AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1313
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....N Jewellers Pvt. Ltd., [formerly known as Vaibhav Empire Pvt. Ltd.(VEPL)] and is carrying on the business of gold, silver and diamonds etc.. For the assessment year 2011-12, the assessment was completed u/s 143(3) by an order dated 20.05.2013 on a total income of Rs. 8,07,22,883/-. The DDIT (Investigation), Air Intelligence Unit, Kolkata has intercepted Shri K.Appa Rao, the employee of the assessee at Netaji Subash Chandra Bose International Airport, Kolkata on 04.04.2014 and found that he was carrying gold with him, weighing 5000 gms. He was asked to produce the supporting documents in respect of the source and the ownership for the said gold bullion found in his possession and he had produced the copies of delivery challan issued by M/s Brink's Arya India Pvt. Ltd., the bullion dealer and on verification the department found the variation in serial numbers, hence, search and seizure action u/s 132 was carried out on Sri K.Appa Rao and the said gold bullion weighing 5000 gms was seized u/s 132 of the Income Tax Act (hereinafter called as 'Act'). Sri K.Appa Rao is working with the assessee company and has been carrying gold bullion bars of the assessee for business purposes which h....
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....on entries were made to inflate the expenditure, hence assessed the said amount of Rs. 12,00,02,396/- in the hands of the assessee company on protective basis. 4. Aggrieved by the order of the AO, the assessee went on appeal before the Ld.CIT(A) and challenged the appeal on merits as well as on legal grounds. As far as the legal grounds are concerned, the assessee raised the validity of the additions made u/s 153C without having the seized material as well as the validity of assessment made on protective basis after completion of substantive assessment. The Ld.CIT(A) upheld the issue of notice u/s 153C. However, the Ld. CIT(A) deleted the addition made in the hands of the assessee, since the substantive assessment was completed and the addition was made on substantive basis in the hands of M/s Grandhi Manoj Kumar (HUF). 5. Against the order of the Ld.CIT(A), the revenue is in appeal before this Tribunal. During the appeal proceedings, the assessee submitted a petition for considering the following ground which was decided against him by the Ld.CIT(A). The Ld.AR requested for adjudicating the following ground in this appeal. The ground raised by the assessee under Rule 27 of t....
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....rt the order on grounds decided against the assessee. On similar facts Hon'ble Gujarat High Court in the case of Principal CIT, Vadodara Vs. Sun Pharmaceutical Industries 86 taxman.com 148 considered the identical issue and held as under: 11. To put the controversy beyond doubt, Rule 27 of the Rules makes it clear that the respondent in appeal before the Tribunal even without filing an appeal can support the order appealed against on any of the grounds decided against him. It can be easily appreciated that all prayers in the appeal may be allowed by the Commissioner (Appeals), however, some of the contentions of the appellant may not have appealed to the Commissioner. When such an order of the Commissioner is at large before the Tribunal, the respondent before the Tribunal would be entitled to defend the order of the Commissioner on all grounds including on grounds held against him by the Commissioner without filing an independent appeal or cross-objection. 12. Rule 27 of the Rules is akin to Rule 22 Order XLI of the Civil Procedure Code. Sub-rule (1) provides that any respondent, though he may not have appealed from any part of the decree, may not only support th....
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....rt was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2 rendered by the trial court." 14. Similar issue came-up before Division Bench of this Court in case of DahodSahakariKharidVechanSangh Ltd. v. CIT [2006] 282 ITR 321/[2005] 149 Taxman 456 (Guj.) in which the Court observed as under: "17. Taking up the second issue first, the Tribunal has committed an error in law in holding that the assessee having not filed crossobjection against findings adverse to the assessee in the order of Commissioner (Appeals), the said findings had become final and remained unchallenged. The Tribunal apparently lost sight of the fact that the assessee had succeeded before the Commissioner (Appeals). The appeal had been allowed and the penalty levied by the assessing officer deleted in entirety. In fact, there was no occasion for the assessee to feel aggrieved and hence, it was not necessary for the assessee to prefer an appeal. The position in law is well settled that a cross objection, for all intents and purposes, would amount to an appeal....
