|
Advanced Search Options
Case Laws
Showing 1 to 20 of 2027 Records
-
2019 (5) TMI 2029
Undisclosed receipts - contention of the AR, that the assessee is a retired army officer and engaged in the business activities of security agency - HELD THAT:- Assessee as submits that gross profit 18.82% may be adopted for the undisclosed receipts as found by the A.O and confirmed by the CIT(A). The ld. DR reported no objection for the said rate of gross profit. Therefore as relying on M/s Royal Security Guarding (P) Ltd [2016 (9) TMI 1427 - ITAT KOLKATA] wherein held that the entire contract receipt cannot be added as income and all expenses including the expenses relatable to undisclosed receipts from execution of contract job work has to be taken into consideration while arriving at the total income. Thus the matter is remanded to the file of A.O for calculation of gross profit @18.82% to the gross receipt.
Additions on account of loan received - HELD THAT:- As it is open to the assessee that the loans and advances had been brought into the business activity resulting into only one addition. While dealing with Ground Nos.2 & 3 in the aforementioned paras, we directed the A.O to adopt gross profit @18.82% and the said gross profit must have arisen from conducting business involving the expenditure incurred out of that income, and therefore, method of telescoping is required to be applied in such circumstances. We deem it proper to remand the matter to the file of A.O for telescoping the loans and advances received by the assessee from the parties. Thus, Ground Nos.4 & 5 are allowed for statistical purposes.
Unexplained cash credit - contention of assessee deposited cash withdrawals again in the same bank in the same year - No evidence showing the same were before the AO and CIT(A) - HELD THAT:- DR reported no objection in remanding the matter to the file to the A.O for his fresh consideration. Admittedly, there was no material evidence before the AO to arrive at the conclusion to the issues raised in Ground No.6. The submissions of AR and DR and the material evidence placed we remand the matter to the file of A.O for his fresh adjudication. The assessee is at liberty to file evidences, if any, in support of his claim.
-
2019 (5) TMI 2028
Dishonour of cheque - signatory of the cheque - vicarious liability of Directors of the company - HELD THAT:- In Sanjiv Singhal [2014 (10) TMI 1085 - DELHI HIGH COURT] petitioners were independent non-executive Directors. In other two reports, it was held that before making a Director liable under Section 141 averments have to be made to show that he was incharge of or was responsible to the accused company for conduct of its business.
In the present case, specific averments have been made in the complaint which cannot be said to be general one line statement in one para to the effect that the Director was responsible for the day to day affairs of the company. The averments made in the complaint, prima facie, exhibit that petitioner was involved in the affairs of the company and had acted in concert with respondent no.3 in respect of the transaction alleged in the complaint. The disputed questions of fact are a matter of trial and cannot be decided in the present petition under Section 482 Cr.P.C.
Conclusion - The averments in the complaint prima facie showed the petitioner's involvement in the company's affairs and the transaction in question.
The petition is dismissed with cost of ₹20,000/- which shall be paid by the petitioner to the respondent no.1 before the trial court.
-
2019 (5) TMI 2027
CENVAT credit - denial on account that the input services have no nexus with the output service provided by the appellant - Event Management and Mandap Keeper Service - General Insurance and Insurance Auxiliary Service - Catering Service - GTA Service - HELD THAT:- The term “input service” defined under Rule 2(l) of the Cenvat Credit Rules, 2004 takes within its ambit the services used by the provider of output service for providing such output service. It is an admitted position that the appellant is a provider of defined output service under the Finance Act, 1994. On perusal of records, it is found that the disputed service in question were used/utilized by the appellant in, or in relation to providing the output service. Thus, the case of the appellant squarely falls under the definition of input service for the purpose of availment of Cenvat Credit.
Considering the fact that the appellant is not contesting disallowance of Cenvat Credit on catering service, the impugned order should sustain on the ground of denial of Cenvat benefit on such service. Since, it is not specifically alleged that the credit taken has been utilized by the appellant for payment of service tax on the output service and that substantial turnover of the appellant is in context with export of service, which is not liable to service tax, the interest and penalty confirmed against the appellant cannot be sustained.
