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Showing 121 to 140 of 1260 Records
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2012 (10) TMI 1153 - MADHYA PRADESH HIGH COURT
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... ... ..... rted in AIR 1975 SC 1409 holding that the parties have right to amend the pleadings on the basis of the subsequent event which has come into existence during pendency of the suit, then the aforesaid application of amendment deserves to be allowed by allowing this revision. 6. In view of the aforesaid discussion, the impugned order dismissing the application of the applicant being perverse and contrary to the proprietary of the law deserves to be and is, hereby, set-aside. Consequently, the application of the applicant is allowed and she is directed to amend the principal application accordingly. Simultaneously the respondent is also extended a liberty to file the application for consequential amendment in his reply. Now the parties are directed through their Counsel to appear before the Trial Court on 30.10.2012 to proceed with the matter further. 7. The record of the Trial Court be sent immediately to such Court to hold the trial. The revision is allowed as indicated above.
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2012 (10) TMI 1152 - ITAT AHMEDABAD
Addition u/s.40A(2)(b) - commission paid to agents - AO was not convinced and held that the commission was paid to the beneficiaries of the Trust, hence payment made to persons specified u/s.40A(2)(b) was disallowed - Held that:- Trust has availed the services of these persons, therefore the commission was legitimately paid on the business brought by them. Resultantly ground raised by the assessee is allowed.
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2012 (10) TMI 1151 - CALCUTTA HIGH COURT
Lease granted for a period of 99 years - change of use of the said land from non-IT set up to IT set up - without any intimation to the lessor - Whether transfer of shares by the shareholders of a company to the stranger purchaser of such share amounts to transfer of assets of the company, whether acquired by way of lease or otherwise? - HELD THAT:- Following the decision of the Hon'ble Supreme Court in Bacha F. Guzdar, Bombay Vs. CIT [1954 (10) TMI 2 - SUPREME COURT] as well as of this Hon'ble Court in Kopila Hingorani vs. State of Bihar [2003 (5) TMI 359 - SUPREME COURT], this Court has no hesitation to hold that with the transfer of the share by the promoter shareholder to the present shareholder, namely the transferees of such share, the lease hold interest of the company was not transferred from the promoter shareholder to the present shareholder of the said company.
The petitioner-company which obtained the said lease from the Government, still remains the lessee of the said plot of land and its leasehold interest in the said plot of land remains unaffected by transfer of share by the promoter shareholders to the present holders. As such, this Court holds that the restrictive clause regarding transfer of the lease hold interest of the lessee in favour of a stranger, sub-lessee or assignee, does not attract in the present case and as a result, the demand for transfer fees for recognizing the alleged transfer of leasehold interest from the erstwhile shareholders of the said company to the present shareholder, is absolutely illegal and unlawful and as such, that part of such demand, which was made by the concerned authority in the impugned order and/or letter as aforesaid, stands quashed.
Whether the petitioner's representation for change of use of the said plot of land submitted on December 20, 2006 can be decided on the basis of the subsequent Notification dated 17th April, 2007 when this Hon'ble Court, while disposing of the earlier writ petition, directed the concerned authority to consider the petitioner's said representation in the light of the notification dated 6th May, 2005? - HELD THAT:- This Court holds that the demand of the permission fees for change of user of the land from a Non-IT set up to IT set up purpose at the rate as prescribed in the subsequent Notification of 2007 which came in to operation on 17th April, 2007, is illegal and unlawful. As such, that part of the impugned order and/or demand made in this regard by the concerned authority, stands quashed.
The concerned authority is, thus, directed to raise a fresh demand towards the permission fees for change of use of the said land from non-IT set up to IT set up at the rate as prescribed in the Notification dated 6th May, 2005.
The writ petition is, thus, allowed.
