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Showing 141 to 160 of 1009 Records
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2011 (7) TMI 1261
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... ... ..... extent of ₹ 1,65,700/- and ₹ 72,307/-. 2.4 The CBDT vide its circular No.7/2010 dated 27-1 0-2010 has referred to the amendment made in Section 80G(5) as proviso to Section 80G(5)(vi) has been omitted . Earlier ld. CIT was to allow the approval u/s 80G for five years. Due to removal of proviso, the Board has clarified that the existing approval expiring on or after 1-10-2009 shall be deemed to have been extended in perpetuity unless specifically withdraw n. Thus the assessee was not required to request for approval u/s 80G of the Act and the approval granted earlier upto 31-03-2010 is to be treated as in perpetuity. Thus the order of the ld. CIT is not valid in view of Board ’s Circular no. 7/2010. Hence the order of the ld. CIT is cancelled as there is no requirement of granting approval. It is not a case where 80G approval has been withdrawn. 3. In the result, the appeal of the assessee is all owed. The order is pronounced in the open Court on 08-07 -2011
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2011 (7) TMI 1260
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... ... ..... ht to be excluded in computing the quantum received by the appellant in terms of the Indenture. 3. Each one of the above grounds of appeal is without prejudice to the other. 54. Ld. Sr. Advocate had submitted that these issues have not been adjudicated by the Ld. CIT(A) despite submissions made. Ultimately assessee had returned the funds received from the estate of EFD because of various legal issues. He submitted that in case the order of the ld. CIT(A) is reversed, then assessee’s appeal would require to be remanded to the file of the CIT(A) for consideration of those submissions. 55. The Ld. Sr. Standing Counsel had agreed with this proposition. 56. As we have already upheld the order of the Ld. CIT(A), therefore, the issues raised in the assessee’s appeal are only of academic nature and we decline to adjudicate the same. 57. In the result, the appeal of the revenue as well as assessee are dismissed. Order pronounced in the open Court on this day of 15/7/2011.
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2011 (7) TMI 1259
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... ... ..... e freight charges. Therefore, according to him, they are not included in both export turnover and total turnover and need not be reduced from the same. 43. The learned DR however submitted that this fact needs verification by the assessing authority. 44. Having heard both the parties and having considered the material on record, we deem it fit and proper to remit this issue to the file of the assessing authority with a direction to verify if the freight charges are included in the export turnover as well as in the total turnover and if they are not included, then they cannot be reduced while computing the deduction u/s 10B of the Income-tax Act. The AO is directed to decide the same after verification of the above facts in accordance with law and in accordance with the decision of Hon'ble Chennai Special Bench in the case of Sak Soft Ltd., 313 ITR 353 (AT). 45. In the result, the appeals of the assessee are partly allowed. Order pronounced in the open court on 15.7.2011.
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2011 (7) TMI 1258
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... ... ..... to deposits of ₹ 6,65,000/- and ₹ 2,31,000/- are also linked to bank accounts in which sale proceeds of the shares have been deposited. We therefore, restore these issue to the file of CIT(A) for fresh decision. As regards the ground relating to addition of ₹ 15,18,931/- on account of repayment of loan, these are also linked to deposits in the bank account and CIT(A) has already held that this is covered by the enhancement made by him but since the issue of enhancement has already been restored by us to the file of CIT(A), this being a connected issue is also restored to the file of CIT(A). We therefore, set aside the order of the CIT(A) and restore the matter to his file for passing a fresh order after necessary examination of additional evidences filed by the assessee and after allowing opportunity of being heard to the assessee . 6. In the result appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 29.7.2011.
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2011 (7) TMI 1257
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... ... ..... clarify that though the Revenue’s stand is the same for both the cases, it shall in adjudicating the instant case, not be bound by its decision in the case of T.C. Usha (supra), and shall decide the same on its own merits; the matter being purely factual, so that it may well be that the difference stands explained - which is to be primarily on the basis of materials and evidence/s furnished - in one case, and not in the other, with the difference, as afore-noted, obtaining in the present case being at 1/5th of that in the said case, even as the cost as well as the sale rate/s involved we observe to fall in the same range. Both the assessee and the AO shall be afforded proper opportunity of being heard, and where the materials being relied upon are those that have not adduced before the AO earlier, a further opportunity to him to examine the same, by the ld. CIT(A). We decide accordingly. 6. In the result, the assessee’s appeal is allowed for statistical purposes.
