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Showing 61 to 80 of 1429 Records
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2014 (2) TMI 1373 - GUJARAT HIGH COURT
Bogus purchases u/s 69C - HELD THAT:- In the present case, though it may appear that the purchases have been shown to have been made through M/s. Vishal Traders but supplied by some other agency, in absence of other additional facts noted by this Court in case of Sanjay Oilcake Industries [2008 (3) TMI 323 - GUJARAT HIGH COURT ] gross ad hoc addition of 25% may not be justified.
In the present case, the assessee could produce before the authorities the precise rate at which the purchases were made from M/s. Vishal Traders and other suppliers to demonstrate that the purchases made on the same day carried the same price. This would substantially eliminate the angle of the purchase price being artificially inflated. Additionally, the Tribunal also noted other parameters such as higher net and gross profit rates of the present year compared to the earlier years of the recent past - no question of law arises
Purchases from an unregistered dealer M/s. Amber Trading Company - A.O of the firm M/s. Amber Trading Company treated the URD purchases of M/s. Amber Trading Company as genuine. Once, the URD purchases of M/s. Amber Trading Company is accepted as genuine by the A.O of that party, the disallowance made by the A.O in this regard cannot be sustained because it has no legs to stand. Accordingly, we decide this aspect of the matter in favour of the assessee.
Treating the loss suffered by the assessee as speculation loss - HELD THAT:- Tribunal concurrently, on the basis of evidence on record, held that it was a case of hedging transaction and not one of speculation loss. Such being pure question of fact and the Tribunal's decision not being shown to be per verse, such question is also not required to be considered.
Appeal admitted for consideration - Whether the Appellate Tribunal has substantially erred in upholding the order of the CIT(A) in deleting addition made by the Assessing Officer on account of unutilized CENVAT/MODVAT credit?
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2014 (2) TMI 1372 - ITAT KOLKATA
Computation of capital gain - AO had referred the valuation of the property as on 1-4-1981 to the DVO by invoking the provisions of section 55A - HELD THAT:- A perusal of the assessment order clearly shows that the conditions mentioned in section 55A of the Act have not been satisfied by the AO. Consequently, in view of the decision of the Hon’ble Jurisdictional Calcutta High Court in the case of Umedbhai International P. Ltd [2010 (2) TMI 631 - CALCUTTA HIGH COURT] as also case of Hiaben Jayantilal Shah [2008 (4) TMI 292 - GUJARAT HIGH COURT] we are of the view that the reference to the DVO by the AO is not sustainable in law. Consequently, the addition made by the AO and confirmed by the ld.CIT(A) on the basis of the DVO’s report stands deleted.
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2014 (2) TMI 1371 - JHARKHAND HIGH COURT
Transfer from cash-credit account to the accounts of Nandlal HUF - amount never accounted for as an income of Dr. Pradeep Kumar against whom a case has been registered under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 - HELD THAT:- The matter be placed on 21.02.2014 so that on that day, the materials which had been collected against the petitioner would be produced - Till then, interim order passed on 20.09.2013 shall continue.
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2014 (2) TMI 1370 - ITAT KOLKATA
Additions on the basis of transactions found in the bank account in the name of partner - bank account of the Partnership firm, which was opened in the name of a Partner is not accepted - HELD THAT:- The partnership deed was made effective from 23.03.2007 and the relevant assessment year involved is 2008-09. It means that the partnership firm has now owned up this account, the revenue should take action in the hands of the firm and not in the hands of individual, if law permits - the AO is directed to delete this addition in the hands of individual i.e. the assessee and if any action is required i.e. required in the hands of the firm and not in the hands of the individual - decided in favor of assessee.
Addition on account of Gross profit - restriction on the addition of peak credit at ₹ 10,60,742/- as against the total addition of ₹ 18,02,087/- - HELD THAT:- The bank account maintained with Axis Bank is under dispute i.e. the deposits and withdrawals at ₹ 1,02,92,960/-. The AO has added peak credits at ₹ 18,02,087/- and CIT(A) restricted the peak at ₹ 10,60,742/-. As, it is already adjudicated, that this bank account belongs to partnership firm and not to the individual, taking the same view, the AO is directed to take action in the hands of the firm, if any and that also as per law.
