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Showing 161 to 180 of 380 Records
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2012 (1) TMI 266 - ITAT MUMBAI
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... ... ..... by the order of the learned CIT(A), the assessee is in appeal before us. At the time of hearing, the learned counsel of the assessee submitted that the AO has passed the order without giving proper opportunity of being heard to the assessee, as he took the assessment proceedings at the fag end of the year when the case was getting time-barred. He accordingly prayed that in the interest of justice and fair play, the mat ter may be restored to the file of the AO for re-adjudication. 4 The learned DR did not object to this submission made by the learned counsel of the assessee. 5 Having heard both the parties, we restore the matter back to the file of the AO for fresh adjudication. Since the issues involved in the assessee’s appeal are restored back to the file of the AO, the Revenue’s appeal for the year under consideration also stands restored. 6 In the result, both the appeals are allowed for statistical purpose. Order pronounced in the court today on 31-01-2012
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2012 (1) TMI 265 - ITAT KOLKATA
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... ... ..... ra 9 of its appellate order allowed the claim of assessee as under “9. I have considered the submissions of the A/R and gone through the assessment order. From the facts stated hereinabove it is manifest that the appellant continued to carry on the business and did not stop it. In the immediately succeeding year itself it has made export to the tune of ₹ 20.35 crores. The year under appeal was only a period of full & dormancy. I am therefore of the considered view that the expenditure for maintaining the establishment and other misc. expenses were incurred for the purpose of business and are allowable deduction u/s. 37(1). The court decisions cited by the Ld. A/R also support such view. The disallowance of expenses made by the A.O. is deleted. Ground No.3 is allowed.” We find no infirmity in the order of CIT(A) and this issue of revenue’s appeal is also dismissed. 8. In the result, appeal of revenue is dismissed. 9. Order pronounced in open court.
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2012 (1) TMI 264 - ITAT MUMBAI
Income from sale of shares - Long Term Capital Gain - Held that:- In the case on hand, we find that the assessee has earned substantial income by way of dividend and also that the assessee has not borrowed any funds for making purchases in shares. The entire investment was from own funds. The transactions are delivery based transactions. Just because the assessee maintains multiple portfolios, it cannot be concluded that the assessee is a trader. The mere fact that the transactions are voluminous, does not lead to a conclusion that the assessee has traded in shares. As a prudent investor, the assessee may have sold certain shares within a short period, as in her opinion, the sale had been made at the opportune time. The assessee, in this case, has not valued her investments at cost or net realisable value whichever is less and claimed losses as in the case of stockin- trade. On this factual matrix, we uphold the findings of the first appellate authority that income from sale of shares which are held by the assessee for more than one year, is to be assessed as income earned from long term capital gain.
Treating short term capital gain earned by the assessee as business income - Held that:- As the assessee is an “Investor”, we restore ground no.1, which is on the issue of treating short term capital gain earned by the assessee as business income, to the file of Assessing Officer for denovo adjudication in accordance with law. Thus, this ground is allowed for statistical purposes.
Treatment of losses on derivative transactions as non-speculative loss by the first appellate authority - Held that:- We find that the issue is covered against the assessee and in favour of the Revenue by the decision of a Special Bench of the Tribunal in Shree Capital Services v/s ACIT [2009 (7) TMI 172 - ITAT CALCUTTA] wherein it is held that clause (d) of section 43(5) of the Act cannot be held to be clarificatory and it applies only to assessment year 2006-07 and onwards. The Hon'ble Jurisdictional High Court in CIT v/s Bharat R. Ruia [2011 (4) TMI 37 - BOMBAY HIGH COURT] impliedly upheld the Special Bench decision. At Para-37, the argument that amendment by way of insertion of clause (d) to the proviso to section 43(5), is clarificatory and, hence, retrospective was rejected by the Hon’ble Court. In view of the above, we allow grounds no.2 to 5 of the Revenue.