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2012 (10) TMI 1150 - ITAT AHMEDABAD
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... ... ..... ctricity board and not the one which is fixed by the legislative mandate. In the instant case the assessee is prevented by the legislative mandate from selling power to any person other than GEB. On the other hand, the GEB sold power to the assessee ₹ 4.86 per unit. Since the facts of the instant case are squarely covered by the decisions of die ITAT as above, it is clear the AO was not justified in denying the claim u/s 80IA. Accordingly, the AO is directed to allow the deduction u/s 8OIA as claimed, based on market rate of Rs, 4.86 per unit of power.” 8. We do not find any infirmity into the order of Ld. CIT(A) as he has considered all aspects of the matter and has rightly followed the decisions of the Hon’ble Co-ordinate Bench of Delhi rendered in the cases of Addl.CIT vs. Jindal Steel and Power Ltd 16 SOT 509. In this view of the matter this ground of the Revenue’s appeal is also dismissed. 9. In the result, the appeal of the Revenue is dismissed.
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2012 (10) TMI 1149 - ALLAHABAD HIGH COURT
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... ... ..... , within whose jurisdiction the cause of action arose and lies. In view of the aforesaid, we find no force in the submissions of the petitioner's learned counsel. Here it is also important to reiterate that the petitioner's son has already approached the Bombay High Court regarding the detention order, where he did not succeed. Only thereafter, the petitioner has approached this Court. Rule 7 of the Allahabad High Court Rules, 1952, is crystal-clear which says that second writ petition on the same facts would be barred. The Apex Court in Forward Construction Co. Vs. Prabhat Mandal (Regd), Andheri, reported in AIR 1986 SC 391, was pleased to rule that the orders dismissing the first writ petition operates as res judicata between the parties and no second petition on the same facts is maintainable. In the result, we find that this Court has no jurisdiction to entertain this petition which is hereby dismissed on the ground of jurisdiction alone at the preliminary stage.
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2012 (10) TMI 1148 - ITAT AMRITSAR
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... ... ..... e size of the business and past history of the case, the disallowance retained by the ld. CIT(A) appears to be excessive and therefore, it will be in the interest of justice if an addition of ₹ 4 lacs is sustained.. The AO is directed accordingly. 6.3. As regards the misc. expenses, the assessee made payments through account payee cheques of ₹ 1 lac, ₹ 2 lac & ₹ 2.60 lacs and therefore, the AO could verify the payments from the bank, which has not been done in the present case. There is nothing on record with regards to the misc. expenses claimed for ₹ 40,000/- and ₹ 50,436/- and therefore, the said ₹ 90,436/- in total is required to be sustained and the AO is directed to sustain the same. The AO is directed accordingly. 7. In the result, the appeal of the Revenue in ITA No.127(Asr)/2012 is dismissed and the appeal of the assessee in ITA No.102(Asr)/2012 is partly allowed. Order pronounced in the open court on 15th October, 2012.
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2012 (10) TMI 1147 - BOMBAY HIGH COURT
Arbitration award - Application for setting aside the Arbitral Award - insolvency proceedings - Held that:- In the present case, admittedly, the Appeal against the order is pending. The effect and the power of the Appellate Court, under Section 37 is quite settled. The order passed under Section 34, may be set aside or modified. The modified award in no way can be stated to be the final decree and/or final order. The transaction in question is a commercial transaction. The stake, the parties name and fame cannot be overlooked. Merely because there is award passed against one party, that itself is not sufficient to invoke the provisions of Insolvency Act in such fashion at this stage, basically when, the award /order has not attained finality.
The Court has modified and passed the Award against all the Directors. The Appeal was preferred by 3 Directors only. The present motion is taken out only by one Director. At this stage, in view of the above observations, the modified award itself has not attained finality, the challenge made by one Director, and not by others, in my view, should not be the reason to overlook the provisions of both the Acts.
It is difficult to dissect, as contended by the learned counsel appearing for the Creditors that the Motion be maintained against the other Directors, for the simple reason that the modified award is against all the Directors but admittedly the Appeal is still pending. It is made clear that, once the modified award attains finality, the Creditors may take out the proceedings, if permissible, in accordance with law. Thus inclined to set aside the Insolvency Notice, in question.
