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Showing 341 to 360 of 520 Records
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2004 (5) TMI 248 - ITAT DELHI-E
Deduction, Exporters ... ... ... ... ..... ound that there was no actual export of good by the assessee in the year under consideration. No doubt the Special Bench in the case of Lalsons Enterprises has held that proviso to section 80HHC has to be read independently and 90 of export incentives are to be allowed as per the provisions of the proviso. Heavy reliance has been placed by the learned counsel for the assessee on this aspect of the issue but such contention of learned counsel for the assessee is without force in view of the specific language of the proviso to the effect that 90 of export incentives are to be allowed in the ratio of export turnover to the total turnover. In the absence of any export, no computation can be made under the proviso according to the formula laid down therein. 14. In view of the above discussion, I agree with the conclusion arrived by the JM to the effect that assessee is not entitled to deduction under section 80HHC. The matter would now go to the regular Bench for necessary orders.
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2004 (5) TMI 247 - ITAT DELHI-E
Income Escaping Assessment ... ... ... ... ..... regarding various expenses incurred by it. The so called reasons clearly shows that the Assessing Officer wanted to make investigations into the claim of the assessee regarding entertainment expenses and other expenses as well as the donation of Rs. 5 lakhs. In my opinion, the proceedings under section 147 cannot be resorted to for making roving enquiries. As noted in the earlier para, the Hon ble Supreme Court has clearly held that belief must be held in good faith and could not merely be a pretence. In view of the same, it has to be held that provisions of section 147 cannot be invoked merely for making investigation or roving enquiries. Therefore, even on this account, such proceedings were bad in law. 10. In view of the above discussion, I am entirely in agreement with the view expressed by learned AM. Accordingly, it is held that re-assessment proceedings under section 147 were not validly initiated. The matter would now go back to the regular Bench for necessary orders.
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2004 (5) TMI 246 - ITAT DELHI-E
Appellate Tribunal ... ... ... ... ..... equires rectification. As observed by us, the power of rectification under section 254(2) is limited and in exercise of such powers the Tribunal cannot review its earlier order. We are further of the view that there is no apparent or glaring mistake in the order of learned Third Member and what the applicant wants is to review the order of the learned Third Member which course is not available. On the basis of the above, we reject all the pleas taken in the misc. application. 54. The learned counsel for the assessee has also made reference to the decision of Hon ble Delhi High Court in the case of C.S. Mathur to justify his point on merits of the case. 55. Since we are of the view that there is no mistake apparent on record in the order of the learned Third Member requiring any rectification, we are not required to consider the matter on the merits of the case as it would amount to review the order of the Tribunal. 56. In the result, the miscellaneous application is rejected.
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2004 (5) TMI 245 - ITAT DELHI-C
Business Disallowance ... ... ... ... ..... the order of Ld. CIT(A). The Ld. CIT (A) however followed the decision of the jurisdictional High Court in CIT v. Expo Machinery Ltd. 1991 190 ITR 576 (Delhi). The Hon ble High Court upheld the decision of the Tribunal and in that case wherein the discharge of their official duty the employees of a company had their food along with the company s customers in a hotel, they take food while at work because it is their duty to entertain the customers of the company. Therefore, any expenditure incurred on the food and beverages of the employees without discharging their duty to entertain the customers of the company is to be excluded from the purview of section 37(2A) of the Act. The Ld. CIT(A) only estimated an amount of 25 as amount attributable towards the employees participation. The same is reasonable. No interference is considered necessary in the decision taken by him. This ground of the revenue also stands rejected. 22. In the result, the revenue s appeal stands dismissed.
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2004 (5) TMI 244 - ITAT DELHI-B
Profit And Gains From Industrial Undertakings ... ... ... ... ..... Ltd. 1987 32 Taxman 434/ 1988 170 ITR 31 wherein the court was concerned with the expression for the purpose of business of construction, manufacture or production . There is no dispute that the expression for the purpose of business is much wider but their Lordships were not considering the expression derived from . Since the expression derived from has to be used in the restricted sense, it cannot include the incidental receipts earned in the course of such business. There must be direct link with the main activity of the business of industrial undertaking and the profits earned. In our opinion, both the above judgments are quite distinguishable. 16. In view of the above discussion, we uphold the orders of CIT(A) except in respect of receipts by way of sale of ash. Consequently, the Assessing Officer is directed not to exclude the sale of ash for the purpose of computing deduction under sections 80-I and 80-IA. 17. In the result, appeals of the assessee are partly allowed.
