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Income Tax - Case Laws
Showing 501 to 520 of 695 Records
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2012 (11) TMI 347
Transfer pricing adjustment - inclusion and exclusion of the various comparable companies by applying different filtration criteria - Held that:- The first criterion of filtration adopted by the TPO for selecting the comparable companies by applying a search criteria of "Sales trading / Total sales exceeding 75%" is correct and the second filtration criterion for selection of comparables should be the companies having export sales of around 13% of the total sales be adopted.
With regard to the elimination of Oregon Commercials Ltd., by the TPO, it is found that the reasoning given by the TPO is not correct as the TPO has clearly relied on the data of that company for F.Y. 2003-04, which is clearly violative of Rule-10B(4), which prescribes that the data to be used for comparison shall relate to the financial year of International Transaction and data relating to not more than two years prior to such F.Y., therefore, the said company should be taken into consideration after adopting the above two selection criteria - restore the matter to the file of the TPO and direct him to compute the assessee's average gross profit margin in determining the ALP in accordance with the observations made above - Revenue's appeal partly allowed for statistical purposes.
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2012 (11) TMI 346
Revision of orders by CIT(A) - computation of LTCG for claiming exemption u/s 11(1A) - AO's order is prejudicial as the investments had been made in the previous year prior to previous year in which the transfer of the capital asset took place - Held that:- The CIT has proceeded to apply the provisions of Sec.11(1A)(a)(ii) to the present case, thus it is clear that the capital asset is property held under trust wholly for charitable or religious purposes.
As decided in CIT Vs. East India Charitable Trust [1992 (1) TMI 21 - CALCUTTA HIGH COURT] capital gain is also income of the trust and Sec.11(1A) is not the only way in which capital gain has to be applied for charitable purposes. It is one of the way of applying capital gain for charitable purpose. If capital gain is applied for charitable purpose of the Assessee not by acquiring a new asset but for other charitable purpose, then there is no reason why it should not be considered as application of income for charitable purpose enabling the Assessee to claim exemption u/s.11(1). In the present case there is no question of application for accumulation of income for being spent for charitable purpose in future because such application is already deemed to have been made in the previous year itself.
Admittedly, even as per the order of assessment there was application for charitable purpose, even after disallowance of depreciation made by the AO, of a sum of Rs.1,60,23458 over and above the receipts of the Assessee during the previous year. The capital gain considered as not utilized for charitable purposes u/s.11(1A) is only a sum of Rs.1,21,61,909.33 Ps. The surplus utilization of Rs.1,60,23,458 should be sufficient to set off the capital gain not utilized for charitable purpose u/s.11(1A). Thus the net deficit in this AY to be carried forward for set off in the later years would be Rs.1,60,23,458 - Rs.1,21,61,909.33 Ps. Viz., Rs.38,61,909.67 Ps. Thus it can be fairly concluded that though the order of the AO was erroneous, the same was not prejudicial to the interest of the revenue as no part of the capital gain became taxable because of loss of exemption u/s.11(1A). Since the order sought to revised u/s.263 was erroneous but not prejudicial to the interest of the revenue, jurisdiction u/s.263 could not have been invoked by the CIT - direction to quash the order u/s.263 - in favour of assessee.
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2012 (11) TMI 345
Extension of stay of outstanding demand - Held that:- As decided in CIT v. Ronuk Industries Ltd. [2010 (11) TMI 461 - BOMBAY HIGH COURT] where the delay in disposal of pending appeal is not attributable to the assessee, the Tribunal has the power the extend the stay beyond the period of 365 days even after the amendment of third proviso to Section 254(2A) of the Act w.e.f. 1.10.2008 - thus grant of stay beyond 60 days would be in the interest of natural justice - in favour of assessee.
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2012 (11) TMI 344
Deduction u/s 80 IB(10) - CIT(A) allowed the claim on pro-rata basis - Held that:- There is no dispute to the fact that the project of the assessee was approved prior to 1.4.2005. However, the occupation certificate was received after 1.4.2005 by the assessee. On consideration of the facts as stated by authorities below and also found during the course of survey, it is not in dispute that assessee has allotted two adjoining flats either to same person or to the same family members to enable them to join together and have a bigger unit. Merely because the said flats had been shown in municipal plan to be separate but on physical examination and considering the surrounding circumstances, when it was found that adjoining flats were meant to be a single unit, which was more than the prescribed limit i.e. 1000 sq. ft, it can be fairly concluded that CIT(A) has rightly held them to a single unit irrespective of the fact that there are separate sale agreements entered into by the assessee.
