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Showing 241 to 260 of 1233 Records
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2012 (9) TMI 1004 - CESTAT KOLKATA
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... ... ..... of iron ore at Bolani Mines cannot be construed input services since the said services are not used in or in relation to the manufacture of finished excisable goods at their factory at Durgapur. More or less on similar facts and circumstances, in the case of Usha Martin Ltd. vs. CCE & ST, JSR. Order No.S-1129-1130/KOL/2012 dated 02.08.2012 this Tribunal has allowed the Stay application relying on the judgement of the Hon ble Apex Court in the case of Vikram Cements Vs. CCE, 2006 (197) ELT 145 and on an interpretation of definition of input service and its admissibility under Rule 3 of CENVAT Credit Rules, 2004. In these circumstances, we find that the applicants are able to make out a prima facie case for total waiver of pre-deposit of duty and penalty. Consequently, the requirement of pre-deposit of duty and penalty are waived and recovery thereof stayed during pendency of the appeal. Stay petition allowed. (Operative part of the order was pronounced in the open court.)
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2012 (9) TMI 1003 - ITAT BANGALORE
Deduction u/s. 10A before setting off unabsorbed business losses/depreciation carry forward losses from the earlier years allowed
Transfer pricing adjustment - comparability - Held that:- We find that the grievance of both the parties are against exclusion of the super profit making comparables and the low profit making comparables from the list of comparables adopted by the TPO. We find that the CIT(A) has not given any reasoning for such exclusion.
As far as Infosys is concerned, we find that it satisfies the turnover filter, as its turnover is 6,850 crores as against the assessee’s turnover of 8.29 crores. So the said company is rightly excluded from the list of comparables. But however, as regards other comparables with both high margin and low margin companies, we are of the opinion that the CIT(A) ought to give reasoning before excluding the same. As the order of the CIT(A) is silent as regards the reason for their exclusion, we deem it fit and proper to remit the issue back to the file of the CIT(A) for reconsideration
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2012 (9) TMI 1002 - DELHI HIGH COURT
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... ... ..... es that the petitioners are already in appeal. He further does not dispute that in terms of the mandate contained in the sanctioned scheme, the concessions referred to therein have to be considered by the respondent, and the demand raised against the petitioner is de-hors such consideration. It is, thus, agreed that the respondents will give effect to the mandate of the scheme by considering the issue of concessions, as set out in the scheme dated 14.01.2003 read with the order dated 07.08.2006 and a fresh demand would be raised, if any. In the meantime, the demand raised and which is impugned in appeal, would be kept in abeyance. The petition, accordingly, stands disposed of.
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2012 (9) TMI 1001 - GUJARAT HIGH COURT
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... ... ..... tion “Whether the Income Tax Appellate Tribunal is right in law and on facts in deleting disallowance of depreciation of ₹ 2,48,94,452/- on assets of sale and lease back transaction?” To be heard with Tax Appeal No.1048 of 2010.
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2012 (9) TMI 1000 - ITAT AMRITASAR
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... ... ..... issue in dispute to the AO to decide the same as directed by the ld. CIT(A) in the impugned orders. Keeping in view the powers of the ld. CIT(A), mentioned in section 251(A) as reproduced above, we are of the view that the ld. first appellate authority has wrongly issued direction to the AO in all the five cases to complete assessments in view of his direction which is in violation of section 251(A) of the Act, because the power to ‘set aside’ has been withdrawn vide Finance Act, 2001 w.e.f. 01.06.2001 as reproduced above. Keeping in view the facts and circumstances of the present case and in the interest of justice, we cancel the impugned orders in all these five appeals with the direction to the ld. CIT(A) to decide the issue in dispute himself afresh under law after giving opportunity to the respective parties. 5. In the result, all the five appeals of the Revenue are allowed for statistical purposes. Order pronounced in the open court on 3rd September, 2012.
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2012 (9) TMI 999 - ITAT MUMBAI
Revision u/s 263 - Held that:- There is no material on record to suggest that this issue of inflated expenditure in the final accounts in comparison to the accounts found in the floppy was either considered, verified, examined or adjudicated by the Assessing Officer. In view of the above facts, we do not find any reason to take a divergent view from the view taken by the coordinate bench in the case of Shri Akhtar Hussain Khan [2011 (7) TMI 1204 - ITAT MUMBAI] is the author of the said decision. Hence, following the earlier order of this tribunal, we decide the issue of validity of revision order passed under Section 263 against the assessee and in favour of the revenue.
