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2009 (9) TMI 1017 - CALCUTTA HIGH COURT
This appeal will be heard on the following substantial questions of law:-
(1) Whether on a true and proper interpretation of the provisions of Sub-section (3) of Section 40A of the Income Tax Act, 1961, the Tribunal was justified in law in holding that rule 6DD of the Income Tax Rules, 1962 was exhaustive of the cases/circumstances to which the exemption under the second proviso to the section applied and that the exemption was not available in any other case/circumstances?
(2) Whether the Tribunal was justified in law in setting aside the order dated March 8, 2007 of the Commissioner of Income Tax (Appeals) and remanding the matter for fresh examination and adjudication when all the materials for adjudicating upon the matter were before the Tribunal?
Call for the records.
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2009 (9) TMI 1016 - DELHI HIGH COURT
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... ... ..... he joint venture company by the joint venture partners were primarily infused to purchase land and to develop infrastructure-then it cannot be held that the income derived by parking the funds temporarily with Tokyo Mitsubishi Bank, will result in the character of the funds being changed, in as much as, the interest earned from the bank would have a hue different than that of business and be brought to tax under the head ‘income from other sources’. It was well-settled that an income received by the assessee can be taxed under the head ‘income from other sources’ only if it does not fall under any other head of income as provided in Section 14 of the Act. The head ‘income from other sources’ is a residuary head of income. See S.G.Mercantile Corporation P. Ltd vs CIT, Calcutta; (1972) 83 ITR 700 (SC) and CIT vs. Govinda Choudhary and Sons.;(1993) 203 ITR 881(SC).” We, thus, are of the opinion that no question of law arises. Dismissed.
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2009 (9) TMI 1015 - BOMBAY HIGH COURT
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... ... ..... pex Court, in the case of Express Newspapers Ltd. cited supra. 16. We, therefore, hold that the order passed by the respondent No. 1 allowing the application under Section 245C is without jurisdiction. Needless to state that the order without jurisdiction is non-est in law. Since in view of the admission of the case by the Commission, the appeal filed before the respondent No.2 stood withdrawn and transferred to the Commission, we direct that the appeal shall be restored to the file of the respondent No.2 and shall be dealt with, in accordance with law. Rule is disposed of in the aforesaid terms. N.D. DESHPANDE, J. B.R. GAVAI,J. At this stage, learned counsel for the petitioner seeks stay of the judgment and order passed by this court for eight weeks. Since there was already an interim order operating in the petition for considerable length of time, we allow the said prayer and stay the effect and implementation of the order passed by us for a period of six weeks from today.
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2009 (9) TMI 1014 - BOMBAY HIGH COURT
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... ... ..... respective advocates. The same is taken on record and marked X for identification. 3. On the joint motion made by the parties to the petition, the same is disposed of in terms of minutes of order. 4. All the concerned to act on authenticated copy.
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2009 (9) TMI 1013 - BOMBAY HIGH COURT
Whether in the facts and circumstances of the case and in law the CESTAT is right in dismissing the appeal of Revenue and holding that no redemption fine can be imposed and penalty levied when the goods are physically not available for confiscation?
Held that: - as the goods are not available for confiscation no redemption fine can be imposed - before the Tribunal the issue of penalty was not at all involved. We find that no substantial question of law is involved - appeal dismissed - decided partly in favor of assessee.
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2009 (9) TMI 1012 - SC ORDER
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... ... ..... tances of this case, keeping the question of law open, civil appeal is dismissed.
