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2018 (1) TMI 1758
Seeking a direction that the defendant no.1 should pay pendente lite charges for use and occupation of the suit property - Order XXXIX Rule 10 CPC - HELD THAT:- The principles with respect to disposal of an application under Order XXXIX Rule 10 CPC have been stated by a learned Single Judge of this Court Hon’ble Mr. Justice A. K. Sikri (as he then was) in the judgment in the case of Harish Ramchandani vs. Manu Ramchandani & Ors., [2001 (4) TMI 960 - DELHI HIGH COURT]. It has been held in this judgment that for the provisions of Order XXXIX Rule 10 CPC to apply, it would be necessary that the principles contained in Order XII Rule 6 CPC are also satisfied.
There is a live issue which has to be decided in the suit at the stage of final arguments of defendant no.1 being or not the owner of the suit property. If the Will dated 01.03.1999 of the mother late Smt. Madhurekha Sarin is proved by defendant no.1 then he will become the owner of the suit property. This is a disputed fact on which trial will be held in terms of issue no.6 framed and thus there are no admissions that defendant no.1 is not the owner of the suit property and that the plaintiff and defendant no. 2 are also the co-owners. Principles contained in Order XII Rule 6 CPC are thus not satisfied and this Court therefore cannot pass an order under Order XXXIX Rule 10 directing the defendant no.1 to pay or deposit any amount or give any security in the form of a bank guarantee as prayed in this application.
Conclusion - Clearly therefore this application is wholly misconceived and is ex facie hit by the doctrine of res judicata/finality that a litigant cannot file an application for the same relief although a similar application was filed earlier and was dismissed, and the dismissal order was not challenged with the fact that the order of the Division Bench of this Court dated 07.08.2013 is not an order on merits setting aside the judgment passed by a learned Single Judge of this Court dated 26.11.2012. This application is therefore completely misconceived and an abuse of process of law.
This application is dismissed with costs of Rs.20,000/- payable by the applicant to the counsel for the defendant no.1.
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2018 (1) TMI 1757
Benefits of exemption u/s 11 - claim denied by the AO because the assessee society is involved in promotion of the religious activities of a particular community, i.e., Christianity - HELD THAT:- The ITAT in assessee’s own case Indian Evangelical Team [2012 (9) TMI 1198 - ITAT DELHI] (A.Y. 2009- 10) wherein held in the AYs 2007-08 & 2008-09, though the AO denied exemption u/s 11 of the Act, the ld. CIT(A) allowed the claim of the assessee in the AY 2007-08, the ITAT vide their order [2011 (12) TMI 750 - ITAT DELHI] upheld the findings of ld. CIT(A), granting exemption u/s 11 of the Act. CIT(A) in the impugned order followed this order of the ITAT for the AY 2008-09 in allowing exemption u/s 11 of the Act.
In view of the foregoing, especially when the Revenue have not placed any material before us, controverting the aforesaid findings of the ld. CIT(A) nor brought to our notice any contrary decision., so as to enable us to take a different view in the matter while claim of the assessee for exemption has consistently been allowed in the preceding years, we are not inclined to interfere. Decided in favour of the assessee.
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2018 (1) TMI 1756
Maintainability of review application - error apparent on the face of record or not - existence of an anti-competitive arrangement between M/s Lupin Ltd and Karnataka Chemists & Druggists Association - HELD THAT:- The Commission on perusal of the records has come to a definite conclusion that there was anti-competitive arrangement/understanding between M/s Lupin Ltd and Karnataka Chemists & Druggists Association. While holding so, the Commission further held that one Mr. K.E. Prakash, President - Karnataka Chemists & Druggists Association was also actively involved in anti-competitive conduct carried by Karnataka Chemists & Druggists Association. As admittedly, finding of the Commission with regard to anti-competitive agreement was reached between M/s Lupin Ltd and Karnataka Chemists & Druggists Association has been held to be incorrect by the COMPAT, this Appellate Tribunal held that the appeal preferred by ‘Karnataka Chemists & Druggists Association’ is also covered by the decision of COMPAT. Rest of the parties being erstwhile president of Karnataka Chemists & Druggists Association and M/s Lupin Ltd, the question of anti-competitive practices in absence of curtail between M/s Lupin Ltd and the ‘Karnataka Chemists & Druggists Association’ cannot be accepted.
