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Showing 121 to 140 of 380 Records
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2012 (1) TMI 306 - ITAT BANGALORE
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... ... ..... for claim since those two units were distinct industrially recognizable units which, in our considered view, cannot be categorized as having been formed by the reconstruction merely because of common ownership or because it produced the same commodities and deal with the same customers. It has, therefore, been classified as a case of expansion, but, not reconstruction or splitting up as alleged by the Revenue; & (ii) though hypothetical, the AO's alleged claim of yarn division of the appellant was nothing but the reconstruction of the existing business of Seide Division, even then also the AO was forbidden in disallowing the claim of the appellant u/s 10-B of the Act for the AY under dispute which was, admittedly, not the formation of Filati Division. 8. In a nut-shell, the findings of the Ld. CIT (A) require no intervention of this Bench. It is ordered accordingly. 9. In the result, the Revenue's appeal is dismissed. Order pronounced in open court on 27/01/2012.
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2012 (1) TMI 305 - ITAT MUMBAI
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... ... ..... d in his D-Mat statement. Not only this, AO when examined Director of broker through whom assessee entered into purchase and sale of shares, he confirmed the transactions made on behalf of assessee for purchase and sale of shares in both assessment years under consideration. We agree with Ld. CIT(A) that AO has gone on his own presumption and has ignored relevant documents placed on record to hold that said transactions are not genuine and it was only a conversion of unaccounted income of assessee into an accounted one, but said finding of AO is not based on any cogent material on record. Considering the facts before us, we do not find any reason to interfere with the order of Ld. CIT(A). Hence we uphold the order of Ld. CIT(A) for both assessment years under consideration viz. assessment years 2003-04 & 2004-05 by rejecting ground of appeal taken by department. 9. In the result, both appeals of department are dismissed. Order pronounced on this 20th day of January, 2012
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2012 (1) TMI 304 - GUJARAT HIGH COURT
Composite penalty on partners - Whether the learned Tribunal committed error in setting aside the penalties imposed upon the responsible persons, under Section 114(iii) of Customs Act, 1962 & Rule 26 of the Central Excise Rules, 2002, specially when all the said persons had admitted their office(s) during the course of investigation? - Held that: - a composite penalty stands imposed on the partners under the provisions of two different Acts, without any demarcations, we are constrained to set aside the same on the above ground - reliance was placed in the case of COMMISSIONER, C. EX. & CUSTOMS, SURAT – II Versus RG. AGARWAL [2008 (9) TMI 146 - GUJARAT HIGH COURT], where authorities are not clear as to whether the penalty is to be levied for violation of which provision, and therefore the penalty was set aside - penalty set aside - appeal dismissed - decided against Revenue.
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2012 (1) TMI 303 - ITAT CHENNAI
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... ... ..... and should state the points for determination, the decision taken thereon and reasons for the decision. In other words, there is no power vested on CIT(Appeals) to dismiss the appeal of an assessee for non-prosecution or non-appearance. He has to deal with the case on merits in accordance with law. In any case, here, assessee had filed an application for adjournment on 28th October, 2011 and nothing was mentioned by CIT(Appeals) on such adjournment petition. We are, therefore, of the opinion that the matter has to go back to CIT(Appeals) for consideration afresh for both the years. We, therefore, set aside the order of CIT(Appeals) for both the years and remit it back to him for consideration de novo in accordance with law, after giving due opportunity to the assessee for presenting its case. 5. In the result, assessee’s appeals for both the years are allowed for statistical purposes. Order pronounced in the open court after conclusion of hearing on 18th January, 2012.
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2012 (1) TMI 302 - ITAT BANGALORE
Contributions/donations received by the assessee - income of the assessee u/s 2(24)(iva) - Held that:- Only ‘a benefit or perquisite’ in kind can be treated as income. Donations in the form of cash cannot be treated as a ‘benefit or perquisite’. Therefore as rightly pointed out by the learned counsel for the assessee, the donations received by the assessee do not become income chargeable to tax. The issue of representative assessee will come only when the income is chargeable to tax. Therefore, we do not see any reason to interfere with the order of the CIT(A).
The contributions are not chargeable to tax in the hands of the assessee. There is no direction by the CIT(A) to the AO to take any action on the basis of said observations. In fact, we find that the said observations are in favour of the assessee herein. In view of the same, we do not see any substance in the Cross-objection and they are also dismissed.