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2011 (7) TMI 1256
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... ... ..... ted 4.2.2010, has held that an educational institution is entitled for exemption under S.10(23C) or under S.11, if no donation was collected from the students. We being in agreement with the order of the coordinate Bench of the Tribunal in the case of Vasavi Academy of Education (supra), direct the assessing officer to verify the aspect of donation, capitation fee etc. if any collected by the assessee, and further direct that if it is found that besides fulfilling other prerequisites for exemption under S.11, the assessee has not charged any money by whatever name it is called, i.e. donation, building fund, auditorium fee etc, over and above the prescribed fee for the admission of students, the assessee would be entitled for exemption under S.11, even though the notification under S.10(23C)(vi) of the Act have not been received by it. We direct accordingly. 6. In the result, Revenue’s appeal is allowed for statistical purposes. Order pronounced in the Court on 8.7.2011
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2011 (7) TMI 1255
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... ... ..... not challenging the order, it would not be at all appropriate to allow the decision to be changed in a subsequent year particularly in absence of any material change justifying the revenue to take a different view of the matter and if there is no change, and it was in support of the assessee, it will not be appropriate to re-open the issue and to decide it contrary. Therefore, findings substance in the argument of ld. AR that in view of principle of consistency the reassessment proceedings for the year under consideration should have also been dropped. Therefore, on the short ground, we see no justification in upholding the validity of reassessment proceedings. Therefore, not going into the other aspects of the matter, which will be of academic in nature, we decide the appeal filed by the assessee in favour of assessee. 17. In view of above discussion, the appeal filed by the assessee is allowed in the manner aforesaid. Order pronounced in the Open Court on 22nd July, 2011.
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2011 (7) TMI 1254
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... ... ..... Gains during the Assessment Year 2004-05 being investments made in REC Bonds and NABARD Bonds. Since the entire investment was made out of the funds belonging to the assessee, the Assessing Officer treated the interest from entire investment of ₹ 4,94,70,000 as income of the assessee. Since the assessee has offered to tax only interest income of ₹ 2,52,324 corresponding to REC Bonds of ₹ 3,95,76,020 in the revised return, the Assessing Officer brought to tax the balance amount of ₹ 63,081 on protective basis which was confirmed by the CIT(A). Both the parties fairly agreed that the issue raised is consequential to the outcome of the appeal in ITA No.3538/Mum/2010 for the Assessment Year 2004-05. We have already decided the appeal and have treated the assessment as nullity. In view of the same, the ground raised by the assessee is allowed. 12. In the result the both the appeals of assessee are allowed. Order pronounced in the open Court on 20.07.2011.
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2011 (7) TMI 1253
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... ... ..... fitability of the company. TDS was also deducted on the incentives paid to Shri Mahesh Chandra. In such circumstances, we agree with the Ld. Commissioner of Income Tax (Appeals) that the provision of section 36(1)(ii) could not have been invoked. The case laws referred viz. ACIT vs. Bony Polymers (P) Ltd. 36 SOT 456 and C.I.T. vs. Autopins (India) 92 ITR 161 (supra) also support the case of the assessee. Ld. Commissioner of Income Tax (Appeals) has given a correct finding that payments were reward to give employee an incentive for the good work done by him. Thus, these expenses were incurred for the purpose of business expediency and for improving the working of the assessee. In view of the above, we do not find any infirmity or illegality in the order of the Ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same. 7. In the result, the appeal filed by the revenue stands dismissed. Order pronounced in the open court on 21/7/2011, upon conclusion of hearing.
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2011 (7) TMI 1252
Disallowance u/s 14A - Retrospective effect of Rule 8D - AO relying on the decision of Special Bench in the case of INCOME-TAX OFFICER, WARD 6 (2) (2), MUMBAI VERSUS DAGA CAPITAL MANAGEMENT (P.) LTD. [2008 (10) TMI 383 - ITAT MUMBAI], held that Rule 8D had to be retrospectively applied and disallowed the claim - HELD THAT:- Hon'ble Bombay High Court in the case of GODREJ AND BOYCE MFG. CO. LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER [2010 (8) TMI 77 - BOMBAY HIGH COURT] had overturned the decision of Special Bench upon which AO relied, and held that Rule 8D could be applied only prospectively from 2008 when it came to be notified. Nevertheless, Bombay High Court also held that If the assessee could show that no expenditure whatsoever was incurred, directly or indirectly in relation to earning of dividend income for periods prior to applicability of Rule 8D, there could not have been any disallowance under Section 14A of the Act.
We are of the opinion that these aspects have not been verified by the A.O. or ld. CIT(Appeals). Hence, we set aside the orders of lower authorities in this regard and remit the issue back to the file of the A.O. for consideration afresh de novo in accordance with law - Matter Restored back.
