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Showing 81 to 100 of 737 Records
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2008 (4) TMI 753 - ITAT AGRA
Addition u/s 68 - sale procced of share treated as income from other sources - Long term capital gain - Purchase and Sale of Shares - genuineness of the transaction - HELD THAT:- The transaction entered into by the assessee is duly supported by purchase bill, contract note, delivery and transaction of share in her name which are also reflected in the balance sheet as on 31-3-2001 and on 31-3-2001. The sale bill with delivery contract note for sale of receipt of payment through account payee bank draft in bank account are also proved from the payment and is enclosed in the Paper Book of the assessee. On the other hand, to controvert the claim of the assessee there is no evidence in the possession of the department but the doubt has been created because the assessee could not produce that much evidence as was required by the learned Assessing Officer. There is no even a single evidence to show that these transactions were not genuine and the assessee had income from any other source(s) which might have been introduced by her in her books in the guise of long term capital gain to avoid payment of tax.
There is no evidence on record which can prove the sale consideration of shares which was duly supported by bills issued by broker and there is no evidence to prove that this amount represented unaccounted money of the assessee received in the guise of sale proceeds of shares. The learned Assessing Officer has not even invoked the provisions of section 68 and the fact remains that the assessee disclosed the sale of shares and receipt thereof in her return of income and has claimed exemption under section 54EC. So there is no case of treating these sales proceeds as income from other sources.
Following the case of ITO v. Smt. Kusumlata [2006 (8) TMI 266 - ITAT JODHPUR], We decide the issue in favour of the assessee and the factual matrix supplement the version of the assessee and there being no evidence on record to supplant the contention of the assessee, there is no question of making addition on the amount under the provisions of section 68 of the Act. To further strengthen my above finding, reference may be made to the decision which was recently delivered in the case of CIT v. Anupam Kapoor [2007 (2) TMI 159 - PUNJAB AND HARYANA HIGH COURT].
Hence, the addition in question cannot be made in the hands of the assessee u/s 68 and this amount is to be deleted from her hand.
Appeal of the assessee is allowed.
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2008 (4) TMI 752 - ALLAHABAD HIGH COURT
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... ... ..... the aforesaid provision, shows that the notice issued under section 143(2) after expiry of the period of 12 months specified in the proviso to sub-section (2) of section 143 of the Act before making assessment, reassessment or recomputation as specified in sub-section (2) of section 153 of the Act such notice shall be deemed to be a valid notice. 8. In view of the aforesaid amended provisions, the view of the Tribunal appears to be incorrect. However, since the Tribunal has not considered the amended section 148 of the Act, it would be appropriate to remand back the matter to the Tribunal to decide the appeal afresh in the light of the amendment made by the Finance Act, 2006 with effect from 1-10-1991 in section 148 of the Act. 9. In the result, the appeal is allowed. The order of the Tribunal dated 8-8-2005 passed in I.T.A. No. 168/LUCK./2003 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above.
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2008 (4) TMI 751 - CESTAT MUMBAI
Waiver of pre-deposit - CENVAT credit availed on the basis of invoices - Held that: - ince the issue requires detailed analysis of the evidence, we direct the applicant to deposit an amount of ₹ 10,00,000/- (Rupees ten lakhs) within eight weeks from today and report compliance on 30th June 2008 to the ld. Commissioner (Appeals).
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2008 (4) TMI 750 - SUPREME COURT
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... ... ..... ver, is clear. Neither the seniority nor the regular promotion of these employees is affected by such officiating local arrangements. The employees who have not officiated in the higher post earlier, however, will not get the benefit of the proviso to Fundamental Rule 22." 30. Although the order of the Board cannot be said to be wholly illegal and without jurisdiction warranting interference at the hands of the High Court but, we are of the opinion that the respondents should be put at the same scale of pay from the same day which was being paid to the employees who was next below him in the post of LDC. We would, however, clarify that the respondent shall not be entitled to treat his induction post both as LDC and UDC. The amount payable to the respondent in terms of these observations may be recalculated within a period six weeks. 31. To the aforementioned extent, the appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.
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2008 (4) TMI 749 - ITAT AGRA
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... ... ..... ble income. There is no proof of bogus long-term capital gains in the hands of the assessee. Entire proceedings rest on guesswork and general observations. None of the ingredients of s. 271(1)(c) has been established. The surrender is not of long-term capital gain but it was a surrender of the gift amount, so it cannot be said that the surrender was the result of detection by the Department. The Department only referred to long-term capital gain and not to receipt of gift. The surrender was of gift amount which the assessee was not able to prove in the way the learned AO desired. Hence, there is neither concealment of taxable income nor the assessee has furnished inaccurate particulars of income. I agree with the reasoning given by the learned CIT(A) in this regard and, therefore, confirm the same and consequently uphold the deletion/cancellation of penalty levied on the assessee. This is not a fit case for levy of the impugned penalty. 5. In the result, appeal is dismissed.
