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2009 (11) TMI 930 - ITAT AHMEDABAD
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... ... ..... t has duly certified the balance sheet of the assessee. Therefore, we are of the view that the machinery has been used during the year under consideration and the assessee is entitled for the depreciation. We accordingly allow the depreciation amounting to ₹ 21,76,451/-. 11 The third ground relates to the claim of gratuity amount of ₹ 85,798/-. At the time of hearing, the learned AR submitted before us the approval granted by the CIT to the assessee’s Employees Group Gratuity-cum-Life Assurance Scheme and thus it was pointed out that this is set up by the assessee was duly approved as per the Income-tax Act with effect from 1-5-1999 and therefore the assessee should be allowed deduction for the same. The learned DR was fair enough to concede the position. We accordingly delete the disallowance of ₹ 85,798/-. Thus, this ground stands allowed. 12 In the result, the appeal of the assessee is allowed. Order pronounced in the open court today on 09-11-2009
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2009 (11) TMI 929 - CESTAT, BANGALORE
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... ... ..... d explanation given by the Assessee, regarding the shortages and excesses are justifiable, we do not find any reason for interference in the impugned Order passed by the learned Adjudicating Authority. As regards the goods seized at the Delhi Depot we concur with the views of the Adjudicating Authority that the said goods were never removed without payment of duty from the factory premises as there is evidence of payment of duty on the invoice value which has been Indicated. 21. Since, we have already set aside the OIO No. 32/05 on the ground that the entire Order-in-Original is traversing beyond the Show Cause Notice, we find that the charges of undervaluation do not stick on the Appellants, and as such the cash recovered from the residence of Shri Narinder Goel, is correctly held by the Adjudicating Authority as it does not correlate to any particular transactions. There are no grounds for holding that the cash is liable for confiscation. The Revenues appeals are rejected.
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2009 (11) TMI 928 - CESTAT, CHENNAI
Misdeclaration in duty drawback shipping bills - On examination of the consignment it was found to be “semi-finished” “burinishable finished leather” as against the declaration that it was finished leather - Held that: - in an identical situation in the case of Sri Shanmuga Prima Tannery Vs Commissioner of Customs, Chennai [2003 (9) TMI 785 - CESTAT, CHENNAI], the Bench accepted the contention of the appellants that the leather was finished leather, although a lesser protective coat with dye/pigment was applied - appeal allowed - decided in favor of assessee.
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2009 (11) TMI 927 - ITAT DELHI
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... ... ..... al Bench of the ITAT in the case of DCIT Vs. syncom Formulations India Ltd. (2007) 106 ITD 227, he was fair enough to admit that decision of the Special Bench of the ITAT in the case of Syncom Formulation India Ltd. (supra) has not been approved by the Hon’ble Mumbai High Court in the case of ACIT Vs. Ajanta Pharma Ltd. o p /o p 8.2. After hearing both the parties we find no infirmity in the order of the CIT(A) on the issue in question. In taking this view we may mention that we have followed the ratio of decision of Hon’ble Mumbai High Court in the case of Ajanta Pharma Ltd. (supra).(223 CTR 441 (Bom.). o p /o p 6.3. Admittedly, facts of the case for the assessment year in question remaining the same as in A.Y. 2005-06, we see no reason to interfere with the order of CIT(A). Ground is rejected. o p /o p 7. In the result, both the appeals, filed by the revenue as well as the assessee stand dismissed. o p /o p Order pronounced in open court on 13-11-2009. o p /o p
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2009 (11) TMI 926 - ITAT VISAKHAPATNAM
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... ... ..... service of notice, none appeared on behalf of the assessees. We therefore had no other option except to hear the appeal ex-parte and accordingly the revenue was heard. We have carefully examined the order of the CIT(A) on the impugned issues and we find that CIT(A) has adjudicated all the issues in detail in its order. Since no infirmity is noticed in the order of the CIT(A), we confirm the same. 3. In the result, the appeal of the assessee is dismissed. Pronounced in the open Court on 30.11.2009
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2009 (11) TMI 925 - ITAT DELHI
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... ... ..... infirmity in the orders of lower authorities for declining claim of deduction u/s 80IB in respect of extra income surrendered during survey on account of excess stock physically found as compared to the stocks indicated in the regular books of account. 13. Last grievance of the assessee relates to disallowance of ₹ 26,442/- on account of telephone expenses, by treating the same as personal expenditure instead of business expenditure. We found that AO has disallowed 1/6th of the telephone expenses which was confirmed by the CIT(A). Keeping in view the nature of the assessee’s business vis-à-vis quantum of transactions involved in the business, we consider it appropriate to confine disallowance on account of telephone expenses to the extent of 1/10th of the expenses so incurred, on account of personal use. AO is directed accordingly. 14. In the result, the appeal of the assessee is allowed in part. Decision pronounced in the open Court on 6th November, 2009.
