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Showing 241 to 260 of 1010 Records
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2011 (7) TMI 1162
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... ... ..... y transferred; (iv) S. 50C is a deeming provision which extends only to a capital asset which is “land or building or both”. A deeming provision cannot be extended beyond the purpose for which it is enacted. If a capital asset cannot be described as “land or building or both”, s. 50C cannot apply. A lease right in a plot of land is neither “land or building or both”. The distinction between a capital asset being “land or building or both” and any “right in land or building or both” is well recognized. “Land or building’ is distinct from “any right in land or building”. Consequently, s. 50C does not apply to leasehold rights.” 9. Respectfully following the aforesaid findings of the Tribunal, we uphold the order of the Commissioner (Appeals) and dismiss the ground raised by the Revenue. 10. In the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on 29.7.2011
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2011 (7) TMI 1161
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... ... ..... opinion, the CIT is not correct in assuming the deduction under section 10 when the department allowed deduction both in the earlier year as well as in the subsequent years for the same unit and also the CIT is not correct in assuming his jurisdiction by following the clarification issued by the CBDT on 9.3.2009 which is not before the Assessing Officer while allowing the deduction under section 10B of the Act. It is only a change of opinion by the CIT. On change of opinion, the CIT cannot assume his jurisdiction under section 263 of the Act. In view of the above, we cancel the order of the CIT under section 263 of the Act and restore that the order of the Assessing Officer.” 15. Respectfully following the decision of co-ordinate Bench of this Tribunal, the order of the CIT-III, Hyderabad is quashed and the order of the Assessing Officer is hereby restored. 16. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 15th July, 2011.
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2011 (7) TMI 1160
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... ... ..... vestment in shares was for earning of dividend and as the said dividend income was exempt from tax, the interest expenditure could not be taken into account in view of the provisions of section 14A. The view taken by the CIT(A) was not accepted by the Tribunal. It was held that since the assessee had borrowed funds for acquisition of shares and interest had been capitalized, interest could not be separated from amount of investment. Thus, it was held that interest liability has to be taken into account towards cost of capital asset for the purpose of computation of capital gain. The case of the assessee is identical. We therefore, respectfully following the decision of the Pune Bench of the Tribunal (supra), see no infirmity in the order of the CIT(A) in allowing capitalization of interest to the cost of acquisition of shares. The order of the CIT(A) is accordingly up held. 6. In the result, appeal of the revenue is dismissed. Order pronounced in the open court on 27.7.2011.
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2011 (7) TMI 1159
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... ... ..... s for maintaining audit quality. So, we cannot say that such activities were in the nature of trade, commerce or business, even if consider the activity done by the assessee as one for advancement of object of general public utility. In any case, assessee, in our opinion, was only doing educational activity and the substituted Section 2(15) of the Act which effectively added a proviso thereto, would not apply to the assessee since such proviso was applicable only with regard to charitable activities in the nature of advancement of object of general public utility. We are, therefore, of the opinion that the assessee was well entitled to approval under Section 80G of the Act. The order of ld. DIT (Exemptions) is quashed and he is directed to grant the assessee renewal of its approval under Section 80G of the Act as sought for. 6. In the result, appeal of the assessee stands allowed. Order pronounced in the open court after conclusion of hearing on the Fourth Day of July, 2011.
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2011 (7) TMI 1158
Deemed dividend addition - Addition of cash in hand in excess of ₹ 50,000/- as asset u/s. 2(ea)(vi) - If cash in hand pertains to business being a business asset which is productive asset - Assessee’s contention is that this is a business asset and does not fall under provision of section 2(ea)(vi) as that provision applies to cash in hand in the individual form and not to business asset that belong to proprietary concern of the assessee - HELD THAT:- We find that cash in hand in excess of ₹ 50,000/- in hands of assessee in individual status forms part of asset u/s. 2(ea)(vi). There is no ambiguity in holding so, because as per clause (vi) of sec. 2(ea) cash in hand in excess of ₹ 50,000/- of individuals and HUFs and in the case of other persons any amount not recorded in the books of account are to be treated as asset for the purpose of wealth tax. As per Chelliah Committee report, Finance Act, 1992 and CBDT Circular, it was made clear that only non-productive assets are to be brought under the ambit of Wealth Tax whereas the productive assets are to be excluded from it. There is hardly any scope to account for non-productive cash in the account of the business being carried out as proprietor.