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2009 (9) TMI 1011 - CESTAT CHENNAI
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... ... ..... ioner of Central Excise, Goa Vs Crompton Greaves Ltd. 2008 (226) E.L.T.117 (Tribunal) , Nestle India Ltd. Vs Commissioner of Customs & Central Excise, Goa 2008 (223) E.L.T. 309 (Tri.-Mumbai) and Commissioner of Central Excise, Meerut Vs Shree Sidhbali Steels Ltd. 2009 (235) E.L.T. 182 (Tri.-Del.) . 3. Following the ratio of the above decisions, I hold that credit of the amount in dispute is admissible to the appellants and, therefore, set aside the impugned order and allow the appeal. (Dictated and pronounced in open court)
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2009 (9) TMI 1010 - CESTAT MUMBAI
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... ... ..... placed reliance on CCE & C, Aurangabad vs. Wockhardt Ltd. 2009 - TIOL-1308-CESTAT-MUM wherein on the identical facts this Tribunal has held that Section 11AC is not applicable where there is no finding of mens rea against the assessee. He further placed reliance on CCE, C & ST, Nasik vs. Jyoti Structures Ltd. 2009-TIOL-1159-CESTAT-MUM wherein it was held that wrongly availed exemption notification no mens rea proved by the Revenue no cause for imposition of penalty under Section 11AC of the CEA, 1944. 10. I have gone through the submissions made by both sides and I find that in an identical issue in the case of CCE & C, Aurangabad vs. Wockhardt Ltd. (supra) it was held that Section 11AC is not applicable when there is no mens rea against the assessee. In this case also the Revenue has failed to establish any mens rea against the assessee / respondent. 11. Considering the same, I do not find any merit in the appeal and the same is dismissed. (Pronounced in Court)
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2009 (9) TMI 1009 - BOMBAY HIGH COURT
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... ... ..... ed Counsel for the petitioners sought to take us through the policy, to point out that the said items can be imported even if not used in the exported material considering the licences were issued between 16th January, 2006 and 7th January, 2009. 5. On behalf of the respondents, learned Counsel seeks to contend that the goods in respect of which amendment is sought can only be used by actual exporters. 6. We do not propose to enter into the controversy today considering that the material is still before the respondents. 7. In the light of that, in our opinion, the ends of justice will be met if the respondents are directed within eight weeks from today to take a decision on the licences submitted by the petitioners to the respondents for amendment. All other questions raised in this petition are left open for consideration in the event the petitioners are still aggrieved by any adverse orders passed by the respondents. 8. Rule made absolute accordingly. No order as to costs.
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2009 (9) TMI 1008 - ITAT AHMEDABAD
Valuation of closing stock u/s 145A - Deduction for excise duty MODVAT - additional ground deduction for excise duty paid on closing stock before the due date of filing the return of income u/s 43B - HELD THAT:- In the present case, It is contended that as per the guidelines issued by institute of Chartered Accountant’s of India, an assessee can have either “inclusive method” for accounting entries with regard to MODVAT or “exclusive method”. It is explained that in the “inclusive method”, the purchase of raw material debited in the books of accounts is inclusive of the corresponding MODVAT element. It is submitted that if an assessee is following this method then the closing stock has to be valued inclusive of MODVAT element.
In the exclusive method the balancing figure is taken to the balance sheet only and it is not taken to the profit & Loss Account. Therefore, as could be seen the Gross profit in the “Inclusive Method” is higher on account of the increase in the value of the closing stock by corresponding MODVAT element. The total increase in the value of closing stock and therefore, the increase in the Gross Profit in the “inclusive method” can be worked as under.
Total MODVAT Credit corresponding to the raw material or finished goods, etc. in the closing stock –Excess of MODVAT Credit over the Excise payable on the sales made during the relevant precious year. Therefore, in the assessee’s case also the income would be affected by any adjustment to the closing stock and opening stock. With regard to the adjustment to the closing stock as made by the Learned Assessing Officer the same appears to be in the fully justified in view of the specific provisions of section 145A.
Therefore, as discussed while explaining the example above, the net addition required to be made to the closing stock and therefore, to the Gross profit would come to ₹ 26,95,884(Rs.26,23,036 Rs.1,27,152). However, as the Learned AO is going to carry out the adjustment on account of value of the opening stock for this assessment year after completing the reopened assessment for Assessment Year 1999-2000, he may keep the above position in mind and work out the final figure of addition on this account considering the total increase in the value of closing stock for the Assessment Year under consideration at ₹ 26,95,884/- only. This Ground of appeal is disposed off accordingly.
In the instant case, the lower authorities were not justified in revaluing only closing stock so as to include the amount of excise duty paid on purchase without revaluing the corresponding purchases. We have gone through the guidelines explained by the ICAI and find ourselves in agreement therewith that there will not be any effect on the profit of loss arrived at either by following inclusive method of accounting or exclusive method of accounting for excise duty. The only effect will be that the excise duty payable on closing stock of finished goods will be to the extent not deposited with the government before the due date of furnishing of return will be added to the income of the assessee in view of provision of Section 43B.
In view of the discussion made hereinabove, in our considered opinion, there will be no effect in the taxable profit of the assessee by including the amount of excise duty paid on purchases in the value of closing stock of raw material, whether as raw material or as forming part of work-in progress or finished goods. We therefore, set aside the orders of the lower authorities on this issue in both the year under appeal and allow the grounds of appeal of the assessee.
Deduction u/s 80HHC - after excluding deduction claimed u/s 80IA from the gross total income - At the time of the hearing, both the parties agreed before us that this ground of appeal is covered against the assessee by decision of the Tribunal in the case of Assistant CIT vs. Rogini Garments & Ors.[2007 (4) TMI 122 - ITAT, CHENNAI], wherein it was held that in view of the specific restriction provided u/s. 80-IA(9), relief u/s. 80-IA should be deducted from profits and gains of business before computing relief u/s 80HHC. Therefore, this ground of the appeal of the assessee is dismissed.