Disallowance u/s 40(a)(ia) - Sub-contract to Main Contract - Assessee deducted tax only at 1% on the payments explaining that it had given the catering contract only as a sub-contract of its main contract with ONGC - AO deducted TDS at 2% stating that catering charges directly spent by the assessee
HELD THAT:- It is observed that, unless assessee was given contracts for exploration by ONGC or similar companies who had licence from the Government, it could not operate a rig on its own nor extract any oil from the wells drilled by it. Thus, the rigs employed by the assessee in offshore drilling were all based on its contract with ONGC and similar companies licenced by the Government to do so. Hence, it could not be considered that the assessee had entered into a catering contract as an independent contract having no relation whatsoever with main contract it had with oil companies.
In our opinion, assessee can only be considered as a sub-contractor engaged for carrying out a part of the work undertaken by the assessee. We are, therefore, of the opinion that assessee had correctly deducted relevent percent from its payment made on catering contract considering such catering contract to be a sub-contract - Decision in favour of Assessee.
Payments made to non-residents without deduction of TDS - Disallowance u/s 40(a)(i) - Assessee provided some services to non residents - On such payments, Assessee deducted tax at 4% to fall under Section 44BB - As per AO, Assessee can't decide the applicability of Section 44BB - HELD THAT:- Assessee admittedly was engaged in exploration of oil on offshore basins and drilling was undertaken on contracts received from entities like ONGC. Such offshore drilling was for crude oil and crude oil is definitely a mineral oil. Therefore, services rendered by a non-resident entity for rental and repairs to machinery used in offshore drilling and also for drilling services can only be considered as services or facilities in connection with prospecting for, or extraction or production of mineral oil. Hence assessee had sufficient reason to have a bonafide belief that Section 44BB would apply to non - residents. We are, therefore, of the view that assessee was right in effecting deduction of tax at source considering Section 44BB - Decision in favour of Assessee.
Rental Income - Income from House Property or Income from Business - Assessee had let out a portion of its building, but the rental income therefrom was shown under the head “profits and gains from business” - AO said such rental income could be considered only under the head “income from house property” - CIT(A) upheld the decision of AO by following the decision of SHAMBHU INVESTMENT P. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2003 (1) TMI 99 - SC ORDER] and COMMISSIONER OF INCOME-TAX VERSUS CHENNAI PROPERTIES AND INVESTMENTS LTD. [2003 (3) TMI 28 - MADRAS HIGH COURT]
HELD THAT:- What was let out was building and not plant, machinery or any other asset. It is settled law that when a building is let out, the income has to be computed as income from house property. It was not letting out of a complex nature involving machinery and services - CIT(A) decision is therefore, upheld - Decision against Assessee.
Disallowance u/s 94(7) - AO noted that assessee had claimed short term capital loss arising out of sale of units of mutual funds which were held for a period of less than three months - Disallowance was made u/s 94(7) - HELD THAT:- It is for the assessee to show that the short term capital loss claimed by it were all on mutual investments, for which there was no record date. Assessee could not produce any details. In fact, nothing was brought on record to show how the computation made by the Assessing Officer was not acceptable. We are, therefore, of the opinion that the disallowance was rightly done - Decision Against Assessee.
Claim made otherwise than by way of Revised Return- Assessee made a claim for amortization of preference share issue expenses when put on notice that the said amount could not be allowed as revenue expenditure.
HELD THAT:- Assessee had never made a claim for amortization of preference share issue expenses in its return of income, but had chosen to make such a claim when put on notice that the said amount could not be allowed as revenue expenditure. In so far as contention of learned D.R. that assessee could not prefer such a claim, but through a revised return, no doubt, in the case of GOETZE (INDIA) LIMITED VERSUS COMMISSIONER OF INCOME-TAX [2006 (3) TMI 75 - SUPREME COURT], Hon'ble Apex Court held that an A.O. could not entertain a claim made otherwise than by way of revised return.
However, here the assessee had claimed the whole of the amount as revenue expenditure. The letter filed by the assessee was only an alternative claim that amount if not allowed in one go, it should be considered amortization under Section 35D. Assessee might have made a claim under a particular Section, but if the claim though not allowable under that section, but was allowable under another section, then it cannot be considered as a fresh claim, though the allowance under the latter Section could be given only in a gradated manner. The claim, nevertheless, was always there and we cannot consider it as claim of allowance made for the first time.
In any case, AO himself had considered the claim of the assessee under Section 35D. He did not allow the claim as assessee, according to him, was not an industrial undertaking and assessee had not completed extension of its industrial undertaking by purchase of rig. AO never declined to consider the claim for a reason it was made otherwise than through a revised return.