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2009 (11) TMI 924 - ITAT DELHI
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... ... ..... e order of the Commissioner of Incometax (Appeals). It is also submitted that as per the Tribunal decision in assessee’s own case for assessment year 2001-02, this issue is covered in favour of the assessee . He has drawn our attention to para.25 of this Tribunal decision. 16. We have considered the rival submissions, perused the material available on record and have gone through the orders of the authorities below. Since the Ld.DR of the Revenue could not point out any difference in the facts in the present year with the facts in assessment year 2001-02, we find no reason to take a contrary view in the present year and hence by respectfully following the Tribunal decision in earlier year of assessee’s own case, we decide both these issues in favour of the assessee in the present year also. Ground nos.4 & 5 are also rejected. 17. In the result, the appeal of the Revenue is dismissed. 18. Order pronounced in the open court on the date of hearing on 18.11.2009.
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2009 (11) TMI 923 - ITAT AHMEDABAD
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... ... ..... matter, we find that the CIT(A) has not disputed the gross receipts from the agricultural holdings but has only held that the expenses for earning the income will be 40 of the gross receipts. If that is so, the expenses will amount to ₹ 1,93,400/- out of the gross receipts of ₹ 4,83,500/-. Thus, the net agricultural income will be ₹ 2,90,100/-. It appears that there is a mistake in the calculation made by the CIT(A). Therefore instead of ₹ 1,70,000/- to be taken as net agricultural income, ₹ 2,90,100/- is directed to be taken as net agricultural income. The difference between the net agricultural income of ₹ 3,75,430/- declared by the assessee and ₹ 2,90,100/- estimated by us as agricultural income, which comes to ₹ 85,330/- is directed to be taken as “income from other sources”. The ground is thus partly allowed. 12. In the result, the appeal is partly allowed. Order pronounced in the open court 6th November, 2009.
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2009 (11) TMI 922 - ITAT AHMEDABAD
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... ... ..... mmissioner of Income Tax(Appeals) and confirmed by the Tribunal. The assessee had provided calculation of fair value of services before the Ld. Commissioner of Income Tax(Appeals) which was sent to the Assessing Officer during remand proceedings. There is no material to justify the disallowance made by the Assessing Officer. Further, Tribunal in the case of Jay Infra Trade Private Limited ITA No. 261/Ahmedabad/2007 decided on 30-09-2009 held that there is no excessive payment for services provided by Jay Infra Trade Private Limited. Thus, once factum of excessive payment for services are not proved, there is no case of any addition even in the case of the assessee. o p /o p Thus, we reject this ground of the Revenue also. o p /o p 20. Other two grounds are general in nature and they do not require any specific adjudication. o p /o p 21. As a result, appeal filed by the Revenue is dismissed. o p /o p This order is pronounced in open Court on Dated 6th November, 2009. o p /o p
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2009 (11) TMI 921 - HIMACHAL PRADESH HIGH COURT
Deduction u/s 80IB - Scope of words “derived from”- whether MODVAT credit and income from erection and commissioning of machinery derived from the business of the industrial undertakings? - HELD THAT:- Apex Court in M/S LIBERTY INDIA VERSUS COMMISSIONER OF INCOME TAX [2009 (8) TMI 63 - SUPREME COURT] held that the duty draw backs could not be deemed to be profits derived from business. It is apparent that the Apex court held that it is only the profits generated by the business i.e. operational profits which are entitled to the benefit under Section 80IA. In Sterling Food [1999 (4) TMI 1 - SUPREME COURT] has also laid down a test as to what is the source of income.