Disallowance under section 14A - Held that:- disallowance in question is excessive. This issue is also restored to the file of Assessing Officer for fresh adjudication keeping in view the judgment of Hon'ble Jurisdictional High Court in Godrej and Boyce Mfg. Co. Ltd. v/s DCIT, [2010 (8) TMI 77 - BOMBAY HIGH COURT].
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2012 (1) TMI 263 - ITAT MUMBAI
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... ... ..... al to that of the cases decided by the Tribunal (supra), respectfully following the same, we set aside the order of the CIT(A) and delete the additions made by the AO u/s 68 of the Act in both the years under consideration. 12. Ground No. 2 raised by the assessee in AY 2006-07 pertaining to treating business loss as speculation loss by invoking the provisions of Explanation to section 73 of the Act, has not been pressed by the learned counsel for the assessee at the time of hearing, therefore, this ground is dismissed as not pressed. 13. Ground No. 2 in AY 2005-06 and Ground No. 3 in AY 2006-07 are pertaining to charging of interest u/s 234B of the Act. Since levy of interest u/s 234B is consequential in nature, the AO is directed to give consequential relief. 14. In the result, appeal being ITA No. 1715/Mum/09 for AY 2005- 06 is allowed and the appeal being ITA No. 3858/Mum/09 for AY 2006-07 is partly al lowed. Pronounced in the open court on this 25th day of January, 2012.
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2012 (1) TMI 262 - ITAT CHANDIGARH
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... ... ..... f the Act is to be looked into by the Assessing Officer during the course of assessment proceedings. The Tribunal further held that secondly at the level of granting registration by the Commissioner of Income Tax, the absence or presence of the surplus is not relevant. We find that the issue raised in the present appeal is identical to the issue considered by the Tribunal in Surya Educational & Charitable Trust (supra) vide order dated 30.11.2009. Following the said ratio laid down by the Tribunal we direct the Commissioner of Income Tax to grant registration under section 12AA of the Income Tax Act to the assessee society for carrying on the objects of running the educational institution. The grounds of appeal raised by the assessee are allowed. The registry is directed to annex the copy of the order in ITA No. 223/Chd/2009 for ready reference. 8. In the result, the appeal filed by the assessee is allowed. Order Pronounced in the Open Court on 20th day of January, 2012.
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2012 (1) TMI 261 - ITAT KOLKATA
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... ... ..... the lower authorities. 8. After hearing the rival submissions and on careful perusal of the material available on record, it is observed that there is no new material or information, which has come with the knowledge of the Assessing Officer to re-initiate the proceedings. Since the Assessing Officer has derived the facts/material placed by the assessee himself during the course of original assessment, this will not constitute the new information. Since in this case regular assessment was made u/s. 143 of the Act, presumption can be raised that such an order has been passed on application of mind. Therefore, in our considered opinion this will tantamount to change of opinion on the same set of facts, which were available on record. Therefore, we are of the considered view that re-assessment framed by the Assessing Officer is not sustainable in the eyes of law. Therefore, we quash the orders of the revenue authorities. 9. In the result, the appeal of the assessee is allowed.
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2012 (1) TMI 260 - ITAT MUMBAI
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... ... ..... Thus, the assessee is not required to deduct tax at source as held by Hon'ble Supreme Court in the case of GE India Technology Centre Pvt. Ltd. (supra). In view of the above legal position, we allow ground No. 1 of the assessee. 8. Coming to ground No. 2, the undisputed fact is that the consultancy fees was paid, to M/s. Ernst & Young, to submit feasibility report on setting up of a new channel. In our opinion, the expenditure is in the revenue field, as it did not bring any new assets into existence nor did it provide any enduring benefit to the assessee in the capital field. It did not touch the structure of fixed capital. We rely on the decision of Hon'ble Supreme Court in the case of Empire Jute reported in 124 ITR 1. Case laws relied upon by the first appellate authority are distinguishable. In the result, this ground of the assessee is also allowed. 9. In the result, appeal of the assessee is allowed. Order has been pronounced on 13th Day of January, 2012.
