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Showing 121 to 140 of 587 Records
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2011 (10) TMI 660 - CESTAT MUMBAI
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... ... ..... w cause notice. o p /o p 4. In respect of interest the contention is that the demand is confirmed on the ground that the applicant has violated the post- import condition in respect of the goods. It is also submitted that the applicants had used this rig for road construction when the metro rail project has been implemented in Delhi. o p /o p 5. The contention of Revenue is that as the applicant had violated the condition of notification. Therefore they are liable for interest and penalty also. o p /o p 6. We find that as the case have been imported in the year 2006 and the duty has been paid in the month of September 2007, during investigation and the dispute is in respect of violation of the conditions of notification. Therefore prima facie we find merit in the case of applicant. In view of this the pre-deposit of interest and penalty is waived for hearing of the appeal and recovery of the same is stayed during the pendency of the appeal. Stay petition is allowed. o p /o p
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2011 (10) TMI 659 - ITAT DELHI
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... ... ..... als (P) Ltd. vs. CIT116 Taxman 1(SC) relied by the ld. DR is distinguishable from the present case. in the said case. Hon’ble Supreme Court has observed that it has not been found by the Tribunal that the assessee company converted the boulders into powder, chips or any other article commercially known by another name and used as a different article. Thus, the Court held that the activities carried on by the assessee company did not amount to manufacture. Similarly, other decisions relied upon by the Revenue are distinguishable on facts.” o p /o p 7. We have heard both the sides on the issue and after hearing both the sides, we are of the view that this issue also requires to be considered at the level of Assessing Officer, therefore, we restore the same to his file to be decided as per law. o p /o p 8. In the result, the appeal of the assessee is allowed for statistical purposes. o p /o p Order pronounced in open court on this 25th day of October, 2011. o p /o p
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2011 (10) TMI 658 - DELHI HIGH COURT
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... ... ..... ing the question whether the RMC was sold to third parties, or was captively used/utilized. The respondent assessee will be entitled to additional depreciation on the machinery/equipment used for the said activity/purpose only if the RMC was sold to third parties. In case, RMC was partly sold and partly self utilized and the effect thereof on the question of additional depreciation will be also examined by the tribunal. o p /o p 12. The question of law is accordingly answered partly in favour of the Revenue and against the respondent assessee. The appeal is disposed of. o p /o p No costs.” o p /o p 4. The decision in ITA No.508/2011 will equally apply to the present appeal. The question of law is accordingly answered partly in favour of the Revenue and against the respondent assessee. The matter is remitted to the tribunal for fresh decision according to the directions given in paragraph 9 to 11 in ITA No.508/2011. o p /o p The appeal is disposed of. No costs. o p /o p
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2011 (10) TMI 657 - DELHI HIGH COURT
Entitled to additional depreciation under Section 32(1)(iia) - Held that:- Tribunal has not dealt with and examined the question whether or not the RMC was sold by the assessee to third party buyers or was used by the assessee themselves at their construction sites. Without deciding this primary issue/aspect the tribunal could not have decided the controversy and the issue raised.
Accordingly, the impugned findings in paragraph 7 are set aside with the direction to the tribunal to re-examine the matter on merits after deciding the question whether the RMC was sold to third parties, or was captively used/utilized. The respondent assessee will be entitled to additional depreciation on the machinery/equipment used for the said activity/purpose only if the RMC was sold to third parties. In case, RMC was partly sold and partly self utilized and the effect thereof on the question of additional depreciation will be also examined by the tribunal.
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2011 (10) TMI 656 - ITAT CHENNAI
Allowance of royalty expenses as revenue expenditure - disallowance u/s 14A - disallowance being provision to exgratia - MAT computation
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2011 (10) TMI 655 - ITAT MUMBAI
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... ... ..... f the Act on the gross receipts or the net receipts was a debatable issue and there were conflicting decisions of the Tribunal which led to constitution of a Special Bench in Petroleum International (India) (supra). Even in 262 ITR 535 (Bom.), where the Hon'ble Jurisdictional High Court decided the issue in favour of the assessee, the Tribunal had taken a view in favour of the assessee and that was in Revenue’s appeal. The assessee had disclosed that it had claimed 50 of the gross receipt in its computation of income. On these facts, we find no infirmity in the order of the Commissioner (Appeals) wherein he cancelled levy of penalty by applying the judgment of Hon'ble Supreme Court in Reliance Petroproducts Pvt. Ltd. (supra). Consequently, the ground raised by the Revenue in both the years under consideration are dismissed. o p /o p 8. In the result, Revenue’s appeals are dismissed. o p /o p Order pronounced in the open Court on 21st October 2011 o p /o p
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2011 (10) TMI 654 - ITAT DELHI
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... ... ..... Special Bench decision in Topman Exports (supra) which stands over ruled, we set aside the order passed by the Tribunal in all these cases and remit the cases back to the Tribunal to decide these appeals on merits after taking into account factual position in all these cases.” 2. The ld.A.R. submitted that facts need verification at the level of the AO as herein also merely the order of the Special Bench has been followed, as such a prayer was made that the issue may be restored back to the file of A.O. The ld.D.R. had no objection to the said prayer. 3. Accordingly in the light of the submissions advanced it is considered appropriate to restore the issue back to the file of A.O. with the directions to decide the same in accordance with law, by way of a speaking order after giving the assessee a reasonable opportunity of being heard. 4. In the result the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 25th October,2011.