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2012 (10) TMI 1146 - GUJARAT HIGH COURT
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... ... ..... evidence on record in true perspective. He submitted that there was no occasion for the assessee to produce the books of account and other documents till hearing of the assessment proceedings. His failure to do so earlier therefore, cannot be a factor against him. Counsel further submitted that the stock was properly explained. 4. We are however, of the opinion that on the basis of evidence on record, two authorities concurrently held that the assessee was unable to explain the unaccounted stock at the time of survey. Such concurrent findings were confirmed by the Tribunal. No question of law arises. To reiterate, we notice that during the survey the assessee when confronted with the excess stock admitted that same is unaccounted. He agreed to disclose the same as unaccounted stock. There was other evidence and material showing that stock was not accounted. 5. In totality of facts and circumstances of the case, we do not find any reason to interfere. Tax Appeal is dismissed.
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2012 (10) TMI 1145 - DELHI HIGH COURT
Reopening of assessment - notice issues after four years - Held that:- AO, in the reasons recorded, after relying on the Tribunal’s decision in the assessee’s own case for a different assessment year, has merely made a bald statement that the assessee had failed “to disclose truly and fully all legal facts”. It is borne out from the record that the assessee had provided in its P&L A/c software expenses as revenue in nature.
AO in the original assessment had, without any discussion in the assessment order, allowed these software expenses as revenue expenditure, and this was sought to be disturbed in the reassessment proceedings after expiry of four years. This is a clear case where the primary facts were available before the AO, and therefore, the assessee cannot be held to have failed to disclose “fully and truly all material facts”. It was for the AO to draw the appropriate inference. The assessee is/was under no obligation to draw the inference of fact or law based on the primary facts available on record. - Decided against revenue
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2012 (10) TMI 1144 - ITAT MUMBAI
Disallowance u/s. 14 r.w. Rule 8D - HELD THAT:- The issue involved in this ground is squarely covered by the decision in the case of Godrej & Boycee Manufacturing Co. Ltd., Vs DCIT[2010 (8) TMI 77 - BOMBAY HIGH COURT]. Therefore without going into the merits of the case, we restore this issue back to the files of AO to decide afresh without applying Rule 8D as Rule 8D has been held to be applicable from A.Y. 2008-09. This ground of the assessee is allowed for statistical purposes.
Rental Income - Income from house property instead of business income - In the case of Shambhu Investment P. Ltd. v. CIT [2003 (1) TMI 99 - SC ORDER], held that income derived from letting out of the property should be assessed as income from house property. The Ld. Counsel’s contention that in the earlier year, the rental income has been taxed under the head ‘Income from House property’ and therefore the same should be followed as per the rule of consistency cannot be accepted for the simple reason that the rule of consistency envisages that if there is only one view on the given set of facts, then the same view should be taken year after year.
However, In the instant case, in the earlier year, the Revenue authorities may have taken a wrong view in-consistent with the ratio laid down in the case of Shambhu Investment P. Ltd. v. CIT, in our considerate view, the law laid down by the Hon’ble Supreme Court is to be followed.
Therefore, we do not find any merit in the arguments of the assessee, findings of the Ld. CIT(A) are confirmed. This ground of the assessee is dismissed. In the result, the appeals filed by the assessee are partly allowed for statistical purposes.
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2012 (10) TMI 1143 - ITAT CHANDIGARH
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... ... ..... se favour the assessee had issued Power of Attorney, who had himself sought adjournment for appearance on the next date of hearing. However, on the said date of hearing none appeared on behalf of the said counsel and application for adjournment was moved by the counsel, not holding any letter of authority. In the totality of the above said facts and circumstances, we find no merit in the present application moved under section 254(2) of the Act, where the powers conferred by the Tribunal are limited and the issues which have been adjudicated on merits are not open to be re-heard or re-adjudicate, as the power of review is not available under section 254 (2) of the Act. We find support from the ratio laid down in the case of H.K.Thakore Vs. ITO (supra). We dismiss the present Miscellaneous Application being not maintainable. 8. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on this 30th day of October, 2012.
