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Showing 1 to 20 of 1480 Records
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2023 (6) TMI 1480
Income deemed to accrue or arise in India - payments received by the assessee from its Indian customers on account of Centralized Services viz. sales and marketing, reservation fee, centralized services fee and loyalty programs - constitute Fee for Technical Services as defined u/s 9(1)(vii) of the Income Tax Act, 1961 OR Fee for included Services as defined under Article 12(4)(a) of the Indo-US DTAA.
HELD THAT:- The issue is squarely covered in favour of the assessee by the judgement of Hon’ble Delhi High Court [2019 (8) TMI 1755 - DELHI HIGH COURT], thus deleted the impugned addition. Decided in favour of assessee.
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2023 (6) TMI 1479
Unexplained money u/s 69A - invocation of the provisions of section 115BBE - HELD THAT:- Bank account is assessee’s joint account with his wife Mrs. Savita Jayaram and the opening balance as on 1.4.2016 was at US $ 9255.96. When this amount of US $ 2700 has been transferred to account bearing No. 000144812786, which is also assessee’s joint account with assessee’s wife Mrs. Savita Jayaram, it cannot be considered as an unexplained money u/s 69A of the Act.
Being so, in our opinion, assessee explained the sources as the opening balance standing in the assessee’s own account No. 000144808401 at US $ 9255.96. Accordingly, we find merit in the argument of ld. A.R. and the addition made u/s 69A of the Act is deleted.
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2023 (6) TMI 1478
TP adjustment - comparable selection - HELD THAT:- As Counsel states post the order pronounced by ITAT, TPO and AO have passed fresh orders accepting comparable given by respondent and therefore nothing remains in these Appeals and therefore, Appeals would be infructuous.
Hence, Appeals dismissed. A copy of the assessment order for completion of record, is taken on record and marked ‘X’ for identification.
All rights and contentions of the parties are kept open to be taken by Revenue in any other matter.
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2023 (6) TMI 1477
Challenge to order of assessment - HELD THAT:- Admittedly, no statutory appeal has been filed as against the assessment order and the short relief sought is that the petitioner may be permitted to challenge the impugned order by way of statutory appeal - The reason for approaching this Court by way of Writ Petition is that as on date of institution of the Writ Petition, being 26.06.2023, the appeal was time barred by a little over one month from the last date provided under the Statute for condonation of delay.
Having regard to the explanation set out and the fact that no serious objection is placed in this regard by the learned Government Advocate, while sustaining the impugned order of assessment, liberty is granted to the petitioner to challenge the same by way of statutory appeal before the first appellate authority.
Petition dismissed.
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2023 (6) TMI 1476
Exemption u/s 10(10AA)(i) - assessee who has retired is a bank employee - CIT(A) rejecting the amount which is earned leave encashment on retirement made by AO - HELD THAT:- Recently the Central Board of Direct Taxes Suomotu revised the limit for deduction u/s 10(10AA) and the revised limit now stood at Rs. 25,00,000 as specified vide notification no. 31/2023 issued by the ministry of finance.
Since the leave encashment amount as claimed by the assessee which is below the revised limit of leave encashment exempt prescribed by the Board, the assessee is eligible to claim of deduction of said. Based on these observations the ld. AO is directed to allow the claim of the assessee u/s.10(10AA) of the act within the revised limit as prescribed. In terms of these observations the appeal of the assessee is allowed.
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2023 (6) TMI 1475
Unexplained money u/s 69A - addition of unaccounted 'on-money' receipts - NP determination - assessments have bene made on the basis of survey u/s 133A - HELD THAT:- ITAT in its order for A.Y 2017-18 [2022 (5) TMI 1670 - ITAT SURAT] in the assessee’s own case have held that the rate of 8% is held to be the rate applicable to the assessee on the basis of peculiar circumstances and should not be held as a precedent for any preceding or succeeding assessment years.
In the case of the assessee, the assessments have bene made from A.Y 2015-16 to 2019-20, on the basis of survey u/s 133A and during the course of the said survey, evidences of receipt of on-money were found and impounded. The additions in all these 5 assessment years have been made on the basis of incriminating material found during the course of survey.
