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2011 (7) TMI 1363 - ITAT AHMEDABAD
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... ... ..... e on the life of its director and was not found to have been assigned in favour of Shri M R Patel as clarified in letter dated 26.8.2009 of the ICICI Prudential, certifying that Laxmi Proteins Products Pvt. Ltd. had taken Keyman Insurance for its director, Devendra R. Patel on 24.8.2004 vide policy No. 01060482 and the said policy was in the name of Laxmi Protein Products Pvt. Ltd. and not assigned in favour of Mr. M R Patel. Though the Ld. CIT(A) forwarded this clarification to the AO for a remand report, the AO did not controvert the facts pointed out in the said dated 26.8.2009 of the ICICI Prudential. Since the Revenue have not placed before us any material, controverting the aforesaid findings of facts recorded by the learned CIT(A), there is no basis to interfere. Accordingly, we have no alternative but to uphold his findings. Therefore, ground no.2 in the appeal is dismissed. 10. In the result, the appeal is dismissed. Order pronounced in the court today on 29 -07-2011
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2011 (7) TMI 1362 - ITAT MUMBAI
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... ... ..... s held that when the books of account are rejected by the Assessing Officer and the income of the assessee is determined on estimated basis, no further addition can be made to the income so estimated by relying on the rejected books of account. To the similar effect the decision of Hon’ble Madhya Pradesh High Court in the case of CIT vs. Purshottamalal Tamrakar Uchehra reported in 270 ITR 314 reported in 270 ITR 84 (MP). Keeping in view the ratio laid down in these judicial pronouncements and having regard to the facts of the present case, we find no infirmity in the impugned order of Ld. CIT (A) deleting the various additions made by the AO relying on the books of account of the assessee when the income of the assessee was computed on estimated basis after rejecting the said books of account. The same is therefore upheld and the appeal of the revenue is dismissed. 5. In the result, the appeal of the revenue is dismissed. Order pronounced on this 15th day of July, 2011.
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2011 (7) TMI 1361 - ITAT DELHI
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... ... ..... heque or by draft or by any other mode, then the onus of proof would shift to the revenue. In the present case, assessee has discharged its onus to prove the identity of the share applicants. 11. In the background of the aforesaid discussions and precedents relied upon, we do not find any infirmity or illegality in the order of the Ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same. 12. In the result, the appeal filed by the Revenue stands dismissed. Assessee’s Cross Objection 13. In the cross objection assessee has agitated against the validity of the reopening in this case. 14. We find that we have already dismissed the revenue’s appeal on the merits in this case. Hence, the cross objection filed by the assessee has become infructuous. Accordingly, we dismiss the same as infructuous. 15. In the result, the appeal filed by the revenue and cross objection filed by the assessee stand dismissed. Order pronounced in the open court on 08/7/2011.
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2011 (7) TMI 1360 - ITAT VISAKHAPATNAM
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... ... ..... case was not exigible. Hence, the order levying penalty of ₹ 9,39,000/- under section 271D of the Act is, hereby, cancelled”. Thus, we notice that the Learned CIT(A) has taken into consideration the fact that the assessee, being a student studying outside his native place, had no direct role to play in the method and mode of transaction in augmenting funds for the purpose of investment in his name. Further the impugned amounts have been received only from the close relatives of the assessee. In these circumstances, the explanation of the assessee that these transactions have been entered into with a bonafide belief that there will be no violation of the provisions of sec. 269SS of the Act, can be taken as a reasonable cause. Hence we do not find any infirmity in the decision of Learned CIT(A) and accordingly uphold his order. 7. In the result, the appeal of the revenue and the cross objection of the assessee are dismissed. Pronounced in the open Court on 13.7.2011
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2011 (7) TMI 1359 - ITAT AHMEDABAD
