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Showing 81 to 100 of 547 Records
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2012 (2) TMI 652 - ITAT DELHI
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... ... ..... by the Assessing Officer, then, the alleged sale proceeds cannot be treated as unexplained cash credits. Learned CIT(Appeals) has appreciated these aspects while deleting the addition. Taking into consideration the facts and circumstances and the evidence on record, we do not find any error in the order of the Learned CIT(Appeals).” As held by various Benches of ITAT, New Delhi, in assessee’s case also, the opening stock of investment had not been held non-genuine. The stock of investment in shares was available at the beginning of the year. The sale proceeds are credited in its bank account. The revenue had acted only on the basis of information. Similar transactions have been held genuine by various Benches. Considering all these facts and circumstances of the case, we find no fault in the order of the CIT (A) and confirm the same. 11. In the result, the appeal of the revenue is partly allowed. Order pronounced in open court on this 29th day of February, 2012.
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2012 (2) TMI 651 - ITAT DELHI
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... ... ..... part with this order, it may be mentioned that according to the provisions of sub-section (3) to Section 12AA, even after grant of registration, if the Commissioner is satisfied that the activities of such trust or institution are not genuine or are not being carried out in accordance with the objects of the trust or institution, he is empowered to pass an order in writing canceling the registration of such trust or institution after giving the assessee a reasonable opportunity of being heard. Therefore, even after the grant of registration of this Trust is found to be not carrying out its activity in accordance with the objects of the trust, and making violation of any of the provisions of trust deed or Act, then, ld. CIT can use his powers given to him u/s 12AA (3) in accordance with law. With these observations, we allow the appeal filed by the assessee in the manner aforesaid. 18. In the result, the appeal is allowed. The order pronounced in the open court on 29.02.2012.
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2012 (2) TMI 650 - ITAT CHANDIGARH
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... ... ..... he basis of the finding in the case of assessee’s wife.” 18. The deletion of penalty in the aforesaid case was further held to be non leviable because of the plea of the reasonable cause raised by the assessee. The assessee in the present case has also raised the plea of reasonable cause, that the person advancing the loan was agriculturist and had no bank account. In the entirety of the facts and circumstances before us and following the ratio laid down by the Hon'ble Punjab & Haryana High Court in CIT Vs Manohar Lal Thakral (supra) we hold that there is not merit in initiation of penalty proceedings under sections271D and 271E of the Act in the present set of facts. Accordingly, we delete the penalty levied under sections 271D and 271E of the Act. Grounds of appeal raised by the assessee in both the appeals are allowed. 19. In the result, both the appeals of the assessee are allowed. Order Pronounced in the Open Court on this 28th day of February, 2012.
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2012 (2) TMI 649 - ITAT DELHI
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... ... ..... epreciation allowance not so set off (hereinafter called the Third unadjusted depreciation allowance’) shall be carried forward to the following year. iv. The Third unadjusted depreciation allowance’ shall be deemed as depreciation u/s 32(1), that is depreciation for the current year in the following year(s) to be set off against income under any head, like current depreciation, in perpetuity.” 3. The ld. Counsel has referred to the decision in the case of M/s Parijat Paper Mills Limited. Since the issue has now been decided by the Special Bench, this order cannot be relied upon. We find from the orders of the authorities below that they have not referred to which year the carry forward unabsorbed depreciation belongs. Therefore, we restore the matter to the file of AO to examine the issue in the light of the decision of Special Bench (supra). 4. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 29.02.2012.
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2012 (2) TMI 647 - ITAT KOLKATA
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... ... ..... rnment before the due date for filing of the return under section 139(1). The Hon’ble jurisdictional High Court decided the issue on 23.11.2011 in ITAT No. 302 of 2011 (G.A. No. 3200/2011) in the case of CIT, Kolkata-XI, Kolkata -vs.- Virgin Creations in favour of assessee by following the decision of the Hon’ble Supreme Court in the case of R.B. Jodha Mal Kuthiala reported in 82 ITR 570, wherein the Hon’ble Supreme Court held that “the provision, which has inserted the remedy to make the provision workable, requires to be treated with retrospective operation so that reasonable deduction can be given to the section as well”. Both parties agreed to it. 3.1 By respectfully following the judgment of the Hon’ble jurisdictional High Court in the case of virgin creations (supra), we dismiss the grounds of appeal taken by the Revenue. 4. In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the Open Court on 29/02/2012.