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2012 (1) TMI 301 - CESTAT AHMEDABAD
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... ... ..... it was drawn with stolen property to hold that a genuine purchaser of stolen property cannot claim ownership even if he purchased the same without the knowledge of same being a stolen one. The said order of the Tribunal was upheld by the Hon’ble High Court of Gujarat, vide order dated 23-7-2008 (Tax Appeal No. 197/2008) 2008 (232) E.L.T. 408 (Guj.) . 8. On the basis of discussions and findings above, along with the legal pronouncements we do not have a scintilla of doubt that the appellant had fraudulently availed Cenvat credit amounting to ₹ 1,38,56,462/- and utilized an amount of ₹ 1,19,95,747/- and the balance amount requires to be disallowed. Shri Krishanakumar Kachurulal Gupta, Prop rietor of M/s. Maruti Enterprises is therefore liable to pay interest and penalty. 9. Accordingly, we reject the appeal filed by Shri Krishanakumar Kachurulal Gupta (Shri Kishan Kachurulal Gupta) and uphold the Order-in-Original. (Pronounced in Court on 18-1-2012)
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2012 (1) TMI 300 - CESTAT AHMEDABAD
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... ... ..... export obligations which have been committed to the Government of India while importing the inputs duty free. We find that the appellant have to be put to some condition to hear and dispose the appeal. Accordingly, the appellant is directed to deposit an amount of ₹ 1.50 crores (Rupees one crore and fifty lakhs only) within a period of 6 (six) weeks from today and report compliance to the first appellate authority. While complying with the above order of pre-deposit, the appellants are at liberty to deposit the whatever amount is available in Cenvat credit and balance amount by cash through TR-6 challan. On such compliance being reported on or before 21-2-2012, the first appellate authority will restore the appeal to its original number and dispose the appeal, after following the principles of natural justice. 4. The Stay Petition and the appeal are disposed of by way of remand, subject to the condition as indicated hereinabove. (Dictated and pronounced in Court)
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2012 (1) TMI 299 - ITAT MUMBAI
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... ... ..... with the order of the Assessing Officer . The disallowance of the claim of deduction u/s 80IA(4) at ₹ 47,69,410/- made by the Assessing Officer is, therefore, confirmed” 10. From the orders of the lower authorities, it is manifest that the issue of principle of mutuality has not been adjudicated. We note that the assessee has raised this issue before the Assessing Officer as recorded by the Assessing Officer as reproduced above and before he CIT(A) vide letter dated 9.7.2008. Thus, in the facts and circumstances of the case, we set aside the issue of mutuality to the record of the Assessing Officer for consideration and adjudication of the same as per law.” 4 Accordingly, we remand this issue of principle of mutuality to the record of the Assessing Officer for consideration and adjudication the same as per law. 5 In the result, the appeal filed by the assessee is allowed for statistical purpose Order pronounced in the open court on the 11th, day of Jan 2012
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2012 (1) TMI 298 - ITAT AHMEDABAD
Bogus Purchases - Estimation of Income - AO observed that certain sundry creditors are not genuine. Further, he has drawn an inference that the assessee had made purchase in the open market by paying cash and created bogus bills in the name of the nonexistent parties. AO disallowed the amount. A.R. vehemently argued that the assessee had made genuine purchases and therefore the entire amount cannot be added to his income.
HELD THAT:- The AO has also rightly come to a conclusion that the books of accounts of the assessee are not correct and are incomplete in the sense that the same do not reflect the actual state of affairs of the assessee and therefore liable to be rejected u/s 145(3). The AO's action is therefore sustained, and the addition is confirmed.
Since the AO himself has not doubted the genuineness of the purchase but only had doubted the bills to be bogus/inflated, following the ratio of the decision of the ITAT, Ahmedabad Bench in the case of VIJAY PROTEINS LTD. VERSUS ASSISTANT COMMISSIONER [1996 (1) TMI 144 - ITAT AHMEDABAD-C], 12.5% of the purchases may be added to the income of the assessee.
Ground of Assessee - partly allowed.
Unexplained Cash Expenses- AO observed that the assessee had claimed motor car and telephone expenses, but he was not able to produce any documents to establish his claim of expenditure only for the purpose of business - HELD THAT:- Assessee has not submitted any materials to establish the genuineness of the expenditure, therefore, additions are confirmed with regard to motor car expenses, depreciation claimed on vehicles and telephone expenses.