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... ... ..... note that the ld. CIT(A) passed the impugned order ex-parte qua assessee. Prima facie, it appears that due to dispute amongst the partners and with alleged 14 parties who made the deposit of ₹ 52,14,000/-, confirmation, etc. could not be furnished before the AO. We, therefore, in the interest of justice, set aside the impugned order of the ld. CIT(A) deleting the addition of ₹ 6,53,000/- and confirming the addition of ₹ 52,14,000/- and restore these issues to the file of the AO with the direction that the assessee should furnish the complete details/ confirmation and necessary evidences. The AO may verify the same, conduct the necessary enquiry under section 68 of the Act and re-adjudicate both the additions afresh, in accordance with law.Resultantly, the appeal of the Revenue is treated as allowed for statistical purposes. 8. In the result, for statistical purposes, the both the appeals are treated as allowed. The Order pronounced in the Court on 29.07.2011
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2011 (7) TMI 1358 - SUPREME COURT
Removal from the post of then, Chief Justice of the Karnataka High Court - Committed acts of mis-behaviour - Prayers to quash order passed by the Committee constituted by the Chairman of the Council of States (Rajya Sabha) u/s 3(2) of the Judges (Inquiry) Act, 1968 ("the Act") - objection to the inclusion of respondent No.3-Shri P.P. Rao, Senior Advocate, Supreme Court of India in the Committee u/s 3(2)(c) - HELD THAT:- A reasonable, objective and informed person may say that respondent No.3 would not have opposed elevation of the petitioner if he was not satisfied that there was some substance in the allegations levelled against him. It is true that the Judges and lawyers are trained to be objective and have the capacity to decipher grain from the chaff, truth from the falsehood and we have no doubt that respondent No.3 possesses these qualities. We also agree with the Committee that objection by both sides perhaps "alone apart from anything else is sufficient to confirm his impartiality". However, the issue of bias of respondent No.3 has not to be seen from the view point of this Court or for that matter the Committee. It has to be seen from the angle of a reasonable, objective and informed person. What opinion he would form! It is his apprehension which is of paramount importance. From the facts narrated in the earlier part of the judgment it can be said that petitioner's apprehension of likelihood of bias against respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased.
Belated plea taken by the petitioner that by virtue of his active participation in the meeting held by the Bar Association of India, respondent No.3 will be deemed to be biased against him does not merit acceptance. It is also significant to note that respondent No.3 had nothing personal against the petitioner. He had taken part in the seminar as Vice-President of the Association. The concern shown by senior members of the Bar including respondent No.3 in the matter of elevation of the petitioner, who is alleged to have misused his position as a Judge and as Chief Justice of the High Court for material gains was not actuated by ulterior motive. They genuinely felt that the allegations made against the petitioner need investigation.
After the seminar, respondent No.3 is not shown to have done anything which may give slightest impression to any person of reasonable prudence that he was ill-disposed against the petitioner. Rather, as per the petitioner's own statement, he had met respondent No.3 at the latter's residence on 6.12.2009 and was convinced that the latter had nothing against him. This being the position, it is not possible to entertain the petitioner's plea that constitution of the Committee should be declared nullity on the ground that respondent No.3 is biased against him and order dated 24.4.2011 be quashed.
We cannot predicate the result of the representation but such representation would have given an opportunity to the Chairman to consider the grievance made by the petitioner and take appropriate decision as he had done in March, 2010 when respondent No.3 had sought recusal from the Committee in the wake of demand made by a section of the Bar which had erroneously assumed that the petitioner had consulted respondent No.3. However, the fact of the matter is that the petitioner never thought that respondent No.3 was prejudiced or ill-disposed against him and this is the reason why he did not raise objection till April, 2011 against the inclusion of respondent No.3 in the Committee. This leads to an irresistible inference that the petitioner had waived his right to object to the appointment of respondent No.3 as member of the Committee. The right available to the petitioner to object to the appointment of respondent No.3 in the Committee was personal to him and it was always open to him to waive the same.
In conclusion, we hold that belated raising of objection against inclusion of respondent No.3 in the Committee u/s 3(2) appears to be a calculated move on the petitioner's part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed u/s 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry.