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....ls) remained unchallenged since the assessee had not filed cross objections." 15. The first question is, therefore, answered against the Revenue and in favour of the assessee. In the instant case, the assessee has challed the validity of the addition made u/s 143(3) r.w.s. 153C of the Act before the Ld.CIT(A) and the said ground was decided by the Ld.CIT(A) against the assessee, however the Ld.CIT(A) granted the complete r elief and deleted the entire addition made by the AO and the assessee has no grievance. Since the facts are similar to that of the decision of the Hon'ble Gujarat High Court (supra) and the ITAT Rule 27 permit the assessee to support his case on any ground decided by the lower authorities, we agree that the petition filed by the Ld.AR for adjudicating the above ground under Rule 27 is permissible and accordingly admit the petition. 6. The issue raised by the Ld. AR in the petition under Rule 27 goes to the root of the case and the validity of entire assessment and this is dependent on this ground. Hence, we consider it is necessay to adjudicate above ground under Rule 27 first, before taking up any other ground raised by the revenue in it's a....
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....t year 2015-16. There is no other material found relating to the assessment year under consideration i.e. 2011-12. Though the Ld.CIT(A) in his order upheld the notice issued u/s 153C stating that the information regarding the possession of gold and jewellery in the hands of Sri K.Appa Rao is belonging to the assessee is incriminating, the said material was not relevant to the assessment year 2011-12. The CIT(A) further observed that there was search in the case of Bhanwarilal Jain and others, wherein the information was received with regard to purchase of gold and diamonds. The said information was related to Sri Grandhi Manoj Kumar, HUF and that was related to the assessment year 2009-10, but not 2011-12. Therefore, the information received with regard to the bogus purchase of diamonds as accommodation entries from Pankaj Exports and Astha Impex cannot be imported for issue of notice u/s 153C, since the information was not related to the assessee. The Ld. AR furnished the copy of notice issued u/s 153C to the assessee dated 24.12.2014, wherein, the notice was issued consequent to search conducted in the case of Sri K.AppaRao but not M/s Bhanwarilal Jain and others. As per the info....
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....e basis of facts already on the record and, therefore, could be raised. In this behalf, it was noted by the ITAT that as per the provisions of Section 153C of the Act, incriminating material which was seized had to pertain to the Assessment Years in question and it is an undisputed fact that the documents which were seized did not establish any co-relation, document-wise, with these four Assessment Years. Since this requirement under Section 153C of the Act is essential for assessment under that provision, it becomes a jurisdictional fact. We find this reasoning to be logical and valid, having regard to the provisions of Section 153C of the Act. Para 9 of the order of the ITAT reveals that the ITAT had scanned through the Satisfaction Note and the material which was disclosed therein was culled out and it showed that the same belongs to Assessment Year 2004-05 or thereafter. After taking note of the material in para 9 of the order, the position that emerges therefrom is discussed in para 10. It was specifically recorded that the counsel for the Department could not point out to the contrary. It is for this reason the High Court has also given its imprimatur to the aforesaid approac....
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....96/-. Accordingly we allow the ground raised by the assessee under Rule 27 of ITAT Rules and dismiss the appeal of the revenue on this ground. 8. The next issue is the validity of protective assessment made in the hands of the assessee. The revenue has filed the appeal agitating the issue of protective assessment. Having held that the notice issued u/s 153C invalid and deleted the additions made in the assessment holding that they are beyond the scope of Section143(3) r.w.s 153C of the Act , the issue of protective assessment is only of academic interest. 9. We heard both the parties on the issue of validity of protective assessment and gone through the orders of the lower authorities. The assessee purchased the jewellery from M/s Grandhi Mlanoj Kumar (HUF) and the assessing officer has given a finding in the order of the HUF that the purchase of jewellerywas bogus and accordingly made the addition on substantive basis in the hands of M/s Grandhi Manoj Kumar (HUF) and protectively in the hands of the assessee. In the instant case the assessee has purchased the diamonds from M/s Manoj Kumar (HUF) and the payment was made through the running account thus established the source ....