In view of the law laid down by the Apex Court it is apparent that the words “derived from” are much narrower in connotation as compared to the words “attributable to”. The Industrial Undertaking would be entitled to claim deductions under Section 80IB only if it shows that the profit is derived from the business of such Industrial Undertaking. The income should be derived from the operational profits of the business and the source of income should be business itself.
MODVAT credit - MODVAT credit is available to the assessee because it purchases raw material for manufacture of the machinery. This is an integral part of the business of the Company. It gets MODVAT credit on the excise paid on such inputs. This is adjusted against the excise payable on the final product. At the end of the year some MODVAT credit was lying in the name of the assessee. This is its income derived from the business itself. If it was not manufacturing the machinery it could not have obtained the MODVAT credit. It is not entitled to sell the MODVAT credit. It can only adjust it against the final product sold. Therefore, if there is a credit of MODVAT at the end of the year this would be income derived from the business of the Company. Hence, the assessee is entitled to claim deduction under Section 80IB.
Amount received by the assessee as erection and commissioning charges - This is also an integral part of the business. When a customer buys plant and machinery, he may ask the manufacturer to erect and commission the machinery. When the manufacturer erects and installs the machinery at the request of the customer the amount received by him is derived from the business. It is directly relatable to the business and the source of income is the business itself. When the assessee is engaged in the business of manufacture, the word ‘manufacture’ cannot be read so narrowly so as to limit the amount only to the price of the goods sold. If the manufacturer is required by the customer to erect and commission the machinery the amount received by it on this count is income derived from the business itself and therefore eligible for deduction u/s 80IB.
Decided in favour of assessee.
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2009 (11) TMI 920 - ITAT DELHI
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... ... ..... s decided this issue treating the computer accessories and peripherals as part and parcel of computer. Hence, the depreciation was found to be allowed 60 . Thus, in the light of Kolkata ITAT decision, I direct to allow depreciation 60 against the computer accessories and peripherals. The A.O. is directed to give relief." 10. On considering the submissions of both the parties and going through the orders of tax authorities below, we are of the opinion that the CIT(A) by relying upon the decision of Hon'ble ITAT in the case of Simorn Majumdar (supra) has rightly allowed the depreciation 60 as claimed by the assesee and so the well reasoned order s of CIT(A) do not call for any interference from our side and accordingly the same are upheld and ground no.3 of the instant appeals of the Revenue are rejected. 11. In the result both the instant appeals of the Revenue in ITA No.3749/D/08 and ITA No.3750/Del/08 are dismissed. Order pronounced in the Open Court on 13.11.2009.
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2009 (11) TMI 919 - ITAT AHMEDABAD
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... ... ..... nstitutions from which interest was earned may be quantified by the AO and allowed as a deduction under Section 57(iii) of the Act. In line with our decision, the interest expenditure, out of the claim of ₹ 197.48 crores, which is found not allowable as per our directions will be capitalized and added to the cost of the assets/capital works-in-progress since the business of the assessee has not commenced during the relevant previous year even according to the AO. The grounds taken by the department are thus partly allowed, subject to the above remarks. 72. In the result, the appeal of the department is partly allowed to the extent indicated above. 73. To sum up, the assessee’s appeals being ITA Nos.3741/ahd/2007, 3253/ahd/2008, 3254/Ahd/2008 and 3255/Ahd/2008 are partly allowed. The department’s appeals being ITA Nos.3545 and 3546/Ahd/2008 are dismissed and that of ITA No.3547/Ahd/2008 is part allowed. Order pronounced in the open court 13th November, 2009.