However, keeping in view our finding on the issue of bias, we would request the Chairman to nominate another distinguished jurist in place of respondent No.3. The proceedings initiated against the petitioner have progressed only to the stage of framing of charges and the Committee is yet to record its findings on the charges and submit report. Therefore, nomination of another jurist will not hamper the proceedings of the Committee and the reconstituted Committee shall be entitled to proceed on the charges already framed against the petitioner.
In the result, the writ petition is dismissed with the aforesaid observations.
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2011 (7) TMI 1357 - ITAT MUMBAI
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... ... ..... al bad debts disallowed by the A.O. at ₹ 13,58,475/-, the ld. CIT(A) has sustained an amount of ₹ 2,49,513/- on the ground that the same did not pertain to debtors as such amount was not treated as income in the earlier year. However, the fact remains that the assessee had given full particulars of such claim. Therefore merely because the bad debt was disallowed, the same, in our opinion, under the facts and circumstances of the case does not call for levy of penalty u/s 271(1)(c) of the Act. It cannot be termed as concealment of particulars of income or furnishing of inaccurate of particulars of its income. In this view of the matter and in view of the detailed discussion by the ld. CIT(A), we are of the considered opinion that this is not a fit case for levy of penalty. We, therefore, uphold the order of the ld. CIT(A) and the ground raised by the Revenue is dismissed. 7. In the result, the appeal filed by the Revenue is dismissed. Order pronounced on 20.7.2011.
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2011 (7) TMI 1356 - ALLAHABAD HIGH COURT
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... ... ..... equent purchasers, B.K. Agrawal, Deputy Senior Manager Law, U.P.F.C. and the Official Liquidator who amongst themselves created a situation for perpetuating the possession and continuance of the subsequent purchasers as is reflected from the decision taken in the meeting referred to above. All of them must explain as to why proceedings for contempt be not initiated for deliberately flouting the judgement of Division Bench of this Court and the orders of Supreme Court as noted herein above. In the facts of the case, it is further directed that the Official Liquidator shall take over the actual physical possession of the assets both moveable and immovable of the company within one week from today. He may submit his report in compliance to this order by the next date, if any, operating agency is required for running of the cold storage, the Official Liquidator may submit a proposal. In no case respondents no. 5 & 6 shall remain in possession over the property of the company.
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2011 (7) TMI 1355 - ITAT DELHI
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... ... ..... is of assessment as revised by giving effect to the appellate order or the revisional order. 14. However, now the present case, no order either imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty stands passed. That being so, the provisions of section 275(1A) are not applicable. 15. In view of the above, the penalty order is hit by the proviso to section 275(1)(a) of the Act. Going by the para-meters laid down therein in the said section, the penalty order is clearly beyond the limitation provided therein. 16. Accordingly, the penalty order is cancelled, being barred by limitation, as above. 17. Since the penalty order stands cancelled as barred by limitation, nothing else survives. As such, the original grounds raised by the assessee, on merits, are not required to be gone into and we are not doing so. 18. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 22.07.2011.
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2011 (7) TMI 1354 - GUJARAT HIGH COURT
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... ... ..... me is deductible only when contribution is credited by the employer to the relevant fund on or before the new date. 6. The CIT (A) did not agree with this view of the Assessing Officer and the Tribunal relying on decision of the Delhi High Court in the case of CIT Vs. P M Electronics Ltd., (2009) 177 Taxman 1 (Del.) concurred with the findings of the CIT (A). There is a long discussion on the said aspect where reliance is also placed on the judgment of the Apex Court and various other High Courts. Without further burdening this order with these judgments and its detailed discussion, suffice to hold that the Tribunal followed the decision of the Delhi High Court for dismissing appeal on this ground. This Court does not find any error in the approach of Tribunal warranting any interference at the hands of this Court. Resultantly, appellant fails to satisfy this Court on both these issues and no question of law arises for consideration of this Court. The Tax Appeal is dismissed.