The assessee's issue is covered against assessee by the decision of Hon’ble Kerala High Court in the case of COMMISSIONER OF WEALTH-TAX VERSUS SMT. KR. USHASREE (AND OTHER CONNECTED APPEALS) [2009 (7) TMI 834 - KERALA HIGH COURT], where it was held that there is nothing that stops the assessee from utilizing the cash in hand which may be business asset on the valuation date for any non-productive purpose on the next day. Therefore, the argument of the assessee that cash in hand of businessmen should be treated as productive asset also is meaningless. We respectfully follow this decision - Decision against Assessee.
Cash in hand generated out of cash sales - Covered u/s 2(ea)(vi) or not? - Alternative contention made that Assessing Officer has not verified the generation of cash in hand which is out of sales made and qua that cash in hand should be treated for business purposes - HELD THAT:- We are with the assessee and incase this cash in hand is generated out of cash sales , it can be stated that this is out of business asset and this business asset is not covered by provision of section 2(ea)(vi) of the Act. Accordingly, this needs verification at the end of the Assessing Officer. Appeal of the assessee is set aside to the file of AO in term of the above - Decision in favour of Assessee.
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2011 (7) TMI 1157
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... ... ..... nce of deduction u/s 80IB(10) only to the extent of profits of commercial area and not the entire profits of the project" 31. At the time of hearing, both parties have agreed that the facts of the above issue are similar to the facts of the case for the assessment year 2004-05, therefore, the plea taken by them in respect of deduction under section 80IB(10) in the appeal for the said assessment year may be considered while deciding the appeal for this year. 32. That being so and in the absence of any distinguishing features brought on record by the parties, we, for the reasons as mentioned in assessee's appeal for the assessment year 2004-05 in paragraph 29 of this order hold that the assessee is entitled to the deduction under section 80IB(10) of the Act as claimed. The AO is directed to allow the same. The grounds taken by the assessee are therefore allowed. 33. In the result, the assessee's appeals are allowed. Order pronounced in the open court on 20.7.2011.
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2011 (7) TMI 1156
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... ... ..... hown. Revenue’s case was that no rewarehousing certificates for these ARE-3s were produced but the adjudicating authority has recorded a finding that the re-conciliation of the ARE-3s has been carried out and there is no demand of duty as the assessee was able to show rewarehousing of goods, and he dropped the demand of duty but imposed penalty. In our considered view at this juncture the imposition of penalty under Rule 27 of the Central Excise Rules, 2002 based upon quantification of number of ARE-3s is uncalled for, as under the said rule there is a provision of imposition of general penalty of ₹ 5,000/- (Rupees five thousand only). Hence, we are of the view that the appellant has made out a prima facie case for the waiver of the pre-deposit of the penalty imposed by the adjudicating authority. Application for waiver of pre-deposit of the penalty is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in the open Court)
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2011 (7) TMI 1155
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... ... ..... ave Petition is dismissed on the ground of delay.
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2011 (7) TMI 1154
Whether the High Court was justified in quashing the criminal proceedings against the Respondent Nos. 1-3 (A1-A3) by invoking jurisdiction under Section 482 of the Code?
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2011 (7) TMI 1153
Disallowance u/s 14A - Disallowance was made stating that part of administration/office/personnel cost is attributable to tax free income - HELD THAT:- Following the decision of Bombay High Court judgment 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] and decision in INCOME-TAX OFFICER, WARD 6 (2) (2) , MUMBAI VERSUS DAGA CAPITAL MANAGEMENT (P.) LTD. [2008 (10) TMI 383 - ITAT MUMBAI], We are of the opinion that the matter should be set aside for reexamining the issue afresh after giving reasonable opportunity of being heard - Matter Restored Back.