Appeal of assessee allowed.
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2014 (2) TMI 1369 - ITAT LUCKNOW
Exemption u/s 11 - Applicability of provisions of clause (via) of sub-section (23C) of section 10 - charitable activity u/s 2(15) - HELD THAT:- When we examine the provisions of section 10(23C) and section 11, we find that the Provisions of section 11 read with section 2(15) are general provisions referring to medical relief in general whereas the provisions of section 10(23C)(vi) are specific provisions regarding hospital.
Therefore the income of a hospital has to be considered for exemption u/s 10(23C)(via) as per specific provisions of that section and not u/s 11 read with section 2 (15) being general provisions for all types of medical relief. For all other assessees providing medical relief excluding running of hospital, the claim of exemption should be considered u/s 11 of the Act.
As per the judgment of Hon'ble Kerala High Court SAHRUDAYA HOSPITAL [2010 (10) TMI 844 - KERALA HIGH COURT] cited by learned A.R. of the assessee, we have seen that this judgment is in fact rendering help to the Revenue because when the hospital has not obtained approval u/s 10(23C)(via) of the Act, the income of the hospital is taxable as can be inferred from this judgment. In the present case, it is factual position as is admitted by learned A.R. of the assessee that the assessee is not running any other charitable activity and, therefore, as per this judgment cited by learned A.R. of the assessee, it has to be held that the profit from running of hospital is to be held to be taxable because the same has not obtained approval u/s 10 (23C) (via) and since the assessee is not running any other charitable activity, such income of the hospital cannot be claimed to be exempt u/s 11 for utilization of the income from hospital in respect of other charitable activities.
Hospital was being run by the "appellant" for profit - Exemption for a hospital has to be exempt only under the provisions of section 20(23C)(via) of the Act and not u/s 11 and since the assessee has not obtained approval u/s 10(23C)(via) of the Act, there is no merit in these grounds of the assessee and the same are accordingly rejected.
Claim for exemption of the surplus - As decided in ADITANAR EDUCATIONAL INSTITUTION VERSUS ADDITIONAL COMMISSIONER OF INCOME-TAX [1997 (2) TMI 3 - SUPREME COURT] after meeting the expenditure, if any surplus results incidentally from the activity lawfully carried on by the educational institution, it will not cease to be one existing solely for educational purposes since the object is not one to be one existing solely for educational purposes since the object is not one to make profit. The decisive or acid test is whether on an overall view of the matter, the object is to make profit. In evaluating or appraising the above, one should also bear in mind the distinction/difference between the corpus, the objects and the powers of the concerned entity.
Treating the utilization in acquisition of fixed assets as application of income - Since it is held that the assessee is not eligible for exemption either u/s 10(23C)(via) because the assessee could not obtain the approval and the assessee cannot get exemption u/s 11, this ground of the assessee has no merit and therefore, the same is rejected.
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2014 (2) TMI 1368 - HIGH COURT OF DELHI
Dishonor of cheque - Whether on the basis of the averments and the evidence produced by the Complainant, there are grounds for proceeding against the accused?
HELD THAT:- There are specific averments that the Petitioners negotiated for the purchase of goods by Pragati and they were responsible for the day to day affairs and conduct of the business of the company. It was specifically stated that the goods were supplied from April, 2010 to November, 2010. It was further stated that certain payments were made in the year 2010 and 2011. It was the complainant case that the post dated cheques in question were sent in the first week of June, 2011 and that the same were dishonuored on presentation - Thus, as per the averments made in the complaint, the cheques were delivered much before the Petitioners' resignation. All the transactions are related to the period when the Petitioners were Directors, and as stated above, according to Respondent No.1 (the complainant) they had negotiated with regard to supply of goods.
The Petitioners have not been able to make out a case for quashing of the summoning orders dated 15.11.2011, 15.11.2011, 06.03.2012, 07.12.2011, 31.05.2012 and 30.11.2011 respectively - petition dismissed.
