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Showing 221 to 240 of 926 Records
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2011 (8) TMI 1153
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... ... ..... for the assessee, the order passed by the learned CIT u/s 263 has already been set aside by the Tribunal vide its order dated 15th July, 2011 passed in ITA No. 3284/Mum/2009. Consequently, the subsequent proceedings originated from the order passed by the learned CIT u/s 263 including the assessment order made by the AO u/s 143(3) read with section 263 have become non-est in the eyes of law. This appeal arising from the order of the AO passed u/s 143(3) read with section 263 thus is liable to be allowed. 3. In the result, the appeal of the assessee is allowed. Order pronounced on this day of August, 2011.
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2011 (8) TMI 1152
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... ... ..... and in facts in retaining addition of only ₹ 5 lacs out of ₹ 20 lacs made by the Assessing Officer when the disclosures made at the time of survey were never retracted or in any manner explained by the assessee during the course of assessment proceedings ?”
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2011 (8) TMI 1151
Reopening of assessment - invalid notice - Held that:- The fact that notice was not served on the correct person and the fact that notice by post was not sent to the correct address also remaining unrebutted on record. Fatuous argument advanced by the Sr. DR that at the address as per return the only likely occupants would be cows and buffaloes as such is of help to the department as it merely addresses the fact that no attempt was made to serve notice to the address available on the return. Similarly the argument that notice would have been received despite a wrong address in a small place like Bulandshahar also does not inspire any confidence and it definitely cannot be said to be a rebuttal of the consistent unrebutted stand of the assessee that the notice was never served upon the assessee. In regard to notice on some Minakshi Agarwal again in the face of consistent stand of the assessee right from the stage of AO that he has not received the notice and she was not the authorized person of the assessee a rebuttal by the department on record is not available.
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2011 (8) TMI 1150
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... ... ..... his juncture, Mr. Santhanam submitted that as this Court has dismissed the writ petition, the respondents are likely to take an adverse view of the matter and may feel that there has been adjudication on the merits or an expression of opinion. When this Court had categorically stated that no opinion is expressed, it is expected from the authorities that they should not even remotely harbor the idea that there has been any delineation on the stand and stance put forth by the petitioner from any quarter. 8. Mr. Santhanam submitted that the adjudicating authority may not supply the relevant documents to the petitioner. Without expressing any opinion on this, liberty is granted to the petitioner to file an appropriate application before the adjudicating authority for supply of relevant documents. 9. Regard being had to the aforesaid analysis, we are not inclined to review the order passed on earlier occasion and, accordingly, the application for review stands rejected.
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2011 (8) TMI 1149
Disallowance of deduction u/s 80IB - jurisdiction of State of Gujara - Held that:- It is not in dispute that the office of Income Tax Office, Vapi, Ward-4, Daman falls within the jurisdiction of Income Tax Officer, Vapi who is in jurisdiction of CIT, Valsad and CCIT, Surat and CCIT, Ahmedabad which are situated in the State of Gujarat. The PAN and TAN details submitted by the assessee clearly indicated that the jurisdiction of the assessee lies at Gujarat only. Even the learned CIT(A) who decided the appeal of assessee at Daman is situated at Valsad (Gujarat). The copy of the acknowledgement of return is filed in the paper book to show that return is filed in the office of Income Tax Office, Vapi, Ward-4, Daman on 01-12-2006 and the Assessing Officer in the case of the assessee is also designated as Income Tax Officer, Vapi, Ward-4, Daman. The contention of the assessee, is therefore, correct that for all purposes the assessee is assessed at Vapi (State of Gujarat). The jurisdiction of the assessing authority at Daman and concurrently at Vapi which admittedly falls in the jurisdiction of State of Gujarat as noted above. For all practical intent and purposes the cases of Daman falls in the jurisdiction of Vapi and Valsad. Therefore, the assessee is rightly held to be assessed within the jurisdiction of State of Gujarat. Thus, the circular of CBDT applies to the case of the assessee also. The learned CIT(A) on proper appreciation of the facts and CBDT Circular and the beneficial provisions extended to the assessee, rightly allowed the appeal of the assessee by granting deduction u/s 80 IB of the IT Act
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2011 (8) TMI 1148
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... ... ..... sessee on the given facts and circumstances as discussed above. In view of the above, in our considered opinion, the action of the A.O. is contrary to the decision of Hon’ble Apex Court in the case of CIT vs. M/s. Lovely Exports (P) Ltd. (supra). 6.5. The ld. A/R also cited several other decisions of coordinate Bench of I.T.A.T., Kolkata, copies of which are placed on record and these decisions, on the facts and circumstances of the assessee’s case, in our opinion, are also applicable to the case of the assessee. 6.6. In view of above facts and respectfully following the decisions cited supra, we are of the considered view that there is no infirmity in the order of the ld. C.I.T.(A) in deleting the addition ₹ 25,00,000/- made by the A.O. u/s. 68 of the Act. Hence, we uphold his order and reject the grounds of appeal taken by the department. 7. In the result, the appeal of the department is dismissed. This order is pronounced in the open Court on 12.08.2011.
