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2009 (10) TMI 918
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... ... ..... tion was not decided at all by the High Court, and, therefore, they were not the subject mater of the S.L.P. in the Supreme Court. Therefore, this matter is to be decided in the light of the judgment of the Supreme Court. 2. These facts have not been disputed by the other side, but the learned Counsel for the other side submits that after the Supreme Court gave its judgment, this Court applied the judgment, irrespective of pendency of this petition to the present petitioners as well, which, in other words, would mean that the orders impugned in this petition against the petitioners already stand revoked. Therefore, we need not pass any further orders. However, notices have been served on the petitioners in the light of the judgment of the Supreme Court. If the petitioners are aggrieved of those notices, they are at liberty to take any appropriate remedy which may be available to them in law, irrespective of the outcome of this Writ Petition. Writ Petition stands disposed of.
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2009 (10) TMI 917
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... ... ..... erent expressions employed with respect to sale of asset and with respect to value of scrap. While, in case of the former, what is relevant is ‘the price at which it (the asset) is sold’, since expression employed for scrap is ‘amount of value of scrap’, Their Lordships have held that it is the ‘value’ of the scrap which must be taken into account by the Assessing Officer. In a way, thus, this decision supports the stand of the assessee. We are of the considered view that, as has been held by the learned CIT (A), that the Assessing Officer did not have any powers to tinker with the sale price of the asset and that he ought to have taken into account such sale proce for the purpose of computing the block of asset. No interference is thus called for. We approve the stand of the CIT (A) and decline to interfere in the matter. 7. In the result, the appeal of the revenue is dismissed. Pronounced in the Open Court today on the 29th October 2009.
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2009 (10) TMI 916
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... ... ..... ly reason for disallowance of the claim in the assessment is that the assessee has not shown the purpose for which the amount is carried over. However, it is the finding of the Tribunal that the respondent-assessee has only one object, that is, running of the educational institution which is a charitable institution and, so much so, the Tribunal held that the amount carried forward can be only for educational purpose which is accepted by the department in the hands of the assessee as a charitable object. We do not find any justification to take a view different from what was taken by the Tribunal, because, the revenue has no case that the assessee is likely to utilise the fund for any other purpose in violation of the objects of the Trust. The Trustees include the Minister for Transport as Chairman, Secretaries of the Department of Transport, Finance, Managing Director of a Government Corporation like KSRTC etc. Consequently, we dismiss both the appeals filed by the Revenue.
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2009 (10) TMI 915
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... ... ..... ffirm this decision in the absence of any suggestion, let alone proof, that the sale price of the dross was suppressed by the assessee. It cannot therefore be said, as was opined by the AO, that the disclosure of ₹ 102 lakhs against identified assets was sought to be reduced by ₹ 6 lakhs. In this view of the matter, we affirm the decision of the CIT(A) and dismiss the ground. 47. In the result, the appeal of the department is partly allowed. 48. As regards the assessee’s appeal, the only ground is against the disallowance of the loss of ₹ 5,43,748/- on account of sale of brass billets. This ground has been dealt with by us while deciding ground no.4 of the department’s appeal. For the reasons stated therein the disallowance is deleted. Accordingly, the appeal of the assessee is allowed. 49. In the result, the department’s appeal is partly allowed and assessee’s appeal is allowed. Order pronounced in the open court 30th October, 2009.
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2009 (10) TMI 914
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... ... ..... he involvement of the appellants in smuggling of the goods. The reliance placed by the learned Advocate are of no help to the appellants as in the instant case, the facts and circumstances are to be considered all-together with the acts and intentions of the appellants. Further, in the case of Customs Laws while deciding the case of smuggling of gold, degree of evidence is required to prosecute a person is different as compared to criminal prosecution. Further the Hon ble Apex Court in the case of Naresh J Sukhawani vs. Union of India (supra) has held that statement of co-accused can be used as substantive piece of evidence in such type of cases. 16. Accordingly, in the facts and circumstances of the instant case before me, I find that the appellants were actively involved in the smuggling of the goods and the adjudicating authority has rightly imposed penalties on the appellants. Accordingly, the impugned order is upheld and appeals are dismissed. (Pronounced in Court on..)