AO as well as CIT(A) have categorically stated that the completion certificate is issued by Municipal Corporation only when the plan is approved prior to commencement of project. Though, there is violation/change in the approved plan, assessee firm did not inform the Municipal Corporation nor there is evidence to show or intimation/application was made to Municipal Corporation regarding charges in the original plan. Ld CIT(A) has categorically stated that the partner of the assessee firm himself admitted during the survey action that they had not informed the Municipal Corporation regarding changes in original plan - Thus considering above facts need to agree with CIT(A) that it is not enough if there are documents evidencing an apparent situation, if such documents are made to cover up what could be inferred reasonably as unreal. The position will have to be viewed as per direct observation of the survey team and it was found that one combined flat being shows as two separate units. So, we uphold the findings of CIT(A) on this aspect.
Inclusion of balconies and projections in the built up area - Held that:- CIT(A) has rightly stated that when the projections/elevations are just have 4”, 3”, 5” and 7” of the floor level, they implies that there are extended area and can be utilized as carpet area. Not only this, CIT(A) has also stated that the booking confirmation/particulars sheets that are made at the time of booking the flats give the exact area that is sold to the buyers and the books impounded and inventoried also give the picture to the actual area sold, and this includes all projections and other common areas. Therefore, agreeing with CIT(A) that the said extended area of projections/elevations/balconies are to be included while admeasuring all the flats and, accordingly, CIT(A) has rightly held that area of some of the flats exceeded the prescribed limit of 1000 sq. ft. . The authorities below have rightly held that assessee is not entitled for deduction in respect of the flats u/s.80IB of the Act.
Whether deduction u/s.80IB can be given on prorata basis or not - Held that:- As decided in DCIT Versus Brigade Enterprises (P) Limited [2008 (8) TMI 453 - ITAT BANGALORE-A] relief could be given to the assessee on pro-rata basis where some of the units exceeded the area limit, thus upholding the order of CIT(A) that assessee is eligible for deduction on pro-rata basis in respect of the flats not exceeding 1000 sq. ft.
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2012 (11) TMI 343
Salary income - Whether tax borne by the employee is not part of the pay? - Held that:- Though the assessee had paid tax of Rs. 50.00 lakhs, since the assesses was entitled to reimbursement of Rs. 35.00 lakhs from the Company, the salary income (Rs. 77.00 lakhs) received by the assesses had to be enhanced by Rs. 35.00 lakhs only and not the balance Rs. 15.00 lakhs which is paid by the assesses from the salary income. In these circumstances, the Tribunal was justified in holding that the tax amounting to Rs. 15.00 lakhs paid by the assessee from the salary income (not reimbursed by the company) could not be added to that income of the assessee - in favor of assessee.
Notional interest on interest free deposit made for accommodation - part of perquisite of the assessee or not ? - Held that:- Allowed the claim of the assessee by following the decision of this Court in the case of M.A.E. Paes v. CIT [1997 (9) TMI 83 - BOMBAY HIGH COURT]
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2012 (11) TMI 342
Setting aside Re-opening of Assessment - Held that:- No reasons have been given by the High Court for setting aside the re-opening of assessment - In the circumstances, the impugned Order of the High Court dated 23rd December, 2011, in Writ Petition No. 1807 of 2011, is set aside and the matter is remitted to the High Court for de novo consideration in accordance with law - civil appeal filed by the assessee is, accordingly, allowed with no order as to costs
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2012 (11) TMI 341
Reassessment Proceedings – Assessee being in business of onions on commission basis in the notified market area of Market Committee, Amritsar. Order of Secretary, Market Committee, Amritsar, is without mentioning of any number and date of passing of such order. Such order cannot be sustained in the eyes of law and, therefore, the said order has been set aside.