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2012 (1) TMI 259 - CALCUTTA HIGH COURT
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... ... ..... awyers no steps were taken to get back the papers. We do not know for what reason, that may be various, but it is within the knowledge of the department, however, we cannot probe into the mind of the officials of the department. We are told that involvement of revenue is to the extent of ₹ 63 lac. In view of this situation we reluctantly condone the delay and this application is allowed upon payment of cost assessed at ₹ 10,000/- to be paid by the appellant department within a period of three weeks from date to the respondent. Such cost shall be realized without fail from the officials and staffs of the department who were negligent in not taking back the papers from the erstwhile learned Lawyers, which was kept for about long four years. This matter will come up for admission hearing four weeks hence. However, in default of payment of cost as aforesaid obviously appeal will stand dismissed automatically. In the event cost is paid the matter will be reconsidered.
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2012 (1) TMI 258 - ITAT KOLKATA
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... ... ..... Hon’ble jurisdictional High Court in the case of M/s. Exide Industries Ltd. (supra). It was pointed out by the ld. DR that the Hon’ble Apex Court in SLP (Civil) 22889 of 2008 has stayed the operation of the decision of the Hon’ble jurisdictional High Court. In view of the above, we set aside the orders of the authorities below on this point and restore the matter back to the file of the AO with the direction that he will readjudicate this issue as per decision of the Hon’ble Apex Court in the case of M/s. Exide Industries Ltd. (supra)”. Respectfully following the same we set aside the orders of authorities below on this point and restore the matter back to the file of Assessing Officer for adjudication as per the decision of the Hon’ble Apex Court in the case of M/s. Exide Industries Ltd. (supra). 6. In the result, all the appeals filed by the assessee are allowed for statistical purposes. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2012.
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2012 (1) TMI 257 - ITAT AHMEDABAD
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... ... ..... or the advertisement of “Rasna” products and the same brand is being used by other concerns of the assessee group. Hence the AO has rightly disallowed 30 of advertisement expenses. The action of AO should have been upheld.” 3 At the time of hearing, both the parties agreed that the facts in these two assessment years are identical to the facts in AY 2004-05. Since, vide ITA no.1032/Ahd/2009 for AY 2004-05, we have dismissed the ground raised by the Revenue, following the same, we dismiss this ground of the Revenue for these two years also. 4 In the result, the Revenue’s appeals are dismissed. Order pronounced in the court today on 31-01-2012
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2012 (1) TMI 256 - ITAT AHMEDABAD
Addition of advertisement expenses - Held that:- AO is not justified in disallowing 30% of the advertisement expenses
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2012 (1) TMI 255 - SUPREME COURT
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... ... ..... amity with the Bank under the provisions of the West Bengal Co-operative Societies Rules, 1987, the Appellant-Bank had jurisdiction over the Respondent No.1 after he joined the employment of the Appellant-Bank. In the instant case, since the question of integrity in managing the accounts of the Samity is in question, it was but natural for the Bank to proceed departmentally against the Respondent No.1 after coming to learn of the allegations which have been made against him. 19. In our view, both the learned Single Judge and the Division Bench of the High Court were not justified in interfering with the action taken by the disciplinary authorities of the Bank and their findings are liable to be set aside. The appeal, therefore, succeeds and is allowed. The orders of the learned Single Judge and the Division Bench of the High Court, are set aside. The decision taken by the Bank in dismissing the Respondent No.1 from service is restored. 20. There will be no order as to costs.
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2012 (1) TMI 254 - ITAT MUMBAI
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... ... ..... e provisions of section 115JB. The Mumbai Bench of the Tribunal in Krung Thai Bank PCL Vs. Jt.Director of Income Tax (I.T.) (2010) 113 TTJ (Mumbai) 435 has held that the provisions of section 115JB cannot be applied to the assessee foreign bank. Another decision of the Chennai Bench of the Tribunal in Indian Bank Vs. Addl.CIT in ITA No.469/Mds/2010 dated 3rd August, 2011 has also been placed on record holding to the same effect. In view of these decisions, it becomes apparent that the provisions of section 115JB cannot apply to a foreign bank. The instant assessee is also a foreign bank. As such the application of section 115JB to the facts of the instant case cannot be held to be valid. If that is the position, then there can be no question of imposing or confirming penalty u/s 271(1)(c) on that issue. We, therefore, overturn the impugned order and order for the deletion of penalty. 4. In the result, the appeal is allowed. Order pronounced on this 25th day of January, 2012.