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2011 (7) TMI 1353 - UTTARAKHAND HIGH COURT
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... ... ..... not doing the business, the question of imposition of tax would not arise. Merely because there is a deemed sale or the fact that the deemed sale is incidental or casual, the tax could only be imposed if the person is a dealer and is engaged in a business activity of purchase and sale of taxable goods. The Supreme Court has clearly held that such business activity must be predominant i.e the main activity. As held earlier, the petitioner's main activity is to impart education which is not a business activity nor is a trade and, consequently, the petitioner is not a dealer and is not liable to be taxed under the Act. 35. In the light of the aforesaid, the court finds that the issuance of notice proposing to make an assessment under the Act on the supply of food stuff to the residential students is patently without jurisdiction. The said notices are consequently quashed. The writ petitions are allowed. In the circumstances of the case, the parties shall bear their own cost.
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2011 (7) TMI 1352 - BOMBAY HIGH COURT
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... ... ..... fact recorded by the Commissioner of Income Tax (Appeals) and approved by the Income Tax Appellate Tribunal is that in the present case, it is not in dispute that the assessee is entitled to 80IB deduction. The only dispute is whether the assessee is entitled to the deduction in respect of the amount received towards car parking space. The findings of facts recorded by the commissioner of Income Tax (Appeals) and approved by the Income Tax appellate Tribunal is that the car parking space forms part and parcel of the housing project, without which even approval for the housing project could not have been obtained from the competent authority. Therefore, the decision of the Tribunal in holding that the assessee is entitled to Section 80IB deduction in respect of housing project inclusive of the amount received on account of car parking cannot be faulted. 3. In this view of the matter, we see no merit in this appeal. The appeal is accordingly dismissed with no order as to costs.
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2011 (7) TMI 1351 - ITAT MUMBAI
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... ... ..... s not allowable on it. Keeping in view all these facts and circumstances, the disallowance made by the AO is confirmed and ground of appeal is dismissed.” 24. The Ld. Counsel for the assessee reiterated the arguments put forth before the lower authorities and relied on the decision in the case of Ravindran Pillai Vs CIT ( 194 Taxman 477) wherein it has been held as follows “When the goodwill paid is for ensuring retention and continued business in the hospital, it is certainly for acquiring a business and commercial rights and it is certainly comparable with trade marks, franchise, copy write etc. referred to in first part of sub-clause (ii) of Sec. 32(1) and so much so, goodwill is covered by the above provisions of Act entitling the assessee for depreciation.” Respectfully following the above decision, we allow this ground raised by the assessee. 25. In the result, the appeal filed by the assessee is allowed. Order pronounced on this 29th day of July, 2011
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2011 (7) TMI 1350 - BOMBAY HIGH COURT
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... ... ..... by the decision of this Court in the case of Commissioner of IncomeTax V/s. Gem Plus Jewellery India Limited reported in (2011) 330 ITR 175 (Bom.). 2. In this view of the matter, the appeal is dismissed with no order as to costs.
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2011 (7) TMI 1349 - ITAT AHMEDABAD
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... ... ..... duction u/s 80IB(10) of the Act. Subject to these directions, ground Nos. 1 to 3 in the appeal are allowed to the extent indicated hereinbefore.” 5. The ld. DR did not have objection for remitting back the case to the file of ld. AO for passing necessary orders in accordance with the ratio laid down as per the above judicial pronouncements. 6. We have heard the rival submissions and perused the records. It is evident from the above that the assessee is entitled for claiming deduction u/s 80IB of the Act proportionately for the flats constructed within the prescribed limits of 1500 sq.ft. By following the above judicial pronouncements we remit the matter back to the file of the ld. AO with the direction to pass appropriate order on merits and law keeping in view of the above judicial pronouncements. It is ordered accordingly. 7. In the result, the appeal of the assessee is allowed for statistical purposes as indicated above. Order was pronounced in open Court on 15/7/11.