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2012 (9) TMI 998 - KARNATAKA HIGH COURT
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... ... ..... e guidelines of the RBI. The banks have to invest the SLR amounts in the Government security bonds and shares etc. The lending policy of the banks is regulated by the RBI. The banks cannot keep any liquid cash both utilized and un-utilised. The share capital amounts of the bank have also to be invested in SLR proportionate to the percentage fixed by the RBI and rest of the amount is to be utilized for public lending. Therefore, for a financial institution the share capital also would assume the character of working capital. In that view any amount utilized by the bank towards issuance of share capital is a deductible expenditure. In the light of the above observations the order of the Appellate court is set aside. The matter is remanded to the Assessing Officer for fresh consideration to find out whether the share capital amounts have been utilized for public lending, if it is so, the Assessing Officer to allow deductions otherwise not. Accordingly the appeal is disposed of.
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2012 (9) TMI 997 - ITAT MUMBAI
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... ... ..... eping in view that the decision relied on by the Assessing Officer in CIT vs. Presidency Co -op. Housing Society Ltd. (1995) 216 ITR 321 (Born.) has already been considered and distinguished by Their Lordships in the case of Sind Co-operative Housing Society supra, by observing that the issue of mutuality was neither argued or considered, we respectfully following the decision of the Hon’ble Jurisdictional High Court hold that the amount received by the assessee are subject to principle of mutuality and accordingly we are inclined to uphold the finding of the Id. CIT(A) in deleting the addition made by the Assessing Officer” 4.1 Following the decision of the coordinate Bench of this Tribunal, cited supra, we decide this issue in favour of the assessee and against the revenue. Accordingly, the addition made by the Assessing Officer is deleted. 5 In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on the 21st of Sept 2012.
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2012 (9) TMI 996 - ITAT DELHI
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... ... ..... 7; 51,86,074/-. 16. Upon assessee’s appeal Ld. Commissioner of Income Tax (A) affirmed the order of the Assessing Officer. 17. We have carefully considered the submissions and perused the records. We find that Assessing Officer has made this disallowance by noting that proper evidence regarding the claim of the assessee was not submitted. Ld. Commissioner of Income Tax (A) has also confirmed this order. On the facts and circumstances of the case, in our considered opinion, interest of justice, will be served if the issue is remitted to the file of the Assessing Officer to consider the issue afresh. The Assessing Officer shall consider the issue in light of the submission in this regard, after giving assessee proper opportunity of being heard. We hold and direct accordingly. 18. In the result, the appeal filed by the Revenue stands dismissed and Cross objection filed by the assessee stand allowed for statistical purposes. Order pronounced in the open court on 26/9/2012.
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2012 (9) TMI 995 - ITAT AHMEDABAD
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... ... ..... d his order. Accordingly the appeal of the Revenue is dismissed. 11. Ground of Cross objection raised by the assessee is with respect to the action of CIT (A) in confirming addition of ₹ 2,99,950/-. CIT (A) has given a finding that the amount of ₹ 2,99,950/- comprised of loan of ₹ 2 lacs from Arvindbhai Vekariya and of ₹ 99,950/- from Kailashbhai Kotadiya. Both the lenders were summoned u/s. 131 but did not appear before the A.O. and they are not assessed to Income tax. The assessee could not discharge onus cast upon him to establish the genuineness of loan. The assessee could not prove before us the genuineness of loan. In view of these facts we find no reason to interfere to the order of CIT (A) on this point. We therefore, confirm his order. In the result, the C.O. of the assessee is dismissed. 12. In the result, appeal of the Revenue is dismissed and the cross objection of the assessee is also dismissed. Order pronounced in Open Court on 7-9-2012.
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2012 (9) TMI 994 - ITAT DELHI
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... ... ..... any inquiry. He did not try to verify identity of the creditors. Similarly, the assessee has pointed out that he has sufficient capital in the account of Hotel Karlo Kastle from where he withdrew the amount and introduce in the capital account of Hotel Silver Shine. The Assessing Officer remained passive to this material also. Ld. First Appellate Authority not only inquired this account but also directed the assessee to submit other material for cross-verification. In such given circumstances, we do not find any material on the record which can persuade us to set aside the finding recorded by the Ld. CIT(A) and restore that of the Assessing Officer. The simple reason for this that Assessing Officer has not taken any step for collecting any material in order to disprove the claim made by the assessee. Therefore, we do not find any merit in this appeal, it is dismissed. 10. In the result, the appeal of the revenue is dismissed. Order pronounced in the Open Court on 28.09.2012.