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2012 (2) TMI 646 - ITAT NEW DELHI
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... ... ..... others Vs. Dharmendra Textile Processors and others, in civil appeal nos.10289 -10303 of 2003. In view thereof, ground no.3 in the appeal is dismissed. 10.3 As regards decisions relied upon by the ld. DR, these were rendered on different facts and are not applicable in the facts and circumstances of the case before us. 11. In view of the foregoing, especially when penalty has been imposed merely on the basis of revised income which was offered by the assessee to tax suo motu, much before the issue of a notice u/s 148 of the Act, we have no alternative but to vacate the findings of the lower authorities and consequently, cancel the penalty levied under section 271 (1)(c) of the Act. Therefore, ground nos.1, 2 & 4 to 6 in the appeal are allowed. 12. No additional ground having been raised before us in terms of residuary ground in the appeal, accordingly, this ground is dismissed. 13. No other plea or argument was made before us. 14. In the result, appeal is partly allowed.
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2012 (2) TMI 645 - ITAT BANGALORE
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... ... ..... et off against such profit and gains of the undertaking would not arise. In that view of the matter, the approach of the assessing authority was quite contrary to the aforesaid statutory provisions and the appellate Commissioner as well as the Tribunal were fully justified in setting aside the said assessment order and granting the benefit of section 10A to be assessee. Hence, the main substantial question of law is answered in favour of the assessees and against the revenue”. 9.7 The facts being identical, respectfully following the dictum laid down by the Hon’ble jurisdictional High Court, we direct the AO to calculate deduction u/s 10A of the Act without setting off of the loss of non taxable units against the income of the exempted units. It is ordered accordingly. Hence, ground nos.5.1 and 5.2 are allowed. 10. In the result, the appeal filed by the assessee is partly allowed as indicated above. Order pronounced in the open court on 24th day of February, 2012
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2012 (2) TMI 644 - DELHI HIGH COURT
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... ... ..... mber as well as stamp/seal of the company. Even with regard to the non-production of the original Share Transfer Register, the respondent company has given a legally valid explanation. Moreover, this Court has also perused the annual returns filed contemporaneously in accordance with the statutory provisions by the previous management of the respondent company with the Registrar of Companies for the years 2002, 2003, 2004 and 2005. The certified copies of the said records clearly show that it is the appellant-petitioner’s father who is the shareholder of the respondent company and not the appellant-petitioner. Consequently, this Court is of the opinion that the CLB in paragraph 11 of the impugned order has rightly concluded that these public documents completely demonstrate the falsity of the case filed by the petitioner.’ Accordingly, this Court is of the view that the present appeal is devoid of merit and is accordingly dismissed, but with no order as to costs.
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2012 (2) TMI 643 - SUPREME COURT
Principle of `failure of justice' - Effect on not committing an accused in terms of Section 193 of the Code of Criminal Procedure (the Code) in cases where charge-sheet is filed u/s 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act) and cognizance is directly taken by the Special Judge under the Act - In the instant case neither the Trial Court nor the High Court appears to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the Court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same also applies to the appellate or revisional Court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19.
"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis.
The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'
HELD THAT:- No objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji [2001 (8) TMI 1385 - SUPREME COURT] lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in Moly and Vidyadharan [2004 (3) TMI 767 - SUPREME COURT] have not noted the decision in Bhooraji, a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled.
if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.