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2011 (10) TMI 653 - ITAT MUMBAI
Disallowance u/s 14A - Held that:- Rule 8D is not retrospective in its operation, in the light of decision of Hon’ble Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT ]. Even under section 14A of the Act reasonable expenditure, which was necessary for the purpose of earning tax free income has to be considered for disallowance. In the instant case, as rightly pointed out by the learned Counsel, the expenditure incurred by the assessee was only to run the day-to-day activity and expenditure such as listing fees, filing fees, audit fees, appeal fees, etc., cannot be considered to be having any nexus with the earning of tax free income. Under the circumstances, by respectfully following the decision of the ITAT, ‘F’ Bench (supra), we hold that adhoc disallowance of ₹ 37,512/- made by the Assessing Officer is not in accordance with law.
Deduction towards business expenditure - commencement of business - Held that:- It is well settled that in order to claim deduction towards business expenditure it is not necessary that an assessee has to earn business income in the same year so long as it can be shown that the company intends to continue its activities. The expenditure reflected in the assessment year clearly indicate that these are the basic expenditure in order to continue its status as a company and in the absence of proving that the assessee, by its conduct, had taken a decision not to carry on its business forever the minimum expenditure claimed by the assessee cannot be disallowed. We therefore, direct the Assessing Officer accordingly.
Prior period expenses - Held that:- We fail to understand the logic behind the plea of learned DR. Heading of section 43B states that certain deductions can be allowed upon actual payment. It is not in dispute that professional tax can be claimed as deduction, irrespective of the method of accounting followed by an assessee, in the year of actual payment. Admittedly, assessee paid the professional tax in the previous year relevant to the assessment year 2005-2006. Under the circumstances, we are of the firm view that the assessee is entitled to deduction of ₹ 19,850/-. Assessing Officer is directed accordingly.
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2011 (10) TMI 652 - ITAT DELHI
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... ... ..... kar vs. CWT; 223 ITR 480 (M.P.) while dismissing the reference made at the instance of the assessee in default made following observation in their order - “If the party, at whose instance the reference is made, fails to appear at the hearing, or fails in taking steps for preparation of the reference, the court is not bound to answer the reference.” 3. Similar view has been taken by ITAT, Delhi Bench in the case of Multiplan India (P).) Ltd. reported in 38 ITD 320 (Del.). 3. Respectfully following the above precedents, the appeal filed by the assessee is dismissed in limine for want of prosecution. However, it is clarified that if assessee later on explains the reasons for non-appearance and the Bench is so satisfied, the order passed ex-parte may be recalled for fresh adjudication of the appeal. 3. In the result, the appeal filed by the assessee is dismissed for want of prosecution. 4. Order pronounced in open court on the conclusion of the hearing on 14.10.2011.
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2011 (10) TMI 651 - ITAT AHMEDABAD
Penalty u/s. 271(l)(c) - Addition of speculating profit - set off of brought forward losses - addition - Held that:- Invoking the provisions of Section 41(1)he court cannot overlook the facts that only a small percentage of income tax returns are selected for scrutiny and if the assessee makes a claim which is not only incorrect in law but is also without any basis and the explanation furnished by him for making such claim is not found to be bona fide, it would be difficult to say that he would still not be liable to penalty u/s 271(1)(c) of the Income tax Act, 1961. In the present case also, this is not explained by the assessee as to who committed the oversight resulting in failure to add this amount in question as income in the P & L account and in the computation of total income. It is also not explained as to how and under what circumstances, the oversight occurred and why it was not detected by the person who checked the income tax return when it was filed. Under these facts, we decline to interfere in the order of Ld. CIT(A).