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2008 (4) TMI 748 - DELHI HIGH COURT
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... ... ..... purpose of Explanation (baa) while calculating deductions under section 80HHC of the Income-tax Act, 1961 ? 2. Whether Income-tax Appellate Tribunal was correct in law in holding that 90 per cent of the net interest is to be excluded from the profits of the business as per the provisions of Explanation (baa) while computing deduction under section 80HHC of the Act ?" 5. In view of the decision of this Court in CIT v. Shri Ram Honda Power Equip. 2007 289 ITR 4751, both the questions of law are answered in the negative, in favour of the revenue and against the assessee. 6. The appeal is disposed of accordingly.
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2008 (4) TMI 747 - ITAT BANGALORE
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... ... ..... gh Court of Bombay was that when the income of the charitable trust is to be computed keeping in mind the commercial principles involved, then the same principles would have to be applied in respect of unabsorbed expenses of one year against income of the subsequent year of the trust. The grounds of appeal as raised by the department is indicative of the fact that it has raised this issue because they are under the impression that SLP against the said order of the Bombay High Court has been filed. In our opinion, so long as the order of the High Court stands and there is no contrary decision available, we as the final finding body, dealing with a tax provision that is applicable uniformly all over India, would have to necessarily follow the decision of a High Court which is superior constitutional body. We do the same and uphold the order of the CIT(A) for various years. 4. In the result, the appeals by the revenue fail and are dismissed and the cross objections are allowed.
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2008 (4) TMI 746 - GUJARAT HIGH COURT
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... ... ..... at Maritime Board which is for Development of Port and the assessee in the maintenance of Urban Areas, Objects are practically same and the Hon'ble Gujarat High Court has upheld the Tribunal's order granting registration u/s 12A of the Act. 16. In view of all these orders of the Department and judgment of Tribunal as well as the decision of Hon'ble Gujarat High Court, we have no hesitation to hold that the assessee is entitled to registration u/s 12A of the Act. Similarly, the assessee's delay in filing the application for registration u/s 12 deserves to be condoned in view of Jamnagar Area Development Authority and the decision of Hon'ble Gujarat High Court (supra). In view thereof, we direct that the assessee shall be granted registration u/s 12A of the Act and the delay in filing such application shall be condoned.” The issue is already covered by the decision of this Court, which has been confirmed by the apex Court. The appeal stands dismissed.
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2008 (4) TMI 745 - SUPREME COURT
Principle of Constructive Res Judicata - proceedings for forfeiture of properties - period of limitation - Classification
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2008 (4) TMI 744 - CESTAT, MUMBAI
CENVAT credit - inputs used in, or in relation to, the manufacture of the exempted final product has been paid prior to the removal of the exempted final products from the factory - Held that: - matter referred to Larger Bench to decide the issue Whether the provisions of Rule 6 (3) (b) of the Cenvat Credit Rules, 2002 are applicable or not, when the amount equivalent to the Cenvat credit attributable to the inputs used in, or in relation to, the manufacture of the exempted final product has been paid prior to the removal of the exempted final product from the factory? - matter referred to Larger Bench.
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2008 (4) TMI 743 - ITAT MUMBAI
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... ... ..... decision of the Karnataka High Court in the case of CIT vs. McDowell and Co. as reported in 288 ITR 666 wherein the depreciation on the residential accommodation, used by the Chairman of the Co. , was held as allowable. 29. We have considered he submissions made by both the sides, material on record and orders of the authorities below. On due consideration of the facts and circumstance of the issue as well as applicable legal position, we hold that the flats, owned by the Assessee-Company, used for the residence of its Directors/employees are to be treated as used for its business purposes. Therefore, depreciation thereon is allowable. Accordingly, this ground of the Revenue is also dismissed. 30. In the result, the appeal, filed by the Revenue, is partly allowed for statistical purposes. 31. To sum up, Assessee's appeal stands partly allowed and the Revenue's Appeal stands partly allowed for statistical purposes. Order pronounced in the Open Court on April 30, 2008.