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2012 (9) TMI 993 - ITAT PUNE
Eligibility for deduction u/s.80IB(10) - partial completion - Held that:- 8th building renamed as Type G should not be confused with originally conceived Type G in commencement certificate dated 26.03.2004 as clarified above. It is pertinent to mention here that originally assessee conceived Type G on left hand side subsequently it was relocated on right hand side as Type G but same should not be confused because the locations are different. Initially it was on the left hand side subsequently it was shifted to right hand side. Assessee has completed construction of ‘A’, ‘B’, ‘C’ and ‘D’ buildings vide completion certificate No.BCO/14/6/264 dated 14.03.2006 while remaining ‘E’, ‘F’ and ‘I’ were completed vide completion certificate No.BCO/6/OC/57 dated 07.12.2007. Issue of relocated Type ‘G’ is not before us. In these circumstances, assessee is eligible for deduction u/s.80IB(10) in respect of building Types A, B, C, D, E, F and I, completed in two stages as discussed above. The Assessing Officer is directed accordingly.
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2012 (9) TMI 992 - CALCUTTA HIGH COURT
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... ... ..... mporter and/or exporter, who is entitled to duty draw back, can legitimately claim duty draw back as a matter of right. The Customs authorities cannot make importers and exporters run from pillar to post. Three years have already expired since the application for refund has been made. The application is disposed of by directing the Commissioner of Customs, Airport and Administration, to look into the grievances of the petitioners and ensure that the refund that has been sanctioned is actually disbursed and the grievances with regard to the balance refund are redressed within one month from the date of communication of this order. The Commissioner of Customs shall ensure that all amounts due and payable to the petitioner are actually disbursed and/or credited to the petitioners within two weeks from the date of his decision along with interest. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2012 (9) TMI 991 - ITAT MUMBAI
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... ... ..... sallowance of expenses in relation to exempt income under section 14A is required to be made as per Rule 8D. However, Hon'ble High Court of Bombay in the case of Godrej and Boyce Mfg. Co. (supra), have held that Rule 8D would apply only from 2008-09 and in respect of prior years it was held that expenses both direct and indirect have to be disallowed on a reasonable basis after hearing the assessee. In this case CIT(A) has directed the AO to consider the disallowance in terms of judgment of Hon'ble High Court of Bombay (supra). We therefore see no infirmity in the order of CIT(A). However, we direct the AO to make disallowance after necessary examination in the light of judgment of Hon'ble High Court of Bombay and after allowing opportunity of hearing to the assessee. 5. In the result appeal of the assessee is partly allowed for statistical purposes whereas appeal of the revenue is allowed for statistical purposes. Order pronounced in the open court on 28.9.2012.
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2012 (9) TMI 990 - ITAT MUMBAI
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... ... ..... ccordingly allowed the claim of the assessee. The orders of the Tribunal in assessment year 2004-05 and 1996-97 have been upheld by the Hon'ble High Court of Bombay in judgments dated 6.7.2011 in Income tax appeal No.2415 of 10 and 3177 of 10. The Hon’ble High Court upheld the orders of the Tribunal on both points i.e. exhibition activity being incidental to the main object and proper and separate account book being maintained by the assessee. Thus the issue is covered in favour of the assessee by the judgment of Hon'ble High Court of Bombay (supra). We, therefore, see no infirmity in the order of CIT(A) allowing relief to the assessee and the same is upheld. As we have allowed the claim on merit, we do not consider it necessary to go into the alternate argument of the assessment being illegal on the ground of non-service of notice under section 143(2) in time. 6. In the result appeal of the revenue is dismissed. Order pronounced in the open court on 26.09.2012
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2012 (9) TMI 989 - ITAT AHMEDABAD
Search Assessment u/s 153A - In the return of income filed by the assessee u/s 153A, the return of income was less than the income declared by the assessee in the original return filed us 139(1) of the Act. - Assessment to be made on the basis of ITR filed u/s 153A or u/s 139(1) - AO observed the excess claim of depreciation in the ITR filed u/s 153A - HELD THAT:- if the A.O. started with the amount of income declared by the assessee u/s 139(1) then there is no excess depreciation claimed by the assessee in this amount of income declared by it in the return of income filed u/s 139(1) - A.O. has to start the computation of income in the assessment completed by him u/s 153A with the income declared by the assessee in the return filed by it u/s 153A and after this, he can make the adjustment on account of excess depreciation claimed by the assessee
Decision in the case of M/S. AIRWIDE EXPRESS CARGO VERSUS. ITO, WARD 7 (1) , & VICE VERSA [2011 (10) TMI 631 - ITAT AHMEDABAD], relied upon.