There is no error apparent on the face of the records and that no new fact has been brought to our notice, the review application is not maintainable.
The review application is dismissed.
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2018 (1) TMI 1755
Anti-competitive action - abuse of dominant position - contravention of provisions of Section 4 of the Competition Act, 2002 - HELD THAT:- As regards relevant geographic market, the commission came to a definite conclusion that the consumer looking for a commercial/office unit in ‘Noida and Greater Noida’, may not prefer other areas. Thus, the relevant market is the market for “Provisions of services of development and sale of commercial space in Noida and Greater Noida”.
In so far as Earth Infra’s dominant position is concerned, the Appellants alleged misuse of its dominant position in not paying assured return @ 12% every month in terms of MoU. The underlying principle for assessing dominance of an enterprise being linked to the market power enjoyed by it, the commission came to a definite conclusion and held that no data has been provided by both the Informants in support of their assertion that Earth Infra is dominant in the relevant market. It further held that no document has been filed in support of assertion that Earth Infra is abusing their dominance. In absence of any prima facie case of contravention, Commission closed the application under Sub-section (2) of Section 26 of the Act.
Conclusion - The burden of proof lies with the informants to establish dominance and abuse under Section 4 of the Competition Act. Without evidence, allegations cannot be substantiated.
Appeal dismissed.
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2018 (1) TMI 1754
Maintainability of second application filed by the Informant under Section 19(1)(a) of the Competition Act, 2002 - contravention of the provisions of Section 4 of the Competition Act, 2002 - abuse of dominant position - HELD THAT:- In view of the fact that no new facts and substantial evidences against the opposite parties were brought to the notice of the Commission that could differentiate from the previous case, the Commission rightly held that the earlier order dated 31st August passed in Case No. 48 of 2016 for same sets of allegation is not maintainable against the same opposite parties and rightly closed the application under Section 26(2) of the Act.
Conclusion - A second application on the same facts is not maintainable without new substantial evidence; dominance in a market requires more than a high market share if significant competitors are present.
There are no ground to interfere with the impugned order - appeal dismissed.
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2018 (1) TMI 1753
Disallowance of deduction claimed for rent paid in respect of commercial space hired - Held that:- It is observed that the rent received from the concerned property from M/s. Rumteek Finvest Pvt. Ltd. was taxed by the A.O. in the hands of the assessee company under the head “Income from other sources” instead of “Income from house property” on the ground that the same was not owned by the assessee and it was taken on rent from M/s. Print Sales Company. He, however, disallowed the deduction claimed by the assessee on account of rent payable to M/s. Print Sales Company mainly on the ground that such rent was not paid by the assessee company to the said owner. As submitted by the learned counsel for the assessee at the time of hearing before the Tribunal, the assessee company has paid the said rent to M/s. Print Sales Company in the F.Y. 2003-04 and this position can be established by it on evidence if the matter is sent back to the A.O. for verification.
Higher depreciation @ 60% on a colour scanner - Held that:- This issue is squarely covered in favour of the assessee in the case of ITO vs Samiran Majumdar [2005 (8) TMI 293 - ITAT CALCUTTA-B] wherein it was held that the printer and scanner being integral part of computer systems are entitled for higher rate of depreciation as applicable to the computers.