Held that:- Since the basis for which the reassessment proceedings were initiated has been set aside, there remains nothing with the Income Tax Department for the issuance of notice u/s 148 of the Act and the matter does not survive and therefore, the order of the AO is bound to collapse since the super structure erected on the foundation of illegal order cannot stand and accordingly the Ld. CIT(A) has rightly deleted the addition of Rs.61,42,981/- no infirmity in the order of CIT(A), who has rightly quashed the assessment made by the AO and has rightly deleted the addition so made - Thus, all the grounds of appeal of the Revenue for the A.Y. 2001-02 are dismissed – in favour of assessee
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2012 (11) TMI 340
Assessment u/s 144 – Service of Notice - Following the judgement of Supreme Court in case of [CIT vs. Ramendra Nath Ghosh 1971 (8) TMI 26 - SUPREME COURT] held that:- where the assessee contended that he had no place of business at the relevant time and the serving officer did not mention the names and addresses of the persons who identified the place of business of the assessee nor did mention that he personally knew the place of the business of the assessee, the service of notice must be held to be not in accordance with law. AO did not properly assume jurisdiction u/s 143(2) of the Act and he rightly cancelled the assessment framed by the A.O - no interference is called for in the well reasoned order passed by first appellate authority - Therefore, present appeal filed by the Revenue is dismissed.
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2012 (11) TMI 339
Addition on account of Deposit Work – Held that:- There is no evidence on record to establish that the amount invested in FDRs belong to the Market Committee and not to the appellant and therefore, as per him, the interest earned by the assessee has been rightly assessed in the hands of the assessee - In view of the absence of evidence and also the precedent in assessee's own case, no justification to interfere with the order of the CIT(Appeals) - Ground raised by assessee is dismissed.
Additions on account of sale of tender forms and establishment fees, paid to the contractor – Held that:- In the immediately preceding assessment year, the issue was decided against the assessee and following the same, impugned addition has been upheld. The said position continues even before us and there is no material brought on record by the appellant to the contrary - Ground raised by appellant are dismissed as being bereft of merit.
Addition on account of sums received from HRDFA – Held that:- The appellant had shown these as capital receipts whereas the AO had treated it to be revenue receipts. The appellant has challenged he addition stating that the amount in question is a contribution received from a charitable trust whose income is exempt u/s 12A of the I.T. Act. However, there is no merit in this submission as the nature of the receipts in the hands of the appellant is revenue irrespective of the source from where it has been received. The AO's action in treating these receipts as revenue receipts is upheld - ground of appeal is dismissed.
Addition on account of hiring charges, in respect of tools and Plants - Appellant had treated this income as capital receipts stating that these have been received in connection with the capital work undertaken by the appellant on behalf of the market committees. The AO however treated these to be a Revenue receipts. The appellant has not elaborated as to how the AO's action in treating these receipts as Revenue receipts is against law. Therefore, the action of the AO in treating the receipts form hire charges of tool & plants is revenue receipts is upheld - This ground of appeal is dismissed.
Addition on account of honorarium paid to the Chairman – Held that:- Addition has been made on the ground of non-filing of the details, in the matter. In view of this, it would be fair and reasonable to restore the issue, to the file of the AO, for fresh adjudication of the issue, as per law, after obtaining necessary details, in the matter. The assessee is requested to render necessary cooperation to the AO, in the matter. However, it is incumbent upon the AO to afford reasonable opportunity to the assessee. Accordingly, this ground of appeal of the assessee is al lowed for statistical purposes - In the result, appeal of the assessee is partly allowed.
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2012 (11) TMI 338
Determination of Net Profit rate – Applicability of sec 44AD - Held that:- Following the decision of the Special Bench of the Tribunal in the case of [M/s Arihant Builders (P) Limited Vs. ACIT 2012 (10) TMI 702 - ITAT AMRITSAR] Estimation of income at 8% of the turnover is reasonable because the Tribunal estimated the income ranging from 8% to 12.5 % depending upon the facts of the situation. Therefore, the order of the CIT(A) is hereby upheld and the income shall be estimated at 8% of the gross contract receipts - Accordingly, this ground of appeal of the assessee is dismissed.
Miscellaneous Income vs Income from other Sources – Income received from sale of scrap and other building materials - Held that:- Order of the CIT(A) in holding that there is no such receipts having nexus with the contract receipts received by the assessee from execution of civil construction works. Hence, the addition made by the AO and sustained by the CIT(A) of Rs. 9,10,587/- under ‘income from other sources’ is confirmed - Thus, this ground of appeal is dismissed.
Disallowance u/s 40(a)(ia) – Held that:- Disallowance of Rs. 1,00,200/- made by the AO and sustained by the CIT(A) is confirmed as due default on the part of the assessee under the TDS provisions, the mandatory provisions of section 40(a)(ia) of the Act are applicable and such disallowance is to be made separately even while estimating the profit on the contract receipts - this ground of appeal of the assessee is dismissed - In the result, appeal of the assessee is dismissed.