Disallowance of bad debts u/s 36(1)(vii) - A.O. has discussed disallowance in respect of the claim of the assessee regarding bad debts u/s 36(1)(vii) but while computing the income on the assessment order, he has made one addition with regard to excess depreciation. - HELD THAT:- Bad debt is allowable in the year of write off of bad debt and the assessee is not required to establish that the debt have actually become bad. Thus, no disallowance of bad debts is called for but this fact has to be ascertained by the A.O. as to whether any addition on this account was in fact made by the A.O. or not and if such addition was made then the same should be deleted.
Decision in the case of TRF. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2010 (2) TMI 211 - SUPREME COURT], relied upon.
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2012 (9) TMI 988 - SUPREME COURT
Whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it? - Held that:- No inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Limited [2004 (11) TMI 519 - SUPREME COURT] this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed.
Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed. In the circumstances, we dismiss the appeal filed by the complainant Kailashpati Singh. We allow the appeal filed by Om Prakash, Pradeep Kumar, Shyam Bihari Singh and Bharat Shukla and set aside the impugned order to the extent it dismisses Cr filed by them for quashing order dated 14/06/2005 passed by Judicial Magistrate, 1st Class, Jamshedpur, in Complaint Case issuing process against them.
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2012 (9) TMI 987 - ITAT PUNE
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... ... ..... Virgin Creations (supra), disallowance of ₹ 19,99,800/- by invoking provisions of section 40(a)(ia) of the Act is unjustified, inasmuch as the assessee has deposited the corresponding tax deducted at source before the due date of filing of the return of income specified u/s 139(1) of the Act for assessment year in question. 10. As a consequence, the ultimate decision of the CIT(A) in deleting the addition is upheld, albeit on different grounds. Resultantly, the appeal of the Revenue is dismissed. 11. Coming to the Cross objection filed by the assessee, the same supports the order of the CIT(A). Since we have upheld the order of the CIT(A) in deleting the addition made on account of disallowance of payment to labour u/s 40(a)(ia) of the Act, the cross objection filed by the assessee becomes infructuous. 12. In the result, both the appeal of the Revenue as well as cross objection of the assessee are dismissed. Decision pronounced in the open court on 27th September 2012.
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2012 (9) TMI 986 - CESTAT MUMBAI
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... ... ..... er passing 2 months. 4. We find that there is a delay of more than five months in filing the appeal. Admittedly, the impugned order is received by the applicant on 23.9.2011 and the appeal was filed on 8.6.2012. Alongwith the application, the applicant filed an affidavit of the Ld. Consultant stating that the documents were handed over to him in the 1st week of December, 2011. There is no explanation on record to show that why there is a delay of 2 months in handing over the documents to the consultant. 5. As per the provisions of Sec.35B of the Central Excise Act,1944, the Tribunal can condone the delay in filing the appeal by showing reasonable cause for not filing the appeal within the normal period of limitation. In the present case, we find that the appellant failed to show reasonable cause for not filing the appeal within the normal period of limitation. Therefore, COD application is dismissed. Consequently, Stay petition and appeal are dismissed. (Pronounced in court)
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2012 (9) TMI 985 - CESTAT MUMBAI
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... ... ..... rfere on the basis of its own notions of the difficulties likely to be faced by the CHA or their employees. The decision is best left to the disciplinary authority save in exceptional cases where the punishment imposed is shockingly disproportionate or is mala fide.” 45. In view of the above decision, as the allegation of violation of CHAL Regulations stands proved, I agree with the view taken by Hon’ble Member (Technical) and find no infirmity in the impugned order. 46. The Registry is directed to place the matter before the Regular Bench for passing appropriate order. Sd/- (S.S. Kang) Vice-President MAJORITY ORDER In view of the majority decision, we uphold the order of the Commissioner of Customs debarring the appellant CHA from operating in Mumbai Customs Zone under Regulation 20(c) of the CHALR, 2004 and, accordingly, the appeal filed by the appellant is dismissed. Sd/- (P.R. Chandrasekharan) Member (Tachnical) Sd/- (Ashok Jindal) Member (Judicial)
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