Rejection of assessee’s claim for purchase returns by treating the same as unproved - Held that:- If at all the corresponding purchases had not been recorded by the assesses company in its books of accounts as alleged by the A.O., there was no reason for the assessee company to issue debit notes on account of purchase returns because the same resulted in reduction of expenditure claimed by it on account of purchases. Even the inference drawn by the A.O. about the unaccounted purchases on the basis of debit notes issued by the assessee was totally unfounded as some of such purchases, as noted by the A.O. himself, were made in the immediately preceding year. If the debit notes issued by the assessee on account of purchase returns were found to be unsubstantiated, the expenditure on purchases to that extent would have to be increased and there cannot be made any addition to the total income of the assessee on this issue by any stretch of imagination. Find the addition made by the A.O. and confirmed by the Ld. CIT(A) on this issue as unsustainable and deleting the same.
Disallowance of repairs and maintenance expenditure by treating the same as capital in nature - Held that:- As rightly contended by him, the said expenditure thus did not result in any enduring benefit to the assessee company in the capital field and the same having been incurred on repairs and replacement is liable to be allowed as revenue expenditure. The description given in the relevant bills, copies of which are also placed on record before the Tribunal, also supports and substantiates this view. Therefore, delete the disallowance made by the A.O. and confirmed by the Ld. CIT(A) on this issue.
Order under section 154 disallowing the claim of the assessee for depreciation at higher rate on colour scanner - Held that:- In the appeal of the assessee is squarely covered in favour of the assessee by the decision of the Division Bench of this Tribunal in the case of ITO vs Samiran Majumdar [2005 (8) TMI 293 - ITAT CALCUTTA-B] wherein it was held that the printer and scanner being integral part of computer systems are entitled for higher rate of depreciation as applicable to the computers. We direct the A.O. to allow claim of the assessee for higher depreciation at 60% on colour scanner and allow this assessee’s appeal.
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2018 (1) TMI 1749
Constitutional validity of notification of Section 425 of the Companies Act, 2013 by Respondent No.1 pursuant to N/N. S.O. 1934 (E) dated June 1, 2016 published in the Gazette of India - regulation of proceedings under Section 425 of the Companies Act, 2013 read with the Contempt of Courts Act, 1971, as amended - challenge to procedure followed by NCLT - failure to record that a prima facie case of contempt is made out, communicated the “charge”, nor indicated in any other manner the gravamen of the case of contempt which the petitioners are called upon to answer - HELD THAT:- There can be no quarrel with the proposition that the proceedings under the Contempt of Courts Act, 1971 are quasi criminal in nature. Initiation of action under the criminal law is one of great import and therefore, a serious matter. The burden and standard of proof in contempt proceedings is the same standard of proof as required in criminal proceedings. Great circumspection is required to be exercised by the court or the forum conferred with power to punish for contempt. Such action cannot be undertaken merely based on conjectures or surmises. The proceedings of contempt of court are generally treated as sui generis. Though the procedure adopted both under the common law and the statute in this context has invariably been summary in nature and the provisions of the Code of Criminal Procedure or the Evidence Act do not strictly control the same, it is essential that the court or the forum follows the procedure that is fair and objective. Before issuing notice calling upon the alleged contemnor to answer the charge of contempt, the court or the forum must record satisfaction that there is a clear, unambiguous and unequivocal case made out showing willful and contumacious conduct by the respondent.
Since the impugned orders have been passed only at the threshold scrutiny by NCLT and there is no order issued holding any of the petitioners or other parties arrayed as contemnors as being guilty, not the least punishing any person for contempt of court, the remedy of appeal may not be even available. Be that as it may, the judicial review, if called for in the facts and circumstances of the case, can neither be grudged nor denied.
In the case at hand, one of the parties bound by the restraint order has allegedly committed certain acts, in collusion with others, the objective statedly being to overreach and defeat the judicial process. The scrutiny of the impugned act by NCLT cannot be construed as impropriety so long as the order dated 13.07.2017 operates - A careful reading of the two orders passed by the NCLT on 05.09.2017, one on the company application under Section 242 of the Companies Act, 2013 and, the other, on the contempt application which is impugned before this court, would show that there is no inherent contradiction.
