedings are expeditiously completed.
These discussions and bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the learned CIT(A) for adjudication de novo, after reasonable opportunity of hearing to the assessee, by way of speaking order and in accordance with the law. The assessee is also directed to ensure proper compliance with the notice of hearing by the learned CIT(A), failing which the CIT(A) will be at liberty to dispose of the matter on the basis of the material on record. - Appeals are allowed for statistical purposes
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2017 (12) TMI 1804
Belated remittance of PF and ESI contribution under respective laws but within due date for filing of return of income is eligible for deduction - HELD THAT:- This issue is squarely covered in favour of the assessee-company by the decision of CIT vs. Sabari Enterprises [2007 (7) TMI 169 - KARNATAKA HIGH COURT] - CIT(A) following the decision of the jurisdictional High Court in the above case allowed the appeal. Therefore, we do not find any reason to interfere with the order of the CIT(A). Hence, the appeal filed by the revenue is dismissed.
Disallowance u/s 14A in absence of exempt income - HELD THAT:- The issue is squarely covered by the ITAT decision in the case of the assessee for the assessment years 2010-11 and 2011-12. In the light of the co-ordinate bench decision, the cross objections filed by the assessee are allowed.
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2017 (12) TMI 1803
Levy of late fee u/s 234E - intimation issued under section 200A(1) - scope of amendment to section 200A(1) - HELD THAT:- As decided in M/S. ASIAN PIPES & PROFILES PVT. LTD. VERSUS ASSESSING OFFICER, TDS WARD KALYAN AND M/S. DISHA DISTRIBUTORS [2017 (3) TMI 1482 - ITAT MUMBAI] following the referred decision in the case of Gajanan Constructions and others [2016 (11) TMI 1247 - ITAT PUNE] we hold that the amendment to section 200A(1) is prospective in nature and therefore the AO, while processing the TDS statements/returns in the present appeal for the period prior to 01.06.2015, was not empowered to charge fees under section 234E.
The intimations issued by the AO under section 200A of the Act in this appeal are unsustainable and the demand raised by way of charging of the fees under section 234E of the Act not being valid is deleted. AO is not empowered to charge fees under section 234E of the Act by way of intimation issued under section 200A in respect of defaults before 01.06.2015 and consequently allow the ground of appeal raised by the assessee.
The amendment to section 200A(1) of the Act is prospective in nature and therefore the AO while processing the TDS statements/returns in the present appeal for the period prior to 01.06.2015 was not empowered to charge fees under section 234E - the intimation issued by the AO u/s 200A of the Act in this appeal is unsustainable and the demand raised by way of charging of the fees u/s 234E of the Act not being valid is deleted - we hold that the AO is not empowered to charge fees under section 234E of the Act by way of intimation issued under section 200A of the Act in respect of defaults before 01.06.2015 and consequently allow the grounds of appeal raised by the assessee.
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2017 (12) TMI 1802
Reopening of proceedings under Section 32 K(3) of the CE Act - It was held by High Court that Whatever may be the grounds, which are pleas of the Respondents, may have been justified, the Respondents did make an attempt by filing an application before the CCESC by invoking Section 32 (K)(3) of the CE Act. That attempt was not successful. - HELD THAT:- The special leave petition is dismissed.
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2017 (12) TMI 1801
Reopening of assessment u/s 147 - assessee had failed to disclose material facts pertaining to the EDC charges - HELD THAT:- Undisputedly EDC charges had been disclosed in the Balance Sheet of the assessee for the impugned year and which formed part of the documents filed with the return of income. Also it is not disputed that during assessment proceedings the assessee had disclosed EDC charges received during the year in the detail of “other liabilities” filed in response to questionnaire issued by the Assessing Officer. A perusal of the reasons recorded for reopening reveal that the information provided by the assessee itself, as pointed out above, formed the basis of reopening.
In the first para of the reason, AO records “during perusal of records in this case, it was seen that EDC charges were received by the assessee.” - Thereafter the reasons only state the nature of the EDC charges, which is general and publicly known information, and further on inference and conclusion has been drawn therefrom that it is in the nature of revenue receipt of the assessee and hence chargeable to tax. AO thereafter states that since the assessee failed to include it in its income, the same has escaped assessment. And lastly the Assessing Officer mentions that “after independent verification of records with respect to the above mentioned facts”, I have reason to believe that income has escaped assessment.
It was on the basis of already available information and not any new information pertaining to EDC charges that came in the possession of the Assessing Officer thereafter that led to the formation of belief that the EDC charges were in the nature of revenue receipt of the assessee and had thus escaped assessment. Therefore when the reopening was resorted to on the basis of material already on the file, the same having been provided by the assessee only during assessment proceedings, and nothing else, we fail to understand how the assessee could be charged with failure to disclose material facts relating to the said receipt.