Therefore, the facts and circumstances which are applicable to A.Y. 2017-18 are appliable to the impugned assessment year also. The fact of the assessee’s case are totally identical to the facts of the A.Y 2017-18. Hence, following the decision of the Hon'ble ITAT for A.Y 2017-18 in assessee’s own case on identical facts, the CIT(A) directed the AO to take 8% of on-money receipts as income of the assessee.
Set off of IDS declaration disallowed to the assessee - CIT(A) noted that after allowing the benefit of declaration under IDS, 2016 no additional income need to be brought to tax - HELD THAT:- We note that assessee is entitled for set off of IDS declaration and CIT(A) based on the facts narrated above, has rightly allowed the benefit of declaration under IDS, 2016. On a careful reading of the CIT(A) order and the findings thereon, we do not find any valid reason to interfere with the decision and findings of the CIT(A) in holding that the assessee is entitled for the benefit of declaration under IDS, 2016.
Unexplained cash credit u/s 68 - Revenue argued that ‘on-money’ should be taxable u/s 115BBE as such ‘on-money’ does not pertain to assessee`s business - HELD THAT:- Income Tax Authorities have recorded the statement of assessee, and in that statement the assessee had stated that he had received ‘on-money’ from the customers to whom the flats were sold. In addition to this, in the declaration under IDS, 2016 made by the assessee, the assessee has mentioned that he is making disclosure on account of ‘onmoney’ received or to be received from the customers by selling flats of his particular project. Therefore, such ‘on-money’ should be assessed under the normal provisions of the Act and not u/s 115BBE. Abdul Hamid [2020 (8) TMI 141 - ITAT GAUHATI] - Thus ‘on-money’ should be assessed under the normal provisions of the Act and not u/s 115BBE.
CIT(A) has erred in re-calculating the total on-money on booking of the flats during the year under consideration as against the ‘on-money’ calculated by the assessing officer on the basis of incriminating impounded material.” - CIT(A) observed that the entire amount of sale proceeds cannot be brought to tax as the assessee has shown the registered sale value of the said flats in the Profit & Loss account in the years in which sale deeds of the said flats are executed.
In the impugned assessment year no sale deed has been executed and only some flats having area of 45,018 sq. ft, have been booked and entire amount of sale has been received. The assessing officer has not identified the particular flat which is booked during the impugned assessment year. The analysis of sales given by the assessee during the appellate proceedings suggests that the average registered value of the flats sold by the assessee is Rs. 1844 per sq. ft. and the evidences found during the course of survey suggest that the flats are booked at the rate of Rs. 2200 per sq. ft. Thus the average on-money received by the assessee is in the range of Rs. 356/- per sq. ft. (Rs.2200 - Rs. 1844 = Rs. 356). Thus the ‘on money’ received by the assessee on booking of the flats having area of 45018 sq. ft. is of Rs. 1,60,26,408/-and not Rs. 9,57,99,600/- as determined by the assessing officer. We have gone through the above findings of ld CIT(A) and noted that there is no infirmity in the conclusion reached by ld CIT(A), hence we confirm the findings of ld CIT(A) and dismiss the grounds raised by the Revenue.
Addition relying upon the whatsapp chats and loose papers found at the premises during the course of survey and extrapolating the amount in random manner - HELD THAT:-Revenue has primarily reiterated the stand taken by the AO which we have already noted in our earlier para and is not being repeated for the sake of brevity. We note that addition is part of ‘on-money’, received by assessee and considering the facts that said money may belong to assessee, therefore we confirm the order of ld CIT(A) and dismiss assessee`s cross objection.
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2023 (6) TMI 1474
Assessment u/s 153A - when no incriminating material found in search - Addition u/s 68 and section 69C - bogus long-term capital gains and short-term capital gains - HELD THAT:- We uphold the plea of the assessee that there was no incriminating material or information found during the course of the search in relation to the transactions conducted by the assessee during the assessment years 2012-13 and 2013-14. Therefore, in light of the law laid down in Abhisar Buildwell (P.) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] the grounds raised in assessee’s cross objections for the assessment years 2012-13 and 2013-14 are allowed.