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2009 (11) TMI 918 - ITAT DELHI
TP Adjustment - Comparable selection - unadjusted arithmetic mean of the comparable companies worked out to 9.89%. The assessee's operating margin on total operating cost worked out to 15.97%, which was higher than the average of comparable companies - HELD THAT:- We find ourselves in agreement with the ld. CIT(A) that the AO has rejected the profit margin declared by the assessee in an unjustified manner. He has selected four companies which were rejected by the assessee company. The assessee submitted that these companies were rejected for the selection because they either had insufficient description information, or significant related party transaction or had exceptional year of operation. The reasons were not considered by the AO and he rejected the submission in a summary manner. Assessee's contention that selection of these companies by the AO amounts to Cherry Picking and hence not justified caries considerable cogency.
AO also did not elaborately analyse the results of these companies, but merely stated that at least 3 other companies rejected by the assessee in its document had shown better margin than the assessee company. Hence he made the adjustment of 5%. Now the assessee's submission in this regard is that the average mean of these four companies selected by the AO also was 13.62%. It was lower than the operating margin of the assessee which was 15.97%. This also shows that AO's action did not have any basis. Further, the ld. Counsel of the assessee's submission is that the AO has made an adjustment of 5% in the operating profit margin where-as the existing provision of Act contained in the proviso of section 92C allows a variation of 5%.
Therefore, it is amply clear that the AO has arbitrarily made addition which is not in accordance with law. Hence, we do not find any infirmity or illegality in the order of the ld. CIT(A) in this regard. Hence, we hold the same.
In the result, the revenue's appeal is dismissed.
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2009 (11) TMI 917 - MADHYA PRADESH HIGH COURT
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... ... ..... dealt with the controversy from the angles that have been reflected in the decisions referred to hereinabove. Quite apart from the same, the past practice has not been appositely considered. The CIT, as is manifest, has erroneously placed the onus on the assessee as regards collection of evidence by the employer. In view of the aforesaid, we are inclined to quash the impugned order and remit the matter to the CIT to deal with the matter afresh in the light of the decisions referred to hereinabove after affording opportunity of hearing to the petitioner or its successors. The CIT is directed to dispose of the proceeding within a period of three months from the date of receipt of the order passed today. As the amount of tax and penalty have already been recovered and the matter is remanded for adjudication, the Board shall not put forth any claim for refund at this stage. 17. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.
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2009 (11) TMI 916 - KERALA HIGH COURT
Validity of the notices u/s 133(6) - calling for particulars of cash transactions above ₹ 1 lakh - contentions of the cooperative societies that they do not answer the description of "person" referred to in the section and that details could be called for only pertaining to enquiry pending were turned down based on the amendments - HELD THAT:- As in view of the consistent judgments of this Court and the decision of the Supreme Court, we do not think there is any scope for interference with the judgments of the learned Single Judges upholding the validity of notices after overruling the contentions raised by the appellants.
Whether the general notice calling for cash particulars including deposits of various depositors above ₹ 1 lakh is issued by the concerned officer with the prior approval of the Director or the CIT, as the case may be? - HELD THAT:- In the first place, we feel that the notices do not pertain to loans advanced by societies and even renewals granted by them by closing the old loans against fresh loans. In our view, particulars of the transactions called for are cash transactions above ₹ 1 lakh and deposit amount of ₹ 1 lakh and above, the details of which the appellants/petitioners are liable to furnish. We therefore extend the time for furnishing details called for till 31st Jan., 2010. In view of the extension of time granted by us, we direct the respondent officers to recall the penalty proceedings, if any, initiated u/s 272A of the Act after receipt of information. It any appellant/petitioner after collecting substantial details requires further time, such society is free to furnish the collected details and then apply to the officer for further extension of time, and we are sure, the officer concerned will grant reasonable time if there is bona fide in the request made by the society and if substantial details are already furnished.