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2014 (2) TMI 1367 - ITAT AHMEDABAD
Undisclosed investment u/s 69B - assessee has paid amount more than the amount shown as apparent consideration in the registered sale deed - HELD THAT:- We find that the AO had a doubt on the basis of prevailing market rate in the area which was within the range of ₹ 1,500/- to ₹ 2,000/- per square feet and that the cost of construction was ₹ 500/- per square feet, that the consideration stated in the registered sale deed was not the real consideration paid for acquiring the property by the assessee.
We find that the AO has thereafter not brought any material on record by making further inquiries to show that the assessee actually paid any amount over and above the amount shown in registered sale deed for the acquisition of the property. We find in the case of K.P. Verghese Vs. ITO [1981 (9) TMI 1 - SUPREME COURT] has held that the onus lies on the Department to bring material on record to show that the assessee has actually paid any amount more than the amount shown as apparent consideration in the registered sale deed. In absence of any such material brought on record, the Department is not empowered to treat any other amount as actual consideration paid by the assessee for acquiring the property and make addition on that basis. We, therefore, set aside the orders of the lower authorities on this issue and delete the addition
Disallowance at the rate of 20% out of synthetic diamond powder expenses - HELD THAT:- Entire purchase of synthetic powder was supported by bills and vouchers and no specific defect therein was brought on record by the Revenue. However, we do not agree with the submissions of the Ld. AR that stock of power lying with the job workers could not be taken into consideration simply because such stock was not taken into consideration in the past in case of the assessee. We agree that the value of such stock at the rate of 20% of the entire purchase during the year was without any basis and excessive. We find that the details of synthetic powder which was lying with the workers could no be furnished by the assessee before us also - it shall meet the ends of justice to estimate such stock at the rate of 10% of the entire purchases made during the year. We, therefore, restrict the disallowance to ₹ 9,43,052/- and delete the disallowance of ₹ 9,43,051/-. Thus, this ground of appeal of the assessee is partly allowed.
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2014 (2) TMI 1366 - ITAT KOLKATA
Additional depreciation on plant & machinery - D.R. submitted that plant and machinery by its very nature did not include electrical installation therefore, according to him, additional depreciation could not be allowed on plant and machinery - HELD THAT:- There is no dispute that assessee was engaged in manufacture of jute and paper related goods. Items on which depreciation is not allowable have been specifically set out in the proviso. Electrical installation does not fall within any of the provisos. Further definition of ‘plant’ given in section 43(3) of the Act is inclusive and even ships, vehicles, and books are considered as plant. If that be so, electrical installation is definitely part of a plant. In our opinion, ld. CIT(Appeals) was justified in allowing this claim of assessee. Decided against revenue
Belated payments of Employees’ contribution to Provident Fund and ESI - HELD THAT:- Hon’ble jurisdictional High Court in the case of CIT –vs.-Vijay Shree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] had held that amendment to second proviso to section 43B of the Act, as introduced by Finance Act, 2003 was curative and retrospectively applied from 1st April, 1988, relying on the decision of the Hon’ble Apex Court in the case of CIT –vs.- Alom Extrusions Limited [2009 (11) TMI 27 - SUPREME COURT] . Their Lordships held that Employees’ contribution paid beyond due date prescribed under Provident Fund Act and Rules were also deductible if the amounts were remitted prior to the due date of filing of the return.
Interest on loan given to subsidary company - HELD THAT:- Whenever a cheque issued by a party is cleared through a Bank loan account, the dues to the Bank will increase. If the cheque is cleared out of a deposit account, the dues from the Bank will be decreased. This arithmetics by itself will not show that money had gone out of interest bearing funds. Assessee has clearly pointed out that the cash credit balance had gone down over the relevant previous year. In other words, the cash credit account stood replenished by more than what was given out as advance, through deposits made by the assessee during the relevant previous year. Assessee had substantial profits during the relevant previous year and, therefore, there is much strength in its arguments that loans did not go out of any interest bearing funds. In any case, the loans were given only to a subsidiary of the assessee and Assessing Officer has not doubted the commercial expediency of such loans. We are, therefore, of the opinion that ld. CIT(Appeals) was justified in deleting this addition - Revenue appeal dismissed.