Decision against Assessee.
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2012 (1) TMI 297 - CESTAT NEW DELHI
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... ... ..... ng into the above aspect, the appeal can be disposed of by following the Larger Bench of the Tribunal in the case of ABB Ltd. reported in 2009 (15) S.T.R. 23 (Tri.-LB) and the Hon’ble High Court of Karnataka’s decision reported in 2011 (23) S.T.R. 97 (Kar.) vide which the appeal filed by the Revenue was rejected. It stands held by the above judgment that an assessee is entitled to avail the credit of service tax paid on the GTA services availed by him for outward transportation of the final product. 4. Inasmuch as the issue stands settled by the above referred decision of the Tribunal, we find no merit in the appeal of Revenue, the same is accordingly rejected. (Pronounced in the open Court)
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2012 (1) TMI 296 - ITAT KOLKATA
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... ... ..... the disallowance on account of car expenses and car depreciation 10 , thereby confirming Ld. A.O’s order. 2. That the Hon’ble CIT(A) was wrong and unjustified in restricting the disallowance on account of telephone charges 10 , thereby confirming Ld. A.O’s order.” 8. We have heard rival submissions and gone through facts and circumstances of the case. We find that the assessee has not denied personal user of car and telephone expenses, hence, we confirm the order of CIT(A) restricting the disallowance at 10 . However, in respect to depreciation, we are of the view that even otherwise, if it is used for personal purposes, the disallowance on depreciation cannot be attributed for personal disallowance. Hence, we delete the disallowance in respect to depreciation. AO is directed accordingly. This issue of assessee’s appeal is partly allowed. 9. In the result, appeal of assessee is partly allowed. 10. Order is pronounced in open court on 27.01.2012
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2012 (1) TMI 295 - ITAT MUMBAI
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... ... ..... nly document, where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return, must not be accurate, not exact or correct, not according to truth or erroneous. Where there is no finding that any details supplied by the assessee in its return, found to be incorrect or erroneous or false there is no question of inviting the penalty under section 271(1) ©. A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars. Following the above decision, we are of the opinion, that this is not a fit case for levy of penalty and accordingly we delete the same. 7. In the result, assessee’s appeal is allowed. Order pronounced in the open Court on this day of 13/1/2012.
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2012 (1) TMI 294 - ITAT DELHI
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... ... ..... enditure with reference to the accounts of the assessee, so much so that the disallowance exceeds the total expenditure debited in the books of account. An expenditure which has not been claimed cannot be disallowed simply because the working as per Rule 8D leads to a particular amount of disallowance. Therefore, in any case the disallowance could not have exceeded the sum of ₹ 2,38,786/-. Further, the lower authorities have not met with the claim of the assessee that no expenditure is disallowable under aforesaid provision. The jurisdiction to invoke Rule 8D can be assumed only after rejecting the claim of the assessee on proper basis. In a situation like this, the matter should normally be restored to the file of the AO where the irregularity has taken place. However, since the tax effect is nil, we think it fit to accept the contention of the assessee that no expenditure should have been disallowed. It is ordered accordingly. 5. In the result, the appeal is allowed.
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2012 (1) TMI 293 - ITAT MUMBAI
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... ... ..... unt of low personal withdrawal. 19. After hearing rival contentions, we find that the “H” Bench of the Tribunal in assessee’s own case in ITA no.1473/Mum./2010 to 1476/Mum./ 2010, order dated 27th April 2011, the Tribunal held that for assessment year 2005-06, the total drawings are 40,92,000 approximately. Thus, it came to a view that no further addition can be made on this ground for assessment year 2005-06. In the current assessment year, the Commissioner (Appeals) considered all the aspects and came to a conclusion that no further addition is warranted in assessee’s case on account of low household withdrawals. The total withdrawal of the assessee during the year was 9,32,791. Learned Departmental Representative could not contradict these factual findings of the Commissioner (Appeals). Thus, the ground raised by the Revenue is dismissed. 20. I the result, Revenue’s appeal is dismissed. Order pronounced in the open Court on 31st January 2012.