Amortization of Preference Share Issue Expenses u/s 35D - Now coming to the merits, the purchase of a rig might result in extension of its industrial undertaking. But, the deduction under Section 35D would be allowable for ten successive years beginning with the year in which extension of industrial undertaking is complete. It is an admitted position that the rig was under refurbishment and was not put to use. It is also an admitted position that assessee itself had shown it as a part of capital work in progress. Hence, extension of the industrial undertaking cannot be considered as complete in the relevant previous year. Ld. CIT(Appeals) was justified in denying assessee claim u/s 35D of the Act - Decision against Assessee.
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2011 (7) TMI 1251
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... ... ..... to the assessee. Merely because, in the opinion of the Assessing Officer, the source of the creditor was not infallibly proved, the same cannot be considered as a failure on the part of the assessee to discharge the onus cast on him under section 68 of the Act. Quite clearly, the onus on the assessee is to prove the identity, creditworthiness of the creditor, genuineness of the transaction and the same cannot be extended to prove the source of the creditors to the hilt. Therefore, having regard to the totality of facts and circumstances of the case, in our view, the invoking of section 68 of the Act to make an addition of ₹ 8 lakhs representing loan received from M/s Global Marketing in this case is misplaced. Resultantly, we set aside the order of the Commissioner of Income-tax (Appeals) and direct the Assessing Officer to delete the impugned addition. 7. In the result, the appeal of the assessee is allowed. Pronounced in the open court on this 27th Day of July, 2011.
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2011 (7) TMI 1250
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... ... ..... ading some evidence to suggest that the position taken up by the assessee was not correct. In this case, there is no evidence whatsoever on the record except the fact that the assessee wrote off this amount in the year of account. In the absence of any evidence, we are entitled to presume that the amount became irrecoverable when the assessee wrote it off in its books of account.” iv) The trade advance in question was given during the course of business and the assessee has written-off the same in its books of account during the year. Since the assessee has filed evidence before the Revenue authorities to demonstrate the fact that these advances have, in fact, become bad, consequently, we decline to interfere with the findings of the Commissioner (Appeals) and hereby uphold the same. Accordingly, Revenue fails on this issue for both the years under assessment. 11. In the result, appeals filed by the Revenue are dismissed. Order pronounced in the open Court on 22.7.2011
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2011 (7) TMI 1249
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... ... ..... held that merely because even as per the Assessing Officer's order, ultimately income of the assessee is negative, the Revenue's appeal before the appellate Tribunal would not be barred by the Board's circular under Section 268A of the Act. It is, however, clarified that the notional tax effect would have to be above the limits prescribed by the Board from time to time for presentation of such appeals. In all these cases since it is stated that the notional tax effect would be higher than the limits prescribed by the Board in different circulars, we are of the view that the Tribunal committed an error in dismissing the Revenue's appeals as being not maintainable. We may record that none of the appeals came to be decided by the Tribunal on merits.” 5. In the result, Tax Appeal is allowed. Judgment of the Tribunal is quashed. Question is answered in favour of the Revenue. The proceedings are remanded to the Tribunal for consideration of appeal on merits.
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2011 (7) TMI 1248
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... ... ..... perative Cane Development Union Ltd. (supra) also, no penalty under section 271B of the Act is leviable in the instant cases. 6.3 In view of the above, we hold that the assesses have proved that there was reasonable cause for not complying with the provisions of Section 44AB of the Act. In other words, the assesses were prevented by a reasonable cause for the failure envisaged in section 44AB of the Act. On second count also, no penalty under section 271B is leviable because the decision of the Hon'ble High Court of Uttarakhand in the case of Iqbalpur Co-operative Cane Development Union Ltd. (supra) is squarely applicable to the facts of the present cases. 6.4 Viewed from any angle, we hold that no penalty under Section 271B of the Act is imposable in the instant cases. 6.5 In view of the above, we cancel the impugned penalties and consequently all the appeals succeed. 7. In the result, all the five appeals are allowed. The order pronounced in the open Court on 7.7.2011.
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2011 (7) TMI 1247
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... ... ..... Issue notice, returnable six weeks hence. All the respondents, except for the respondent No.4, are duly represented on caveat. Accordingly, service on the said respondents is dispensed with. As far as the respondent No.4, is concerned, since he was a nominee Director and is no longer on the Board, service of notice on the said respondent is dispensed with. The respondents will be entitled to file their respective counter affidavits to the special leave petition within four weeks. Rejoinder, if any, may be filed within two weeks thereafter. The interim order, which was passed on 22nd July, 2011, will continue in the meantime. Let the matter be listed on the returnable date.