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2009 (11) TMI 915 - KERALA HIGH COURT
Addition u/s 40A - cash payments exceeding permisiable limits - assessee made massive purchases from various suppliers of processed fish by paying cash instead of making payment through account payee cheques or demand drafts - claim of exemption for payments made to producers of fish or fish products for the purchases other than through account payee cheques or demand drafts - whether the assessee has discharged their burden of purchase of fish products from the suppliers in terms of r. 6DD(f)(iii) of the IT Rules ? - assessee is a marine exporter who directly export marine products and is also engaged in supplying marine products to export houses for export as a supporting manufacturer.
HELD THAT:- We feel the exemption clause generally covers a class of goods in all forms without confining itself to any particular form leaving other forms of it from the very same class. When fish and even manufactured products of fish are covered by the exception clause and the payments to its producers in excess of the limit of ₹ 20,000 are covered by the exception clause, we see no reason why the processed fish which is an intermediary, should be taken out of the scope of the section.
Rule makers never intended processed fish to be taken out of the scope of sub-cl. (iii) of cl. (f) of r. 6DD because the Government under the rule considers fish only in two forms, either fish as such or in it's product form. In other words, sub- r. (iii) of r. 6DD(f) covers all forms of fish, though the broad classification is only between fish and fish products. So much so, in our view, since the processed fish purchased is not fish in the same form it is obtained, it falls within the meaning of fish product under the above rule.
As accepted the contention of the assessee that the processed fish purchased is fish product within the meaning of that term in the rule, we have to necessarily hold that the supplier namely, the processor of the fish, is certainly producer to whom payments are made. Decided in favour of the assessee and against Revenue.
Part disallowance sustained by the CIT(A) and reversed by the Tribunal on the ground that the assessee cannot be expected to prove purchase against payment of cash -The only fool proof evidence to establish purchase from a person is the payment made through account payee cheque or demand draft which is the requirement of s. 40A(3). However, Government has chosen to liberalise the operation of s. 40A(3) to augment trade. After granting this facility, we are of the view that the Department cannot insist the assessees to get the suppliers confirm to the Department about the supplies made to the assessee and the payments received by them. In our view, the assessee should be taken to have discharged their burden by furnishing the copies of purchase bills or vouchers issued containing the names and addresses of the suppliers with date, value, quantity etc
No doubt, if assessee's claim of purchase from a particular person is found to be bogus, then it is certainly open to the Department to disallow the expenditure in respect of such purchase. However, in this case it is the finding of the Tribunal that the assessee in fact purchased the quantity accounted by them and the same is seen exported and the assessee has accounted the export proceeds.
So much so, in our view, the Tribunal rightly held that the Department cannot call upon the assessee to prove what is beyond their capacity i.e. to get the suppliers confirm the supplies made to the assessee in terms of the claim of the assessee. In our view, there is no logic in the Department disbelieving the assessee with regard to the purchases, but at the same time believe the denial of the supply and receipt of consideration by the suppliers. Besides the denial of full or part supply by the suppliers, we do not find any case of bogus purchases accounted by the assessee as found by any of the lower authorities. We, therefore, uphold the order of the Tribunal on this issue as well by answering the second question also in favour of the assessee.