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2009 (10) TMI 913
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... ... ..... llant? (3) Whether on the facts and circumstances of the case, the sum of ₹ 20,695/- received as interest is liable to be taxed as income of the appellant? 3. So far as question Nos. 4 and 5 are concerned, leaned counsel for the appellant does not press these questions. 5. Both parties agree that the aforesaid three questions are covered by the judgment of the judgment of Division Bench of this Court dated 17th July, 2009 in Income Tax Appeal No. 931/2004 (Sind Co-op. Hsg. Society v. Income Tax Officer) reported in (2009) 26 DTR (Bom.) 149. Accordingly, all the three questions are answered in favour of the assessee and against the revenue. Appeal is disposed of in terms of this order with no order as to costs.
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2009 (10) TMI 912
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... ... ..... ,Adv. For Respondent Mr. Manish J. Shah, Adv. Mr. D.N. Ray, Adv. Mrs. Sumita Ray,Adv. Mr. Lokesh Choudhary, Adv. O R D E R Delay condoned. Dismissed.
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2009 (10) TMI 911
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... ... ..... elhi, to obtain benefit of exemption u/s 11 the assessee is required to show that the donations were voluntary. In the present case, the assessee had not only disclosed the donation but also submitted list of donors. The fact that complete list of donors was not filed or the donors were not produced, does not necessarily lead to the inference that the assessee was trying to introduce unaccounted money by way of donation receipts. This is more particularly so on the facts of the case where more than 70 of the donations were applied for charitable purposes. The facts of this case are almost identical to the facts, which were considered by the Delhi High Court in the case of Keshav Social & Charitable Foundation (supra). Therefore, respectfully following the ratio of decision of Jurisdictional High Court we decline to interfere in the order of CIT(A) on the issue in question. 5. In the result, revenue’s appeal is dismissed. Order pronounced in open court on 9-10-2009.
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2009 (10) TMI 910
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... ... ..... invoking a provision falling in chapter (iv) under the “Head computation of business income, particularly between section 28 to 43D, would be made under the “Head income from business and Profession” and not under the head “Income from other sources”, unless specifically so provided. Accordingly, though proposed by the Assessing Officer on the ground that TDS has not been paid to the account of the Central Government within time is in order, but assessee is entitled to deduction under Section 80IB thereon as it would be only a part of business profit. The argument of the Learned DR that assessee may claim benefit again on payment basis is premature and academic as there are enough legal recourses open to prevent such claims. As a result we do not find any force in this ground raised by the revenue. The same is dismissed. 6. As a result, appeal filed by the Revenue is dismissed. The order pronounced in the open Court on Dated 23rd October, 2009.
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2009 (10) TMI 909
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... ... ..... ee is having one of the unit exempt from tax, loss of such unit is to be accumulated and whenever such unit is having income, after setting off carry forward loss of such unit against income of exempted unit, deduction allowable under is to be considered. Profitability and deduction permissible to such unit is to be looked into independently as per provisions of law. During the course of hearing, both learned AR and learned DR agreed that matter may be restored back to the file of the AO for deciding all the issues afresh. Keeping in view totality of facts and circumstances of case, we restore the appeal to AO and direct the assessee to produce all the relevant details before the AO, and the AO is to examine all the assessee’s claim afresh after giving him due opportunity of being heard. We direct accordingly. 4. In the result, both the appeals of the assessee and Revenue are allowed for statistical purposes. Decision pronounced in the open Court on 14th October, 2009.
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2009 (10) TMI 908
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... ... ..... le when the assessment was made. We, therefore, allow the appeals vacating the orders of the Tribunal and by remanding the cases to the Assessing Officer for the assessee to produce cash flow statements showing availability of own funds for advances made to sister concerns, constitution, assessee’s interest, etc., in the sister concerns and the documents showing nature of assessee’s business interest and financial position of such business concerns at the time of making the advances for the officer to consider eligibility for deduction of interest on borrowed capital. In order to avoid further contest, we direct the Assessing Officer to examine the details furnished by the assessee, issue a written pre- assessment notice containing proposals for disallowance of interest, if any, and the reasons thereof so that the assessee gets an opportunity to file written objection and that the assessment should be completed after giving sufficient opportunity to the assessee.