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....taxman.com 175 and held as under "6. We have heard both the parties and perused the relevant records available with us, especially the impugned orders. All the grounds in the revenue's appeal, in substance, relate to solitary issue of deletion of protective addition by the Ld. CIT (A). Therefore, the same are being considered together. We find that AO in the assessment order admitted that the entire amount which was added to the income of the assessee on "protective basis" was already assessed in the hands of the overseas companies on "substantive basis". It was further noted that the Assessing Officer did not consider the details filed by the assessee in the course of the assessment proceedings but made the assessment of the assessee on the basis of the assessment orders of the overseas companies and also that of her husband Sh. Ajay Kalsi. We further note that addition which was made on substantive basis in the hands of the overseas companies was also made in the hands of Sh. Ajay Kalsi on protective basis and also the same amount was added to the income of the assessee on protective basis. Therefore, addition of the same amount was made by the Assessing Officer in t....
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....mounting to Rs. 3,71,32,83,664/- was rightly deleted by the Ld. CIT (A), which does not need any interference on our part, hence, we uphold the action of the Ld. CIT (A) and reject the grounds raised by the Revenue. 7. In the result, the Revenue's appeal is dismissed." Since the facts of the assessee's case are also similar, respectfully following the view taken by the Coordinate Bench of ITAT, we hold that having made addition substantively in the hands of HUF, the addition made on protective basis required to be deleted. Accordingly, we delete the addition made in the hands of the assessee on protective basis and uphold the order of the Ld.CIT(A). The appeal of the Revenue on this ground is dismissed. In the result the appeal of the revenue is dismissed. ITA No.54/Viz/2018 - A.Y.2013-14 11. For the A.Y. 2013-14, the AO completed the assessment u/s 143(3) r.w.s. 153C on total income of Rs. 23,07,01,225/-. The AO made the following additions to the returned income . (i) Short term capital gains on sale of windmill Rs.1,85,31,098/- (ii) Short admission of rent from Jukaso Hotel Rs.11,58,990/- (iii) Disallowance of expenditure re....
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....out to Rs. 1,93,71,098/- and the balance amount of Rs. 1,38,62,792/- was apportioned for wind mill unit. The assessee argued that it has rightly offered the short term capital gains on sale of wind mill by allocating the sale proceeds of the wind mill towards the land and the windmill. However, the AO was of the view that the wind mill cost of Rs. 6,87,05,414/- includes the installation and development of the land cost of Rs. 1,18,00,000/- and the written down value of windmill including the land cost was Rs. 13,191/-, thus no separate allocation of sale consideration towards the land cost is necessary. Thus held that the short term capital gains on sale wind mill works out Rs. 3,23,80,699/- and accordingly made the addition of Rs. 1,85,31,098/- towards short admission of capital gains on sale of land. 14. On appeal, the Ld.CIT(A) has verified the details of the fixed assets from the balance sheet and found that the assessee has correctly classified the wind mill under the plant and machinery and the land was shown independently in the fixed assets. According to the Ld.CIT(A), the composite value of wind mill cost was Rs. 6,87,05,441/- and accordingly given a finding that the as....
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....ver claimed the depreciation. Therefore, the composite value of wind mill was Rs. 6,87,05,414/- inclusive of land cost and the assessee has claimed the depreciation only on wind mill. As per the Income Tax Act, capital gains has to be computed separately on the land and the wind mill. In this case, the assessee has sold the wind mill along with the land for a consideration of Rs. 3,23,93,890/- and shown the sale price of wind mill at Rs. 1,38,62,792/- and the price of the land was taken at Rs. 1,93,71,098/-. It is evident from the above facts that the sale price of wind mill including the cost of land was Rs. 3,23,93,890/-. Hence the sale consideration of wind mill require to be bifurcated towards the land and the windmill but not the wind mill alone. The revenue during the appeal hearing did not place any material to controvert the finding given by the Ld.CIT(A).The AO has not disputed the basis for apportioning of sale price towards the land cost on the basis of indexed cost of acquisition. The Ld.DR did not place any material to bifurcate and determine the sale consideration towards the land and the windmill. The assessee has transferred the land also along with the wind mill. T....