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2012 (10) TMI 1142 - ITAT MUMBAI
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... ... ..... e issue involved in this appeal now stands squarely covered by the decision of Hon’ble Bombay High Court in the case of Godrej Boyce Manufacturing Co. Ltd. (2010) 234 CTR (Bom) 1, wherein it has been held that Rule 8D of Income-tax Rules, 1962 is applicable only from assessment year 2007-08. As further held by Hon’ble High Court, the disallowance u/s 14A for the years prior to assessment year 2007-08 has to be made by adopting some reasonable method. Respectfully following the said decision of Hon’ble jurisdictional High Court, we set aside the impugned order of the learned CIT(Appeals) on this issue and restore the matter to the file of the AO with a direction to recompute the disallowance of expenses to be made u/s 14A by applying some reasonable method after giving the assessee an opportunity of being heard. 4. In the result, the appeal of the assessee is treated as partly allowed for statistical purposes. Order pronounced on this 12th day of Oct., 2012.
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2012 (10) TMI 1141 - ITAT HYDERABAD
Entitled for exemption either under S.10(23C) or under S.11 - Held that:- The enquiry conducted by the Assessing Officer with handful of persons does not appear to have brought out the reality of the situation as to the collection of capitation fee by the assessee - we are of the opinion that adequate enquiry should have been conducted by the lower authorities before coming to the conclusion that the assessee has charged capitation fee. Consequently the assessee deserves another opportunity to substantiate its claim before the Assessing Officer that it has not charged any capitation fee from the students. Remit the matter back to the file of the Assessing Officer for deciding the issue afresh and determine as to whether the assessee has collected capitation fee from the students, keeping in view the principles enunciated by the Apex Court and others in the judicial pronouncements discussed above
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2012 (10) TMI 1140 - ITAT PUNE
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... ... ..... equent to the purchase of flats in question. The lower authorities were not having benefit of decision in the case of G.V.Corporation (supra) on the issue as well as the decision in the case of Kruti Constructions (supra). So in the interest of justice we set aside the order of the CIT(A) and restore the issue to the file of the Assessing Officer with a direction to decide the same as per fact and law available at the relevant point of time after providing due opportunity of hearing to the assessee. Similar issue arose in ITA.No.1382/PN/2010. Facts being similar, so following same reasoning, we set aside the order of the CIT(A) and restore the issue to the file of the Assessing Officer with a direction to decide the same as per fact and law available at the relevant point of time after providing due opportunity of hearing to the assessee. 6. As a result, both the appeals are allowed for statistical purposes. Pronounced in the open court on this the 31st day of October, 2012.
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2012 (10) TMI 1139 - CESTAT NEW DELHI
Order in the case of another judgment copy & paste to present case - Application for Rectification of Mistake (ROM) - HELD THAT:- In the entire scenario, court noted that admittedly, a wrong order got issued (as the mistake happened in the hands of Steno) without noticing the facts of the present case, the replacement of said order can not be considered to be a review of the same. The entire order, which got issued was a mistake inasmuch as the same does not relate to the facts of the present case except that the reference of Appeal No. and impugned order-in-appeal match in the preamble to those in case under consideration making it look as if the present order relates to the appeal of M/s. Paramount Communication.
As such, it has to be concluded that the entire order is a mistake, requiring rectification of same. The point made out by learned AR that such rectification can be done only to small clerical mistake in the order, cannot be appreciated inasmuch as in the present case the entire order is a clerical mistake. The mistakes required to be rectified does not depend upon the length of said mistake or does not relate to one or two words in the order. When the entire order which got issued was not relatable to the matter under dispute, notwithstanding the reference numbers in the preamble of the same, it has to be held as if the entire order was a mistake. Therefore, it is very obviously a mistake apparent on record and needs correction at any rate and therefore, we decided to dictate the appropriate order afresh.