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2011 (8) TMI 1147
Deductions only on Actual Payments u/s 43B - AO disallowed the amount of excise duty paid on purchased inputs on the ground that the same did not amount to payment of duty - HELD THAT:- Following the view in the case of DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 4 (1). VERSUS GLAXO SMITHKLINE CONSUMER HEALTHCARE LIMITED. [2007 (7) TMI 334 - ITAT CHANDIGARH], where it was held that the unutilized MODVAT credit is not an allowable deduction since such credit does not amount to payment of duty, the claim of the assessee is declined.- Decision against Assessee.
Expenditure incurred for Earning Exempt Income - Deduction u/s 14A - The department applied the provisions of Rule 8D to determine the disallowance - HELD THAT:- Since the matter is already before the Delhi High Court in the case of INCOME-TAX OFFICER, WARD 6 (2) (2), MUMBAI VERSUS DAGA CAPITAL MANAGEMENT (P.) LTD. [2008 (10) TMI 383 - ITAT MUMBAI], involving the same identical issue, we think it fit to restore the matter back to the file of the AO with the direction to decide the issue afresh in the light of the binding decision of the Jurisdictional High Court - Matter restored back.
Disallowance comprising of PLA balances of R&D Cess on vehicles - Deduction u/s 43B- As per AO, PLA balances are advance payments made towards goods which are yet to be manufactured or cleared from the factory, thus disallowed. HELD THAT:- We may point out that the decision of the ITAT Special Bench of Chandigarh in the case of DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 4 (1). VERSUS GLAXO SMITHKLINE CONSUMER HEALTHCARE LIMITED. [2007 (7) TMI 334 - ITAT CHANDIGARH], is directly on the issue of balances in PLA and is allowable deduction u/s 43B of the Act and, therefore, in the light of these, we decline to interfere - Decision in favour of Assessee.
Customs duty on import of components for Export Purposes - The AO disallowed the claim holding that the same is revenue neutral since this amount should be reflected in the closing stock and purchase as provided in section 145, thus not allowable deduction - HELD THAT:- In our view, this issue is concluded in favour of the assessee by the decision of the Hon’ble Supreme Court in the case of BERGER PAINTS INDIA LTD. VERSUS COMMISSIONER OF INCOME-TAX [2004 (2) TMI 4 - SUPREME COURT], wherein it was observed by the Hon’ble Supreme court that by merely debiting the duties to the P&L account as part of the value of the closing stock, it could not be said that the same have been allowed as deduction and would be separately allowable u/s 43B - Decision in favour of Assessee.
Customs duty on Inventory held in Closing Stock - As per AO, the assessee has already debited the said sum to the Profit & Loss account and correspondingly included in closing stock and the assessee is not entitled for any further deduction - HELD THAT:- CIT (A) accepted the contentions of assessee that although the amount stood debited to the Profit and loss account and was included in the closing stock, the said amount would still be separately deductible under section 43B in the light of the decision of Hon’ble Supreme Court in the case of BERGER PAINTS INDIA LTD. VERSUS COMMISSIONER OF INCOME-TAX [2004 (2) TMI 4 - SUPREME COURT]. We confirm the decision of CIT(A) - Decision in favour of Assessee.