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....1.2012. However, the AO did not believe the submission made by the assesse, relied on the lease agreement registered before the Sub Registrar Office and held that the assesse has suppressed the receipt to the extent of Rs. 16,55,700/- and accordingly made the addition of Rs. 11,58,990/- after reducing the sum for repairs @30% as per section 24 of IT Act.. 21. Aggrieved by the order of the AO, the assesse went on appeal before the Ld.CIT(A) and the Ld.CIT(A) confirmed the addition made by the AO. 22. Aggrieved by the order of the Ld.CIT(A), the assessee filed appeal before this Tribunal. During the appeal hearing, the Ld.AR submitted that the premises could not be handed over to the tenant as per the agreement and handed over the premises on 01.11.2012 and accordingly the rent was collected. The assessee argued that since the premises was not ready for occupation, the right to receive the rent did not arise to the assessee even though there was an agreement. As per the agreement the assessee was obliged to surrender the premises to the tenant on 01.09.2012 which the assessee could not fulfill the promise. In the facts and circumstances, the Ld.AR argued that the assesse has ri....
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....s Account as revenue expenditure. The assesse also did not produce any evidence to establish the genuineness of the claim. The AO held the expenditure as capital in nature and it is not allowable deduction u/s 37(1) and accordingly made the addition. 26. On appeal before the CIT(A), the Ld.CIT(A) confirmed the addition since the assesse failed to produce rental agreement. 27. Aggrieved by the order of the Ld.CIT(A), the assessee is in appeal before us. During the appeal hearing, the Ld.AR reiterated the submissions made before the lower authorities. But no evidence was produced to support the claim. In the absence of any evidence to establish the genuineness of the payment, nature of payment, reasons for payment, reasons for non recovery of the advance, and the copy of lease agreement we are unable to accept the claim of the assessee and decline to interfere with the order of the Ld.CIT(A). Accordingly, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the assessee. 28. Ground No.6 and 7 are related to the disallowance of expenditure relatable to earning of exempt income u/s 14A of I.T.Act. The assessee had invested a sum of Rs. 20,54,77,370/- in the shares of....
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....nts from the interest free funds available to the assessee. Therefore, the facts of this case are similar to that of CIT Vs. NHPC (supra), wherein Hon'ble Punjab & Haryana High Court held as under : "17. The issue is covered by a judgement of a Division Bench of this Court dt.6th Sept.2016 in CIT Vs. Max India Ltd. IT Appeal No.186 of 2013 [reported at (2016) 290 CTR (P&H) 76: (2016) 141 DTR (P&H) 145 - Ed.J. Before dealing with the judgement, it is necessary to note a few facts. Rs. 521 crores was the assessee's total business expenditure by way of interest on loans. The assessee's business assets were about Rs. 26,930crores of which Rs. 1,014 crores were invested in its wholly owned subsidiaries. It is from the investment in its subsidiaries that the assesse earned Rs. 36.06 crores by way of dividend. However, it is important to note that the assesse had free funds of its sown of a sum of Rs. 17.275 crores available to it. Thus, as against the investment of Rs. 1,014crores which yielded dividend of Rs. 36.06 crores, the assesse had available to it Rs. 17,275 crores. As Mr.Ved Jain, the learned counsel appearing on behalf of the assesse, rightly submitted, the presumption....
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....in ITA No.263/Viz/2014 and also following various decisions of Hon'ble High Courts, mentioned hereunder held that in the absence of exempt income, no disallowance is called for u/s 14A, accordingly deleted the addition. (a) Hon'ble Chennai High Court in the case of Redington(India) Ltd. 77 Taxmann.com 257 (b) Hon'ble Delhi High Court in the case of the Chem Investments 61 Taxmann.com 118 (c) Hon'ble Gujarat High Court in the case of Sintex Industries Ltd. 82 Taxmann.com 171 36. Aggrieved by the order of the Ld.CIT(A), the revenue is in appeal before us. 37. We have heard both the parties and perused the material placed on record. In the case of M/s Radhakrishna Automobiles Pvt. Ltd , we have held that in the absence of exempt income, there is no case for disallowance u/s 14A r.w.Rule 8D of Income Tax Act. In the instant case, there is no dispute that the assessee did not earn exempt income during the year under consideration. Similarly, it is an undisputed fact that M/s Vaibhav Skyscape Ltd. is a subsidiary company of the assessee and the assessee has madethe investments in the subsidiary company out of interest free funds available to the assessee. Th....