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2011 (10) TMI 650 - CESTAT CHENNAI
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... ... ..... submissions, I note that prima facie case for unconditional waiver has been made out as, prima facie, the assessees cannot be said not to have taken all possible precautions to ensure that the goods described in the invoices tallied with the goods received by them invoices describe the goods as MS scrap/MS wires and SCN itself proceeds on the basis that what was received by the assessees were scrap but alleges that the scrap was non-duty paid. 3. I perused the invoices and find that duty paid nature has been brought out therefrom and the assessees, therefore, cannot be faulted if there is any fraud on the part of the suppliers, in the light of Tribunal s order in Transpek Industry Ltd. Vs CCE Vadodara 2010 (249) ELT 91 and the decision of the Hon ble Allahabad High Court in CC Vs CE Meerut Vs Muzaffarnagar Pipe Industries (P) Ltd. I, therefore, grant the prayer for waiver and stay recovery of the amounts in dispute pending the appeal. (Dictated and pronounced in open court)
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2011 (10) TMI 649 - ITAT AHMEDABAD
Penalty u/s. 271(1)(c) - Addition u/s 80IA - Held that:- Penalty u/s. 271(1)(c) is not sustainable. The penalty in respect of disallowance of deduction u/s.80IA we find that this ground is squarely covered in favour of the assessee by the judgment of Hon’ble apex court in the case of CIT v. Reliance Petroproduct Pvt. Ltd. (2010 (3) TMI 80 - SUPREME COURT ) wherein as held mere making a claim not allowable will not lead to imposition of penalty.
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2011 (10) TMI 648 - ITAT DELHI
Levy of interest under sec. 234B and 234C without allowing credit of the amount of cash seized during the course of search - Held that:- When advance tax is to be payable by an assessee by virtue of the operation of Income-tax Act, 1961 and the department is already possessing money belonging to the assessee and assessee made a prayer for adjusting such amount against the advance tax payment or any tax required to be paid by the assessee then credit ought to be given because the department has deprived the assessee of his money by seizing the cash otherwise assessee would have paid the tax on 12.4.2006 and 12.09.2006.
We allow the appeal of the assessee and direct the department to give credit of ₹ 60,40,000 to the assessee from the date, when assessee made application for treating the cash as payment of advance tax/fare while computing the interest chargeable under sec. 234B and 234C of the Incometax Act, 1961
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2011 (10) TMI 647 - ITAT HYDERABAD
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... ... ..... ccepted as full and final settlement and certificate issued under Section 90(2) thereafter, it is not open to the CIT to pass an order under Section 263 which is not on account of concealment of information but for some other reasons. The Madhya Pradesh High Court relied on the decision of the Apex Court in the case of Killick Nixon Ltd Vs DCIT reported in 258 ITR 627. 22. Respectfully applying the ratio of the above decision, we hold that the assessing officer did not have jurisdiction to rectify the assessment order which has been the subject matter of KVSS in which declaration made by the assessee has been accepted and the tax as determined by the designated authority u/s 90(1) of the KVSS has been paid by the Assessee as per the provision of KVSS. 23. In the circumstances, we accept the contentions of the assessee and delete the addition made by the assessing officer. 25. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court 13.10.2011.
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2011 (10) TMI 646 - ITAT MUMBAI
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... ... ..... ecord, in our opinion, the assessee’s claim was based on the interpretation of sec. 80IB(10). Moreover, some of the objections of the A.O. for allowing the claim of the assessee are contrary to the decisions of the Tribunal. Nothing is there on record to suggest that the assessee consciously made the wrong claim. From the letter given to the A.O., we find that due to the serious health problems the assessee withdrew the claim and nowhere it is stated that the assessee withdrew the claims because the same were wrong one. After giving our anxious consideration to the entirety of facts, we are of the opinion that this is not a case where it can be said that the assessee has concealed the particulars of income or filed inaccurate particulars of income. We find no reason to interfere with the order of Ld. CIT (A) and accordingly the same is confirmed. 10. In the result, revenue’s appeal is dismissed. Order pronounced in the open court on this day of 28th October 2011.
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2011 (10) TMI 645 - ITAT AHMEDABAD
Addition u/s 68 - unexplained cash credit - Held that:- Evidence and explanation of the assessee support the case of the assessee that the assessee entered into genuine transaction. The details noted above clearly prove the sources of sales of the shares; therefore, no addition was required to be made u/s 68 of the IT Act. CIT(A) rightly deleted the addition on account of unexplained cash credit u/s 68 of the IT Act.