The NCLT is at the stage of threshold scrutiny of the matter. It is still gathering facts. Such proceedings are nothing but in the nature of a preliminary inquiry wherein response has been sought in the wake of which it hopes and expects to collect not only the necessary facts but also requisite material in support of the contentions of either side. The decision as to whether the alleged acts constituting contempt have actually been committed or not will undoubtedly have to be taken after replies have been secured. Such stage having not even been reached, the procedure followed in having the service of the copy of the contempt application effected through counsel for the opposite party (who are the applicants) is not in breach of but in accord with the rules of the National Company Law Tribunal’s Rules, 2016.
As regards the grievance that some of the parties shown in the list of contemnors were not even properly served and yet proceeded ex parte, all that needs to be said is that, if such were the facts, it is a matter of irregularity of the proceedings. This court is confident that if any such lapse has occurred, and brought to the notice of NCLT, it would take suitable corrective action and pass the necessary orders in terms of rules. [Rule 49(2)]. This, by itself, cannot be allowed to be used by the petitioners to impel this court to interdict in exercise of the writ jurisdiction.
The petitioners have not been able to show violation of the principles of natural justice in the proceedings thus far conducted by NCLT on the contempt application. As noted above, the said proceedings cannot be said to be without jurisdiction. There is no element of arbitrariness as necessitates the writ court’s intervention. Thus, this court declines exercise of writ jurisdiction - On the above facts and in the circumstances, the NCLT being seized of the matter, it would not be proper for this court in proceedings at hand to make any observations either way on the merits of the allegations made in the contempt application, lest the same prejudices either side.
This court is of the view that grievances raised by the petitioners are a result of unfounded apprehensions about NCLT having prejudged the issue and reflect paranoia rather than substance - The writ petitions are, thus, dismissed.
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2018 (1) TMI 1748
Blacklisting of petitioner - ineligibility for award of any contract by DMRC either as a firm or as a part of JV firm/JV SPV in any name and style for a period of five years with effect from 15.07.2015 - fraudulent practice as defined under clause 4.33.1 of the General Conditions of Contract (GCC) - failure to disclose the information at the time of making offer that the Airport Authority of India (AAI) had debarred the petitioner from bidding for its contracts for a period of three years - whether the punishment imposed is disproportionate to the conduct of the petitioner, which has been found to be fraudulent?
HELD THAT:- It is now well settled that State/State Instrumentalities must act reasonably and fairly. Fair play, natural justice, non-arbitrariness are now well recognized facets of Article 14 of the Constitution of India. Undisputedly, DMRC had the discretion - subject to the discipline of Article 14 of the Constitution - to decide, who it desires to enter into contracts with and its decision not to deal with a party who has been found to have secured a contract by submitting incorrect information, cannot be questioned. However, DMRC, being a State, is enjoined to act reasonably and fairly; its decisions must be informed by reason and cannot be arbitrary. Thus, it is essential that the punitive measure imposed by DMRC be commensurate with the offending conduct of the petitioner. It is also well settled that the period of debarment cannot be permanent.
In Kulja Industries Ltd. [2013 (10) TMI 733 - SUPREME COURT], the Supreme Court had also noticed that the legal position governing blacklisting of suppliers in United States of America (USA) and United Kingdom (UK), was no different. The Court also noted that in USA, the Federal Government had issued comprehensive guidelines, which also stipulated the factors that would influence the decision of debarment. As regards the period of blacklisting is concerned, the Supreme Court had observed that for the sake of “objectivity and transparency”, the respondent therein may frame guidelines to be followed in various cases.
The order of blacklisting an entity may be subject to judicial review if it is concluded that it was not within the range of the action, which ought to have been reasonably taken. The question whether the period of debarment of five years was within the reasonable range would necessarily have to be tested on the basis of a benchmark set by the DMRC. In absence of any such benchmark, the benchmark set by other organizations ought to serve as guidelines. In this case, although it is mentioned that the competent authority had relied on other blacklisting orders passed by other organizations, the same have neither been referred to nor is it discernable whether facts in any of the cases were similar to the one in this case.