Conclusion - The impugned order is set aside, to the extent it has confirmed the Cenvat demand on the taxable services namely, Event Management & Mandap Keeper Service, General Insurance & Insurance Auxiliary Service and GTA Service and the appeal is allowed in favour of the appellant. The impugned order sustains, so far as it denied the Cenvat Credit on catering service. However, interest and penalty confirmed on such service is set aside.
Appeal allowed in part.
-
2019 (5) TMI 2026
Admissibility in evidence of partition deed which was unregistered and unstamped - assessment of stamp duty based on the value of the property at the time of its execution in 1951 or at the time of its presentation for stamping in 2003 - HELD THAT:- This Court is quite concerned about the civil proceedings pending since 1963. The precedent law is quite clear that the defendants/petitioners were required to pay the stamp duty in respect of the document in question before the Collector (Stamp), Nagaur -cum- Deputy Inspector General Stamp and Registration, Ajmer, which had to be calculated on the basis of the rates prevalent at the time of execution of the document in question - It is a sad story that inspite of this Hon’ble Court recording in the year 1993 that the case is having a chequered history due to its long pendency since 1963, the matter is still alive without completion of the adjudication process. However, this Court is tied down to the precedent laws and the judgment already rendered by this Hon’ble Court. This Court finds that the defendants/petitioners have abused the process of law by not acting upon the judgment dated 17.08.1993 until 14.05.2003.
This Court considers that the petitioners’ endeavour to get the document dated 10.11.1951 stamped, in pursuance of the aforementioned judgment dated 17.08.1993 passed by this Hon’ble Court, which was originally against them as the learned Civil Judge, Nagaur on 22.11.1982 had declined the admission of the document in question, and the defendants/petitioners had contested it tooth and nail before this Court from 22.11.1982 to the year 1992.
Thus, inspite of the frustrating delays caused by the defendants/petitioners, this Court, to avoid any further delay and for ensuring continuance of the proceedings pending before the learned trial court, allows the present writ petition, while quashing the impugned orders dated 30.01.2010 and 07.09.2006 as well as the letters dated 08.10.2007 and 29.10.2007. Accordingly, the respondent No. 7-Deputy Inspector General, Registration-cum-Collector (Stamp), Circle, Ajmer is directed to determine the stamp duty in respect of the partition deed dated 10.11.1951 in question, as per the directions given by this Hon’ble Court earlier in the aforementioned judgment dated 17.08.1993, and while taking the valuation from the date of execution of the partition deed i.e. 10.11.1951, the order upon the necessary stamp duty shall be passed by respondent No. 7 within a period of 30 days from today. The learned trial court shall thereafter, proceed expeditiously to decide the suit pending before it within a period of two months thereafter.
Conclusion - i) The partition deed dated 10.11.1951 was inadmissible in evidence unless duly stamped. ii) The stamp duty must be assessed based on the property's value at the time of the document's execution in 1951, not at the time of its presentation for stamping.
Petition allowed.
-
2019 (5) TMI 2025
Unexplained cash credits u/s 68 - Treating assessee’s share application / premium receipt unexplained - CIT(A) deleted addition - HELD THAT:- AO’s assessment findings nowhere indicate as to whether he had ever concluded that the said holding company had not turned up to explain all the three ingredients of its share capital.
CIT(A)’s findings extracted hereinabove make it clear that the common director of these two entities had duly put in appearance before the AO who never pin-pointed any specific discrepancy in the corresponding details filed.
Assessee had not credited / received the entire share application money in the relevant financial year.
CIT(A) has rightly deleted the impugned unexplained cash credit addition in the nature of share application money / premium money coming from assessee’s holding company M/s Lakshmiraman Investment & Finance Ltd. in view detailed supportive evidence forming part of records. Decided against revenue.