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2012 (10) TMI 1138 - ITAT AHMEDABAD
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... ... ..... “1. Looking to the nature of business of the assessee as Road contractor, the Learned CIT(Appeals) ought to have allowed the expenditure of Labour Wages of ₹ 1655246/-, instead party allowed ₹ 1241434/-.” 14. At the time of hearing none appeared on behalf of assessee nor any adjournment application is made on behalf of assessee. However, the notice of hearing is duly served as acknowledgement due is on record. We feel that assessee is not interested in prosecuting this CO and respectfully following the decision of co-ordinate Bench Delhi rendered in the case of Multiplan (India) (P) Ltd. (38 ITD 320). Hence, this CO of assessee is hereby dismissed for want of prosecution. 15. In the result, assessee’s CO is dismissed for want of prosecution. 16. In combined result, appeal of Revenue is dismissed and that of assessee’s CO is dismissed for want of prosecution. Order pronounced in Open Court on the date mentioned hereinabove at caption page.
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2012 (10) TMI 1137 - BOMBAY HIGH COURT
Levying a penalty u/s 271 - deduction under Section 10B - Held that:- There is no dispute that the appellant disclosed all the facts. The appellant did not conceal any facts. Based on the disclosed material, the appellant sought the deduction which was denied on the ground that it was not entitled to the same as a matter of law. The Tribunal was in error in holding that merely because the claim for deduction was denied the appellant is liable to pay a penalty.
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2012 (10) TMI 1136 - ITAT CHENNAI
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... ... ..... l has failed to follow the decision of the co-ordinate Bench rendered in the case of M/s. Poompuhar Shipping Corporation Ltd. o p /o p 5. It is further to be observed that the issues raised by the Commissioner in the impugned revision order have already been adjudicated by ITAT, Chennai ‘D’ Bench in its common order dated 4.10.2011 passed in ITA Nos.1206/Mds/2011 and 779/Mds/2011, as far as the assessment year 2007-08 is concerned. In that way, on merit also, the post facto situation reveals that the issues considered by the Commissioner have already been decided by the Tribunal in favour of the assessee. o p /o p 6. Therefore, in the facts and circumstances of the case, we find that there is no error apparent from the record of the case as far as the order of the Tribunal is concerned, either on facts or in law. o p /o p 7. This Miscellaneous Petition is accordingly, dismissed. o p /o p Order pronounced on Thursday, the 11th of October, 2012 at Chennai. o p /o p
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2012 (10) TMI 1135 - BOMBAY HIGH COURT
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... ... ..... p;The CESTAT inter alia relying upon the judgment of the Tribunal in the case of Commissioner of Central Excise v. Machino Montal (I) Ltd. reported in 2004 (168) E.L.T. 466 (Tri.-L.B.) has held that penalty under Section 11AC of the Central Excise Act, 1944 could not be imposed as the duty amount was paid by the assessee before the issuance of the show cause notice. The Apex Court in the case of Union of India v. Rajasthan Spinning & Weaving Mills reported in 2009 (238) E.L.T. 3 (S.C.) has held that once Section 11AC applies, then irrespective of the fact as to whether the duty was paid prior to the issuance of show cause notice or subsequent thereto, the penalty under Section 11AC is mandatory. In this view of the matter, the impugned order of the CESTAT dated 8th September, 2006 is quashed and set aside and the matter is restored to the file of the CESTAT for fresh decision in accordance with law. 4. The appeal is disposed of accordingly with no order as to costs.
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2012 (10) TMI 1134 - CALCUTTA HIGH COURT
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... ... ..... xaminee qualifies for license anywhere in India subject to fulfilment of other requirement such as payment of requisite fees, etc. 22. The impugned orders cannot be sustained and the same are set aside and quashed. The application of the license shall be disposed of within 60 days from the date of communication of this order in the light of the observations made above. It is made clear that the petitioner shall be deemed to have passed the examination under Regulation 8 of CHALR, 2004 if, as contended by the petitioner, he has passed the examination under Regulation 9 of CHALR, 1984 irrespective of the Commissionerate from which he might have cleared the examination. It hardly need be mentioned that the petitioner will have to be granted a license if he is otherwise entitled and there are no cogent reasons in law for withholding the license. 23. Urgent certified copy of this order be supplied to the parties, if applied for, upon compliance of requisite formalities.
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