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2009 (11) TMI 914 - ITAT AHMEDABAD
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... ... ..... cit, effect must be given to it, for in such a case the words based declare the intention of the Legislature. In view of the aforesaid discussion, we are of the view that the deduction u/s 80IB(10) are available to an undertaking only if it compl ies with all the conditions mentioned therein. In case the undertaking fails to comply with any of the conditions, it will not be entitled for the deduction. This is the fact on record that the assessee in this case has constructed some of the residential units, the built-up of each area of which exceeds 1500 sq. ft. Thus, there is a violation of condition (c) u/s 80IB(10) and, therefore, in our opinion, the assessee will not be entitled for the deduction. Even the assessee will not be entitled for proportionate deduction. 17 In the result, both the appeals of the assessee are dismissed.” 6 In the result, the appeal filed by the Revenue is allowed for statistical purposes. Order pronounced in the open court today on 27-11-2009
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2009 (11) TMI 913 - ITAT DELHI
Deemed dividend u/s. 2(22)(e) - loan taken during the current financial year on various dates - The case of the assessee is that there was no accumulated profit with loan provider and, thus, the alleged loan could at best be treated as deemed dividend to the extent of accumulated profit only - HELD THAT:- In the light of the decision of ITAT, Cochin Bench, in the case of ITO vs. Gordhandas Khimji [1984 (8) TMI 116 - ITAT COCHIN], the accumulated profit of earlier years is to be treated as deemed dividend with reference to the loan or advances taken in earlier years. Thus we hold that the deemed dividend u/s. 2(22)(e) with reference to the amount of loan of ₹ 73,67,936/- is assessable in A.Y. 2001-02 to the extent of accumulated profit available on the date of loan taken by the assessee in the F.Y. 2000-01, and the accumulated profit which is found to be assessable as deemed dividend in the hands of the assessee in the AY 2001-02, is to be reduced from the accumulated profit available as on 01.04.2001, and the balance shall be treated to be accumulated profit available to the be considered against the loans and advances taken by the assessee in the current F.Y 2001-02 relevant to the A.Y. 2002-03.
As per assessee total amount of loan taken during the current financial year on various dates can only be treated to be the deemed dividend u/s. 2(22)(e) to the extent of the accumulated profit that was available on the date on which amount of loan taken - There is no dispute in the proposition that the loan taken by the assessee can be regarded as deemed dividend u/s. 2(22)(e) of the Act only to the extent of accumulated profit available on the date when the loan was taken - we, therefore, restore this issue back to the file of the AO for walking out of the actual amount of loans or advances which could be treated as deemed dividend u/s. 2(22)(e) in the year under consideration. The assessee shall submit his working before the AO regarding the actual amount of deemed dividend that could be taxed in the A.Y. 2001-02, and the actual amount of deemed dividend that is taxable in the current assessment year i.e. A.Y. 2002-03.
Deemed dividend - Shareholding in loan granting company - Whether the assessee company is registered share holder of the shares of M/s. Atma Ram Construction Pvt. Ltd? - HELD THAT:- From the order of the AO, it is clear that Mr. C M Chaddha and legal heir of late Shri A R Chaddha had 50% of shares each in M/s. Atma Ram Construction Pvt. Ltd. Thus, the register share holder of the shares of M/s. Atma Ram Construction Pvt. Ltd are Mr. C M Chaddha and the legal heir of late Shri A R Chaddha and not the present assessee company. Though Mr. C M Chaddha holds 32.5% shares in the assessee company and legal heir of late Shri A R Chaddha holds 56.49% shares in the assessee company, the assessee company cannot said to be a registered share holder and as well as a beneficiary.
This issue is now well settled by the decision of Bhaumik Colour (P) Ltd.[2008 (11) TMI 273 - ITAT BOMBAY-E], where it has been held that deemed dividend can be assessed in the hands of a registered share holder, and, who, at the same time, should be a beneficiary. Decided in favour of the assessee.
Disallowance the deduction on house tax against the "Income From House Property"- why the payment should not be disallowed as the same was paid in the earlier assessment year? - as per AO, at one hand, the assessee was claiming the house tax payment on cheque clearing basis in so far as the payment was concerned, and, on the other claiming the house tax on the basis of dates on which cheques were given to municipal corporation, in to far as the payment is concerned, thus disallowed assessee's claim on account of house tax payment - CIT(A) confirmed the AO's order by observing that the date of payment is to be taken as the date on which the cheques were handed over to the Municipal Corporation of Delhi as it is settled principle of law that date of tendering of cheque is to be treated as date of payment, and not the clearing of cheque - HELD THAT:- On perusal of house tax payment receipt issued by Municipal Corporation of Delhi, it is clear that the assessee paid the amount on 31.03.2001 by cheque. These cheques were cleared on April 24, 2001. The cheques so issued by the assessee on 31.03.2001 were not bounced, but were cleared and debited in the assessee's account by the bank on 24.04.2001. The payment by cheque is, thus, to be treated as the actual payment made by the assessee - assessee has adopted a contradictory stand in claiming the house tax paid - we are in agreement with the orders of the authorities below in rejecting the assessee's claim on account of deduction on house tax paid by cheque on 30.03.2001. Thus, this ground raised by the assessee is rejected.