-
2019 (5) TMI 2024
Classification of imported goods - Alkyl Ketene Dimer (AKD wax) - whether classified under CTH 38099200 or under CTH 34049090? - invocation of extended time proviso under section 28(4) of the Customs, Act, 1962 - HELD THAT:- All the facts regarding importation, description of the product and its classification were in the knowledge of the Department. The Audit which was conducted after the clearance of the import consignment also raised this issue of classification based on the facts which were there before the Department and therefore, in our view, we find that the charges of mis-declaration, fraud, misrepresentation etc. with an intent to evade payment of duty are not present in the present case.
The Hon’ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT] has held that as all the relevant facts are in knowledge of Department, when the first show cause notice was issued, the issue of subsequent show cause notice on the same facts could not be taken for invoking the charges of suppression of facts etc., for invoking the extended time proviso, this matter was already in the knowledge of the department since year 2012 itself. Thereafter another show cause notice for normal period have been issued by them on 18 December, 2015 and thereafter issuing the impugned show cause notice again on 29.11.2016 by invoking the extended time proviso, is not legally sustainable.
The demand in the show cause notice is barred by limitation and therefore, same is legally not sustainable - the appeal is allowed on the point that extended time proviso under Section 28 of Customs Act, 1962 is not invokable in this case.
-
2019 (5) TMI 2023
Detention of goods with vehicle - section 129(1) of the Gujarat Goods and Services Tax Act, 2017 - deposit of tax and penalty under protest - HELD THAT:- The petitioner has already deposited tax and the penalty under section 129(1A) of the GST Act, the respondents are directed to forthwith release the Truck No.GJ-04-AW-0962 along with the goods contained therein.
Issue Notice returnable on 19.06.2019.
-
2019 (5) TMI 2020
Addition u/s 68 - action treating its share application / premium as unexplained cash credit - DR vehemently contends during the course of hearing that the CIT(A)’s detailed findings under challenge have rightly affirmed the impugned addition on account of assessee’s failure in proving the three ingredients of its share application / premium receipts in case of the seven entities in issue - HELD THAT:- We find no merit in Revenue’s instant arguments as the CIT(A) has neither framed any points of determination in view of documentary evidence placed at the assessee’s behest on record nor has he taken recourse a detailed adjudication thereof as contemplated u/s. 250(6) of the Act.
We notice that the co-ordinate bench’s decision in M/s Primeline Sales Pvt. Ltd. [2019 (1) TMI 1562 - ITAT KOLKATA] has restored the identical issue back to the AO on account of non-verification of the necessary facts / evidence before the AO.
Thus, we restore the instant issue as well back to the AO for necessary factual verification as per law after affording adequate opportunities of hearing to the taxpayer. Assessee’s appeal is allowed for statistical purposes.
-
2019 (5) TMI 2019
Interest u/s 28 of the Land Acquisition Act 1894 granted by the court form part of the enhanced compensation is exempted u/s 10(37) - TDS on enhanced compensation - HELD THAT:- We are not inclined to entertain the writ petition under Article 32 of the Constitution.
Writ petition is accordingly dismissed. It shall, be without prejudice to any of the remedies available to the petitioners including praying for a fresh decision on the return filed in pursuance of the judgment of this Court in Union of India & Ors. v. Hari Singh & ORs [2017 (11) TMI 923 - SUPREME COURT] Learned ASG submits that the review petition which was earlier filed to review has already been withdrawn hence, steps will be taken for passing the fresh assessment order on the return filed by the petitioner.
-
2019 (5) TMI 2018
Computation of income attributable to the activities of the LO in India - determination of gross profit rate of 2.75% - HELD THAT:- Undisputedly, initially assessee has sought relief from CIT (A) by applying the agreed formula for AYs 1998-99 to 2004-05 by following the rule of consistency. It is also not in dispute that during the appellate proceedings, assessee raised additional grounds which were admitted.
Once the Gross profit rate declared by the assessee has been allowed and accepted by the Department in the proceeding and succeeding year(s) then there is no jurisdiction either to increase or decrease the Gross profit rate declared by the assessee in the year under consideration that such Gross profit rate was not justified.Assessing Office is directed to apply profit rate of 10% on the total sales made to DMRC and attribute 50% of such profit to the appellant.