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2004 (5) TMI 243 - ITAT DELHI-A
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... ... ..... er dates given by the assessee the initial application for Government approval was made on25th Oct., 1989. Thereafter assessee s application was filed for extension on1st May, 1991. The approval was granted on19th Aug., 1992. It is, therefore, clear that approval was granted before 1st October, of the relevant assessment year and covered both the periods, i.e., initial as well extended period. Further, the assessee is entitled to exemption under s. 10(6)(viia) by virtue of the Notification No. S.O. 235 of March, 1992 of the Government covering field of information technology. It must be stated that the individual is rendering services as technician in the employment in a business carried on inIndiaby M/s Cray Research India Ltd. There is, therefore, no reason to gross up his salary. The addition made in this regard is therefore, deleted. The order of CIT(A) is confirmed and the appeal of the Department is dismissed. 9. In the result, the appeal of the Department is dismissed.
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2004 (5) TMI 242 - ITAT DELHI-A
Deduction of tax at source ... ... ... ... ..... he deposit was deemed to have been refunded and placed again with the lessor. Therefore, in our considered view, the deposit placed by the lessee was not rent paid in advance but, in fact, was a security deposit as is commonly understood. Further, in order to consider it to be refund of deposit, it is not necessary that the lessor should physically refund the deposit to the lessee. In the event of the lease not being renewed at any time in future, the same could be adjusted against the rent payable by the lessee. Thus would tantamount to refund of deposit. Therefore, it was a refundable deposit which could not be subjected to TDS as it did not fall within the definition of the term rent and also as clarified by the Board in its circular mentioned earlier. Accordingly, we hold that the assessee was not liable to deduct tax at source from the amount of Rs. 2,22,000 and hence no penalty was leviable. We cancel the penalty. 6. In the result, the appeal of the assessee is allowed.
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2004 (5) TMI 241 - ITAT DELHI
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... ... ..... htly deleted the additions. 6. In cross-objection besides supporting the order of the CIT(A), the assessee has raised a plea that its ground No. 10 relating to charging of interest under s. 234B was not adjudicated, but from perusal of the order of the CIT(A) I find that the CIT(A) has adjudicated this issue in his order. In any case, I find force in the contention of the assessee that without passing a direction in the assessment order, interest under s. 234B cannot be charged. In support of this view, I rely upon the following judgments of the jurisdictional High Court (i) CIT vs. Kishan Lal (HUF) (2002) 258 ITR 359 (Del) (ii) CIT vs. Insilco Ltd. (2003) 179 CTR (Del) 214 (2003) 261 ITR 220 (Del) and (ii) CIT and Ors. vs. Ranchi Club (2000) 164 CTR (SC) 200 (2001) 247 ITR 209 (SC). 7. I, therefore, delete the interest charged under s. 234B of the IT Act. 8. In the result, the appeal filed by the Revenue is dismissed and the cross-objection filed by the assessee is allowed.
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2004 (5) TMI 240 - ITAT DELHI
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... ... ..... ined regular books of account, it does not follow that the assessee should be assessed on accrual basis only. The legal position could be contrary that where books of accounts are not kept, it should be assumed that the assessee is following cash system of accounting. Reference in this respect is invited to the judgments in N.R. Sirker vs. CIT 1976 CTR (Gau) 386 (1978) 111 ITR 281 (Gau) and (1989) 80 CTR (Gau) 247 (1989) 180 ITR 183 (Gau). Reference is also invited to the judgment reported in (1990) 90 CTR (Ori) 109 (1991) 188 ITR 208 (Ori). We find Tribunal, Delhi A Bench, has also taken the same view in its order dt. 23rd Feb., 2004, in ITA No. 1693/Del/1996 in the case of Babu Ram. We, therefore, hold that the assessee has rightly been assessed for the entire amount of enhanced compensation and interest in the asst. yr. 1995-96 and for that reason we allow these appeals filed by the assessee and delete the assessments of these amounts in the asst. yrs. 1987-88 to 1994-95.
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2004 (5) TMI 239 - ITAT DELHI
Salary To Partner ... ... ... ... ..... the learned CIT(A) was not justified in upholding the view of the AO. The disallowance of remuneration to the partner to the tune of Rs. 39,100 and the addition of the same amount is, therefore, deleted. The ground No. 2 is, therefore, allowed in favour of the assessee. 10. Ground No. 3 is directed against the charging of interest under s. 234B. The learned CIT(A) has upheld the action of the AO by observing that to charge interest is mandatory and is consequential. The AO, in the assessment order, has observed charge interest under ss. 234B and 234C as per law . The learned counsel for the assessee submitted before me that it is not sufficient requirement of law. In my view, the argument of the learned counsel for the assessee cannot be accepted. The AO has issued specific direction for charging of interest under ss. 234B and 234C. No interference is called for in the order of the learned CIT(A). This ground, therefore, fails. 11. In the result, the appeal is partly allowed.