Determination of ALV by computing notional interest - actual rent received - excess addition by adopting the notional interest @ 18% - HELD THAT:- Respectfully following the Tribunal's order passed in A.Y. 1996-97 and 1991-99, we decide this issue in favour of the assessee. In order for the A.Y. 1998-99, the Hon'ble Tribunal has directed the AO to accept the Annual Letting Value shown by the assessee in respect of M-block property, and the determination of ALV by computing notional interest was deleted.
Addition on Annual Letting Value of the property - HELD THAT:- This issue has been decided in the case of CIT vs. A R Chadha and Co. India [2000 (9) TMI 63 - DELHI HIGH COURT], where it has been held that the property in question did not belong to the assessee. We, therefore, decide this issue in favour of the assessee accordingly.
Disallowance on deduction u/s. 80G - donation given by the assessee being the management committee share/maintenance grant to Atma Ram Sanatan Dharma College- HELD THAT:- The certificate of Atma Ram Sanatan Dharma College dated 05.11.2004, speaks about the approval granted to the University of Delhi and not to the Atma Ram Sanatan Dharma College. Mere because Atma Ram Sanatan Dharma College is affiliated to the University of Delhi for the purposes of providing degree and education to the students, it is not sufficient to say that Atma Ram Sanatan Dharma College has also been approved for the purpose of section 80G. It is not the case of the assessee that Atma Ram Sanatan Dharma College is owned and fully controlled by the University of Delhi.
We do not find any basis to allow the deduction u/s. 80G to the present assessee, in respect of the donation given by the assessee being the management committee share/maintenance grant for the year 2001-02, to Atma Ram Sanatan Dharma College. The orders of the authorities below on this issue are confirmed.
Disallowance on ESI and PF u/s, 43B read with section 36(i)(va) - delayed payment - HELD THAT:- In the light of the decision of High Court in the case of CIT vs. P.N. Electronics Ltd [2008 (11) TMI 3 - DELHI HIGH COURT] and CIT vs. Dharmendra Sharma [2007 (11) TMI 39 - DELHI HIGH COURT], we decide this issue in favour of the assessee with a direction to the AO to allow the deduction provided the payment has been made within the due date of filing of the return of income as applicable in the case of the assessee.
Interest u/s. 234B and 234D is consequential and to be recomputed as per total income finally determined in the present case -
Charging of interest u/s. 234D is not justified in as much as it has been held by the Tribunal, in the case of ITO vs. Ekta Promoters P. Ltd.[2008 (7) TMI 452 - ITAT DELHI-E] that provisions of section 234D are perspective in nature applicable from A.Y. 2004-05 and thus, not applicable to the present A.Y. 2002-03, which is under consideration. We, therefore, delete the charging of interest u/s. 234D. We order accordingly.
Appeal filed by the assessee is partly allowed.
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2009 (11) TMI 912 - SUPREME COURT
Seniority list issued by the State Government for the Excise Inspectors - Vacancies which had come into existence prior to the date of amendment - criteria of promotion for the post of Superintendent of Excise and for higher post of Assistant Excise Commissioner - High Court vide judgment held that the vacancies which had come into existence prior to 10.10.1994 i.e. the date of amendment, be filled up as per the unamended Rules i.e. on the basis of “merit” and not on the basis of “seniority subject to rejection of unfit.” - HELD THAT:- In the instant case, promotions had been made by two different (Departmental Promotional Committee) DPC’s held on 19.12.1998 and 22.1.1999. Both the DPC’s had made promotions under different rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions.