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2009 (10) TMI 907
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... ... ..... ed CIT did not have powers to cancel the registration granted under section 12A. Accordingly, the impugned order is hereby vacated and, as a corollary thereto, the registration granted to the assessee under section 12A stands restored. 11. In the result, the appeal is allowed.” 8. In the instant case before us, the registration granted to assessee society u/s 12A was withdrawn by DIT(Exemption) by exercising the powers conferred u/s 12AA(3) of IT Act. In terms of the order of ITAT Pune Bench, there is no such power conferred under IT Act to DIT(Exemption). As the facts and circumstances of instant case are in pari-materia, respectfully following the order of the Coordinate Bench, we cancel the order passed by the DIT (Exemption) u/s 12AA(1)(b) canceling the registration u/s 12A and consequential to it the exemption granted u/s 80-G of the IT Act. 9. In the result, both the appeals of the assessee are allowed. Decision pronounced in the open Court on 23rd October, 2009.
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2009 (10) TMI 906
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... ... ..... ves to be accepted. However, since the issue is not examined in proper perspective, the Assessing Officer is directed to reconsider the matter in accordance with law. 7. Vide ground No.3 the Revenue contends that the learned CIT (A) erred in deleting the interest levied under section 234B of the Act. As could be noticed from para 3.3 of the Order passed by the learned CIT (A), the learned CIT (A) deleted the addition following the decision of the ITAT, Mumbai 'H' Bench in the case of Dy. DIT v. Bechtel International Inc IT Appeal No. 2920/Mum/2005, dated 21-4-2006 . 8. The learned Departmental Representative has not furnished before us any precedent wherein a contrary view is taken on the issue. 9. Under these circumstances, we are of the view that the Order passed by the learned CIT(A) does not call for interference and accordingly reject ground No.3 of the Revenue. 10. In the result, appeal filed by the Revenue is treated as partly allowed for statistical purposes.
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2009 (10) TMI 905
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... ... ..... ace value. Consequently, the loss arising on account of purchase at market value is written off in instalments by spreading over the same equally for every year until date of maturity. We are of the view that the Tribunal rightly upheld the assessee's entitlement to write-off of the loss in instalments. Consequently the departmental appeal is dismissed.
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2009 (10) TMI 904
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... ... ..... ish Ajmera vs. Asstt. CIT (2005) 96 TTJ (Chd) 896 (2005) 95 ITD 111(Chd), Poonam Rani Singh vs. Dy. CIT (2006) 99 TTJ (Del) 1167 (2005) 97 ITD 390(Del), CIT vs. Sun Engineering Works (P) Ltd. (1992) 107 CTR (SC) 209 (1992) 198 ITR 297(SC) and Vipan Khanna vs. CIT (2002) 175 CTR (P&;H) 335 (2002) 255 ITR 220(P&H). 25. In view of these facts and circumstances and in view of various decisions as mentioned above, we hold that the AO was not justified in making any addition without any material or information specially when no reasons were recorded in respect to the additions made. 26. In view of all the reasons discussed above, the assessment is quashed. 27. Since we have accepted the legal grounds of the assessee; therefore, we are not inclined to dispose the grounds on merit involved in the appeal of the assessee and in the appeal of the Department. 28. In the result, the appeal filed by the assessee is allowed in part whereas the appeal of the Department is dismissed.
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2009 (10) TMI 903
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... ... ..... provisions by giving specific interpretation. Therefore, answer to question No. 2 would depend upon sub-section (1B) to section 271, as interpreted in the aforesaid case. Since the Tribunal had no occasion to consider this aspect, as amendment came subsequently, though retrospectively, the appropriate course would be to remit the case back to the Tribunal, to decide as to whether satisfaction of Assessing Officer can be discerned in the present case from the order of the Assessing Officer on the principles laid down in Ms. Madhushree Gupta's case (supra). 12. The effect of answering the aforesaid two questions would be as under - (i)Orders of the CIT(A) and the Tribunal in respect of deletion of penalty on account of section 35D are set aside and it is held that penalty on both these accounts was rightly imposed by the Assessing Officer. (ii)For determining the question of satisfaction to be recorded by the Assessing Officer, the matter is remitted back to the Tribunal.