Corporate Membership Fee paid to club - Capital or Revenue Expenditure - AO held that payment towards corporate membership should be treated as capital expenditure since it represents one time payment - HELD THAT:- The issue is covered in favour of the assessee OTIS ELEVATOR COMPANY (INDIA) LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1991 (4) TMI 53 - BOMBAY HIGH COURT], where it was held that payments of club fees enable the assessee to improve its business relations and prospects, thus must be allowed as business expenditure.
We have examined if the payment made by the company for want of club membership in the name of the executives is allowable as business and revenue expenditure. In our opinion, the existence of the membership in the names of the employees should not make any difference on taxability so long as they were used for the employer’s business purposes and the company has paid the FBT as per the law. Thus, impugned issue is settled in favour of the assessee - Decision in favour of Assessee.
Miscellaneous expenses - Allowed Expenditure u/s 37(1) or Not? - Disallowance of 10% of the miscellaneous expenses was made on the ground that it is a not an allowable expenditure u/s 37(1) - CIT(A) restricted the disallowance to 5% - HELD THAT:- The decision of CIT(A) is affirmed by us in assessee own case, therefore, we are of the opinion, the decision of the CIT(A) does not call for any interference.
Disallowance on Expenditure on Running and Maintenance of Aircraft and Aviation Vehicles u/s 38(2) - Disallowance was made on total expenditue on running and maintenance of aircraft on the ground of personal use - AO adopted disallowance of 30% as against 1/7th of the claim in the past - HELD THAT:- Assessee used aircraft for the mixed use and therefore, there is no dispute on the invoking of the provisions of section 38(2) of the Act. Following the decision made in AVINASH NIVRUTTI BHOSALE, VERSUS. ADDL. CIT, RANGE-3, & VICE VERSA [2010 (9) TMI 1119 - ITAT PUNE], AO's decision is confirmed. Regarding the issue of use of the aviation vehicles for personal use. AO is directed to recompute the disallowance on the aforementioned case.
Deduction on account of sales promotion and employee/factory welfare and Entertainment Expenditure - On considering the nature of the expenditure being expenditure on lunch, snacks, diwali sweets etc, CIT(A) confirmed the addition - HELD THAT:- We find the disallowance is made applying the adhoc percentage of 5 % of the claim. In our opinion, applying such fixed percentage only creates a wrong precedent, when the AO has not made any basis for arriving at such percentage. In our opinion, when the adhocism is the basis, disallowance of an adhoc amount of ₹ 1 lakh should meet both ends of the justice.
Eligible deduction in respect of cash discount received u/s 80IB - An amount is received from the raw material suppliers purchased by the assessee. Assessess's contention was these receipts are eligible for deduction derived from the undertaking of the assessee - HELD THAT:- We have considered the facts of the case available before us and find that undisputedly the said amount is cash discount received by the assessee. Nothing is available before us to establish that this cash discount is in connection with the earlier payments by the assessee to the suppliers who sold the material to the assessee. Regarding accounting method also, there is no material available before us to know as to how the said discount amount was maintained by the assessee in its ledger.
Further, we find that the supreme Court in the case of M/S LIBERTY INDIA VERSUS COMMISSIONER OF INCOME TAX [2009 (8) TMI 63 - SUPREME COURT], has confirmed the ratio relied upon by the A.O. In our opinion, for the sake clarity of the facts, we find that the matter should be set aside to the file of the A.O for want of facts as well as application of law as it existed now. Apart from other facts, AO must demonstrate the immediate nexus of these cash discount receipts vis a vis purchases or to the payments to the suppliers of the raw materials purchased by the assessee.
Carry Forward of Unabsorbed Depreciation of Amalgamating Co - Charging of MAT u/s 115JB - A company has been amalgamated with assessee co - Issue is whether the Unabsorbed depreciation of amalgamating company is eligible for reduction from the book profit of the assessee as per (iii) to Explanation (1) of 115JB - AO, further observed that provision of 72A are not followed.