Excise duty paid under protest - The AO disallowed the claim on the ground that the assessee was contesting these liabilities and there was no finality regarding the liability -HELD THAT:- CIT(A) accepted the claim of assessee that these payments were statutory dues in the year under consideration as declared by the excise department. The liability has crystallized and paid in the same year. If the company gets relief from the Excise Authorities, the refunds received will be accrued as income and the same are offered for taxation - Decision in favour of Assessee.
Excess Consumption of Raw material - Tolerance Limit - AO made an addition on the basis of excess consumption -HELD THAT:- CIT(A) after going through this historical perspective on the issue, finds the alleged consumption of raw material is 0.06% only whereas CESTAT has accepted such tolerance limit at 0.24% in assessee's own case. CIT(A) decision, thus, upheld - Decision in favour of Assessee.
Disallowance u/s 35DDA - Amortization of expenditure incurred under Voluntary Retirement Scheme - Assessee claimed deduction for VRS payments which was disallowed by AO on basis of his stand in earlier asseement year -HELD THAT:- we follow our own earlier order according to which payments made by the assessee are clearly covered u/s 35DDA, the same payments cannot be considered and allowed u/s 37(1).
Expenditure incurred for Business Purposes - Assessee claimed expenditure on club membership fee was for employees and directors. CIT(A) allowed said expenditure - HELD THAT:- ld. CIT(A) following its own case, confirmed that expenditure was incurred for business purposes and warranted by business necessities and exigencies. We therefore, confirm the decision of CIT - Decision in favour of Assessee.
Sales Tax Subsidy - Wrongly included in Return of Income - Sales Tax subsidy recieved was included in the return of income by the assessee. Also, such income was considered as capital receipt - HELD THAT:- The CIT(A) was right in having come to the conclusion that when the assessee signed a letter before the AO during the course of assessment proceedings wherein it was claimed that the disputed receipt be excluded from the total income, was required to be adjudicated by the AO. Merely because the assessee wrongly included the income in the return of income, it cannot by itself tax that income in that year, even though legally such income did not pertain to that year - Decision in favour of Assessee.
Sales Tax Subsidy u/s 25A of The Haryana General Sales Tax Act, 1973 - Capital Receipt or Revenue Receipt? - HELD THAT:- Applying the test laid down in the COMMISSIONER OF INCOME TAX, MADRAS VERSUS PONNI SUGARS & CHEMICALS LTD. [2008 (9) TMI 14 - SUPREME COURT], CIT(A), correctly came to the conclusion that the subsidy receipt in question are part of capital receipt given by the Haryana State Government for the purpose of meeting the objectives of Industrial Policy 1999 i.e. to attract new investment and to ensure growth of existing industries -Decision in favour of Assessee.
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2011 (8) TMI 1146
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... ... ..... or unabsorbed depreciation whichever is less as per the books of accounts shall have to be considered by the AO while completing the assessment. The same provision was taken into consideration while finalizing the assessment. The AO at the rectification stage had taken different interpretation of this provision in order to pass order u/s 154 of the IT Act. Therefore, the learned CIT(A) rightly held that the issue is debatable and the conclusion could be drawn after long drawn discussions. There was no mistake apparent on record; therefore, on a debatable issue the proceedings u/s 154 of the IT Act would not be valid. The learned DR merely relied upon the order of the AO u/s 154 of the IT Act and has not pointed out any infirmity in the order of the learned CIT(A). In view of the above, we do not find any merit in the appeal of the revenue. Same is accordingly dismissed. 6. In the result, the appeal of the revenue is dismissed. Order pronounced in the open Court on 05-08-2011
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2011 (8) TMI 1145
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... ... ..... ly. Needless to say that Assessing Officer will adjudicate the issue after giving adequate opportunity of being heard to the assessee, in the light of our above direction.” 7. Following the above decision of the Tribunal, we restore the matter to the file of AO with similar direction to verify the actual date of payment of TDS and where the amount of TDS is found to be deposited before due date of filing of return, no disallowance is warranted u/s.40(a)(ia). However, in respect of items, where no TDS was deducted or after deduction the same is not deposited before the due date of filing of return of income, the disallowance would be sustained. We direct accordingly. Needless to say that Assessing Officer will adjudicate the issue after giving adequate opportunity of being heard to the assessee, in the light of our above direction. 8. In the result, the appeal filed by the assessee is allowed but for statistical purposes. Order was pronounced in open Court on 26.8.2011.