No merit in the contention of the Ld.DR that mere production of account books and balance sheet and profit and loss account will not tantamount to disclosure.
No justification for the authorities below to justify the reopening of the assessment. The reopening is thus clearly bad in law and liable to be quashed. We accordingly set aside the orders of the authorities below and quash the reopening of the assessment u/s 147/148 of the Act - Decided in favour of assessee.
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2017 (12) TMI 1800
Maintainability of petition - respondent/Corporate Debtor has not received copy of the petition and other documents relied upon and prayed for time to file counter - HELD THAT:- Counsel for petitioner is directed to provide a copy of the petition and other documents to the respondent. Time is enlarged at request.
Put up on 14.12.2017.
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2017 (12) TMI 1799
Disallowance u/s 14A r.w. Rule 8D - HELD THAT:- The legislative intent is more discernible in the judicial decisions. In Chettinad Logistics (P) Ltd.[2017 (4) TMI 298 - MADRAS HIGH COURT] has held that section 14A cannot be invoked where no exempt income was earned by the assessee in the relevant assessment year. In the case of CIT v. Shivam Motors (P) Ltd. [2014 (5) TMI 592 - ALLAHABAD HIGH COURT] it has been held that in absence of any tax free income earned by the assessee, disallowance u/s 14A could not be made. In a similar vein, it has been held in Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] that section 14A will not apply if no exempt income is received or receivable during the relevant previous year. We delete the disallowance made by the AO. Thus the 1st ground of appeal is allowed.
Addition of provision for doubtful debts/advances made to the book profit u/s 115JB - HELD THAT:- In Yokogawa India Ltd. [2011 (8) TMI 766 - KARNATAKA HIGH COURT] as held that while computing book profits, provisions made for bad and doubtful debts cannot be added back in accordance with Explanation (c) to section 115JB (1) as same is not an ascertain liability.
On the other hand, in the case of Ilpea Paramount Pvt. Ltd. [2010 (2) TMI 45 - DELHI HIGH COURT] as held that provision for doubtful debts and provision for doubtful advances are nothing but the provisions for diminution in the value of assets, hence the same are to be added back in computing book profit in view of the retrospective amendment introduced in section 115JA by inserting clause (g) in Explanation to section 115JA (2) which specifically mentions the amount set aside as provision for diminution in the value of any asset.
Also in the case of CIT vs. Steriplate (P) Ltd. (2011) [2011 (5) TMI 645 - PUNJAB AND HARYANA HIGH COURT] has held that by virtue of clause (i) of Explanation 1 to sub-section (2) of section 115JB, as inserted by the Finance (2) Act, 2009, retrospectively from 1st April 2001, any amount set aside as provision for diminution in the value of any asset would not reduce the book profits of an assessee for the assessment year 2002-03. We follow the above judgment of the Hon’ble Delhi High Court and Punjab and Haryana High Court and uphold the order of the Ld. CIT(A) confirming the addition made by the AO. Thus this ground of appeal is dismissed.
Disallowance made u/s 14A r.w. Rule 8D while computing book profit u/s 115JB - HELD THAT:- In a recent decision the ITAT Delhi Bench ‘H’ (Special Bench) in the case of ACIT vs. Vireet Investment (P.) Ltd.[2017 (6) TMI 1124 - ITAT DELHI] has held that computation under clause (f) of Explanation 1 to section 115JB (2) is to be made without resorting to computation as contemplated u/s 14A r.w. Rule 8D. We follow the above decision of the Special Bench of the Tribunal and delete the addition made by the AO u/s 14A r.w. Rule 8D while computing book profit u/s 115JB. - Decided in favour of assessee.
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2017 (12) TMI 1798
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Whether the respondent company was in existence as on the date of filing this petition? If not, whether this petition is maintainable as its name was struck off from the Company Master Data as alleged? - HELD THAT:- A reference of the resolution submitted by the Ld. Counsel for the respondent shows that respondent company was active when the Board of Directors convened meeting on 20/10/2017. It is in that meeting the board of directors authorized the Ld. Counsel to appear before the Tribunal for and on behalf Of the respondent. This petition being filed on 01.08-2017 that is before the date of above referred resolution. legitimate inference is that on the date of filing Of the petition. the respondent company was active and, therefore, the contention of the Ld. Counsel for the respondent that the company was not active on the date of filing of the petition is found devoid of any merit - The contention that this petition is not maintainable because the respondent name was removed from the Company Master Data is therefore, found not at all sustainable.