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2012 (2) TMI 642 - ITAT MUMBAI
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... ... ..... ron scrap. Therefore, the reply given to the CIT (A) in remand is not in conformity with his own findings in the assessment order. Moreover the assessee has explained that the propellers were sold in the subsequent year the fact of which was verified by the Assessing Officer and the CIT (A). The Revenue has raised Ground No.2 stating the same is not incorporated in the closing stock of the year ignoring the reason for making the addition by Assessing Officer itself that the propellers are outside the books of account. The grounds are not only inconsistent with the findings on record, but also different from the reasons for making addition and other facts on record. We have no hesitation in rejecting the ground. 2. In the result, the Revenue’s appeal is dismissed. The cross objection is in support of the order of the CIT (A) which does not require any adjudication. Therefore, the CO is also treated as dismissed. Order pronounced in the open court on 15th February, 2012.
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2012 (2) TMI 641 - ITAT KOLKATA
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... ... ..... he HUF consists of members of a joint family who are lineally ascendant or descendant of the individual. Outside the limits of coparcenary there is a fringe of persons, males and females, who constitute an undivided or joint Hindu family. Further, there is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. It consists of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. If this is the situation, we can easily hold that HUF entity falls within the definition of relative as defined in explanation to section 56(2) of the Act. Once it is held that HUF falls in this definition, no receipt from HUF to its coparceners or members can be assessed by invoking the provisions of section 56(2)(v) of the Act. Accordingly, we allow the claim of assessee and uphold the order of CIT(A) on this issue. 9. In the result, appeal of revenue is dismissed.
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2012 (2) TMI 640 - ITAT MUMBAI
Additional depreciation on Wind Mill purchased during the year - Whether Electricity is neither an article nor a thing? - Held that:- As decided in Texmo Precision Castings [2009 (10) TMI 140 - MADRAS HIGH COURT] for the application of s. 32(1)(iia) what is required to be satisfied is that the setting up of a new machinery or plant should have been acquired and installed after 31st March, 2002 by an assessee, who was already engaged in the business of manufacture or production of any article or thing and there is no requirement that the setting up of a new machinery or plant should have any operational connectivity to the article or thing that was already being manufactured by the assessee
It is not the case of the Revenue that the assessee has not manufactured woolen carpets and dhurries. - Decided in favour of assessee
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2012 (2) TMI 639 - ITAT INDORE
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... ... ..... action. However, on merit of addition, the ld. CIT(A) found that on the similar facts in earlier year, the Tribunal in assessee’s own case has upheld the net profit rate of 6 in the assessment year 2004-05. Since during the year under consideration, the assessee himself has shown net profit rate of 6.45 , the CIT(A) applied net profit rate of 6.5 and computed profit at ₹ 9,37,17,380/-/-, as against net profit of ₹ 9,30,00,580/- shown by the assessee. As the CIT(A) has already taken into consideration the order of the Tribunal in assessee’s own case on the similar facts and also taken the fact of rejection of books of account under consideration, applied the more appropriate rate of net profit at 6.5 , thereby retaining addition of ₹ 7,16,800/-, we do not find any infirmity in the order of CIT(A). 8. In the result, both the appeals of the assessee and Revenue are dismissed. This order has been pronounced in the open court on 15th February, 2012.
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2012 (2) TMI 638 - BOMBAY HIGH COURT
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... ... ..... ue to the file of the CESTAT for de novo consideration in the light of the judgment of the Apex Court in the case of Union of India Vs. Rajasthan Spinning & Weaving Mills reported in 2009 (238) E.L.T 3 (SC). In this view of the matter, the impugned order of the CESTAT dated 31st May, 2004 (Exhibit-G to the appeal) is quashed and set aside and the matter is restored to the file of the CESTAT for de novo consideration in accordance with law. All the contentions of both the parties are kept open. The appeal is disposed of accordingly with no order as to costs.