In the impugned order, it has been merely observed that the order of debarment ranges for a few months to ten years; thus, implying that the concerned authorities could exercise its discretion to debar the petitioner for any period within the said range. Plainly, this would suffer from the vice of arbitrariness. Blacklisting or debarring an entity from participating in contracts is a serious measure and insofar as possible must be pivoted on certain objective criteria. Since DMRC has not set out any guidelines which would serve as a benchmark as to the period of debarment in a particular situation, the MD had rightly sought to rely on orders passed by the other government organizations.
The Supreme Court in Kulja Industries Ltd. had laid down the factors that ought to be considered by the competent authority while taking a decision to blacklist an entity. Although, it does appear that the impact of the wrongdoing in this case is material as the petitioner was able to secure the contract for which it was disqualified to bid for; however, there is little material to conclude that the petitioner had planned to initiate and carry out the wrongdoing - The petitioner has also asserted that it had conducted an inquiry and had taken disciplinary action against its employees who were found responsible for the bids submitted to the AAI. This Court does not find any reason to doubt the same.
It cannot be disputed that there are certain mitigating factors that ought to have been taken into account while fixing the period of debarment - Keeping the Rules and the punitive measures imposed by JICA as well as the explanations provided by the petitioner, the period of debarment is plainly disproportionate. During the course of arguments, this Court had suggested that the period of debarment be reduced to three years. However, it would be apposite for DMRC to reconsider the period of blacklisting keeping in view the observations and principles as noticed above. It is so directed.
Petition disposed off.
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2018 (1) TMI 1747
Addition of cash payment made for acquisition of Studio Aesthetique - addition has been made on the basis of documents seized and voluntarily admitted by the assessee and her mother during the search - CIT(A) deleted addition - HELD THAT:- We find that as evident in the material obtained by the Revenue during search and seizure, it was only with reference to the search and seizure material that Smt. Madhu Chopra gave a specific amount to various heads wherein the undisclosed income had been utilized. The assessee had also separately accepted the same. Hence, it cannot be said that this addition is not based upon any incriminating material found or searched. The so called retraction is by the mother of the assessee and the AO is correct in finding that there is no retraction whatsoever by the assessee. Hence, CIT (Appeals) has totally erred when he has held that the AO has made this addition without any evidence or arbitrary.
CIT (Appeals) has himself erred and contradicted himself when he observes that no addition can be made on the basis of the loose papers. Thus, on one hand she is stating that there is no material and on the other hand she is stating that there are materials in the form of loose papers. Decided in favour of assessee.
Unaccounted/undisclosed income in the form of Gifts - We find that it is clear that the assessee has received watch worth of Rs. 40 lacs from the same company and in the same agreement in which she has undertaken advertisements and promotional activities and has received remuneration of Rs. 1.4 crores. Hence, the addition as perquisite u/s. 28(4) has no infirmity. Furthermore, the statement of the assessee that the actual value of the watch is much less has rightly been rejected by the CIT(Appeals) has no corroboratory evidence in this regard has been produced. Accordingly, we do not find any infirmity in the order of the ld. Commissioner of Income Tax (Appeals) in this regard.
Assessment u/s 153A - This addition is not based upon any incriminating material found during search for the document relied upon were impounded during survey. We find that in this case, the assessee has filed original return on 29.09.2008. Subsequently, this assessment has been done u/s. 153A pursuant to search and seizure.
Now it is the settled law that in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] dehorse any seized material/incriminating material found during search, addition in the case of abated assessments u/s.153A is not sustainable. We further note that this additional ground has been raised for the first time. It also needs reference to the factual records.
Since, it is an important legal ground and goes to the root of the matter, we admit the additional ground and remit the issue to the file of the AO. The Assessing Officer is directed to consider the issue afresh.