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2004 (5) TMI 238 - ITAT CHANDIGARH-B
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... ... ..... me with the IT Department and the same mistake would have been continued in the succeeding year as well without verifying as to whether the audit report for the earlier year was filed by the clerk. 12. Taking the totality of the facts and circumstances of the case into consideration including the contradiction in the claim of the assessee coupled with lack of evidence in support of the claim, we are of the considered view that the assessee has failed to establish reasonable cause for failure to file audit report for the respective assessment years within the period specified under s. 44AB. The decisions relied upon on behalf of the assessee are distinguishable on facts insofar as no reasonable cause has been established in this case and, therefore, the penalty under s. 271B is attracted and has rightly been levied by the Revenue Authorities. 13. Finding no merit in the appeals of the assessee, we dismiss the same. 14. In the result, the appeals of the assessee are dismissed.
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2004 (5) TMI 237 - ITAT CHANDIGARH-A
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... ... ..... f the belief of the AO that the income of the assessee has been underassessed and so as per Expln. 2(c)(i) of s. 147 of the Act, the income of the assessee has escaped assessment and hence, we are of the opinion that as per provisions of s. 147/148 of the Act, the assessment reopened by the AO and the additions made by framing the assessment under s. 147 r/w s. 143(3) was valid and legal, as it was based on the decisions of the jurisdictional High Court of Punjab and Haryana on the basis of which the claim already allowed by the AO under s. 143(1)(a) of the Act was required to be disallowed by the AO by reopening the assessment under s. 147 and by passing an order under s. 147 r/w s. 143(3) of the Act. 2.12 For the reasons stated above, the well-reasoned and well-discussed impugned orders of the CIT(A) are upheld and the grounds of appeals taken by the assessee in his respective appeals are rejected. 3. In the result, all the five appeals filed by the assessee are dismissed.
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2004 (5) TMI 236 - ITAT BOMBAY-I
Interest On Borrowed Capital ... ... ... ... ..... scellaneous Application stands rejected. ORDER UNDER SECTION 255(4) Per Pramod Kumar, AM. - On a difference of opinion between the Members constituting this bench, when appeal originally came up for hearing, following question was referred for the esteemed views of a Third Member Whether on the facts and in the circumstances of the case, the learned CIT(Appeals) is justified in assuming the jurisdiction under section 263 of the I.T. Act and thereafter setting aside the order of the Assessing Officer? 2. Shri M.K. Chaturvedi, Hon ble Vice President (MZ) and acting as a Third Member, held that the Commissioner was justified in assuming jurisdiction under section 263 of the Act. He thus concurred with the learned judicial Member Shri N. Vijaykumaran who had also held so and, for that reason, dismissed the assessee s appeal. 3. The majority view thus is that the appeal is liable to be dismissed. 4. In the result, and in accordance with the majority view the appeals are dismissed.
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2004 (5) TMI 235 - ITAT BOMBAY-G
Transfer Of Assets ... ... ... ... ..... s that agricultural income is not to be included in total income. Here, it is pertinent to note that as per section 2(2) of the Finance Act, 1997, also, only agricultural income of the assessee has to be considered for rate purposes and it does not say that agricultural income of minor children is also to be considered for rate purposes. In view of this, we are of the considered opinion that the agricultural income of the minor children of the assessee cannot be clubbed with the agricultural income of the assessee under section 64(1A) and it cannot be said that the agricultural income of the minor children of the assessee is agricultural income of the assessee and therefore in view of section 2(2) of the Finance Act, 1997, this agricultural income of the minor children of the assessee cannot be included into the income of the assessee for rate purposes. We hold accordingly and both these grounds of the assessee are allowed. 10. In the result, the assessee s appeal is allowed.
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2004 (5) TMI 234 - ITAT BANGALORE-B
Business Income ... ... ... ... ..... mation of a valid partnership firm is existing the status for the purpose of assessment should be taken as a firm and not as AOP. Even the assessee has filed the return in the status of firm. 5.4 At the time of hearing learned counsel for the assessee submitted that interest paid by the partner has been claimed as business revenue expenses in the hands of the partner. The claim was made on the ground that the amount was borrowed for the purpose of business. If the partners have borrowed for the purpose of their business, it is equally true that the firm has lent the money in the course of its own business. Thus the principle of mutuality cannot be applied. 6. The next ground of appeal is charging of interest under section 234B. Charging of interest is compensatory in nature and consequential as per the provisions of the Act. The same is to be charged as per law. The appeal and cross-objection of assessee are dismissed and the appeal and cross-objection of revenue are allowed.