HELD THAT:- After going through the provisions of sec. 115JB, it is clear that the amount of loss brought forward or unabsorbed depreciation, whichever is less as per books of account’ is entitled for reduction out of the net profit adjustment as per said Explanation I. In our opinion, once amalgamation is legally and validly done, the impugned loss or unabsorbed depreciation looses its earstwhile identity and practically it shall be loss and unabsorbed depreciation of the assessee company unless the principle of tax neutrality, which is the core principle for the business reengineering provisions, is violated. Nothing is brought our notice by the revenue to demonstrate any such violation. In effect of Amalgamation, the unabsorbed depreciation of amalgamating company, has become the unabsorbed depreciation of the assessee. Therefore, the impugned unabsorbed depreciation is the unabsorbed depreciation of the assessee by virtue of amalgamation and it can no longer be considered as unabsorbed depreciation of the amalgamated company.
Therefore, clause (iii) of Explanation (1) to section 115JB definitely covers the impugned unabsorbed depreciation and the same has to be considered in favour of the assessee.
Further, we find that the AO has not brought anything on to the records to demonstrate that the assessee failed to fulfil the conditions specified in the said section 72A . Thus, the relevant arguments of the DR are dismissed.
Deduction u/s 80-HHC - CIT (A) held that, Excise Duty and Sales Tax to be excluded from the total turnover for the purpose of computation of deduction - HELD THAT:- This issue is settled at the level of Hon’ble supreme Court in the case of COMMISSIONER OF INCOME-TAX VERSUS LAKSHMI MACHINE WORKS [2007 (4) TMI 202 - SUPREME COURT], wherein it is held that excise duty and sales tax are not includible in total turnover in the formula contained in section 80-HH(3). We accordingly uphold the order of the CIT(A) - Decision against Assessee.
Deduction u/s 80-IB - Scrap generated out of manufacturing process - business income or not? - The A.O observed that the scrap is not a bye product of the assessee and hence the sale of the same cannot be treated as the business income of the unit and hence not eligible for deduction u/s 80-IB - HELD THAT:- The said issue is also covered in favour of the assessee by virtue of Madras High Court judgment in the case of FENNER (INDIA) LTD. VERSUS COMMISSIONER OF INCOME-TAX. (NO. 2) [1998 (4) TMI 67 - MADRAS HIGH COURT] for the proposition that the profit on sale of scrap material since had a direct link or nexus with the industrial undertaking and therefore, it is eligible for deduction u/s 80IB. Considering the similarity in language used in sections 80HH and 80IB of the Act, we are of the considered opinion that the assessee should succeed in this regard also - Decision in Favour of Assessee.
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2011 (7) TMI 1152
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... ... ..... h counsels submit that question No. 1 and 2 are covered by the judgment of this court in ITA No.25/2003 c/w ITA No.298/2003 & ITA No.327/2003 disposed off on 09.07.2008 as well as by the order dated 07.07.2010 passed in ITA No.141/2005 c/w ITA No.137/2005. Accordingly, the substantial question of law No. 1 and 2 are answered in terms of the aforesaid judgments by holding in favour of the assessee and against the revenue. 5. So far as question No. 3 & 4 are concerned, the learned counsel appearing for the appellant submits that the said questions are not pressed by him since they do not arise for consideration. Hence they are deleted. 6. Question No. 5 & 6 have since been answered by the order dated 03.02.32011 passed in ITA No.674/2007 and connected matters. Accordingly, they are answered in terms of the aforesaid judgment by holding that the said questions are answered in favour of the assessee and against the revenue. 7. Accordingly this appeal is disposed of -
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2011 (7) TMI 1151
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... ... ..... ent in India. Thus, the assessee was not obliged to deduct tax at source. In reply, the ld. DR relied on the order of the ld. CIT(Appeals). 4.2 We have considered the facts of the case and submissions made before us. The impugned order deals with a situation where tax is deductible at source u/s 195, but it has been deducted and paid in a subsequent year. Such is not the case made out before us. The case of the ld. counsel is that all services were rendered by the concerned person outside India and payment was also made outside India. Therefore, tax was not deductible at source in respect of payment made to him. This proposition has not been displaced by any argument by the ld. DR. In absence thereof, it is held that the provision contained in section 195 and consequently section 40(a)(ia) is not applicable to the facts of this case. Accordingly, the disallowance is deleted. 5. In the result, the appeal is allowed. This order was pronounced in the open court on 8 July, 2011.