Additions made u/s 68 and section 69C - As the assessee furnished various documents in support of its claim before the AO in order to substantiate the sale of shares, which were not found to be false, fabricated, or fictitious, as also noted by the coordinate bench in the aforesaid decision.
AO placed reliance upon the statements of third-party, wherein there is no allegation that the assessee himself has participated in any price rigging of shares. Thus, reference to the preponderance of probabilities without refuting the direct evidence or finding fault in the same is not justified. Therefore, we find no infirmity in the impugned order deleting the additions made under section 68 and section 69C - Decided in favour of assessee.
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2023 (6) TMI 1473
Money Laundering - second charge relating to conspiracy - framing of charges - twin conditions under Section 45 of PMLA - HELD THAT:- Having regard to the fact that the petitioner was the President of West Bengal Board of Primary Education and that there are materials to show that the Enforcement Directorate has been able to collect materials which would satisfy the presumptions attached under Sections 22 and 23 of Prevention of Money Laundering Act, it is not possible to hold for this Court at this stage that the petitioner is “not guilty of such offence” although the aforesaid fact is restricted for the consideration of bail.
It is opined that at this stage when the Enforcement Directorate is about to frame the charges, it would not be fit and proper to release the petitioner on bail.
Conclusion - There was sufficient evidence to continue proceedings against the petitioner for money laundering. The bail application was rejected, with the petitioner granted the liberty to reapply post charge framing.
The prayer for bail of the petitioner namely Manik Bhattacharya is rejected - Application disposed off.
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2023 (6) TMI 1472
Bogus LTCG - AO held that the assessee has converted his unaccounted cash into accounted one by obtaining entries of long term capital gains - AO rejected the claim for exemption u/s 10(38) of the Act - HELD THAT:- In the instant case, even though the AO has initially stated that he is rejecting the exemption claimed u/s 10(38) of the Act, yet the AO has assessed entire sale proceeds received on sale of shares ad income of the assessee, meaning thereby he has made addition u/s 68 of the Income tax Act. The responsibility placed upon the assessee u/s 68 of the Act is different, i.e., the initial burden to prove the cash credits is placed upon the shoulders of the assessee.
As noticed earlier, the assessee herein has discharged the initial onus placed upon him u/s 68. We noticed that the assessee has furnished all documents relating to purchase and sale of securities. The shares have entered and exited his demat account. The purchase and sale transactions have been routed through the bank accounts of the assessee. All these documentary evidences produced by the assessee have not been disproved. However, the AO has simply relied upon the report of the investigation department including the statements taken from certain parties and held that the long term capital gains declared by the assessee are not genuine.
It is also not the case of the AO that those parties have implicated the assessee nor he could show that the assessee was part of the team which was involved in the triggering of prices. No other material was brought on record by the AO to prove that the assessee has indeed availed only accommodation entries. With regard to questions as to why the shares of the above said company was purchased, the assessee has explained that the said decisions were taken by his late father and hence he could not explain the reasons. It was not shown that the said explanation was incorrect and hence, in our view, the same cannot be rejected.
The assessee has sold the shares when the prices have started falling, which is the usual tendency of the investors. Had he been part of the wing, which triggered the prices, he would know the peak price and would have sold the shares at that price only. It was the case here and hence, this fact shows that the assessee was not part of that group. We further notice that the assessee is a regular investor in the shares and held shares in many companies.
In view of the foregoing discussions and on a conspectus of the matter, we are of the view that the decision rendered in the cases of Shyam R Pawar [2014 (12) TMI 977 - BOMBAY HIGH COURT] and Ziauddin A Siddique 2022 (3) TMI 1437 - BOMBAY HIGH COURT] are squarely applicable to the facts of the present case. Thus, hold that the CIT(A) was justified in directing the AO to delete the assessment of sale consideration of shares as income of the assessee.