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2018 (1) TMI 1746
Applicability of Arbitration agreement - Disputes between family members over a property secured for credit facilities - It is the appellant’s case that the excess proceeds from the sale of the Mandeville Gardens property, which has been secured in favour of the bank, is to be distributed among the brothers and a large portion thereof is to come to the appellant - HELD THAT:- It is true that the bank may have no role to play in the arbitral reference, but it would not enure to the benefit of any party or the bank if the property is not sold or the bank does not appropriate the proceeds to the extent of its claim. It is possible that certain interlocutory orders take the character of a final order and certain aspects of the suit are resolved even before the trial is commenced or any decree passed. Merely because the bank is not a party to the arbitration agreement should not deter the Court in finding a solution for the parties, subject to the non-party to the arbitration agreement having no reservation in participating in the proceedings.
The bank in the present case does not see any prejudice in the asset being directed to be sold and the bank retaining the sale proceeds with the right to appropriate the quantum of its claim, from out of such proceeds, subject to any negotiation that the bank may enter into with the debtors. As far as the balance sale proceeds are concerned, the bank does not find any prejudice in the same being made over to a special officer, which part of the order would fall within the domain of the arbitration agreement and the bank may have no connection therewith.
Applications are disposed of by setting aside the order impugned dated November 16, 2017 and by directing the bank to take immediate steps for the sale of the Mandeville Gardens property by publishing advertisements as the bank would in the usual course in terms of the rules under the said Act of 2002.
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2018 (1) TMI 1745
Valuation of imported coaxial cable - declaration of value on lower side - Commissioner (Appeals) has accepted the value on the basis of NIDB data - HELD THAT:- The imported goods were in semi-finished condition and same were not available in the retail market. The market inquiry was made out in the prevailing market price and Government approved Valuer in his valuation report dated 29.11.2011 submitted his report based on weight components of the constituent materials of the said semi-finished co-axial cables.
Commissioner (Appeals) has accepted the value on the basis of NIDB data. The respondent has also filed a copy of VAT return where the value was declared and the same support the value at the time of return. From the Record, it appears that the Chartered Engineer certified that appellants have imported a semi-finished goods in terms of prevailing international price of the material for the purpose of reducing the value. The said Chartered Engineers was never cross examined. But the Commissioner (Appeals) has accepted the value on the basis of NIDB data of the same product.
The order passed by the Commissioner (Appeals), which is based on NIDB data is not maintainable - the appeal filed by the Revenue, is dismissed.
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2018 (1) TMI 1744
Penalty u/s 271(1)(c) - disallowance u/s 40(a)(ia) - assessee has made certain payments without deducting tax at source - HELD THAT:- We have gone through the record and have also heard the Ld. DR on the issue who relied on the order of the CIT(A) and we find that it is not a case of concealment of income or furnishing inaccurate particulars of income as the assessee has shown in the audit report about the non deduction of TDS and also accepted the bonafide mistake of not adding the disallowance to the total income before the AO - we hereby order that the penalty levied by the AO to be deleted. Appeal of the assessee is allowed.
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2018 (1) TMI 1743
Invocation of Rule 25 of Central Excise Rules, 2002 - Recovery of CENVAT Credit under the provisions of Rules 6 and 11 of Cenvat Credit Rules, 2004 - HELD THAT:- The said provision of Rule 11 of Central Credit Rules, 2004 required the manufacturer to pay an amount equivalent to Cenvat Credit involved in the inputs lying in stock on the date on which the final product becomes absolutely exempted under a Notification issued under Section 5A of Central Excise Act, 1944. The proceedings can be limited only to the recovery of amount equivalent. The Act or Rules made thereunder have not provided for imposition of any penalty. Therefore, there are no infirmity in the impugned Order-in-Appeal.
Appeal filed by Revenue rejected.
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2018 (1) TMI 1742
Fraud - offence punishable Under Sections 406, 420, 467, 471 and 34 of Indian Penal Code - Breach of terms of Memorandum of Understanding (MoU) - exercise of discretion by High Court - HELD THAT:- In a case like this, where the proceedings are still at initial and nascent stage, the High Court should have exercised its discretion in quashing the proceedings. Law in this behalf is well settled by catena of judgments of this Court including PARBATBHAI AAHIR @ PARBATBHAI BHIMSINHBHAI KARMUR AND ORS VERSUS STATE OF GUJARAT AND ANR. [2017 (10) TMI 1194 - SUPREME COURT] and GIAN SINGH VERSUS STATE OF PUNJAB & ANOTHER [2012 (9) TMI 1112 - SUPREME COURT].