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2014 (2) TMI 1365 - ITAT AHMEDABAD
Nature of expenditure - Disallowance of deduction of expenditure on the ground that it was capital expenditure - expenditure pertaining to the proposed new power project under the expense heads (a) professional fees (b) travelling expenses (c) tender expenses - HELD THAT:- As assessee was rendering services for operating and maintaining of Power Plant but during the year, the assessee was to start its own Power Plant. The new projects were not expansion of existing business. Even if, the assessee’s new projects are in the same line of business expenses relating to new projects are capital in nature and not allowable as revenue as held by the Hon’ble Bomaby High Court in case of J. K. Chemical Ltd. [1992 (10) TMI 18 - BOMBAY HIGH COURT]. The case law cited by the assessee is not squarely applicable on it because the assessee had incurred expenditure to expand the same business. Thus, we confirm the order of the CIT(A). The assessee’s appeal on this ground is dismissed.
Charging of interest u/s.234A, 234B and 234C - HELD THAT:- Charging of interest u/s.234A, 234B and 234C is mandatory as held by CIT vs. Anzum M. H. Ghaswala & Ors. [2001 (10) TMI 4 - SUPREME COURT] to the above finding. The A.O. has not charged any interest u/s. 234A only charged u/s. 234B & 234C.
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2014 (2) TMI 1364 - ITAT DELHI
Penalty u/s 271(1)(c) - assessee was not into existence - HELD THAT:- Assessee itself was not in existence as the company was incorporated on 11.1.2007 only and assessee had specifically raised this ground before CIT(A) but CIT(A) without looking into the facts passed the orders in these two years also as in all other years.
Therefore, the penalty order for these years does not stand as the assessee was not into existence in these years. Regarding other years also we find that facts and circumstances exactly are same as in the order referred to above and therefore respectfully following the order of coordinate Benches we also delete the penalties imposed by the AO and confirmed by CIT(A). - Appeals filed by the assessee are allowed.
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2014 (2) TMI 1363 - ITAT CHANDIGARH
Disallowance of “additional depreciation” claimed on addition of rolls under the head “plant & Machinery.” - HELD THAT:- When ever new plant & Machinery is acquired or installed, additional depreciation is to be allowed. The conditions relating to allowance of additional depreciation in that case of new industrial undertaking has been dispensed with Finance Act, 2005 w.e.f. 1.4.2005. It cannot be doubted that rolls are part of machinery that is why normal depreciation of 80% has been allowed by the Assessing officer, therefore in our opinion, the assessee was also entitled to additional depreciation in terms of Sec 32(1)((iia) particularly in the light of para 3.6 of Circular No. 8 of 2008. Accordingly we set aside the order of the Ld. CIT(A) and direct the Assessing officer to allow additional depreciation - Appeal of the assessee is allowed.
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2014 (2) TMI 1362 - KARNATAKA HIGH COURT
Rate of tax - Iron and Steel used by the Respondent for the execution of works contract being transferred not as goods but in some other form - HELD THAT:- The issue decided in favour of the respondent-assessee and against the petitioner-State.
Deduction towards land value from the total turnover to arrive at taxable turnover - Joint Development Agreement with the land owner to construct the building for him - HELD THAT:- The deduction is allowed - decided in favour of the respondent- assessee and against the Revenue.
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2014 (2) TMI 1361 - KARNATAKA HIGH COURT
Constitutional validity of the provision of Section 234E - Notice to the petitioner levying fee vide annexure A1 to A21 and Annexure – B - HELD THAT:- Pending consideration of the grounds in the writ petition, it is desirable that enforcement of notices referred to above issued by the 4th respondent are stayed until further orders.
In the meantime respondents are permitted to file counter-within two weeks.