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2012 (11) TMI 337
Power of Condonation of Delay in filing an application u/s 12AA – Held that:- Power of granting 100% exemption to the trust from the purview of income tax lies with the Central Government represented by the Chairman CBDT. Due to these reasons, the trust could not file the application for registration of trust within the stipulated time before the DIT(E) and the registration has not been granted with effect from 1997-98 till today. The assessee based on his bonafide belief had been approaching the wrong authorities for granting exemption. Authorities who are in the knowledge of things have not advised the assessee regarding the person to whom the application should have made nor did they forward the application to the correct authority, leading to the delay in filing of application to the correct authority by the assessee - Since there was a sufficient cause for delay in filing the application,
The expression “sufficient cause " as decided in case of [Collector, Land Acquisition v Mst. Katiji And Others– 1987 (2) TMI 61 – SUPREME COURT] employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that the court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy - delay is condoned and remit the matter back to the file of the DIT(E), who shall decide upon the application of the assessee in considering the case in terms of section 12AA. Further the DIT(E) shall consider according registration with effect from the date of creation of the trust in accordance with law after providing reasonable opportunity of hearing to the assessee in the matter - In the result, both the appeals under consideration are treated as allowed for statistical purposes.
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2012 (11) TMI 336
Amortization of premium on purchase of Government securities - Held that:- Amortization was made as per the prudential norms of the RBI. Following the Tribunal decision in the assessee's own case and considering that the assessee bank is following consistent and regular method of accounting system, there is no justification in interfering with the order of the Commissioner of Income-tax (Appeals) on this issue of amortization of premium on government securities. - Decision in M/s. Sir M. Visweswaraya Cooperative Bank Ltd., Versus Joint Commissioner of Income-tax, Range-3, Bangalore [2012 (9) TMI 774 - ITAT, BANGALORE] followed.
Further, Premium amortized is claimed to be in respect of securities held under the category 'held to maturity'. The Assessing Officer has taken them as long term investments. In other words, he has accepted the assessee's claim that the securities are 'held to maturity'. That being so and having regard to the CBDT Instruction No.17 of 2008 dated.26.11.2008 as reproduced herein above, the premium paid on such government securities is required to be amortized over the period remaining to maturity - assessee is entitled to claim this deduction – appeal of assessee is allowed.
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2012 (11) TMI 335
Condonation of delay of 60 days in filing appeal - Imposition of Penalty u/s 271(1)(c) - Held that:- Reason for delay was ill-health of Mother of Assessee - restore the matter back to the file of the CIT(A) with a direction to decide the grounds raised before him on merit. The assessee is also directed to cooperate with the CIT(A) in producing the details sought for by the first appellate authority for completing the proceedings after giving reasonable and adequate opportunity of hearing to the assessee - In the result, the assessee’s appeal is allowed for statistical purpose.
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2012 (11) TMI 334
Addition of the machinery maintenance expenses - being capital expenses – Held that:- Incurring of the expenditure did not result any increase in the earning of the assessee - item were purely on repair and maintenance in nature and were like brackets, bearing, belts, chain, loader, electrical motor rewinding, face plates, gas cutter pipe, nuts and bolts, washers, champs, PVC pipes, pulley, MS plates, wire mesh, welding rods, wooden gutka, ruli, shafts, lever pin etc. - no part of the machinery can be independently used and constituted separate machine or which constitute substitution of an old asset by a new asset to categorize it as capital expenditure – in favor of assessee
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2012 (11) TMI 333
Addition on account of unexplained share application money u/s 68 of the Income-tax Act – alleged that AO, seeking details of genuineness of the share application money, the assessee did not respond – Held that:- Just because the creditors /share applicants could not be found at the address given, it would not give the revenue the right to invoke section 68 - it is settled law that the assessee need not to prove the source of source - appellant filed copies of PAN, acknowledgement of filing of income tax returns of the companies, their bank account statements for the relevant period, i.e. for the period when the cheques were cleared – addition deleted – in favor of assessee
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2012 (11) TMI 332
Proceedings u/s 263 - tax payable u/s 115JB - rebate under section 88E - disallowance as per the provisions Rule 8D of the IT Rules r.w.s. 14A - erroneous order – Held that:- Prerequisite for the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue - Assessing Officer was also aware that assessee had claimed rebate u/s 80E in respect of securities transaction tax in return of income - AO accepted the method of working out the tax payable on the deemed total income u/s 115JB after providing rebate u/s 88E. - the order passed by Assessing Officer was neither erroneous nor prejudicial to the interest of revenue on this count.