Exhibit-B is a promissory note or not - debt claimed by the petitioner is a financial debt comes under the purview of section 5(8) of I&B Code or not? - HELD THAT:- Exhibit-B comes under the purview of financial debt. Exhibit-B relied upon by the petitioner does not stipulate liability on the respondent to pay interest as claimed. So, also there are no terms stipulated in it that he is liable to repay after enjoying the amount for four months with interest. (enjoying is shown in bold letter to indicate the word used by the petitioner in Ext.B) - Exhibit-B is neither a promissory note, nor a receipt as alleged in Form I and that Exhibit-d has not acquired the status of a financial debt. So also, it does not have consideration for the time value of money. Thus, nor a receipt as alleged in Form 1 and that Exhibit-B has not acquired the status of a financial debt. So also, it does not have consideration for the time value of money.
Thus, the debt claimed by the petitioner in the instant case is not a financial debt and, therefore, the claim of the petitioner that the debt claimed by her is a financial debt is also found devoid of any merit.
Existence of default as per Sec. 7 (4) (2) of I&B, Code or not - HELD THAT:- The existence of default is one among the ingredients to be proved on the side of the petitioner for getting admission of a petition of this nature. petitioner failed to prove the existence of a default. The mere contention that there was no reply to the notice repeatedly served on the respondent itself cannot be inferred as an admission of the liability by the respondent in the peculiar nature and circumstances of the case in hand. To complete the petition filed under Sec. 7 1 & B Code, the petitioner shall produce or shall furnish along with the petition the record of default, record of information utility and such other record or evidence of default as may be specified. Truly, till date none specified as to the nature of document proving the existence of default other than referred to in Sec. 7(3) (a) shall be produced in a case of this nature. Admittedly, the petitioner did not produce any information utility or bank statement. The only document produced by the petitioner is the copy of demand notice allegedly served on the respondent. In a case of this nature, production of the copy of demand notice and evidence to the effect that there was no reply itself is not satisfactory to hold that the petitioner succeeds in proving the existence of default in this case.
Thus, the issuance of demand notice like the notice sent by the petitioner is not at all a pre-requirement for initiation of corporate insolvency resolution process by a financial creditor under Sec. 7 (1) of I & B Code. Truly, if it is a petition filed under Sec.9, Sec .8 (I) requires issuing demand notice before the filing of the application - thus, the petitioner failed to prove the existence of default as alleged.
Application disposed off.
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2017 (12) TMI 1797
Estimation of income - Bogus purchases - HELD THAT:- When sales are not doubted, 100% disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported from the Hon'ble jurisdictional High Court decision in the case of Nikunj Eximp Enterprises [2014 (7) TMI 559 - BOMBAY HIGH COURT].
The facts of the present case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer. In such situation, in my considered opinion, on the facts and in circumstances of the case, 12.5% disallowance out of the bogus purchases meets the end of justice. This proposition draws support from the Hon’ble Gujarat High Court decision in the case of CIT vs Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT]. Accordingly, direct that disallowance be limited to 12.5% of bogus purchase. Appeal filed by the assessee stands partly allowed.
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2017 (12) TMI 1796
Estimation of income - bogus purchases - restriction of addition on account of bogus purchases to the tune of 7.5% - HELD THAT:- We find that the assessee undoubtedly has availed hawala entries from the hawala operators. The explanation offered by the assessee did not find favour of the assessing officer and hence the AO added a sum of ₹ 51,49,820/- to the total income u/s 69C as peak credit on the basis of undisclosed cash which were treated as bogus purchase. The CIT(A) partly sustained the addition at 7.5% of the total bogus purchases.
CIT(A) while restricting the addition of 7.5% of the total bogus purchases followed its predecessor’s order. We also find that the co-ordinate benches of the Tribunal have been taking a consistent view under same facts that some percentage addition ranging from 5% to 12.50% or a reasonable percentage of the bogus purchase should be made towards savings which the assessee may have made by purchasing the material from gray market thereby saving VAT and other incidental taxes. Therefore we are of the opinion that the ld.CIT(A) has taken a reasoned and cogent view in the assessee’s case by applying 7.50% of the bogus purchases and therefore we find no reason to interfere in the same. Accordingly we affirm the order of CIT(A) by dismissing the appeal of the assessee.