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2014 (2) TMI 1360 - DELHI HIGH COURT
Whether the ex-directors of a company in liquidation can be held accountable for the receivables of the company that can't be recovered by the Official Liquidator for want of requisite information and the complete records of the company? - HELD THAT:- In the present case, there is no allegation that the funds of the company in liquidation have been misapplied or retained by the applicant. The only ground on which a claim of compensation has been made is that the applicant is guilty of misfeasance or breach of trust in relation to the company in liquidation - In order to sustain the present claim against the applicant, it would be essential to show that the applicant was guilty of misfeasance or breach of trust. The examination of the conduct of the applicant must indicate that the applicant has committed a breach of his duty and as a result thereof, a loss has been caused to the company.
In the present case, the claim for compensation is premised on a breach of the obligation to furnish a complete and accurate Statement of Affairs and providing the necessary documents, required for recovering the money due to the company in liquidation, to the Official Liquidator - A Director is placed in a fiduciary position to that of a company and, therefore, it is the duty of a Director to ensure that the assets of the company are preserved and protected. It is the duty of a Director to ensure that the affairs of the company are conducted in a manner so as to comply with all laws and for the benefit of the company.
Given the allegations in the present case, it is not necessary that any separate and specific allegation be made against the applicant since the liability is sought to be imposed on the applicant on account of his being a Director of the company at the relevant time.
In the present case, the company itself has accepted that the applicant had tendered his resignation and an affidavit to this effect was placed on record much prior to the Official Liquidator being appointed as a Provisional Liquidator. Thus, there can be no doubt that the applicant had communicated his unequivocal intention to relinquish his office as a Director of the company. In view of the settled law that, unless articles provide otherwise, the acceptance of resignation submitted by a Director is not necessary for the same to take effect, it is clear that the applicant had demitted office as a Director much prior to the Official Liquidator being appointed as a Provisional Liquidator.
The present application is allowed and it is clarified that the applicant is not required to deposit 50% of the sum of ₹ 9.23 lacs as directed by the order dated 07.11.2012.
List on 30.04.2014.
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2014 (2) TMI 1358 - SC ORDER
Application for impleadment in respect of State of Assam - HELD THAT:- The application is allowed.
Issue notice to the newly added parties, returnable on 28th March, 2014.
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2014 (2) TMI 1357 - ITAT DELHI
Disallowance of interest on advances made to sister concern without commercial expediency - CIT (A) deleted the disallowance by holding that the assessee has sufficient interest free funds - HELD THAT:- CIT (appeals) demonstrates that the assessee has sufficient interest free funds. Presumption is that such interest free funds have been utilized for giving interest free advances, unless otherwise proved. For this proposition we draw strength from the judgment of CIT vs. Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] Respectfully following the same we uphold the finding of the Ld. CIT (A).
CIT (A) also held that the loans in question taken by the assessee were for specific purposes, namely for export bill discounting, packing credit loans, term loan taken for purchase of property for business use, car loan and overdraft. The Bank when guaranty such specific loans, ensure that the money is used for the purpose for which it is given . The funds are not released to the assessee but are paid to the organization from where the assessee received the asset/ goods etc. directly. They have sufficient cheques and balances in the system.
The loan granted by a bank or financial institution for specific purpose has been diverted, without evidence what so ever, for the purpose disallowing interest payment cannot be countenanced. Thus on this ground also the order of the Ld. CIT (A) has to be upheld. In the result this ground of the Revenue is dismissed.
Income from house property - Addition as notional income - AO considering the turn over and estimated that only 20% of the premises were used for business and the balance 80% of the property was vacant and he estimated a notional income of ₹ 7 lac under the provisions of section 22 - HELD THAT:- CIT (A) considered (a) the certificate of registration and allotment of TIN by the Department of commercial taxes Govt. of UP. (b) Monthly VAT returns. (c) Details of purchase of furniture. (d) Details of purchase of machinery. (e) Details of purchases of raw material. (f) Copies of the assessment orders of commercial tax officer, and held that the premises in question have been occupied by the assessee for the purpose of business. Further held that AO has no basis what so ever, to estimate that 20% of the factory was only being used for business and for holding that the balance area was lying vacant. DR could not controvert this factual finding of the first appellate authority. Her arguments were on the issue of admission of additional evidence etc. These are devoid of merit. Revenue ground dismissed.