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2012 (1) TMI 253 - ITAT AHMEDABAD
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... ... ..... f Income-tax (A)-XIV, Ahmedabad ought to have upheld the order of the Assessing Officer. It is therefore, prayed that the order of the Id. Commissioner of Income-tax(A)-XIV, Ahmedabad may be set-aside and that of the Assessing Officer be restored.” 33. Ld. D.R. supported the assessment order whereas the Ld. A.R. submitted that this ground is related to ground No.7 of the assessee’s appeal. Since, we have deleted the disallowance confirmed by the Ld. CIT(A), no interference is called for in the order of Ld. CIT(A) on this part also as per which he has deleted the part disallowance. This ground of the revenue is also rejected. 34. Grounds No. 4 & 5 of the revenue’s appeal are general grounds and no separate adjudication is called for. 35. In the result, appeal of the revenue is partly allowed. 36. In the combined result, the appeal of the assessee and the revenue are partly allowed. 37. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (1) TMI 252 - ITAT MUMBAI
Surplus arising on prepayment of deferred sales was a revenue receipt liable to tax u/s. 41(1) - deduction u/s. 80M - disallowance of expenses for earning dividend income as made by the revenue authorities cannot be sustained - computation of deduction u/s. 80HHC - expenditure in the form of premium on premature redemption of debentures - Disallowance in respect of Company's contribution to Provident Fund - disallowance u/s. 92C - commission to non AEs - recompute deduction under section 80 HHC
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2012 (1) TMI 251 - ITAT JODHPUR
Unexplained Cash Credits u/s 68 - One of the Director of the company had expressed his inability to provide any information regarding share capital investment made by some investors in the assessee company - AO made addition u/s 68 - Moot question was whether assessee company had received share application money or not.
HELD THAT:- Addition is based on alleged statement of that one director behind the back of the assessee. The assessee was not even afforded any opportunity of cross examination nor that director was examined in the course of assessment proceedings. Therefore, in our view, the inference drawn by AO was not correct. We found that there is no evidence that assessee had paid any commission and has refunded the amount received under the garb of share application money.
Even and otherwise, the issue is squarely covered by the decision of Hon’ble Supreme Court in case of CIT VERSUS DIVINE LEASING AND FINANCE LTD., GENERAL EXPORTS AND CREDITS LTD., LOVELY EXPORTS P. LTD. [2006 (11) TMI 121 - DELHI HIGH COURT], wherein it has been held that – If the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law, but it cannot be regarded as undisclosed income of assessee company.
In the present case we noted that ld. CIT (A) has already taken a recourse for taking action against the respective shareholders as the Assessing Officer was directed to take necessary action against the purchaser company for such investment in purchase of shares.
Share Applications if remained unproved can be added u/s 68 or not? - Difference b/w Cash Creditor and Shareholder - Contention was is there any difference b/w cash creditor and shareholder. Further, it was contended that cash was deposited in account of the investor companies before issuing cheque to the assessee company for allotting the shares.
HELD THAT:- We would like to observe here that there is a difference between cash creditor and shareholder. In case of cash creditor, the cash creditor has right to demand the money back from the assessee. However, in case of shareholder, there is no liability of the company to refund the amount as the shares can be sold in the market. Therefore, in case of cash creditor, heavy onus lies on the assessee to prove whether cash creditor was genuine or not. However, in case of shareholder, it is held by various High Courts and Hon’ble Supreme Court that if shareholders are not genuine, then in that case no addition can be made in the hands of the company but the case can be reopened of the shareholders for enquiring about their source of buying the shares in the company.