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2017 (12) TMI 1795
Grant of Bail - petitioner contended that she was entitled to bail being woman and sick, in view of the proviso to Section 45(1) of the PMLA Act, which envisaged release of the category of persons, as mentioned in the proviso, on bail without satisfying twin conditions as contained in Section 45(1) of the PMLA Act - HELD THAT:- Admittedly, the offence alleged against the petitioner, as per the second supplementary charge-sheet, is under Sections 3 and 4 of the PMLA Act, which attracts maximum sentence of 7 years. Complaint has already been filed against the petitioner and trial is likely to take time. Petitioner is in custody for more than 5 months. Petitioner is not an accused in the predicate offence. Petitioner’s father and brother are settled in India. It is not advisable to discuss and return any findings on the merits and/or demerits of the allegations and counter allegations of the parties at this stage, as it will affect the proceedings of the complaint on merits.
Keeping in mind totality of the facts and circumstances of this case, petitioner is admitted to bail, subject to her furnishing a personal bond in the sum of ₹ 1 lac with two sureties in the like amount to the satisfaction of trial court. Petitioner shall not leave the country without the permission of the trial court - Bail application allowed.
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2017 (12) TMI 1794
Disallowance u/s.14A to the amount of dividend income claimed by the assessee as exempt - HELD THAT:- Commissioner of Income Tax (Appeals) was justified in restricting the disallowance made u/s.14A of the Act, to the exempt income claimed by the assessee. We do not find any reason to interfere with the order of the ld.CIT(A) for both the years. See JOINT INVESTMENTS PVT LTD VERSUS COMMISSIONER OF INCOME TAX [2015 (3) TMI 155 - DELHI HIGH COURT].
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2017 (12) TMI 1793
Rectification of mistake - TP Adjustment - comparable selection - margin computational error in respect of two comparables - HELD THAT:- Contentions are raised regarding margin computational error in respect of two comparables i.e. Accentia Technologies Ltd. and e4e Healthcare Business Services Pvt. Ltd. and for the remaining four comparables, the only contention raised was regarding turnover filter and there is no contention raised regarding the functionality aspect. Hence on this aspect, we find no apparent mistake in the impugned Tribunal order because it appears that no argument was made in respect of this aspect.
ALP Computation - Foreign Exchange fluctuation gain / loss - HELD THAT:- In respect of computation of ALP, profit margin percentage is worked out by dividing the operating profit of the tested party by the turnover of the tested party and therefore, if the foreign exchange gain/loss is not in respect of turnover of the present year, then such gain/loss cannot be considered for computing the profit percentage even after holding the same as operating profit/loss because if the corresponding turnover is not a part of the denominator, the profit in respect of such turnover cannot be included in the numerator because if this is done, it will give an absurd result.
Hence we feel it proper to restore back this matter to the file of AO / TPO for fresh decision after examining this aspect and we hold that if the foreign exchange gain / loss is in respect of the present year turnover then the same should be considered as profit/loss of the current year for working out the profit percentage of the tested party but if such foreign exchange gain / loss is not in respect of current year turnover then the same should not be considered in the case of tested party.
In the case of comparable companies also, if there is any foreign exchange gain / loss and this information is available in the annual report of the concerned company as to whether the fluctuation gain / loss is in respect of current year turnover or earlier year turnover then the same treatment should be given to foreign exchange gain / loss in case of comparable company also but if such information is not available in the annual report of such company then it should be taken as foreign exchange gain / loss in respect of earlier year’s turnover because in most of the cases, such foreign exchange gain / loss is in respect of turnover of the earlier year because any gain / loss on account of foreign exchange difference for current year turnover is generally included in sale proceeds and is not shown separately in the final accounts. AO / TPO should decide this issue afresh as per above discussion after providing reasonable opportunity of being heard to assessee
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2017 (12) TMI 1792
Addition u/s 57(iv) - interest received on delayed payment of enhanced compensation in respect of compulsory acquisition of agricultural land - A.R submitted that interest received on compulsory acquisition of agricultural land is nothing but enhanced compensation on the land acquired by the Authorities and it is to be exempted u/s.10(37) - HELD THAT:- The argument of the ld.A.R is having no merit. Interest on delayed payment of enhanced compensation in respect of acquisition of immovable property is a revenue receipt and it is to be taxed and cannot be exempted u/s.10(37) of the Act and it cannot be considered as a part of consideration received in respect of agricultural land specified us.2(14)(iv) .
Assessee argument stating that spreading of interest received to different assessment years - The assessee in this case had not demonstrated that it is following mercantile system of accounting. Hence, it is to be taxed on cash system basis i.e. receipt basis. This ground of appeal is also rejected.
A.R submitted that proper opportunity of hearing to the assessee by the lower authorities was not offered during proceedings - There is a violation of principles of natural justice. Before me, the ld.A.R is not able to demonstrate how the opportunity is not given by the lower authorities in prosecuting the case before them. In the absence of any material to show that the lower authorities failed to give proper opportunity of hearing to the assessee, this ground of appeal is also dismissed.
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9911796707