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2009 (10) TMI 902
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... ... ..... out the possibility of Shri Dilip J. Desai taking a stand, as he did, for avoiding his tax liability because in his case, the consequential income would not be exempt as his agricultural income. Looking to the totality of the facts and circumstances, in our opinion, the Learned Commissioner of Income Tax(Appeals) has given cogent reason for re-opening the assessment under section 148 and deleting the addition of ₹ 3 lakhs. We, therefore, decline to interfere. 11. The only ground involved in the Cross Objection by the assessee is against re-opening of assessment under section 147/ 148. While deciding the appeal of the Revenue, we have upheld the reasoning of Learned Commissioner of Income Tax(Appeals) upholding the action of A.O. regarding re-opening of assessment. Therefore, this ground of Cross Objection is rejected. 12. In the result, the appeal of the Department as well as Cross Objection by the assessee are dismissed. The Order pronounced in the Court on 16.10.2009
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2009 (10) TMI 901
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... ... ..... available at the time of clearance of the said cars. We are unable to accept the contention of the appellant that they have paid duty on the provisional price without any basis. So, the original authority rightly adopted normal sale price of the cars. We have also noted that after clearance of the cars from factory on the basis of provisional assessment, two cars were earmarked as waste and scraps meant for scrapping. Central Excise duty would be levied and paid on the value of the goods at the time of clearance from the factory gate. In the present case, the said two cars were cleared in usable conditions and, therefore, demand of duty on the value of the said cars at the time of clearance from the factory is justified. 5. In view of the above discussions, we do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the appellant is dismissed. Operative portion of the order was pronounced in open court on 28-10-2009.
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2009 (10) TMI 900
Payment of 'on money' for investment in flat - Undisclosed sources of income - unexplained payment made by the assessee to the developer - search and seizure operation carried - reliance on amount written in the seized document - AO in view of clinching evidences in the form of seized loose paper and also in the light of the statement made by Shri Ketan O. Der, there was no doubt about the payment of 'on money' made by the assessee and added the said amount to the total income treating the same as payment made out of undisclosed income - CIT(A) confirmed the addition -
HELD THAT:- We find that in the instant case the assessee has purchased one flat from M/s Ohm Developers in which case a search and seizure operation was carried out on 29.10.99. In the course of the search a book marked was found and on this book name of the assessee was written and against his name it was written amount received upto 31-3-99 Rs. 4,83,101/-.
Further partner of M/s. Ohm Developers has in his statement admitted to have received this amount from assessee in respect of sale of flat. However, the assessee has claimed to have made payment of Rs. 1,01,687/- only upto 31-3-99 and has consistently taken the stand that it has not paid balance amount of Rs. 3,81,414/- as stated in the seized document.
We find that no evidence could be brought on record by the Revenue to show that in fact the assessee only had paid the amount of Rs. 3,81,414/- to Ohm developers. No document containing signature of the assessee or handwriting of the assessee to corroborate the above making of payment by the assessee was found during the course of the search.
We find that the Hon'ble Supreme Court in the case of K.P.Varghese [1981 (9) TMI 1 - SUPREME COURT] had held that mere seizure of note books or documents at the personal residence of an employee would not conclude the issue against the employer company that on money has been received by the employer company. The onus of proving the charging of on money lies on the department.
We find that even at time of cross examination by the assessee the partner of M/s. Ohm Developers could not produce any evidence that the amount written in the seized document was in fact received from the assessee. In the instant case as the assessee has categorically denied to have made any payment in excess of Rs. 101,687/- upto 31-3-99 in respect of purchase of flat in our considered view the said denial cannot be brushed aside without bringing any positive material on record. Merely recording made by a third party or statement of a third party cannot be treated as so sacrosanct so as to read as a positive material against the assessee. Decided in favour of assessee.
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2009 (10) TMI 899
Condonation of delay - Supply of pipes for Drinking Water Supply Project-II by M/s. Hyderabad Metro Water Supply and Sewerage Board – benefit of exemption notification no. 6/2002 dated 1.3.2002 as amended - the decision in the case of CCE., C. & ST. (A-III), HYDERABAD Versus IVRCL INFRASTRUCTURES & PROJECTS LTD. [2008 (12) TMI 198 - CESTAT, BANGALORE] referred, where it was held that benefit of exemption available - Held that: - delay condoned - decided against Revenue.
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