CIT (A) has merely decided the issue pertaining to applicability of correct gross profit rate by applying the rule of consistency. CIT (A) has also decided the applicability of gross profit rate of 10% pertaining to DMRC project but has not decided the issue of exclusion from turnover. CIT (A) in order to test the applicability of gross profit rate of 10% has merely relied upon the order of AY 2006-07.
We are of the considered view that since the assessee has set up a new case by raising additional grounds by departing from the rule of consistency, all the grounds were required to be decided by the CIT (A) on merits. However, at the same time, we are of the considered view that since the assessee has raised many of the new grounds first time before the CIT (A) qua which no material was there before the AO at the time of framing assessment, it would be in the interest of justice to remand the case back to AO to decide afresh after giving an opportunity of being heard to the assessee.
-
2019 (5) TMI 2017
Validity of Reassessment proceedings - no notice u/s 148 as issued to the assessee at his correct address - assessee was a non-resident Indian (NRI) residing in U.K., however, all the notices were issued at the Nakodar address of the assessee, whereas, the assessee had left residing there long back - HELD THAT:- Facts itself speaks that the amount in question were deposited in the NRI account of the assessee and since the assessee was an NRI, which fact was duly available on record, the ITO Nakodar had no jurisdiction to initiate reopening of the assessment by way of issuing a notice u/s 148 of the Act. Even the said notice has not been served upon the assessee.
ITO, Nakodar had no jurisdiction to reopen or pass the assessment order and that is why he had transferred the pending assessment proceedings to the DCIT (IE), Chandigarh. Admittedly, the DCIT (IE) having specific information that the assessee was residing at U.K. and also having the U.K. address of the assessee chose to issue notice u/s 142(1) of the Act dated 22.11.2016 at the Nakodar address of the assessee and not at the U.K. address.
Argument of the DR that the ITO, Nakodar had transferred the case to DCIT (IE), Chandigarh and, hence, there was no requirement of issuing of fresh notice u/s 148 as per the provisions of section 127 (4) - No force in the above contention of the DR. Firstly, the re-assessment proceedings initiated by the ITO, Nakodar were without jurisdiction and the same were void abinitio, hence, any transfer of such void proceedings to the Assessing officer of competent jurisdiction did not validate his action and the proceedings. Even otherwise, as per the provisions of section 127 of the Act, ITO Nakodar himself had no jurisdiction to suo motu transfer the case to the DCIT (IE). Rather, the transfer of the case as per the provisions of section 127 (1) of the Act, can be ordered by the competent authority prescribed in the said provisions. In view of this, there is force in the Cross objections raised by the assessee on this issue and the same is accordingly allowed.
Unexplained cash deposit in Bank of Baroda - CIT(A) deleted addition - HELD THAT:- CIT(A) has rightly held that the assessee had duly explained the source in his bank account. Similarly, in respect of deposit out of the sale proceeds of share of the assessee in the house, the assessee had duly placed on file the agreement to sell as well as the family partition deed and, therefore, assessee has duly explained the source of the aforesaid deposits.
Assessee has also furnished the valuation report of the property. CIT(A) considering the said valuation report, the amount actually received by the assessee from the transfer of his share in the ancestral property in the name of his nephew, in our view, has rightly held that the assessee had duly explained the source of the said deposit and also that no capital gains had accrued to the assessee on the transfer of the said share in the ancestral house. Decided in favour of assessee.
-
2019 (5) TMI 2016
Money laundering - impugned order set aside as no Prosecution Complaint was filed within the required time frame of ninety days - HELD THAT:- The impugned order was passed on 01st December, 2015. As of today no prosecution complaint has been filed.
The retention does not survive. The appeals are allowed by setting aside the impugned order. It is clarified that the appeals are not decided on merits.
Copy of the order be given ‘dasti’ to both the parties.
-
2019 (5) TMI 2015
Addition on protective basis on account of the difference in the Arms Length Price (‘ALP’) of the international transaction on advertisement, marketing and promotion (‘AMP’) expenses by applying the Bright Line Test (‘BLT’) - HELD THAT:- The said issue stands answered against the Revenue and in favour of the Assessee by the decision of this Court in Sony Ericsson Mobile Communications India Pvt. Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] Therefore, the impugned order of the ITAT, which follows and applies the above decision, suffers from no legal infirmity.