Further, the contention regarding cash deposited in investor companies' account is without any evidence and if the cash deposited in the account of those companies then onus lies on those companies to prove that from which source the cash has been deposited in their account. The ld. CIT (A) has already directed, as stated above, to take action against the respective shareholders and, therefore, in our view, the ld. CIT (A) was justified in allowing the issue in favour of the assessee.
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2012 (1) TMI 250 - ITAT HYDERABAD
Disallowance of commission paid to employees, representatives and/or agents of customers - Held that:- By taking into consideration the circumstances in which the commission was paid, the commission paid for earlier assessment years and the commission paid by similar companies in similar circumstances and reasonableness of the payment, in our opinion, we can definitely quantify the excessive payment of commission at 15% of the total commission paid by the assessee for these assessments years under consideration before us. This disallowance at 15% of total commission paid by the assessee would meet the ends of justice. Accordingly, we direct the assessing officer to disallow only 15% commission paid the assessee as excessive in these assessment years as inadmissible.
Disallowance of interest on borrowed funds on notional basis - Held that:- There is no dispute regarding fact that the assessee has advanced the money for the purpose of acquiring office premises from TCI Industries Ltd and entered into MOU on 15th March 1999 and total amount advanced was at ₹ 2,20,00,000/- and not ₹ 3,00,00,000/-. It was provided in the said MOU that the possession of the premises would be given to the assessee company on or before 31st October 2001; and if the delivery cannot be given by the aforesaid date M/S TCI Industries Ltd; the owner would be entitled to reasonable extension of time. The purpose of advance of the for the purpose of business and that is for the purpose of acquiring a business premise in course of business activity and being so, even the interest paid on borrowed funds is allowable and there cannot be any disallowance on notional basis. We confirm the order of CIT(A) on this issue. Grounds of the Revenue on this issue are rejected.
Treatment of loss arising on sale of shares, alleged to be speculative loss, under Explanation to S.73 of the Act - Held that:- Loss has to be treated as capital loss and accordingly we confirm the order of CIT(A) and same is confirmed. Grounds of the Revenue on this issue are rejected.
Disallowance of bad debt - Held that:- There is no dispute regarding writing off the debts in the books of accounts of the assessee. After the amendment of the section 36(1)(vii) of the Income Tax Act by Direct Laws (Amendment) Act, 1987 w.e.f. 1-4-1989, it is not necessary for the assessee to prove that the debt has actually become bad. The only requirement is to write off of the debt in the books of accounts of the assessee. In this case the assessee actually written off of the debt in its books of accounts and corresponding entry is also appearing the Profit & Loss account prepared for the year ending on 31-03-2001. Being so, the claim of assessee is in order and it is to allowed.
Computing the long term capital gains on sale of three immovable properties, sold by the assessee at ₹ 3,43,58,163 as against assessable loss of ₹ 18,21,092 computed by the assessee - Held that:- The assets of Transport Division was transferred to the assessee company at book value. Though shares were allotted to the shareholders of the parent company, we have to see what was the cost of acquisition of the property sold by the assessee. The book value as on 1-4-1996 could be considered as cost of acquisition for the purpose of computing capital gain. As per provisions of section 49 of the income Tax act, there is no special provision for computation of cost in respect of property vest with the company by way of scheme of arrangement approved by the competent court of law. The assessee got the property as successor by a scheme approved by High Court. Therefore, the value as appeared in the audited books of the transferor company would be the cost of acquisition for the assessee company. In view of this, we do not find any infirmity in the order of CIT(A) in taking the cost of value at the respective figure appearing in the audited books of account of the transferor in pursuance to the scheme sanctioned by the High Court. Grounds of the Revenue on this issue are rejected.