Addition relating to commission expenses - Since we have deleted the assessment of sale consideration of shares, the consequential addition made by the AO by way of commission expenses is also liable to be deleted. Accordingly, we uphold the decision of CIT(A) in deleting the addition relating to commission expenses.
Additions on the basis of SMS messages found in the phones of the assessee - In the instant case, the AO has not rejected the books of accounts and hence, in our view, he cannot ignore the entries made therein. When the payments have been made out of cash balance available in the books of accounts of various family members, the sources for the same stand explained. Hence, we are of the view that there is no scope of making addition on the suspicion and surmises that the same was an afterthought.
Accordingly, we hold that the aggregate amount of payments made by the assessee to the interior decorator was Rs. 15.00 lakhs only. Further, the assessee has explained the sources for making the above said payment. Accordingly, tax authorities are not justified in making the addition of Rs. 5.00 lakhs in AY 2015-16 and Rs. 15.00 lakhs in AY 2016-17. Accordingly, we set aside the orders passed by Ld CIT(A) in respect of above said additions in both the years and direct the AO to delete the same in both the years.
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2023 (6) TMI 1471
Ex-parte order passed by CIT(A) without allowing sufficient time for the assessee to present their case - HELD THAT:- CIT(A) has passed appeal-order without giving adequate opportunity of hearing and without disposing of assessee’s request for adjournments.
Secondly, we also note that section 250(6) of the Income-tax Act, 1961 provides “The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”.
But in the present case, the CIT(A) has dismissed assessee’s appeal, though on the ground of non-prosecution by assessee, but still without complying with the mandate of section 250(6). Thus, on both counts the impugned first appeal-order passed by CIT(A) is not valid; the same deserves to be set aside and the matter is fit for remand to the file of CIT(A) for a proper adjudication. Appeal of assessee is allowed for statistical purpose.
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2023 (6) TMI 1470
Refund of differential duty at the higher rate @ 12.5% instead of @ 7.5% for the import of Edible Grade Crude Palm Oil - change in duty rates through Notification No.46/2015-Cus dated 17.09.2015, which was published in the Gazette Notification on 21.09.2015 - HELD THAT:- Considering the facts that although the N/N. 46/2015-Cus dated 17.09.2015 was published in Gazette Notification on 21.09.2015, therefore, at the time of filing of the Bill of Entry, it is held that the Gazette Notification was not in operation as the same is to be operated from the date of publication in Gazette Notification , which is well after the date of filing of the Bill of Entry.
The similar issue came before the Hon’ble High Court of Karnataka in the case of Union of India Vs. Ruchi Soya Industries Ltd. [2021 (6) TMI 555 - KARNATAKA HIGH COURT], wherein it has been held that the enhancement rate of duty under Notification No.46/2015-Cus dated 17.09.2015, would apply only w.e.f. 21.09.2015.
Conclusion: The Notification No.46/2015-Cus dated 17.09.2015 is not applicable to the facts and circumstances of the case. The differential duty is not payable by the respondent.
The appeal filed by the Revenue is dismissed.
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2023 (6) TMI 1469
Revision u/s 263 - jurisdictional notice and assessment order passed in the name of non-existing company - As per CIT AO who grossly failed to take cognizance of the documents and proceeded in framing the assessment u/s 143(3) of the Act in the name of a non existing person - HELD THAT:- As mentioned elsewhere, the assessee has categorically intimated that the firm has been dissolved and was succeeded by Chemester Food Industry. Alongwith the said letter, the assessee has enclosed PAN Card, take over/sanction deed, certificate of incorporation, Memorandum and Article of Association, Dissolution deed and Dissolution Certificate, contractors and shareholders details of the company Chemester Food Industry.
Since the assessment order has been framed in the name of a non-existing entity, the same deserves to be quashed and as the assessment order is non-est, assumption of jurisdiction u/s 263 of the Act by the PCIT is bad in law and, therefore, the order framed by the PCIT u/s 263 of the Act is set aside and the proceedings quashed. Decided in favour of assessee.