In Roshan Lal & ors. Vs. International Airport Authority of India & ors.[1980 (11) TMI 166 - SUPREME COURT], the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. A similar view had been reiterated by this Court in Government of Maharashtra & ors. Vs. Deokar’s Distillery, [2003 (3) TMI 727 - SUPREME COURT].
These appeals are squarely covered by the aforesaid judgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted.
Admittedly, the respondents were over and above the appellants in the seniority list of Excise Inspectors. The rules of 1992 were amended in the year 1994, changing the criterion for promotion from “merit” to “seniority subject to rejection of unfit”. 42 posts of AEC were to be filled up from the Excise Inspectors, as no Excise Superintendent was available for being considered for promotion to the post of AEC. The State Government wanted to fill up the said vacancies by applying the amended rules. On being challenged by some of the appellants, the High Court held that the vacancies which occurred prior to the amendment of 1992 Rules, namely, 10.10.1994 had to be filled up according to the unamended rules. The operation of the judgment and order of the High Court was stayed by this Court making it crystal clear that promotions so made under the amended rules would be subject to the decision in special leave petition. Accordingly, 61 Officers/respondents were promoted. Subsequently, this Court dismissed the SLP vide order dated 18.8.1998 in limine. The officers/ respondents so promoted were not reverted. The DPC was held on 19.12.1998 to fill up said 42 vacancies, but only 30 candidates/appellants were found eligible to be promoted to the post of AEC. The respondents were found unsuitable. In order to give the said respondents a second chance, the State Government carried forward the remaining 12 vacancies and directed to fill up the same under the amended Rules, and for that purpose another DPC was convened on 22.1.1999 and they were promoted on the basis of different criterion.
Promotions were made with retrospective effect determining the yearwise vacancies. Appellants had been given promotion notionally against the vacancies, occurred in the recruitment year 1995 while the respondents were promoted notionally against the vacancies of the recruitment years 1996 and 1997. Thus, the High Court committed an error while recording the finding of fact that both set of officers had been promoted notionally from one and the same date. Admittedly, promotions were not made with effect from one and the same date. Appellants and respondents were promoted against the vacancies which had occurred in different recruitment years under different Rules and on different criterion. Thus, the respondents would rank below the appellants in seniority.
Therefore, there could be no justification to hold that their inter se seniority in the feeding cadre would be relevant for determining the seniority of AECs. More so, had the interim order not been passed by this Court, the appellants could have been promoted under the unamended rules much earlier. Thus, they are entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised. The appellants had been promoted with an earlier date, thus, are bound to be senior than respondents who had been promoted with respect from a later date. No employee can claim seniority prior to the date of his birth in the cadre.
In view of the above, appeals succeed and are allowed. The impugned judgment and order dated 11.4.2002 is set aside. The Seniority List dated 12.7.2000 is directed to prevail and fresh Seniority List of 26.7.2002 is hereby quashed. No orders as to cost.
This petition could not be dismissed by the High Court at the threshold without examining the case on merit. However, no order is required in this case in view of the order of this date passed in the connected appeal nos.5790-5792/2002. It is accordingly disposed of.
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2009 (11) TMI 911 - ITAT HYDERABAD
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... ... ..... ugh banking channels. The fact that the funds were received on 5-3-2003 and the same were deposited with ICICI Bank and salary was paid on the very same day cannot be doubted merely because it was not obtained through banking channels. The fact remains that there was a clear urgency for the assessee to organize the funds for payment of salary to its employees. Likewise, the amount of ₹ 25,000 each obtained from two individuals was also utilized for making payment to the vendors. Therefore, in our opinion, there was reasonable cause on the part of the assessee for obtaining loans in cash. Therefore, in view of the provisions of sec. 273B of the Income-tax Act, there cannot be levy of penalty under sec. 271D. In view of the above discussion, we are unable to uphold the order of the lower authorities. Accordingly, the same is set aside and the entire penalty is deleted. 5. In the result, the appeal of the assessee stands allowed. Order pronounced in the Court on 20-11-09.
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