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2008 (4) TMI 742 - CESTAT, AHMEDABAD
Penalty - Cenvat/Modvat - Documents for taking credit ... ... ... ... ..... of Central Excise Act, 1944, penal provisions of Section 11AC cannot be invoked. 5. emsp I agree with the above contentions of the learned advocate. Apart from the fact that I do not find sufficient evidence on record to establish that the supplier of the raw material were fake and bogus (as no names stand disclosed in the show cause notice). I note that in any case, no duty stands confirmed against the appellant under sub-section 2 of Section 11A. Even the adjudicating authority has not denied the credit so availed by them on the basis of alleged fake invoices. Under such circumstances, the provisions of Section 11AC cannot be invoked as they are applicable only when the duty is confirmed against the person, in terms of Section 11A(2). As such, I agree with the appellants that the penalties imposed upon them cannot be sustained. The same are, accordingly, set aside and all the appeals are allowed with consequential relief to the appellants. (Pronounced in Court on 3-4-2008)
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2008 (4) TMI 741 - CESTAT, NEW DELHI
Refund - Non challenge of assessment order - Held that: - as the order fixing the annual capacity of stenter was not challenged by the respondent and the duty was paid accordingly, therefore, the respondent cannot be challenged the correctness of that order in the refund claim - appeal allowed - decided in favor of Revenue.
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2008 (4) TMI 740 - DELHI HIGH COURT
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... ... ..... s are not on record, the Tribunal can always remand the matter to the file of the Assessing Officer to investigate and determine the facts. It is submitted that the Tribunal ought to have remanded the matter to the file of the Assessing Officer rather than decline to permit the assessee to raise the additional ground. 10. Following the view expressed by the Kerala High Court, with which we have no reason to disagree, particularly since it relies upon a decision of the Madras High Court in CED v. P. Brahadeeswaran 1987 163 ITR 680, which in turn relies upon three decisions of the Supreme Court in CIT v. McMilan & Co. 1958 33 ITR 182 ; Hukumchand Mills Ltd. v. CIT 1967 63 ITR 232 and CIT v. Mahalakshmi Textile Mills Ltd. 1967 66 ITR 710, we answer the question of law in the affirmative, in favour of the assessee and against the revenue and remand the matter to the file of the Assessing Officer to determine the claim of the assessee on merits. 11. The appeal is disposed of.
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2008 (4) TMI 739 - SC ORDER
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... ... ..... dy, JJ. ORDER Appeal dismissed.
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2008 (4) TMI 738 - SUPREME COURT
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... ... ..... the appellant before effecting any change in the definition of "Crushing Season". 10. In view of our discussions made hereinabove, we, therefore, hold that the orders dated 17th of May, 1993 and 14th of July, 1993 could not have been passed without giving any notice in compliance with Section 4-I read with the Third Schedule of the U.P. Industrial Disputes Act, 1956, as mentioned herein earlier. In view of our finding made hereinabove, it is, therefore, not necessary to deal with Question No. 2 regarding power of respondent No. 1 to frame and amend regulations under Section 122 of the U.P. Cooperative Societies Act, 1965. 11. For the reasons aforesaid, the impugned judgment of the High Court is set aside. The writ petition filed by the appellant is allowed to the extent indicated above. The appeal is thus allowed without any order as to costs. However, it would be open to the respondent to amend the definition of "Crushing Season" in accordance with law.
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2008 (4) TMI 737 - SUPREME COURT
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... ... ..... t to redeem the mortgage is not extinguished and in the eye of law the purchase of the mortgaged property in pursuance of the decree for rent arrears must be deemed to have been made in trust for the mortgagor. In such circumstances, the High Court was right in granting preliminary decree for redemption. Insofar as the period of limitation is concerned, article 61 of the Limitation Act, 1963 applies and for a mortgagor to redeem or recover possession of immoveable property mortgaged; the period of limitation provided is 30 years when the right to redeem or to recover possession accrues. In view of the same, since the mortgagee purchased the mortgaged property in court auction on 11.09.1952 and the suit for redemption of mortgaged property was filed within the time prescribed, the High Court cannot be faulted for granting preliminary decree for redemption. 14) In view of the above discussion and conclusion, the appeal fails and the same is dismissed with no order as to costs.
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2008 (4) TMI 736 - ITAT AGRA
Legality of notice issued u/s 148 - Reopening of assessment - misrepresented the reasons recorded for initiating proceedings under s. 147 - Improper service of notice - legal contention of serving notice on his wife instead on himself - Jurisdiction of AO - Income from undisclosed sources or long-term capital gains - sale/purchase of shares - Bogus claim - Additions made in the absence of complete satisfactory documentary evidence - Charging of interest u/s 234A, 234B and 234C.