Nature of gain - STCG OR LTCG - Held that:- Instead of considering the transaction noted in the demat account the revenue authorities should have followed the above circular of the Board and according to the same the date of contract shall be treated as the date of transfer. Since the revenue department did not dispute purchase of the shares from M/s. Swan Securities Pvt. Ltd. in the scrutiny assessment of preceding assessment year 2006-07, therefore, the assessee is able to establish that shares have been purchased in April, 2005. Therefore, instead of short term capital gains, the learned CIT(A) should have treated the gains as long term capital gains. The order of the learned CIT(A) to that extent is, therefore, liable to be set aside. The order of the learned CIT(A) to that extent holding transaction to be short term capital gain is set aside and we direct the AO to accept the claim of the assessee for long term capital gains.
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2011 (10) TMI 644 - ITAT JODHPUR
TDS u/s 194H - addition u/s 40(a)(ia) - non deduction of tds - relationship of Principal to Principal between the assessee and the retailer/dealers - full payment of SIM Card/Research Coupons
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2011 (10) TMI 643 - ITAT MUMBAI
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... ... ..... the ground that same is not exempt under mutuality. The appellants submit that above interest income is exempt on the ground of mutuality and therefore should not be included in the total income. This issue is covered in favour of the appellant, inter alia, by ITAT order for AY 2005-06.” 15. The Hon'ble Jurisdictional High Court in CIT v/s Common Effluent Treatment Plant, (Thane-Belapur) Association, 2010 328 ITR 0362 (Bom.), held that interest earned by the assessee on fixed deposit and other deposits and on income tax refunds was taxable as this income would not posses the character of mutuality as in case of surplus fund derived by the assessee from contribution of its members. Respectfully following the same, we dismiss this ground of the assessee. 16. In the result, assessee’s appeal is partly allowed. 17. To sum up, Revenue’s appeal is dismissed and assessee’s appeal is partly allowed. Order pronounced in the open Court on 21st October 2011
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2011 (10) TMI 642 - ITAT HYDERABAD
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... ... ..... 7,55,211 19. Since the assessee had already admitted ₹ 2,76,60,632 as additional income for this lapse noticed by search action, he further added ₹ 49,54,964 towards unaccounted investment in immovable property. The Assessing Officer had taken a contradictory stand in the same assessment order while making the addition. Once he recorded the fact that no addition is called for, however, he made addition. After making the addition, the Assessing Officer also initiated penalty proceedings and levied penalty u/s. 271(1)(c) of the Act for the lapse. However, there is no conclusive evidence brought on record by the Assessing Officer regarding concealment of income or furnishing of inaccurate particulars of income. In these circumstances, we are not inclined to confirm the penalty. Accordingly, we delete the penalty. 20. In the result, the both the appeals of the Revenue and the appeal of the assessee are allowed. Order pronounced in the open Court on 12th October, 2011
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2011 (10) TMI 641 - MADRAS HIGH COURT
Benefit of Section 80IA - grant the approval under Section 10(23G) - Held that:- A reading of Section 10(23G) of the Income Tax Act shows that where an assessee makes an application in respect of the income by way of dividend or by way of long term funding in any enterprise or undertaking engaged in the business referred to under Section 80IA (4) or (3) or Section 80IB(10) approved by the Central Government, the same shall be exempted in the computation of income. Explanation (1) to Section 10(23G) defines "infrastructure capital company and infrastructure capital fund". As far as infrastructure capital company is concerned, it is defined to mean company, which had made investment by way of acquiring shares or providing long term finance to an enterprise wholly engaged in the business referred to in this clause. It is no doubt true that Section 10(23G), inserted with effect from 01.04.1997, was subsequently omitted from the Statute. As the law then stood, given the definition of an eligible business under the provisions of Section 80IA and the fact that the assessee has taken on lease the windmill, which is infrastructure facility, I have no hesitation in allowing the Writ Petition, thereby quashing the order passed by the Central Board of Direct Taxes.
Touching on the scope of Section 84 as it originally stood, later on substituted as Section 80J before its repeal, the Central Board of Direct Taxes, vide F.No15/5/63-IT (AI) dated 13.12.1963, pointed out that "the benefit of Section 84 of the Income Tax Act 1961 (now Section 80J) attaches to the undertaking and not to the owner thereof. The successor will be entitled for the unexpired period of five years provided the undertaking is taken over as a running concern". As far as the present case is concerned, the reasoning of the Board went on the aspect of lease, a fact which does not stand in the way of the assessee claiming approval under Section 10(23G) or the relief under Sec 80IA(4).
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