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....the Ld.CIT(A) found that the credit of Rs. 3,60,00,000/- was matched with the bank account and the source of credit was explained. And there was no scope for treating the same as unexplained. Similarly the SBH account of Sri Grandhi Manoj Kumar shows the debit entry of 37,50,000/-, hence the Ld.CIT(A) deleted the addition. 42. Aggrieved by the order of the CIT(A), the revenue filed appeal before the Tribunal. 43. We have heard both the cases and perused the material placed on record and the facts of the case are extracted form the order of the Ld.CIT(A) which reads as under : "4.4(a)The facts of this issue are that the assessee had originally given anamount of Rs. 3,60,00,000/- in six instalments to KVMAS (Karnataka Arya Vysya Mahasabha) to develop a site belonging to them at Bangalore. The company entered into an agreement with KVMAS on 03.06.2011 and created a Special Purpose Vehicle (SPV) in the name and style of VSTPL (M/s. Vaibhav Sign Towers Pvt. Ltd) to undertake the project. Subsequently, the amount of Rs. 3,60,00,000/- was transferred to VSTPL, after the demise of the Managing Director, Sri GrandhiMarioj Kumar on 07.02.2012.Subsequent to the incident, the pr....
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....ger accounts demonstrate these entries. Now, the only question to be answered is whether the amount was transferred to HUF or not. It is the explanation of the learned AR of the appellant that KVMAS paid the amount to the appellant on 30.11.2013. There was an observation from the bankers that the funds of the company should not be diverted to any other purposes. In order to not to hamper the relation with the bankers, an entry was passed transferring the deposit to HUF on 31.03.2013. 4.4(e).On examining the bank accounts and the ledger accounts, I find that thecredit of Rs. 3,60,00,000/- in the books of the appellant has been explained. In other words, the source of credit, identity of the party and genuineness of the fund coming to the accounts of the appellant cannot be doubted. Therefore, there is no scope to treat the credit of Rs. 3,60,00,000/- in the books of the appellant as unexplained. What the appellant had made is only a book entry affecting the transfer in the books of HUF and the appellant. Regarding the observations of the Assessing Officer with respect to VSTPL, the entries were reversed due to the nonavailability of funds. However, on subsequent da....
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.... the assesse stated that though the assessee had entered in to lease agreement with the assesse with M/s Jukaso Hotels Ltd, on 16.07.2012 for letting out of the property for a monthly rent of Rs. 8,27,850/- per month, there was downward revision of rental agreement due to the business exigencies. Accordingly entered into supplementary lease agreement on 01.08.2014 and reduced the rent from Rs. 8,27,850/- to 6,00,000/- p.m. The assesse has provided both the agreements before the AO. The AO observed that the rent agreement dated 16.07.2012 was for a monthly rent of Rs. 8,27,250/- was a registered agreement and subsequent rent agreement was an unregistered agreement, hence held that the registered agreement gives right to the assesse to collect the rent due and to enforce the same. The AO also observed that the assesse had admitted the rentals from M/s Kankatala Textile Pvt. Ltd. in the nearby location @39.41 sq.ft., hence the rent charged by the assesse @38.32 sq.ft. as per the original agreement in the case of Jukaso Hotels was reasonable. Further, the AO has observed that there was debit balance of Rs. 58,44,733/- as on 31.03.2014 in the books of the assesse. Therefore, held that t....