Reopening of assessment by issuance of notice u/s 148 - Improper service of notice - Jurisdiction of AO - HELD THAT:- In my opinion, the ratio laid down by Full Bench in the case of Laxmi Narain Anand Prakash vs. CST [1980 (1) TMI 174 - ALLAHABAD HIGH COURT] is also applicable to the case in hand and thus the proceedings initiated u/s 148 are without service of proper notice and as such are illegal. The entire proceedings thus become void ab initio and are liable to be quashed.
As a result, quash the proceedings being without jurisdiction and as a result of invalid service of notice. Therefore, the assessee succeeds on this limb of argument. Notice was served directly on assessee's wife without there being any effort which may be evident from any noting on the notice that any reasonable effort/attempt was made as required by law, before service of the notice to the assessee's wife. There is no evidence on record nor the wife of the assessee is legally authorised by the assessee to receive the notice. The learned CIT(A) has tried to justify the action of the AO by ignoring that the date on which it was served was the last day of limitation. So it is manifestly clear that the notice was improperly served on assessee's wife due to lack of time.
Addition made by the AO in the absence of complete satisfactory documentary evidence - Income from undisclosed sources or long-term capital gains - HELD THAT:- In my considered opinion, the overwhelming evidences produced by the assessee go to prove that the assessee had purchased and sold 5,000 shares and had earned long-term capital gains as has been claimed and the same cannot be added as undisclosed income of the assessee. From the photocopy of these papers, enclosed in the paper book, it is conclusively proved that the assessee had actually purchased these shares through registered share broker and got them transferred in his name. After holding these shares for more than 12 months sold the same through M/s Maheshwari Sons who is a registered share broker of UP Stock Exchange Association Ltd. The purchase and sale rate on date of purchase are also proved from the quotations published in the newspaper as is evident from the copies enclosed. Therefore, it is proved that the sum is the sale consideration of the shares held. After deducting cost of ₹ 20,200 balance of ₹ 1,87,184 is the long-term capital gain which has arisen to the assessee.
The entire evidences collected behind the back of the assessee cannot be considered as so sacrosanct as can counter the positive proof to disbelieve the assessee. Whatever has been stated in the evidences collected behind the back of the assessee is that "95 per cent of such business was done by M/s Maheshwari and Sons to give bogus entry". Still 5 per cent business done by them was genuine and why the assessee's case would not fall in that portion. The entire evidences produced by the assessee coupled with the fact that the said broker was not 100 per cent in bogus business, the claim of the assessee becomes plausible.
Similar view was taken in the case of ITO vs. Rajiv Aggarwal [2004 (6) TMI 266 - ITAT DELHI]. Thus, in the totality of the observations coupled with the precedents relied, allow this ground and order to delete the entire addition.
Charging of interest under ss. 234A, 234B and 234C - The charging of interest is mandatory but consequential relief is allowable. This ground is disposed of accordingly.
Appeal of the assessee is partly allowed.
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2008 (4) TMI 735 - PUNJAB & HARYANA HIGH COURT
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... ... ..... tion has to be exercised for retention of the credit balance in the PF failing which it would be shifted to 'deposits' and once shifted to 'deposits' then it would be governed by the general regulation. If it is retained as PF then it would continue to enjoy its character of PF without being considered as deposit. Such an argument is obviously without any substance and the same is rejected. 24. For the reasons afore-mentioned, these petitions succeed and the question posed in the opening para of this judgment is answered in favour of the assessee. Accordingly notices issued under s. 148 of the 1961 Act, pursuant to reassessment proceedings are quashed. The respondents are directed to extend the benefit of exemption from income-tax to the interest income that has accrued to an employee of the Board and the credit balance which has been retained by them by exercising option in their PF account after their retirement in terms of regn. 38 of the 1960 Regulations.
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2008 (4) TMI 734 - SUPREME COURT
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... ... ..... tter, the purpose for which the provision was made, etc. 57. As already stated above, while construing Rule 443 we have to give an interpretation which subserves the intention of the Rule which is that telephone bills should be promptly paid, otherwise the department will be short of the funds needed for financing the telephone services which are to be rendered to the consumers. After all, the salary of the employees of the telephone department have to be paid, the telephone equipment has to be maintained, repaired and kept up-to-date. Sometimes new technology has to be introduced. There may be various other requirements for which funds may be required, and all these can only be possible if the telephone bills are paid in time. Hence, in our opinion, the word 'subscriber' in Rule 2(pp) has to be given a wider meaning, as already stated above. 58. In view of the above, we find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs.
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