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2011 (7) TMI 1150
Disallowance of expenditure attributable to exempted income u/s 14A r/w Rule 8D - Assessee has claimed exempt income of dividend and offered a sum as expenses attributable to such exempt income and disallowed from its claim u/s 14A - Such computation was certified by statutory auditors - AO observed that such disallowance is not in accordance with rule 8D
HELD THAT:- We find that computation made by assessee was certified by its statutory auditors and this fact has been recorded by AO as well as CIT(A). In the present case, the assessee has explained that the share capital and reserves, that is its own funds, were utilised for the purpose of investment in shares for earning dividend income and this has not been negated by lower authorities i.e. neither CIT(A) nor AO.
It is an admitted position in law that expenditure can be disallowed under sec. 14A if and only if it is incurred in relation to income which does not form part of total income. From the facts of the present case, it is clear that there is no link with expenditure for earning of dividend income incurred by the assessee and once the facts are clear, no disallowance can be made by invoking rule. 8D. Neither the AO nor CIT(A) has recorded any finding that having regard to the account of the assessee, they are not satisfied with the correctness of the claim of expenditure made by assessee or the claim made by assessee that no expenditure has been incurred in relation to income which does not form part of the total income under the Act for the relevant assessment year.
In the absence of any such finding, facts of the present case show that the investment in shares was made out of own capital employed and not from borrowed funds, no disallowance on account of interest expenditure can be made by invoking rule. 8D of the Rules. Accordingly, in the given facts and circumstances, we delete the addition - Decision against Assessee.
Deduction u/s 80IA - The AO disallowed deduction under sec. 80IA after deducting proportionate head office expenses on turnover basis - CIT(A), confirmed such order
HELD THAT:- We find that the issue is squarely covered in favour of assessee in assessee’s own case for asst. yr. 2007-08, where it was held that It is also an undisputed fact that the authorities have nowhere pointed out that any expenditure which had been incurred by the head office pertained directly to the undertakings for which deduction under sec. 80IA/80IB had been claimed. It is seen that the tax authorities have proceeded on the footing that some expenses must have been incurred by the head office; suspicion cannot supplant evidence.
Since there is no shortcoming pointed out in the accounting of the assessee, no effort has been made to show that any specific expenditure incurred under the head office actually pertained to the undertakings for which deduction is being wrongly claimed.
This action purely based on suspicion ignoring the facts on record is not in accordance with law. Accordingly, in the peculiar facts on record, we find that the orders of the AO and the CIT(A) deserve to be set aside. Taking a consistent view and respectfully following the same, we allow this issue of the assessee’s appeal.
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2011 (7) TMI 1149
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... ... ..... 0/S-102/KOL/2011 dated 25.04.2011 we find that there is no report for compliance of the pre-deposit ordered nor there is any representative present to explain the factual position as regards compliance of the stay order. The Appeal is dismissed for non-compliance. (Pronounced and dictated in the open court.)
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2011 (7) TMI 1148
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... ... ..... p and occasion, both, have to be considered for justification of valid Gift.” 80. We have heard both the sides on this revised ground of appeal. In this ground, the revenue has also challenged deletion of addition in respect of donor, Shri Sanjeev Juneja who has made a gift of ₹ 8,00,000/- to the assessee. The donor was presented before the Assessing Officer. The Assessing Officer has accepted the gift from him as a genuine in his remand report submitted to the CIT (A). Therefore, we do not find any merit in the revised ground of appeal. We dismiss the same and the addition deleted by the learned CIT (A) in respect of gift from Shri Sanjeev Juneja is upheld. 81. In the result, the appeals of the revenue for Assessment Year 2003-04 is allowed and for Assessment Year 2004-05 is partly allowed, for statistical purposes and Cross Objections filed by the assessee are partly allowed for statistical purposes. Order pronounced in open court on this 1st day of July, 2011.