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2023 (6) TMI 1468
Maintainability of appeal under Section 560(6) of the Companies Act, 1956 - Power of Registrat to stike off Respondent No.3 Company's name from the Register of Companies - HELD THAT:- Notably, if the name of the Company has been struck off following the procedure prescribed in sub-section (1) to (5) of Section 560 of the Companies Act, 1956, when the Company had itself voluntarily applied for striking off its name by filing an application under the Easy Exit Scheme, 2010, no appeal shall lie under Section 560(6) of the Companies Act, 1956.
The Appellant is not a member of the R-3 company. Further we have not been shown any evidence by the Appellant that he made any sincere and diligent effort to get a succession certificate in his favour with regard to the shares held by his deceased parents and therefore, he is not entitled to the privileges and other facilities that are available to the member of a company under Companies Act. In this connection it is noted that an appeal under the Companies Act, 2013 would be available to a ‘person’ who is either a ‘Member’ of the Company or a ‘Creditor’ or a ‘Director’ and quite clearly the Appellant is none of these. On this basis the Appellant is not entitled to maintain an appeal before the NCLT.
Conclusion - The rights and privileges under company law are reserved for registered members or creditors. Voluntary applications for striking off under schemes like the Easy Exit Scheme, 2010 are binding and not subject to challenge under Section 560(6) by non-members.
There is no error in the Impugned Order, and therefore it does not require any interference - Appeal dismissed.
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2023 (6) TMI 1467
Rejection of appeal filed by the petitioner against the Refund Order - appeal was dismissed by the 2nd respondent due to being filed beyond the condonable delay period of 120 days - non-constitution of Tribunal - HELD THAT:- Having regard to the submission of learned counsel for petitioner and on a conspectus of the facts involved in the matter and also having regard to the fact that similar matter in SANKAR GAS AGENCY VERSUS THE ASSISTANT COMMISSIONER, STATE OF ANDHRA PRADESH [2023 (5) TMI 1420 - ANDHRA PRADESH HIGH COURT] was allowed by this Court and in view of the fact that the Appellate Tribunal has not yet been constituted under the provisions of APGST Act, 2017, the writ petition is allowed and the total delay in filing the appeal is condoned and the matter remanded back to the 2nd respondent for considering the appeal and pass an appropriate order after hearing both parties on the condition of petitioner depositing 10% of the disputed tax over and above the amount said to have been deposited by the petitioner within three (3) weeks from the date of receipt of copy of this order.
Petition allowed.
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2023 (6) TMI 1466
Levy of service tax - amount retained by the appellant as "notice pay recovery" - consideration for a declared service under service tax law - amount deducted by the appellant from the unpaid salary of employees who left without serving the notice period - HELD THAT:- The show cause notice has very clearly stated that the amount of Rs. 2,09,33,892/- is recorded in the books of account as salary not paid to the employees. The basic fundamental of charging service tax at ad valorem is that the service provider has to receive consideration from the service recipient. Here as per the show cause notice, the appellant has not received any consideration and, therefore, the question of payment of service tax does not arise. The amount which is stated by Revenue in the show cause notice is the amount not paid as salary and retained by the appellant. Salary is out of the purview of service tax. Further, this issue is no more res integra and decided through case law relied upon by the appellant.
In the final order of this Tribunal in M/S HCL LEARNING LIMITED VERSUS COMMISSIONER OF CENTRAL GOODS & SERVICE TAX, NOIDA [2019 (12) TMI 558 - CESTAT ALLAHABAD], it has been held that such recovery is out of salary and salary is not covered by the provisions of service tax and, therefore, the demand is not sustainable.
Conclusion - Salary deductions for notice period breaches do not constitute consideration for a declared service and are not subject to service tax. As per the show cause notice, the appellant has not received any consideration and, therefore, the question of payment of service tax does not arise.
Appeal allowed.
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2023 (6) TMI 1465
Disallowance on account of delay in depositing employees contribution to provident fund (PF) and Employees State Insurance (ESI) - assessee has claimed deduction of expenses on account of payment of employees’ contribution to PF and ESI, such amounts were not deposited within the due date as specified in PF and ESI Acts.