Reducing interest income from the profits - deduction u/s 80HHC - At the time of the hearing, Ld. Counsel for the assessee submitted that his only prayer in the above ground of appeal is that netting off of interest should be allowed to the assessee in view of the decision of the Hon’ble Delhi High Court in the case of CIT vs. Shri Ram Honda Power Equip & Ors.[2007 (1) TMI 86 - HIGH COURT, DELHI], wherein it was held that where surplus funds are parked with the bank and interest is earned thereon, it can only be categorised as income from other sources and not as "profits and gains of business or profession"; interest earned on fixed deposits made for the purposes of availing credit facilities from the bank also does not have an immediate nexus with the export business and does not qualify for deduction u/s. 80HHC.
However, where interest income is treated as business income, the amount of interest to be reduced in terms of cl. (baa) of Explanation to s. 80HHC is the net interest, i.e. gross interest less expenditure incurred for the purpose of earning such interest. The Learned Departmental Representative also agreed with the submissions of the Learned Authorised Representative of the Assessee.
We therefore, set aside the orders of the lower authorities restore this matter back to the file of Learned AO to decide issue afresh in the light of the observation made hereinabove after allowing proper opportunity of hearing to the assessee. Thus, this ground of appeal is allowed for statistical purposes.
In the result, both the appeals of the assessee are partly allowed.
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2009 (9) TMI 1007 - SC ORDER
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... ... ..... R Delay condoned. Civil Appeal is dismissed.
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2009 (9) TMI 1006 - ITAT DELHI
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... ... ..... j Pratap Singh (supra) also observed that under provisions of Section 48, capital gain is to be computed by deducting from the "full value" of the consideration received or accruing as a result of the transfer of capital asset, i.e. cost of acquisition and expenditure incurred in connection with the transfer, are to be deducted from the full value of the asset. The expression "full value of consideration" does not mean "market value or fair market value" of the asset transferred. Hence, capital gain tax cannot be computed or levied with reference to the fair market value determined on the basis of valuation report. 6. In view of the ratios discussed hereinabove, we do not find any infirmity in the order of the CIT(A) for deleting the addition made on the basis of the fair market value determined by DVO. 7. In the result, the appeal of the Revenue is dismissed. Decision pronounced in the open Court on conclusion of hearing on 8th September, 2009.
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2009 (9) TMI 1005 - ITAT AHMEDABAD
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... ... ..... a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. As pointed out earlier, there is no doubt about the genuineness of the transactions which have been fully accepted in the assessment made for the year under consideration. Even if, there was any ignorance, which resulted in the infraction of law, the default is technical or venial which did not prejudice the interests of the Revenue as no tax avoidance or tax evasion was involved. Therefore, bona fide belief coupled with the genuineness of the transactions would constitute reasonable cause under section 273B for not invoking the provisions of section 271D of the Act in this case. 5.4 In view of the foregoing, we have no hesitation in upholding the findings of the ld. CIT(A) in para 3.4 of the impugned order. Therefore, ground nos. 1 & 2 in the appeal of the Revenue are dismissed. 6. In the result, appeal is dismissed . Order pronounced in Open Court on 11th September, 2009.
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2009 (9) TMI 1004 - ITAT DELHI
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... ... ..... ed by the assessee against the decline by the revenue authorities, such adoption of recognition of income, the Tribunal vide its order dated 25.6.2009 directed the AO to allow the claim of the assessee in this year relating to the corresponding expenses adopted in the next year and to rework out the income accordingly. AO was also directed to give consequence effect in the subsequent years also. The recognition of TPA income in this way and the justification furnished for the same was bona-fide. There was no concealment of income nor any furnishing of inaccurate particulars, therefore we do not find any infirmity in the order of CIT(A) for deleting the penalty with respect to recognition of the 30 of the TPA income as having been spread over the next three quarters, insofar as the TPA fee so received was belonging to the full year i.e. four quarters. 6. In the result, the appeal filed by the Revenue is dismissed. Decision pronounced in the open Court on 25th September, 2009.