An identical question raised by the Revenue in relation to the order of the ITAT in the case involving the same Assessee for AY 2010-11, was rejected by this Court, by dismissing the Revenue’s appeal [2016 (8) TMI 1175 - DELHI HIGH COURT]
-
2019 (5) TMI 2014
Revision u/s 263 - as per CIT AO passed u/s 153A/143(3) in not making any enquiries/verification in respect of the said loans so as to consider the applicability of section 2(22)(e) - HELD THAT:- As demonstrated by assessee on the basis of relevant documentary evidence placed in the paper book, the details of unsecured loans taken during the years under consideration by the assessee-company from the other Group Companies were called for by the AO during the course of assessment proceedings and the same were duly furnished by the assessee. Even the details of shareholders holding more than 10% shares in the assessee-company were called for by the AO and the same were duly furnished by the assessee.
As rightly contended by assessee, all the relevant details to ascertain the applicability of section 2(22)(e) to the loan amounts in question taken by the assessee-company during the years under consideration from the other Group Companies thus were either available on the record before the AO or the same were called for by him during the course of assessment proceedings by raising specific queries and after applying his mind to the said details, a conscious decision was taken by him as regards the non-applicability of section 2(22)(e) to the loan amounts in question while completing the assessment un/s 153A/143(3).
In our opinion, it, therefore, cannot be said that there was an error in the orders of the AO in not making any enquiry or verification on the issue of applicability of section 2(22)(e) to the loan amounts in question as alleged by the Ld. Principal CIT and the revision under section 263 by the Ld. Principal was not called for.
Assessing Officer thus had not only made the enquiry or verification as required in the facts of the case to ascertain the applicability of section 2(22)(e) to the loan amounts received by the assessee from the other group companies, but a conscious decision was also taken by him keeping in view the legal position that section 2(22)(e) was not applicable to the loan amounts in question received by the assessee during the years under consideration from the other Group Companies - no error in the orders of the Assessing Officer for the years under consideration passed u/s 153A/143(3) of the Act as alleged by the Ld. Principal CIT. Assessee appeal allowed.
-
2019 (5) TMI 2013
Legality of renewal of Look Out Circular (LOC) - petitioner was granted bail and is willing to appear before the court - HELD THAT:- There is no denial by the respondents that the petitioner was granted bail under Section 438 Cr.P.C. by the Court of V Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, vide order, dated 16.11.2018, passed in Crl. M.P. No. 3354 of 2018, in Crime No. 626 of 2017 of Women Police Station, DD, Hyderabad, and he was released on furnishing sureties before the trial Court. In the said bail order, there is no condition that the petitioner shall not leave the country. Furthermore, when the petitioner intends to go to Canada to resume his employment, pendency of the subject Criminal Case should not come in his way in eking out his livelihood. There is also no denial about the existence of the subject Look Out Circular against the petitioner.
The respondents 1 to 5 are directed to recall the Look Out Circular pending on the file of the XIII Additional Chief Metropolitan Magistrate, Mahila Court, Hyderabad, issued against the Petitioner, forthwith - the Writ Petition is allowed.
-
2019 (5) TMI 2012
Penalty imposed on petitioner - HELD THAT:- It is open to the petitioner to file an appeal along with stay application before the authority concerned.
In case, petitioner files such an appeal along with stay application, his stay application may be decided in accordance with law within a period of one week from today.
Petition disposed off.
-
2019 (5) TMI 2011
Condonation of delay - appeal was filed late by 639 days - filing a single appeal against two penalty orders passed under two different sections - penalty u/s 271AAA of the Act on the amount surrendered and simultaneously penalty u/s 271(1)(c)
CIT(A) dismissed the appeal of the appellant on the ground that ignorance of law is not a ground to condone the delay - HELD THAT:- It’s a matter of public knowledge and belief that there is only assessment for one year and one penalty order for one assessment year is generally the norms. Penalty u/s 271AAA has been brought in as a special provision under the Income Tax Act,1961.