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2004 (5) TMI 233 - ITAT AHMEDABAD-C
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... ... ..... f the claim during the year under consideration was not full and final and subsequent claim of Rs. 2,11,284 was further allowed by the insurance authorities. After the claim of Rs. 2,11,284 there was no loss to the assessee. On the other hand, total claim received by the assessee was more than loss incurred. Since there was no loss, the question of allowing any deduction for the loss does not arise and, therefore, the CIT(A) rightly sustained the disallowance of loss. The CIT(A) has already observed that if more income is assessed in asst. yr. 1994-95, the assessee is at liberty to make appropriate claim for asst. yr. 1994-95. We, therefore, do not find any infirmity in the order of the CIT(A) in this regard. The same is sustained. 16. In the result, the Revenue s appeals in ITA Nos. 3628, 3629, 2433, 2434 and 2435 are dismissed. The Revenue s appeal No. 3627 is partly allowed. Assessee s appeal in ITA No. 3448 is dismissed and assessee s cross-objections are also dismissed.
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2004 (5) TMI 232 - ITAT AHMEDABAD-C
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... ... ..... he contributors should derive profit from contributions made by themselves to a fund which could only be expended or returned to themselves is established, the doctrine of mutuality is established. It is not the Revenue s case that the aforenoted three conditions are not established in the instant case. As a matter of fact, before the Tribunal, the learned Departmental Representative had conceded that the controversy sought to be raised again in this appeal, stands concluded against the Revenue in Chelmsford Club vs. CIT. In this view of the matter, no question of law, much less a substantial question of law, survives for our consideration. 8. In the light of the above discussion and under the peculiar circumstances, we find that there is no justification in taxing income. We, therefore, set aside the orders of the lower authorities and the claim of the assessee is allowed. Accordingly, the additions made by the AO are deleted. 9. In the result, both the appeals are allowed.
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2004 (5) TMI 231 - ITAT AHMEDABAD-C
Powers Of Rectification ... ... ... ... ..... ular case. In his intervener s case the order of the Tribunal is dated 21-3-1997 and as per AD on record it was served on the assessee on 7-5-1997 and the application is made by the assessee on 2-12-2002 i.e., clearly beyond four years from the service also. The intervener has no case even on that account. 33. Mr. Divatia s other plea that where a Statute does not provide any time limit then an application within a reasonable time be admitted and rectification should be made, is also not convincing as the time-limit of four years can well be said to be a reasonable time and allowing a period beyond four years would certainly be unreasonable if we take in view the trend of the various legislative intentions aforesaid providing for four years time limit for any rectification. 34. In the result, the Miscellaneous Application of the assessee is dismissed as the order of the Tribunal cannot be rectified after the end of four years from the date of the order sought to be rectified.
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2004 (5) TMI 230 - ITAT AHMEDABAD-A
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... ... ..... hat the AO did not provide the reasonable opportunity of hearing and has not considered all the evidence and material filed by the assessee. Under the circumstances the CIT(A) should have examined all the relevant material after providing reasonable opportunity of hearing to the AO or it should be sent back to the AO for the necessary examination and recording the relevant facts. In the light of the above facts of the case there was a proposition from the Bench for sending back the issue to the file of AO for necessary examination and recording all the facts. The learned representatives of the parties have accepted the same. In the light of the above discussion and under the facts and circumstances of the cases, we think it proper to send back these appeals to the file of the AO to decide the issue afresh in accordance with law after providing reasonable opportunity of hearing to the assessee. 8. In the result, all the appeals are treated as allowed for statistical purposes.
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2004 (5) TMI 229 - CESTAT, NEW DELHI
Refund claim for pre-deposit made from Cenvat/Modvat Account ... ... ... ... ..... he amount is paid through MODVAT account. Therefore, the ratio of the above decisions relied upon by the appellants is not applicable to the facts of the present case. 8. The Commissioner (Appeals) allowed the refund by way of credit of only Rs. 7,61,120.00 and in respect of the remaining amount, the matter was remanded to the Adjudicating Authority. The Adjudicating Authority while allowed the refund of the whole amount after scrutiny of the record, the claim was also pre-audited. After verifying the relevant record the refund was allowed. Therefore, now it cannot be said that the Assistant Commissioner has not gone into the merits of the case as per the directions of the Tribunal. In this situation, I find no infirmity in the impugned order whereby the refund was allowed to CENVAT account. However, the impugned order is modified to the extent of that appellants are entitled for the refund of Rs. 817694/- through CENVAT account. The appeal is disposed of as indicated above.
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