This appeal succeeds and is allowed and proceedings lodged with Chatushrungi Police Station, Pune, Maharashtra are hereby quashed - Appeal allowed.
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2018 (1) TMI 1741
Disallowance of various expenses u/s 37/38 being 1/5th of all expenses excluding Foreign Travelling stating personal expenses - HELD THAT:- We find that the assessee is professional and is a script writer, which involves developing ideas, creativity, knowledge and understanding of the topic with regard to developing/writing of script and she wanted to write a script on the topic ' life of a London couple' and therefore, trip to London was necessary and the expenditure incurred thereon was a business expenditure. Accordingly, the authorities below should not have disallowed part of the expenditure in view of the decision of Givo Ltd.[2010 (7) TMI 151 - DELHI HIGH COURT]
Disallowance out of other expenses, we find that the expenses incurred by the assessee are of professional nature - AO without pointing out any expenditure of personal nature has disallowed a part of expenditure which is not in accordance with law as held by various courts including case of Tripat Kaur [2012 (9) TMI 1012 - ITAT DELHI] wherein held travelling expenses and salary expenses, addition made on estimate basis cannot be justified - disallowance is also, not justified merely on the ground that similar disallowance was made in the previous year. Accordingly, we hold that the addition on account of travelling expenses is liable to be deleted.
Assessee appeal allowed.
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2018 (1) TMI 1740
Seeking for release of the cargo provisionally without levy of ADD - certificate of origin - HELD THAT:- The certificate, which is sought to be relied on by the respondent/Department to state that the port of shipment is a country falling within the European Union, is the certificate dated 07.09.2017. However, even in the said certificate, the country of origin is Bosnia and Herzegovina.
Thus, it is clear that the petitioner has made out a prima facie case for grant of order for provisional release of the cargo and also to protect the interest of the revenue, as the respondents are yet to issue show cause notice and take up the case for adjudication.
This writ petition is disposed of by directing the respondent/Department to release the cargo, which is covered under the Bill of Entry No. 3368891 dated 26.09.2017, subject to the condition that the petitioner furnishes a bond for the full value and furnishes a bank guarantee to the tune of 25% of the ADD, which is proposed to be levied on the petitioner.
Petition disposed off.
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2018 (1) TMI 1739
Addition of excise duty on closing stock - AO observed that since the deduction of excise duty on closing stock was already allowed in the P&L account, further deduction of the excise duty on closing stock in the computation of income u/s. 43B of the Act is not allowable and accordingly, he added back the amount to the income of the assessee - HELD THAT:- We note that the deduction claimed in the earlier year i.e. AY 2005-06 was added back in the relevant assessment year under consideration i.e. AY 2006-07. This treatment is inconsonance with the ratio decidendi in Berger Paints India Ltd. [2004 (2) TMI 4 - SUPREME COURT]
We note that similar issues arose in subsequent year in assessee’s own case for AYs. 2009-10, 2008-09 and 2007-08 and the Tribunal held that the treatment carried out by the assessee in respect of the excise duty as legally tenable. We note that in identical case the decision in the case of Exide Industries Ltd. [2013 (6) TMI 533 - ITAT KOLKATA] was upheld by the Hon’ble jurisdictional High Court in [2014 (1) TMI 1844 - CALCUTTA HIGH COURT] and the CIT(A) has relied on the Tribunal’s order in ordering deletion of the addition made by the AO. Therefore, we do not find any infirmity in the order passed by Ld. CIT(A) and we uphold the same. Therefore, appeal of revenue is dismissed.