In the instant case the assessee has filed appeal against the penalty order under section 271AAA before the CIT(A), however, it was tagged along with the appeal against the penalty u/s 271(1)(c). This clearly goes to prove that there was an appeal filed within the due date. Yet, the technicalities have been infracted upon which can be clearly considerable as a bonafide mistake.
Condonation of delay is a subjective issue and is to be viewed in the facts each case. In general, the several Courts have held that the approach towards condonation of delay has to be pragmatic and liberal and not pedantic. Keeping in view the above facts it cannot be said that the assessee has accrued any benefit by filing the appeal late, the same time revenue is not prejudiced if the case is considered on merits instead of dismissing on hyper-technicalities.
Reliance is placed on the judgement of Manoj Ahuja (Minor) & Anr [1984 (1) TMI 35 - PUNJAB AND HARYANA HIGH COURT] and SMC Capitals Ltd.[2010 (5) TMI 937 - ITAT DELHI] Hence, we here by direct that the delay may be condoned and appeal be heard on the merits of the case as per the provisions of the Income Tax Act,1961. Assessee appeal allowed.
-
2019 (5) TMI 2010
TDS u/s 195 - non deduction of TDS on export commission paid to non-resident agents for services rendered outside India - HELD THAT:- There is no dispute that the assessee appointed commission agent outside India. AO failed to bring any material on record to show that the services provider has any business place in India or the services were not rendered outside India by those commission agents.
The Hon’ble Bombay High Court in CIT vs. Gujarat Reclaim and Rubber Products Ltd. [2015 (12) TMI 1078 - BOMBAY HIGH COURT] held that commission earned by non-resident agent who carried on the business of selling Indian goods outside India cannot be said to have deemed to be income which has accrued or arise in India.
Also decided in Toshoku Ltd. [1980 (8) TMI 2 - SUPREME COURT] held that commission earned by non-resident who carried business of selling Indian goods outside India cannot be said to have deemed income which has accrued or arising in India. Decided against revenue.
-
2019 (5) TMI 2009
Challenge to Look Out Circular - It is alleged that the petitioner had exerted personal influence over other bank officials to grant facilities to undeserving borrowers, thereby causing wrongful loss to the banks and wrongful gain to the persons accused - HELD THAT:- This Court is, prima facie, of the view that the submission made by the IO was only for the purpose of opposing the petitioner’s application and there was no urgent requirement for the petitioner to be confined in this country. This is obvious from that fact that the investigating agency has not interacted with the petitioner during the past over seven months. Even after being restrained from leaving the country and returning home, for over a year, the petitioner is not an accused in any of the cases. As notice above, no charge sheet has been filed by the CBI.
The instrument of a LOC is only to be used in an urgent situation where a person is found to have been evading the process of investigation. The investigating agency must circumspect in using this instrument, as it seriously affects the fundamental rights of the citizen, who is restrained from travelling. In the facts of this case, more so as the petitioner has taken up residence in the UK and he has been restrained from joining his wife and son who continue to reside in the UK.
This Court is of the view that the petitioner cannot be stopped from leaving this country by using the instrument of an LOC - the petitioner is permitted to travel overseas for a period of five weeks, subject to meeting the conditions imposed - petition allowed.
-
2019 (5) TMI 2008
Sale of assets of the company in liquidation of the companies debts - petitioners wish to make a representation to the Review Committee of the Axis Bank as to whether, in the light of these subsequent events, they should be continued to be classified as wilful defaulter - HELD THAT:- Such representation will be made within two weeks from today. The Review Committee under the Master Circular dated 01.07.2015 of the Reserve Bank of India, will then decide the said representation and give its reasons in accordance with judgment in STATE BANK OF INDIA VERSUS M/S. JAH DEVELOPERS PVT. LTD. & ORS. [2019 (5) TMI 862 - SUPREME COURT].
SLP disposed off.
........
|
9911796707