HELD THAT:- After the decision of Checkmate Services P. Ltd. [2022 (10) TMI 617 - SUPREME COURT] the disputed issue is no more res integra, as the Hon’ble Supreme Court has clearly and categorically held that in case employees contribution to PF and ESI have not been deposited within the due date prescribed under the PF and ESI Acts, the same cannot be allowed as deduction in view of the provisions contained u/s 36(1)(va) of the Act. In such circumstances, the employees contribution to PF and ESI not deposited within the due date, shall be treated as income of the assessee u/s. 2(24)(x) - we are unable to accept assessee’s contention that the disallowance cannot be the subject matter of adjustment u/s. 143(1) of the Act.
Alternative contention of the assessee that the employees contribution to PF and ESI have been deposited within the due date keeping in view the fact that the months to be considered should be the month, in which, salary/wages are disbursed - We direct the AO to examine the claim of the assessee strictly with reference to the provisions contained under the PF and ESI Acts in respect of the mode and manner of depositing the employees contribution towards PF & ESI - Appeal is partly allowed for statistical purposes.
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2023 (6) TMI 1464
WTM issued an ex-parte ad-interim order cum show cause notice - HELD THAT:- We dispose of the appeal with the direction that it would be open to the appellant to file an appropriate reply within three weeks from today questioning the interim direction. If such an appropriate reply is filed and an application is made for vacation of the interim order, the authority will consider and pass appropriate orders after giving an opportunity of hearing.
The direction contained in paragraph nos. 32(b) shall remain in abeyance. The appeal is disposed of with the aforesaid directions.
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2023 (6) TMI 1463
Application of provisions of Section 115BBE - surrendered business income of the assessee - AO in this case taxed the surrendered business income of the assessee @ 60% as against the normal tax rate applicable on business income - HELD THAT:- As assessee was small time businessman and he did not properly maintain books of account. The stock was recorded at the end of the year which was taken as the opening stock of the next year. No day-to-day Stock Register was being maintained. During the year, assessee use to purchase and sell the goods, however, did not make day-to-day entry in that respect. There were unaccounted sales, the proceeds of which were invested for purchases and there were further sales from those purchases. Therefore, during the survey action, excess stock and receivables on account of unaccounted sales and cash generated on account of unaccounted sales was found. The assessee duly explained the source of the excess stock, receivables and cash which was duly accepted by the Survey Party.
Additional income surrendered by the assessee was not from any other unexplained source and same was out of business proceeds of the assessee. Therefore, find no justification on the part of the lower authorities in applying the provisions of Section 115BBE of the Act to the surrendered business income of the assessee.
Accordingly, the AO is directed to tax the assessee on the surrendered income at normal rates as applicable to the business income. It is made clear that my above findings are given in view of the peculiar facts of this case and the same will not hold any binding precedent. Appeal of the assessee is allowed.
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2023 (6) TMI 1462
Maintainability of petition - availability of alternative remedy - Challenge to order u/s 73 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The impugned orders passed by respondent No.1 under Section 73 of the Central Goods and Services Tax Act, 2017 in each of the writ petitions set aside and the matters remanded back to the file of respondent No.1 for considering the same afresh and thereafter to pass appropriate orders in accordance with law. Needless to say, respondent No.1 shall provide an adequate opportunity of hearing to the petitioners and thereafter shall pass the necessary orders. Let the fresh orders on remand be passed within a period of six weeks from the date of receipt of a copy of this order.
Petition allowed.
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2023 (6) TMI 1461
Broken period interest paid on purchase of securities - Whether revenue expenditure since the securities constitute stock-in-trade? - HELD THAT:- As decided in STATE BANK OF HYDERABAD [2023 (1) TMI 1438 - TELANGANA HIGH COURT] CBDT has clarified that assessing officer should determine on the facts and circumstances of each case as to whether any particular security constitute stock-in-trade or investment taking into account the guidelines issued by Reserve Bank of India from time to time.
It is in the above back drop that Tribunal has held that the respondent had purchased securities to hold them as stock-in-trade. Therefore, interest paid on such securities would be an allowable deduction. We are in agreement with the finding returned by the Tribunal. Decided in favour of assessee.
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