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2011 (8) TMI 1144
Revisional Power of Commissioner u/s 263 - Contention was whether on the facts and circumstances of the case and in law, the Appellate Tribunal is right in quashing the order u/s.263 without considering the decision of this Hon'ble Court in the case of FAKIR MOHMED HAJI HASAN VERSUS COMMISSIONER OF INCOME-TAX [2000 (8) TMI 44 - GUJARAT HIGH COURT]?
HELD THAT:- In the case of DY. COMMISSIONER OF INCOME TAX VERSUS RADHE DEVELOPERS INDIA LTD. [2009 (4) TMI 21 - GUJARAT HIGH COURT], it was held that, the decisions of this Court in the case of Fakir Mohmed Haji Hasan is neither relevant nor germane to the issue considering the fact that in none of the decisions the Legislative Scheme emanating from conjoint reading of provisions of sections 14 & 56 of the Act have been considered.
Having thus heard the parties, in so far as the question on which the Commissioner sought to reopen the assessment by exercising powers under section 263 of the Act is concerned, same permits no debate.
Power u/s 263 can't be exercised when two views are possible- Appellate Tribunal did not appreciate the words 'erroneous and prejudicial to the revenue' as defined in the decision of the Hon'ble Supreme Court in the case of Malbar Industrial Co. Ld. v. CIT 243 ITR 83? - HELD THAT - In the case of MALABAR INDUSTRIAL CO. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2000 (2) TMI 10 - SUPREME COURT], it was said that, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law.
In any case, we are convinced that the Tribunal was correct in holding that even if two views are possible, powers under section 263 of the Act could not and ought not to have been exercised.
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2011 (8) TMI 1143
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... ... ..... cialized foundation and the civil and electrical components of the structure are indivisible parts of the windmill plant as a whole. In the light of the above order of the coordinate Bench, we find that the civil and electrical components of the windmill structure cannot be disassociated from the sole and substance of the windmill and cannot be given a separate treatment for depreciation as if those items are independent supporting system of a windmill. Therefore, in the light of the decision of the coordinate Bench, we hold that the lower authorities are not justified in restricting the depreciation to 10 of the cost of civil and electrical components of the windmill. The assessing authority is directed to grant depreciation at 80 on the whole cost of the windmill including civil and electrical components. 5. In result this appeal filed by the assessee is allowed. Order pronounced in the open Court at the time of hearing on Thursday, the 11th day of August, 2011 at Chennai.
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2011 (8) TMI 1142
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... ... ..... even if not claimed, has to be allowed while computing deduction under chapter VIA. The A.O., therefore, made disallowance of ₹ 2,82,277/- out of 80IB deduction in the case of Alidhara Textool Engineering Pvt. Ltd. and similar disallowance was made of ₹ 2,32,001/- in the case of M/s. Alidhara Texpro Engineering Pvt. Ltd., Ld. CIT(A) has upheld the disallowance by following the judgment o Hon’ble Apex Court rendered in the case of Cambay Electric Supply Industrial Co. Ltd. 113 ITR 84 and the decision of Special Bench of the Tribunal rendered in the case of Vahid Paper Converter (supra). No material could be brought on record by the Ld. A.R. of the assessee before us to show that how this decision of the Special Bench of the Tribunal is not applicable in the present case. Hence, this ground No.5 in both the cases is rejected. 16. In the result, both the appeals of the assessee stand partly allowed. 17. Order pronounced in the open court on 12th August, 2011.