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2009 (9) TMI 1003 - ITAT AHMEDABAD
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... ... ..... ed originally without giving show cause notice and reasons is incorrect. Considering the above facts the appellant is also entitled to exemption u/s 11 in respect of donations so received. The Assessing Officer is directed to grant exemption accordingly u/s 11. The Assessing Officer is directed to compute taxable income considering above directions, as per the provisions of the Act.” 4 We have heard the rival submissions and carefully considered the same along with the order of the authorities below. In our opinion, no interference is called for in the order of the CIT(A). The CIT(A) has dealt with the plea of the Revenue in exhaustive manner by passing a well-reasoned order. No cogent material or evidence was brought to our knowledge which may compel us to take a view different from that of the CIT(A). We, therefore, confirm the findings given by the CIT(A). 5 In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the open court on 04-09-2009
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2009 (9) TMI 1002 - BOMBAY HIGH COURT
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... ... ..... t the services of repairing, chipping, cleaning, painting etc. rendered by the Respondent on the vessel at Mazgaon Docks Ltd do not fall within the meaning of Port Services as defined u/sec. 65(82) and Sec.65(105) (zn) of the Finance Act, 1994? 2. Respondent waives service. To be heard along with Customs Appeal no.226 of 2009
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2009 (9) TMI 1001 - ITAT DELHI
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... ... ..... g Officer has miserably failed to establish their relationship between Shir Nagar Mal and Anil Kumar Bansal, The name of Shri Nagar Mal was available in the alleged seized material. The name of Shri Nagar Mal was found to be recorded by a third person in his books. It can only be a corroborative piece of evidence and solely on the basis of any entry found in the diary of any third person cannot be considered sufficient to hold that unexplained investment was made by the assessee. There is no evidence on the record which can connect the assessee even with the seized material More so, learned CIT(Appeals) has recorded a finding that a loan was taken from Shri Rajiv Gupta and not given. In such situation, addition on account of unexplained investment cannot be made. Learned CIT(Appeals) has appreciated the facts and circumstances in right perspective and no addition is called for. Hence the appeal of the revenue is dismissed. Decision pronounced in the open court on 11.09.2009.
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2009 (9) TMI 1000 - DELHI HIGH COURT
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... ... ..... al and the impugned order on stay application passed by the Tribunal, we are of the opinion that by making payment of the aforesaid amount of ₹ 2 crores, the petitioner would be paying even less than 30 of the demand, that too qua service tax and is not called upon to pay any amount towards the penalty and interest, at this stage. The contention of the petitioner that he was entitled to 67 abatement on completion of finishing services was not accepted by the Commissioner for the reasons recorded in paras 37 and 38 of the impugned order. In view of this, we are not inclined to interfere with the discretionary order passed by the CESTAT taking into consideration all relevant facts. This writ petition is accordingly dismissed. We find that many appeals are coming up before the CESTAT involving identical issue. It would, therefore, be appropriate if the Tribunal decides the main appeal itself at an early date, if the condition of payment is complied with by the petitioner.
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2009 (9) TMI 999 - ITAT AHMEDABAD
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... ... ..... ading account and profit and loss account, then it has to be seen whether creditors have forgone their claim or by contractual agreement or by force of law assessee has became the owner of the money.Only if it is so, then that amount could be taxed under section 41(1). So long as the claim of the creditors survive and is not extinguished by force of law or otherwise there is no remission or cessation of liability and it cannot be said that assessee has derived any benefit for being taxed under section 41(1). 41.4As a result this ground of the Revenue is allowed, but for statistical purposes. 42.As a result, appeal of the assessee for the assessment year 2002-03, 2003-04, and 2004-05 are partly allowed and partly allowed for statistical purposes.The appeal of the revenue for the assessment year 2002-03 and 2004-05 are partly allowed for statistical purposes, whereas appeal for assessment year 2003-04 is dismissed. This order is pronounced in open Court on 4th September, 2009.
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2009 (9) TMI 998 - ITAT AHMEDABAD
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... ... ..... impugned notice does not contain or record the satisfaction of the AO nor other details, such notice is to be held as vague. 15. Respectfully following the decision of the ITAT Delhi Bench in the case of C. S. L. Securities (P) Ltd. (supra), we hold that the notice dated 10-11-2003 issued u/s 158BD of the Act is not valid as the same does not meet the requirement of law as ruled by the Hon'ble Supreme Court in the case of Manish Maheshwari (supra). Accordingly, we quashed the assessment order and allow the additional ground of appeal of the assessee. 16. Since, we have quashed the assessment order itself, and therefore, we do not think it necessary to decide the grounds raised by the assessee on merits. 17. In view of our order in IT(SS)A No.200/Ahd/2006 (supra), we dismiss the appeal of the Revenue as infructuous. 18. In the result, the Assessee's appeal is allowed while the Revenue's appeal is dismissed. The order was pronounced in the open court on 18-09-2009.
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