Admission of additional evidence - assessee submitted that the only additional evidence that was admittedly an assessment order of the commercial tax department, and that it was filed at on the direction of the CIT (A) u/s 46(a) (iv) - HELD THAT:- In our view nothing turns on this issue. A copy of the order of the commercial tax officer, even if ignored does not effect the allowability of the ground no.2 as other evidences produced suffice to support the order of the Ld. CIT (A).
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2014 (2) TMI 1356 - DELHI HIGH COURT
Unable to pay the due amount - Section 434(1)(a) of Companies Act, 1956 - HELD THAT:- The proposal submitted by the respondent for restructuring of its liabilities to banks would not in any way restrict the petitioner to maintain the present petition which the petitioner is entitled to ex debito justitiae. The second submission made by the respondent that there is an inter se agreement between various banks also does not offer any credible defence to the respondent - The present petition is, therefore, admitted
Appointment of a Provisional Liquidator - HELD THAT:- The Directors of the company shall file a Statement of Affairs within 21 days and also disclose the correct addresses of the company as well as the addresses of the Directors. It is clarified that the Directors of the company shall continue to operate the bank accounts, however, a weekly statement as to the receipts and payments shall be furnished to the Official Liquidator.
Application disposed off.
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2014 (2) TMI 1355 - ITAT MUMBAI
Short deduction of tax at source - TDS u/s 194C OR 194J - addition u/s 40(a)(ia) - HELD THAT:- As decided in assessee's own case [2012 (7) TMI 614 - ITAT MUMBAI] wherein a similar disallowance made u/s 40(a)(ia) of the Act for short deduction of tax at source by the assessee u/s 194-C instead of section 194-J of the Act was held to be unsustainable by the Tribunal holding that the provisions of section 40(a)(ia) of the Act are applicable only when there is no deduction of tax at source and not where there is only short of deduction of tax at source. Respectfully following above we uphold the impugned order of the ld. CIT(A) deleting the disallowance made by the A.O. u/s 40(a)(ia) - Decided against revenue
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2014 (2) TMI 1354 - ANDHRA PRADESH HIGH COURT
Winding up of Company - Restraint from Sale of the land, buildings, plant and machinery etc. of the company in liquidation by the State Bank of India (SBI) - direction to the SBI to hand over the entire auctioned assets to the Official Liquidator - Section 456 of the Companies Act - Maintainability of the application - HELD THAT:- In the present case, we are concerned with same question but so far as the Companies Act and the SARFAESI Act are concerned. The difference between the RDB Act and the SARFAESI Act may be immediately noticed inasmuch under the SARFAESI Act, the security is realized by the secured creditor without intervention of the Court whereas under the RDB Act, a recovery officer of DRT sells assets of debtor to recover dues, as certified by DRT.
The decision of the Delhi High Court in KOTAK MAHINDRA BANK LTD. AND MOHAN TRACTORS PVT LTD. VERSUS MEGNOSTAR TELECOMMUNICATIONS PVT. LTD. & ANR [2012 (9) TMI 1092 - DELHI HIGH COURT] is relevant to be noticed where an identical issue fell for consideration. In that case also, it was answered by holding that the Official Liquidator will have to approach the DRT under Section 17 of the SARFAESI Act, if he seeks to challenge the sale held by the secured creditor under Section 13(4) of the SARFAESI Act.
The view of the Delhi High Court commends acceptance. In view of the answer to the question of maintainability, against the applicant, it is not necessary to deal with the factual aspects and the grounds for setting aside the sale, as urged by the applicants.
Application dismissed being not maintainable.
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2014 (2) TMI 1353 - SUPREME COURT OF INDIA
Whether on the allegations made in the complaint petition filed by the respondent a prima facie case of commission of offences under Sections 498A and 406 of the Penal Code is made out against the appellants?
HELD THAT:- The facts, as alleged, will have to be proved which only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court’s power to quash a criminal proceeding. Appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.
The complaint petition registered as Complaint No. 287/1A (Monica Vs. Vikas Sharma and Others) presently pending in the Court of Metropolitan Magistrate, Patiala House, New Delhi cannot be interdicted but has to be finally concluded by the learned Trial Court - Appeal dismissed,.
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