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2011 (8) TMI 1141
Deduction u/s 80IB(10) - Profit derived from building and developing housing projects - integrated activity or not - Construction on land registered in the name of buyers directly - The total consideration quoted by the assessee consisted of both the cost of plot and cost of building - HELD THAT:- As stated by the Learned A.R, the assessee has chosen to register the plot in the name of the buyer on payment of specified amount in order to achieve cost saving and to ensure reliability. Thereafter the assessee has proceeded to construct the house as per the building plan obtained in the name of the plot owners, on payment of subsequent instalments. The assessee has also developed various public amenities within the project. In our view, all these facts should be considered cumulatively in order to ascertain the true nature of the project. On a totally of the facts, we are of the view that the assessee has undertaken developing and building housing projects as per the scheme provided in sec. 80IB(10) of the Act - Decision in favour of Assessee.
Scope of Revision Proceedings u/s 263 - The AO denied deduction u/s 80IB(10) to the assessee in the assessment year 2006-07 but allowed the deduction for AYs 2004-05 & 2005-06 - CIT proposed to deny the decision for the AYs 2004-05 and 2005-06 also - An order erroneous but is prejudicial to the Revenue - debateble issue - HELD THAT:- Scope of revision proceedings has been well explained by Hon'ble Supreme Court in the case of MALABAR INDUSTRIAL CO. LTD. VERSUS COMMISSIONER OF INCOME-TAX [2000 (2) TMI 10 - SUPREME COURT], where it was held that the Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent-if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue recourse cannot be had to section 263(1).
It is clear that the issue of allowing deduction under section 80IB(10) in respect of aforementioned project in the hands of the assessee is a debatable issue on which two views are possible. There cannot be any doubt that the Assessing Officer has taken one of the possible views in the impugned two years, in which case the assessment order cannot be termed as erroneous and prejudicial to the interests of the revenue. In that case, the Learned CIT could not have jurisdiction to initiate revision proceedings under section 263 in respect of the said issue. Accordingly, we set aside the impugned orders of Learned CIT.
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2011 (8) TMI 1140
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... ... ..... eady answered against the Revenue by this Court in the case of Commissioner of Income Tax V/s. Emirates Commercial Bank Limited reported in 262 ITR 55. 2. In this view of the matter, all these appeals are dismissed with no order as to costs.
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2011 (8) TMI 1139
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... ... ..... an employer on his total income computed in accordance with the provisions of the Income Tax Act. Therefore, the contention of the Ld. Authorised Representative for the assessee that value of Fringe Benefit should be computed by applying Rule 8 of Income Tax Rule has no merit as Fringe Benefit Tax is not payable on the income of an assessee but only Fringe benefits provided by an employer to its employees. In view of the above, we agree with the Ld. Departmental Representative that the contention of the Ld. Authorised Representative for the assessee has no merit and accordingly, we uphold the order of the Ld. CIT(A) by rejecting grounds of appeal taken by the assessee.” 11.1. Since ld. CIT(A) has followed the decision of this Tribunal in the case of Apeejay Tea Ltd. (supra) we find no infirmity in the orders of ld.CIT(A) and dismiss the appeal of the assessee. 12. In the result both the appeals of the assessee are dismissed. Order pronounced in the court on 23.08.2011.
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2011 (8) TMI 1138
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... ... ..... ed by it for own consumption as well as for sale to the State Electricity Board. The Tribunal held that the rate at which the State Electricity Board supplies power to its consumers is to be considered to be the market value for transfer of power by the assessee’s electricity generating undertaking for captive consumption for the purposes of section 80IA(8) and not the price at which power is supplied by the assessee to the Board. 12. xx xx xx 13. xx xx xx 14. Therefore we accept the contention of the assessee and set aside the orders of the lower authorities on this issue. The assessing authority is directed to recompute the profit and gains of the eligible unit for the purpose of section 80IA on the basis of the unit price of electricity generated by the assessee company at . 3.50 per unit.” 4. Accordingly this appeal filed by the assessee is allowed. Order pronounced in the open Court at the time of hearing on Thursday, the 11th day of August, 2011 at Chennai.