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2011 (7) TMI 1147
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... ... ..... Tax Act is therefore confirmed…” 40. We have heard both the parties. The ld. CIT(A) has given cogent reasons for confirming the impugned disallowance. The assessee has not been able to show as to how the order passed by the CIT(A) is erroneous. In this view of the matter, the order of the CIT(A) in this behalf is confirmed. Ground No. 6 is dismissed. 41. Ground No.7 taken by the assessee is directed against the order of the CIT(A) confirming levy of interest u/s 234B/234C/234D. At the time of hearing, it was fairly submitted on behalf of the assessee that the levy of interest is consequential ad mandatory. Ld. CIT(A) has referred to the judgments of the Hon’ble jurisdictional High Court and Supreme Court in support of her decision. We are in agreement with her decision and therefore confirm her order in this behalf. Ground No.7 is dismissed. 42. In view of the foregoing, the appeal filed by the assessee is partly allowed. Order pronounced on 4th July 2011
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2011 (7) TMI 1145
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... ... ..... tained central excise registration and suppressed the actual value with the intention to evade central excise duty. This has resulted in issuance of show cause notice and the adjudicatory order was passed by the Jt. Commissioner, Central Excise on 30.11.1999 imposing the duty of ₹ 6,04,624/- and penalty of ₹ 3 lacs. The assessee aggrieved by this order filed an appeal before the CIT(A) who upheld this portion of the order vide order dated 28.02.2002. Thereafter, the assessee preferred an appeal before the CESTAT which passed an order on 03.12.2003 sustaining the duty but held that the penalty imposed was on the higher side and reduced the same to ₹ 60,000/-. It is in these circumstances that the revenue sought a reference which resulted in the question of law framed aforesaid. In view of the authoritative pronouncement of the Supreme court, the question has to be answered in the negative and against the assessee. The appeal, accordingly, stands disposed of.
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2011 (7) TMI 1144
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... ... ..... ng the appellate proceedings did not give any details or produce evidence to prove that the vehicles given on lease were ultimately used for hiring by the lessee. The case laws referred by the assessee also do not come handy in such circumstances. From the facts of the case it is not clear as to how the appellant company has utilized the motor vehicles. Even before us the appellant did not bring any material evidence to establish its claim. In these circumstances we have no other alternative rather than to remit the matter back to the file of ld. WTO with the direction to examine the lease agreement executed by the assessee company and arrive at a conclusion as to whether the recipients of the vehicles had hired out the vehicles as stipulated under the Wealth Tax Act and pass appropriate order on merits. It is ordered accordingly. 7. In the result, the appeal of the assessee is allowed for statistical purpose as indicated above. Order was pronounced in open Court on 22/7/11.
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2011 (7) TMI 1143
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... ... ..... n (iv) and (v) are concerned, similar questions raised by the Revenue in the assessee's own case, being Income Tax Appeal No.4278 of 2009 have been rejected by this Court on 11th January 2011. For the reasons stated therein, question (iv) and (v) cannot be entertained. o p /o p 4. As regards question (iii) is concerned, the finding of fact recorded by the Tribunal is that the assessee had advanced loans to its employees in the ordinary course of business. the Tribunal has recorded a finding of fact that it is not the case of the Revenue that the loans were in deviation from normal employment practices. There is also no dispute that these losses have become unrecoverable and the persons concerned are no longer in employment of the assessee company. o p /o p 5. In our opinion, the decision of the Tribunal is based on finding of fact. No substantial question of law arises from the order of the Tribunal. The appeal is accordingly dismissed with no order as to costs. o p /o p
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2011 (7) TMI 1142
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... ... ..... fishing enquiry as regards the affairs of the assessee-petitioner and the proceedings initiated in pursuance thereof. o p /o p Having heard learned counsel for the parties, as advised as present, we are only inclined to deal with the prayer No.1. We have been apprised by Mr. Sanjeev Sabharwal, learned counsel for the Revenue that re -assessment proceedings have already been initiated. o p /o p In view of the aforesaid, grant of “no objection certificate” would be absolutely contrary to the statutory provisions. As far as the second relief is concerned, the same has already culminated in initiation of the proceedings under Section 147 of the Act and notices have been issued under Section 148 of the Act. It is also worth noting that the said initiation has already been challenged in W.P.(C) No. 7932/2010 which shall be adverted to while dealing with the said writ petition. o p /o p The writ petition is accordingly disposed of without any order as to costs. o p /o p
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