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2011 (7) TMI 1348 - ITAT KOLKATA
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... ... ..... for A.Y. 2007-08 has taken the net profit of the assessee at 6%. Therefore, considering the totality of the facts and circumstances of the case, we find no infirmity in the order of ld. C.I.T.(A) in estimating the net profit @ 10% on the aggregate receipts of both the disclosed and undisclosed portion. We, therefore, uphold the same and direct the A.O. accordingly. The ground of appeal of the department, therefore, fails. 8. The assessee in its cross-objection has disputed the estimate of net profit at 10% by the ld. C.I.T.(A) as against 5% declared by it on gross receipts. In the revenue’s appeal, we for the reasons mentioned therein have already upheld the order of ld. C.I.T.(A) in adopting the rate of net profit at 10%. That being so, the ground raised by the assessee in its cross-objection stands dismissed. 9. In the result, the appeal of the revenue as well as cross-objection of the assessee both are dismissed. This order is pronounced in open Court on 22.07.2011.
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2011 (7) TMI 1347 - GUJARAT HIGH COURT
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... ... ..... question of law - " Whether the Appellate Tribunal is right in law and on facts in reversing the order passed by CIT(A) and thereby deleting the disallowance of accrued interest on OFCPNs of ₹ 2,12,16,470/-?" To be heard with Tax Appeal No. 226 of 2010.
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2011 (7) TMI 1346 - GUJARAT HIGH COURT
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... ... ..... pellate Tribunal is right in law and on facts in reversing the order passed by CIT(A) and thereby deleting the disallowance of interest of DDBs amounting to ₹ 6,54,33,173/- (since revised to ₹ 28,96,45,191/- through revised ground of appeal?" To be heard with Tax Appeal No.226 of 2010.
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2011 (7) TMI 1345 - ITAT CHENNAI
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... ... ..... he order under Section 263 was justified. Vis-à-vis claim of deduction under Section 80D of the Act, the Assessing Officer gave such a deduction after considering the evidence filed by the assessee along with return and therefore, it cannot be considered as erroneous and prejudicial to the interests of the revenue. Therefore, we uphold the order of ld. CIT in so far as it relates to aspects other than investment in M/s ITCOT Ltd. and claim of deduction under Section 80D of the Act are concerned. Ordered accordingly. 41. In the result, both the appeals of the assessee are partly allowed. 42. To summarise the results, appeals of the Revenue in I.T.A. Nos. 1629, 1630, 1631, 1632, 1633, 1640 & 1641/Mds/2009, as well as Cross-objections of the assessee in C.O. Nos. 193, 194, 195, 196, 197, 198 & 199/Mds/2009 are dismissed, whereas, appeals of the assessees in I.T.A. Nos. 486, 487 and 488/Mds/2010 are partly allowed. Order pronounced in the Court on 29th July, 2011.
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2011 (7) TMI 1344 - SUPREME COURT
Admission' in the minutes of the meeting - Order 12 Rule 6 of the Code provides admission of facts - whether there was in fact any admission, on the basis of which a judgment on admission could have been passed - HELD THAT:- The minutes of the meeting dated 9.12.2000 No. doubt starts by noting that the "As per Himani's records: credit TISCO ₹ 47,06,789.00" as on 31.3.1999. It also records that as per TISCO's records, as on 31.3.1999, the amount due by Himani(Appellant) was ₹ 61,49,449/30 and if three deductions (which were yet to be checked) were made, the amount due would be ₹ 47,06,775/70. Thereafter, in paragraphs 3, 4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and Respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.
Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (Appellant) to pay any amount to TISCO (Respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount 'X' to the credit of the supplier, it can not be treated as an admission that the said amount 'X' was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or 'reveral of credits' or 'settlement of the account'. We therefore hold that there was No. admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.
Thus, we allow this appeal, set aside the orders of the learned Single Judge and the division bench of the High Court dated 22.2.2008 and 22.9.2008. We make it clear that we have not recorded any finding nor expressed any opinion in regard to the merits of the case or in regard to any part of the suit claim. It is possible that on evidence being led, the Respondent is able to establish that ₹ 47,06,775/70 was in fact due as on 31.3.1999 and that it continues to be due. We request the High Court to dispose of the suit expeditiously.
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