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2012 (2) TMI 637 - ITAT PUNE
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... ... ..... wed the outstanding amount receivable from various parties. Before us also, the learned Counsel for the assessee could not dislodge the findings of the lower authorities. In these circumstances, we affirm the findings of the Commissioner of Income15 tax (Appeals) on this aspect. The addition made by the Assessing Officer is thus upheld. On this Ground of appeal, the assessee fails. 23. Before parting, we may make an observation which would be relevant for the purpose of computing the ultimate total undisclosed income assessable in the hands of the assessee for the stated block period. While computing the undisclosed income in terms of our said order, the Assessing Officer shall bear in mind that the finally assessable total undisclosed income shall not be below the amount of undisclosed income disclosed by the assessee in the return of income. 24. In the result, the appeal of the assessee is partly allowed. Decision pronounced in the open Court on 29th Day of February, 2012.
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2012 (2) TMI 636 - ITAT, MUMBAI
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... ... ..... believe that the tax was not deductible at source from the payment of transaction charges u/s 194J. Although the learned counsel for the assessee has tried to demonstrate before us that the relevant facts involved in the present case are similar to the case of Kotak Securities Ltd. (supra), we are of the view that this stand of the assessee requires verification since this aspect of the matter has come up for consideration for the first time before the Tribunal. We, therefore, consider it fair and proper and in the interest of justice to restore this issue to the file of the AO for verifying the stand of the assessee from the relevant record and decide the same afresh on such verification in the light of guidelines laid down by the Hon’ble Bombay High Court in paragraph No. 31 of the judgment as extracted above. 9. In the result, both the appeals of the Revenue are treated as partly allowed for statistical purposes. Order pronounced on this 10th day of February, 2012.
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2012 (2) TMI 635 - SC ORDER
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... ... ..... ER Delay condoned. The appeal is dismissed.
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2012 (2) TMI 633 - BOMBAY HIGH COURT
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... ... ..... ntiffs. In view thereof, I pass the following Order ORDER i) Pending the hearing and final disposal of the Notice of Motion, Defendant Nos.1, 5 and 6 shall not dispose of, alienate, transfer and/or create third party interest in respect of the said cloud computing business of the Defendant No.1. ii) Subject to the convenience of the Court taking Notice of Motion for the year 2011, the above Notice of Motion be placed for hearing and final disposal on 5th March, 2012. iii) In the meantime, the said Report is once again put in a sealed cover and handed over to the Prothonotary and Senior Master of this Court for safe keeping. iv) Parties shall be at liberty to move the regular Court seeking permission to obtain a copy of the Valuation Report submitted by the Valuers Ernst & Young Pvt. Ltd. Needless to add, the parties shall be at liberty to raise all contentions, if such application is made before the regular Court. 2. Adinterim application is accordingly disposed of.
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2012 (2) TMI 632 - ITAT, DELHI
Disallowance of the claim for credit of TDS u/s. 199 - Held that:- The fee involved is paid subsequently i.e. after 31.3.1998. Since the assessee follows cash system of accounting it did not account for the total fee involved of ₹ 1017843/- as the same was not received by the assessee. However, the parties involved deducted tax on this amount and paid in government account for the credit of assessee. Since this TDS amount was paid to the credit of the assessee it accounted for amount of TDS as fee received and accordingly it claimed benefit of the same.
Assessee’s action is in accordance with provisions of section 199 and the assessee is eligible for seeking credit of the TDS amount. Hence, set aside the orders of the authorities below and decide the issue in favour of the assessee.
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2012 (2) TMI 631 - DELHI HIGH COURT
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... ... ..... Supreme Court in Administrator, Municipal Committee, Charkhi Dadri (supra) relied upon by the appellants is of no application. Moreover, the Supreme Court in that case held that once acquisition had become final and the title to the land stood divested, the subsequent non-compliance could not undo what already stood done. However, in the present case, we are concerned with different statutory provisions whereunder according to us removal had not attained finality owing to the procedure prescribed therefor having not been followed. The appeal therefore fails and is dismissed save that the direction given in the impugned judgment to the Registrar to restore and renew the mark is modified to a direction to the Registrar to restore/renew the mark after satisfying that the respondent is the registered proprietor/successor of the registered proprietor of the registered trademark which has expired and that in the interregnum same or similar marks have not been registered. No costs.
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