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2012 (1) TMI 292 - ITAT COCHIN
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... ... ..... y considering the decisions of Hon’ble Apex Court on this issue. 8. The last issue pertains to eligibility of deduction u/s 80HHC of the Act on DEPB receipts. The assessee has not raised this ground before Ld CIT(A). However, it is prayed that this ground may be admitted as it is a purely a legal issue and further it does not involve verification of fresh facts. Reliance is placed in this regard on the decision of Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Vs. CIT (229 ITR 383)(SC). In view of the above, we admit this ground. In any case, this issue needs to be examined afresh in the light of the decision rendered by Hon’ble Bombay High Court in the case of Kalpataru Colours and Chemicals (328 ITR 45). Accordingly we remand this issue to the file of the assessing officer for making fresh examination of the same. 9. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Pronounced on 06.01.2012
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2012 (1) TMI 291 - SC ORDER
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... ... ..... Das, Adv. for the Petitioners. Mr. R.P. Bhatt, Sr. Adv. and Mr. Jatin Zaveri ,Adv. for the Respondents. ORDER Delay condoned. The special leave petition is dismissed.
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2012 (1) TMI 290 - SC ORDER
Loss on sale of repossessed assets u/s 36(1) (vii) r/w Section 36 (2) - Whether loss on sale of repossessed assets is a capital loss or it is a bad debt allowable u/s 36(1) (vii) R/W Section 36 (2) – Held that:- HC order confirmed [ 2011 (5) TMI 1028 - DELHI HIGH COURT] as held that the amount advanced by the assessee during the course of business could not be recovered would be treated as bad debt allowable under Section 36 (2) of the Act. Relied on A.W.Figgies case [2001 (9) TMI 46 - CALCUTTA High Court].
Depreciation on computers and peripherals at the rate of 60% is allowable
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2012 (1) TMI 289 - KARNATAKA HIGH COURT
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... ... ..... t be allowed only in respect of the amount which exceeds payment of ₹ 20,000/- otherwise that by crossed cheque or a bank demand draft. 6. The converse proposition would be that the assessee is entitled to seek deduction up to ₹ 20,000/-. In the excess amount paid over and above ₹ 20,000/- up to 20 deduction should not be allowed. Thus, it implies that in the excess payment made, the assessee is entitled to a deduction up to 80 . Only to an extent of 20 the deduction is not allowed as per purport of sub Section 3 of the Act, as it stood then for the assessment year. 7. The Assessing authority, the Commissioner of Income Tax and the Tribunal have taken a view that the assessee is not entitled to benefit of payment of initial ₹ 20,000/- and the disallowance of deduction should be on the total amount of expenditure without excluding the permitted payment upto ₹ 20,000/-. The view taken by the appellate Tribunal is bad in law, the appeal is allowed.
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2012 (1) TMI 288 - ITAT CHENNAI
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... ... ..... stand good. The appeals filed by the Revenue are liable to be dismissed. 9 Now, coming to the cross objections filed by the assessee, we have to state that the re-assessments have been made by the assessing authority on the basis of search carried out in the premises and also on the basis of certain prima facie materials collected against the assessee. The final outcome of the search may not be exactly as expected by the Revenue. But such findings arising out of subsequent examination do not invalidate the notices issued by the assessing authority. We agree with the findings of the Commissioner of Income-tax (Appeals) on this point. As far as the question of interest under sec.234A and 234B is concerned, it is nothing but consequential and there is no force in the arguments of the assessee. The cross appeals are liable to be dismissed. 10. In result, the appeals as well as the cross objections are dismissed. Orders pronounced on Friday, the 20th of January, 2012 at Chennai.
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2012 (1) TMI 287 - ALLAHABAD HIGH COURT
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... ... ..... llahabd and another vs. Sh. Mukesh Kumar Agarwal in Income Tax Appeal No. 286 of 2011 decided on 23.11.2011 and this Court has held that a deeming provisions to validate the notice in certain circumstances, would not have any effect where the very foundation of the jurisdiction of the Assessing officer is on the issuance of the notice under Section 143(2) of the Act. Sri Upadhyaya, learned counsel has not been able to point out any distinguishing factor which may enable us to take a different view than the view taken by this Court in Mukesh Kumar Agarwal (supra). Respectfully following the aforesaid decision we are of the considered opinion that the order of the Tribunal upholding the order of the Commissioner of Income Tax (Appeals) annulling the assessment under sections 147/148 read with Section 143(3) of the Act for want of issuance of notice under Section 143(2) of the Act does not suffer from any legal infirmity. The appeal fails and is dismissed. Order date 17.1.2012.
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