Reopening of assessment - disallowance of commission - Held that:- the order of assessing officer is merged with the order of CIT(A). Once the order of the assessing officer is merged with order of CIT(A), the assessing officer cannot exercise his power u/s 147 of the Income Tax Act to reopen the issue was decided by higher forum in the guise of income assessable to tax has escaped from assessment. There is no further question of any escapement of income from assessment when the CIT(A) considered the very same issue of payment of commission in the course of appellate proceedings before him under section 250 of the Act. The assessing officer could exercise the power of reopening of assessment on any issue if it is not subject matter of appeal before CIT (A) and it is before the CIT(A) for his consideration or if he has considered the same issue, in that circumstances, the AO is precluded from considering same for reopening of assessment in guise of bringing into tax the escaped income. The only remedy available to assessing officer is to prefer appeal before higher forum and not to reopen the same assessment. In view of this, without going into merit of the issue, we cancel the order of the lower authorities and the ground taken by the assessee on reopening is allowed.
Addition by way of long term capital gains by applying the provisions of S.50C - Held that:- In the present case, the assessee not discharged the burden cast on it. The assessee having not availed of the opportunity provided under sub-sections (2) and (3) of s 50C to object to the value adopted by the stamp valuation authorities, in our opinion, the AO justified in treating the value adopted by the said authorities as the deemed sale consideration received/ accruing as a result of transfer. This ground of the assessee is dismissed.
Denial of relief under S.80M - Held that:- This section was deleted by Finance Act, 2003 w.e.f. 01-04- 2004. In this case, since the dividend received by the assessee does not exceed the amount of dividend distributed on or before due date, the said dividend received shall be allowed as deduction u/s 80M of the Act. The assessee has received only ₹ 4,500 and it has distributed ₹ 1,89,00,000 by way of dividend. Hence, we do not find any justification for disallowing the claim of the assessee. As such, the orders of lower authorities are set aside and the claim of the assessee is allowed.
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2012 (1) TMI 249 - ITAT CHANDIGARH
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... ... ..... raised specific issues, recorded findings thereon, in the light of the provisions of sec 263 of the Act. 11 In the present case, as is evident, from the above discussions, the AO failed to make inquiry, on the issues raised by the CIT and, hence, the question of application of mind, does not arise. It is settled proposition that if no inquiry has been made or no proper inquiry has been made, the case falls u/s 263 of the Act. Similarly, non application of mind is also covered by the provisions of section 263 of the Act. In the present case, the AO has failed to make enquiry and apply his mind, to the said issues. Such non application of mind has resulted in loss of revenue. Thus, the imperative conditions as contemplated u/s 263 of the Act stand satisfied. In view of the above legal and factual discussions, the findings of the Ld. CIT are upheld, as indicated in this order. 12. In the result, appeal filed by the assessee is partly allowed. Order Pronounced on 18th Jan.,2012.
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2012 (1) TMI 248 - ITAT KOLKATA
Expenditure towards community development - Held that:- Exact nature of the expenditure is not clear either from assessment order or from the CIT(A)or the ld. CIT(A) for assessee has not filed any paper book describing the exact nature of the expenditure we set aside the orders of the CIT(A) and remit back the issue to the file of AO for fresh adjudication and decide the same as per law after giving a reasonable opportunity of being heard to assessee.
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2012 (1) TMI 247 - SC ORDER
Valuation - MRP based valuation- Chewing tobacco in 5 gms in 9 gms pouches cleared in bulk packs - the decision in the case of COMMISSIONER OF CENTRAL EXCISE, ROHTAK Versus GUPTA TOBACCO CO. [2009 (9) TMI 492 - CESTAT, NEW DELHI] contested where it was held that goods sold by weight only and net weight being less than 10 gms, not covered under Standards of Weights and Measurements (Packaged Commodity) Rules, 1977 - Held that: - In view of the decisions of this Court in Commissioner of Central Excise, Vapi v. Kraftech Products Inc. [(2008) 12 SCC 321], where it was held that Multi peace package of 3 pouches of 3 gms each, provisions of MRP not applicable and valuation is do be done u/s 4 of Central Excise Act, 1944 , nothing survives for our consideration in this appeal - appeal dismissed.
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