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2018 (1) TMI 1738
LTCG - exemption u/s 54F - time period allowed for constructing a new residential house - As per DR assessee admittedly did not deposit the unutilized amount in an account under Capital Gains Accounts Scheme and therefore was not eligible for claiming deduction u/s. 54F -
Whether exemption could given under Section 54F of the Act where investment in a new residential house was made within three years from the date of transfer of the asset giving rise to the capital gains, even when the assessee had not deposited the unutilized amount in Capital Gains Accounts Scheme, before the due date prescribed for filing of return u/s. 139(1)? - HELD THAT:- As decided in K. Ramachandra Rao [2015 (4) TMI 620 - KARNATAKA HIGH COURT] that once construction of a new residential house was completed within the three years period, failure of the assessee in not depositing the unutilized sale consideration in a bank account under Capital Gains Accounts Scheme, during the interregnum was not fatal to a claim u/s. 54F(1) of the Act.
If assessee not investing the capital gains either in purchasing the residential house or in constructing a residential house within the period stipulated in s. 54F(1), if the assessee wants the benefit of s. 54F, then he should deposit the said capital gains in an account which is duly notified by the Central Government
We are therefore of the opinion that assessee was eligible for claiming exemption u/s. 54F for the full amount utilized by it for construction of a new residential house within three year period allowed u/s. 54F(1). However, whether assessee had completed the residential house within the said period and how much was invested by the assessee within the said period for such residential house, requires verification by the ld. AO - We therefore set aside the orders of the authorities below and remit the issue back to the file of AO for the limited purpose of verifying the quantum of investment made by the assessee for construction of the new residential house within the period mentioned in Sec. 54F(1) of the Act and allow such deduction, if the construction of the house was completed within a said period. Appeal of the assessee is allowed for statistical purposes.
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2018 (1) TMI 1737
Confiscation of 126 Nos. of logs - non-imposition or redemption fine - logs in the warehouse were attempted to be tampered - HELD THAT:- We noticed that the issue is regarding confiscation of 126 Nos. of logs which were in the warehouse and were cut into two pieces. We find that the adjudicating authority in Para No. 22.2 has clearly recorded that the duty liability on 126 Nos. of logs which were imported, were discharged based on the volume. As long as the customs duty is paid on the entire consignment, which has been imported and there is no dispute as to valuation of the consignment, provisions of Section 111(j) of Customs Act, 1962, which has been invoked in this case, may not be applicable, as the said section gets invoked on removal of dutiable or prohibited goods from the customs area without the permission of proper officer. The adjudicating authority has specifically recorded that the logs were cut into two pieces for easy transportation and that also on payment of applicable customs duty. Since the provision of Section 111(j) of Customs Act, 1962 is not applicable, adjudicating authority was correct in not confiscating the said logs.
We do not find any reason to interfere in such a reasoned order. Accordingly Revenue’s appeal stands dismissed.
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2018 (1) TMI 1736
TDS u/s 194A - Addition u/s 40(a)(ia) - appellant has paid interest to a number of person without deducting tax at source - assessee as stated that the AO in the assessment order has stated that in the instant case under consideration, the assessee was not to be treated as ‘assessee in default’ in view of the first proviso to section 201(1) - HELD THAT:- This proviso to Section 201 inserted w.e.f. 01/07/2012 wherein it is stated that the appellant would not be treated as assessee in default if the concerned NBFC has furnished its return of income U/s 139 of the Act and has taken into account such sums for computing income in return of income and the persons furnishes a certificate to this effect from an accountant in such form as prescribed in Form No. 26A
After considering both the sides on this issue and considering the decision of Hindustan Coca Cola Beverages (P) Ltd. [2007 (8) TMI 12 - SUPREME COURT] and other various other judicial pronouncements, the Bench is of the view that this matter needs to be restored back to the file of the Assessing Officer to verify the fulfillment of technical requirement of furnishing certificates of accountant and also to verify the fact that return of income have been filed by payee and paid taxes due thereon. Appeal of the assessee is allowed for statistical purposes only.
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