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.... I am not inclined to agree with the argument of the appellant due to the reason that there is no infringement to his right to receive the rent. There are no circumstances to display that the rentals are hypothetical in nature. There is no scope of probability or improbability of not receiving / realizing the rents. Though, there is a force in the argument of the learned Authorised Representative of the appellant regarding real income, no credence can be given to the supplementary lease agreement. It is an indisputable fact that the right to receive rent has arisen due to the registered lease agreement not by supplementary lease agreement. Supplementary lease agreement without registration cannot be enforced in the eyes of law. The right that arises out of agreement has not been exhausted by the appellant in the event of failure on the part of lessee. The appellant cannot suo-motto reduce the rentals without the consent of the other party. The party (lessee) would have shown the outstanding rentals in its books. No details were filed before me in this regard. In the instant case, there is sno confirmation from the lessee that the rental due to the appellant is Rs. 72 lakhs and not ....
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....sse cannot suomoto reduce the income accrued during the year and reduce the rent by making the subsequent lease agreement without proper evidence from the tenant. Further the assesse has also shown debit balance of Rs. 58,44,733/- as receivable from the tenant. Therefore, we do not find any infirmity in the order of the Ld.CIT(A) and the same is upheld. The appeal of the assesse is dismissed. ITA No.56/Viz/2018- A.Y.2015-16(Revenue) 49. Ground No.1 and 2 are related to the disallowance made u/s 14A r.w.Rule 8D in respect of the investments made in M/s Vaibhav Sky Scapes Ltd., a subsidiary company of the assessee. During the year under consideration, the assessee did not receive any dividend. The AO has made the disallowance u/s 14A r.w.rule 8D of income tax Rules and the Ld.CIT(A) deleted the addition holding that no disallowance is called for in the absence of exempt income , placing reliance on the decision of this Tribunal and the Hon'ble High Courts as under : M/s Radhakrishna Automobiles Pvt. Ltd. in ITA No.511/Viz/2017 and Sri D.Veerabhadra Reddy(HUF) in ITA No.263/Viz/2014 and the following decisions of Hon'ble High Courts held that in the absence of exempt income, ....
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....Mahavir International service trust 17,235 Staff conveyance expenses while CSR activity GVMC, Visakhapatnam 22,500 Ward beautification charges Kalinga fishermen welfare fund 25,000 Welfare fund at Kalinga Fishermen due to HudHud Cyclone Total 15,88,201 53. The AO observed that the assesse has claimed the expenditure under the head corporate social responsibility and the same is not allowable as per section 37(1), Explanation 2 of the Act accordingly disallowed the same. 54. On appeal, the Ld.CIT(A) verified the accounts and the details of expenditure and observed that most of the expenditure is in charity / public concern and for building the brand value for the assessee's business. Most of the expenditure was incurred for tree plantation, tree guards in the city, construction of school building, toilets and drinking water facilities which falls under the promotion, brand expansion. Therefore, the Ld.CIT(A) directed the AO to allow the expenses to the tune of Rs. 10,83,800/- u/s 37(1) and disallow the remaining amount of Rs. 5,04,950/-. 55. During the appeal hearing, The Ld.DR supported the orders of the AO and per contra L....
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....at the assessee cannot suomoto decrease the rentals. Accordingly, the Ld.CIT(A) rejected the claim of the assessee and confirmed the addition 59. Aggrieved by the order the Ld.CIT(A), the assessee is in appeal before us. 60. During the appeal hearing, the Ld.AR submitted that the assesse has let out the property to M/s Jukaso Hotels partnership firm for a monthly rent of Rs. 8,27,850/- per month by registered lease agreement dated 16.07.2012. However, since the tenant or the lessee was not paying rent due and expressed his inability to make the payment of rent, both the assesse and tenant had reached a mutual agreement for payment of rent @Rs.6,00,000/-by supplementary agreement dated 01.08.2014.The Ld.AR submitted that the tenant has left the premises and the assesse was unable to recover the outstanding dues, hence argued that the assesse has rightly offered the rents of Rs. 72,00,000/- as per the revised supplementary agreement, therefore requested to set aside the orders of the lower authorities and delete the addition made by the AO. 61. On the other hand, the Ld.DR supported the orders of the lower authorities. 62. We have heard both the cases and perused the mate....