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2011 (7) TMI 1246
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... ... ..... Control India (P) Ltd. vs. CIT (314 ITR 62) in which the Hon’ble Supreme Court observed that warranty was an integral part of the sale price as the warranty stood attached to the sale price of the product. It was also observed that warranty provisions have to be recognised because an assessee had a present obligation as a result of past events resulting in an outflow of resources and a reliable estimate could be made of the amount of obligation. Therefore the assessee had incurred the liability which was an allowable deduction under section 37 of the I.T. Act. Respectfully following the said judgment we set aside the order of the Ld. CIT (A) and allow the claim of the assessee.” 4. We respectfully following the decision of the Hon’ble Tribunal in assessee’s own case for A.Y. 2005-2006 this ground of appeal raised by the assessee is allowed. 5. In the result, the appeal filed by the assessee is allowed. Order pronounced on this 15th day of July, 2011.
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2011 (7) TMI 1245
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... ... ..... made by the High Court in the interim order(s). Mr. Fali S. Nariman, learned senior counsel appearing on behalf of the petitioners, on instructions, states that, pending the hearing and final disposal of the appeal by the Tribunal, the petitioners will not invite any further deposits. In view of the above statement of the learned senior counsel, the impugned Order of SEBI will not be given effect to till the appeal is decided. Since important questions of law arise, which may recur repeatedly, we direct the Tribunal to dispose of the appeal within eight weeks from the date of it's filing. We make it clear that in the appeal, which is proposed to be filed by the petitioners herein, the petitioners will make Union of India Ministry of Corporate Affairs as a party respondent, particularly in view of the fact that the question of jurisdiction of Registrar of Companies under Section 55A(c) also needs to be considered. The special leave petitions are, accordingly, disposed of.
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2011 (7) TMI 1244
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... ... ..... not justified to assess the Long Term Capital Gain in the hands of the assessee at ₹ 2,02,16,667/- (being 1/3rd of ₹ 6,06,50,000/-) in the A.Y. under consideration, on the basis of the Development Agreement between the assessee and other joint owners as one part and the Developer under the above noted circumstances. The first appellate order on the issue is thus upheld. The Ground No. 1 is accordingly rejected. 8. So far as Ground No. 2 contending that the Ld CIT(A) had erred in entertaining additional evidence is concerned, there is no substance therein since no additional evidence was filed by the assessee before the ld CIT(A) and the documents were actually filed before the A.O having jurisdiction in the case of the assessee. The filing or reference of such document before the Ld CIT(A) cannot be treated as additional evidence. The Ground No. 2 is accordingly rejected. 9. In result, appeal is dismissed. Order is pronounced in the open Court on 29th July, 2011.
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2011 (7) TMI 1243
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... ... ..... 279 ITR 100 and in the case of Rukmini Bai vs CIT, 276 ITR 650 held that "the explanation could be same as that given before the AO and if that had been so, it would have had to be looked into in the penalty proceedings but when no explanation was filed, it could not be taken into consideration. If the assessee fails to explain the issue at the penalty stage, levy of penalty is justified". 16. Considering the above, we are of the view that the assessee failed to comply with the statutory notices. Whatever explanation was given before the learned CIT(A) was not substantiated through any material on record. We, therefore, do not find any justification to interfere with the order of the learned CIT(A). We confirm the same and dismiss the appeal of the assessee. 17. In the result, the appeal of the assessee in ITA No.3121/Ahd/2010 is partly allowed; whereas the appeal of the assessee in ITA No.3122/Ahd/2010 is dismissed. Order pronounced in the open Court on 21.7.2011.
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2011 (7) TMI 1242
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... ... ..... case of ITO vs. Patel Automobiles supra , levy of penalty is not justified. Further, the Hon'ble Bombay High Court in the case of CIT vs. Attar Mohd. Dawood And Bros. supra was concerned with a case where return had been revised and penalty had been levied on additional income. It was held by the Hon'ble High Court that since undisclosed income which was disclosed in the revised return was not noticed during search operation, therefore, penalty could not be levied. Similarly, in the case before us, since no enquiry was made regarding the loss returned by the assessee in the original return, it cannot be said that it is not a case of filing of revised return voluntarily. Therefore, in our view, assessee has simply revised the return withdrawing the claim of loss and the same would not attract penalty. Accordingly, we confirm the order of the ld. CIT(A). 9. In the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on this day of 22/7/2011.
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