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2011 (8) TMI 1137
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... ... ..... not approve the department's contention that interest had been paid in relation to project of manufacturing phosphoric acid which had not commenced production during the assessment year, in view of the fact that assessee had established a phosphoric acid project as extension of its present business activities and for that purpose had obtained foreign currency loan. 14.In case of Gujarat State Fertilizer and Chemicals Ltd.(supra), Division Bench of this Court finding that assessee was already running manufacturing plant and was in midst of installing second plant and had made huge borrowing in respect of the second plant, held that interest on such borrowing was allowable under Section 36(1)(iii) of the Act. 15.We are satisfied that CIT(Appeals) as well as tribunal have concurrently viewed the situation bearing in mind the factual aspects emerging and law discussed hereinabove. 16.We do not find any substantial question of law arising. Tax Appeal is therefore, dismissed.
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2011 (8) TMI 1136
Exemption u/s 11 - Registration of Charitable Trust u/s 12A read with 12AA - Assessee, a trust, set up an engineering college for charitable purposes - Mere establishment of an engineering college does not constitute a charitable activity. Accordingly, the application preferred by the respondent under sec. 12A was rejected by CIT(A) - HELD THAT:- A careful reading of Section. 2(15), 12A and 12AA of the Act, reveal that application for registration under sec. 12A has to be made before the expiry of one year from the date of creation of the trust or establishment of the institution whichever is later. The application has to be made by a person in receipt of income of the trust. Thus, while dealing with the application for registration the CIT has to examine whether the application is made in accordance with s. 12A r/w r. 17A. He may also examine whether objects of the trust are charitable or not. Sec. 12AA nowhere provides that CIT while considering the application for registration is also required to examine whether the income derived by the trust is being spent for charitable purposes or the trust is earning profit. The language employed by the legislature in s. 12AA only requires that activities of the trust or institution must be genuine which should be in consonance with the object of the trust. At this stage, the CIT is not required to examine the application of income.
Admittedly the application submitted by the respondent was in consonance with the procedural requirement prescribed in this regard. From the trust deed which was filed before the CIT the objects of the trust could be ascertained. From perusal of cl. (3) of the trust deed we find that the objects of the trust are charitable in nature and are in tune with sec. 2(15) and, therefore, CIT rejecting the application under s. 12A was unjustified - Decision in favour of Assessee.
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2011 (8) TMI 1135
Nature of land sold - Held that:- In view of the overwhelming evidence produced by the assessee before the Assessing Officer are enough to come to a definite conclusion that this land was beyond 8 kms. From the Tambaram Municipal limits. The definition of a ‘capital asset’ given in section 2(14) of the Act excludes an agricultural land from its ambit if it is situated beyond 8 kms. from the Municipal limits.
It cannot be said that no agricultural activities were being carried out on this land before sale. Moreover, as stated above, the Assessing Officer has himself accepted in substance, that agricultural activities were being carried on now and then. The fact that the assessee was showing agricultural income from this land further fortifies this contention and goes to prove the claim of the assessee. In view of the above facts, we hold that agricultural activities were carried on this land prior to sale and the income shown at ₹ 3 lakhs has to be accepted as agricultural income, as apart from that no finding has been given by the Assessing Officer in this regard.
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2011 (8) TMI 1134
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... ... ..... inst declared net profit rate of 1.64 . 4.3 Considering our findings for the assessment year 2005-06, we feel that it will be fair and reasonable to restrict the trading addition to ₹ 75,000/- because the turnover during the year is around ₹ 95.00 lacs as against ₹ 2.27 crores of the immediately preceding year. 5.1 The second ground of the assessee is against addition on account of inadequate withdrawals. No separate addition has been made on account of inadequate withdrawals. The inadequate withdrawals have been considered at ₹ 26,938/- because the AO estimated house hold expenses at ₹ 1.44 lacs against withdrawals of ₹ 1,17,062/. No separate addition has been made either by AO or by the ld. CIT(A). Since we had already confirmed the part of the trading addition, therefore, no separate addition is required to be made. 6. In the result, the appeals of the assessee are partly allowed. The order is pronounced in the open Court on 05-08-2011.
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