Other issue on which the CIT invoked the provisions of section 263 is not disallowing u/s 14A read with Rule 8D. The assessee himself has disallowed expenses of Rs.3,000/- of peons, conveyance, postage, etc. The Assessing Officer accepted the quantum of disallowance. CIT takes a view that the disallowances should be as per Rule 8D. Various Courts had held that the provisions of Rule 8D cannot be invoked retrospectively. These provisions are applicable prospectively only and w.e.f. assessment year 2008- 09 onwards. In the assessee’s case, the year involved is assessment year 2006-07. Thus, the view taken by the Assessing Officer by accepting the reasonable disallowance by not invoking the applicability of Rule 8D is a sustainable view in law. The Assessing Officer accepted the disallowance as made by assessee - order of Assessing Officer was neither erroneous nor prejudicial to the interest of revenue on this count also - CIT was not justified in invoking the provisions of section 263 of the Income-tax Act - appeal of the assessee is allowed.
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2012 (11) TMI 326
International shipping profits - Indo-Swiss DTAA - whether a resident of Switzerland carried on the shipping business in India through a permanent establishment - Held that:- Having held that the taxability of international shipping profits is covered by Article 22, it is necessary to ascertain whether the assessee company which received such income being a resident of Switzerland carried on the shipping business in India through a permanent establishment situated therein and whether the property in respect of which such income was paid i.e. ships is effectively connected with such permanent establishment.
After having perused the relevant clauses of the agreement between assessee company and M/s MSC Agency India Pvt. Ltd. finding in agreement with the view of the AO and the CIT(Appeals) that M/s MSC Agency India Pvt. Ltd. was legally and economically dependent agent of the assessee company and since the assessee company was managing and controlling some of its business operations in India through the said dependant agent, it constituted the permanent establishment of the assessee company in India in terms of the Indo-Swiss treaty. Unable to accept the contention raised by Shri Dastur in this regard that M/s MSC Agency India Pvt. Ltd. had limited right to perform its activities and it, therefore, cannot be regarded as habitually exercising an authority to negotiate and enter into contracts for and on behalf of the assessee company which, is contrary to the relevant clauses of the agreement between the assessee company and M/s MSC Agency India Pvt. Ltd. defining the scope and authority of M/s MSC Agency India Pvt. Ltd. and its commitment to work exclusively for the assessee company and not to accept the representation of any other principle for the same services in the same region without the written consent of the assessee company.
Keeping in view the relevant portion of the OECD commentary on Model Tax Convention on Income and on Capital (condensed version) published in July, 2010 and the ratio of the decision of Special Bench of this Tribunal in the case of Sumitomo Mitsui Banking Corporation & Ors. v. DDIT (2012 (4) TMI 80 - ITAT MUMBAI) the right or property in respect of which the shipping income is earned by the assessee i.e. ships cannot be said to be effectively connected with the permanent establishment in India . Such income, therefore, will not fall under Article 22(2) but will fall under Article 22(1) and accordingly shall be taxable only in the State of residence of the assessee company i.e. Switzerland and not in India. In that view of the matter, the impugned order of the learned CIT(Appeals) is upheld holding that the international shipping profits of the assessee company are covered by Article 22 of the Indo-Swiss treaty and although the assessee company had a PE in India in the year under consideration, the ships i.e. the property in respect of which shipping income was paid to the assessee company being not effectively connected with that PE, the case of the assessee will be out of paragraph No. 2 of Article 22 and will fall in paragraph 1 of the said article. Consequently, the same will be taxable in the country of residence of the assessee company i.e. Switzerland and not in India - in favour of assessee.
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2012 (11) TMI 325
Amortization of lease premium - Revenue v/s capital - Held that:- In the present case the lease arrangements are for a substantially long period i.e. 60-95 years. That the arrangements do not confer outright ownership rights to the lessee is besides the point as the enjoyment of the land as a lessee in such cases is substantially that of the owner itself. In other words, barring the right to alienate or outright sale of the property in unqualified manner, all rights of enjoyment in respect of leased properties are with the assessee. Furthermore, even though the stipulation in the deed – one of which (dated 25.07.1995 with MHIDC) was produced during the hearing by the assessee, clause 3(m) enjoins the lessee not to transfer either directly or indirectly, sell or encumber the lease benefits to any other party, the same stipulation enables transfer with "previous consent in writing of the Chief Executive Officer". Also that the conditions embodied in such lease deed are part of the general policies consciously adopted by the municipal and statutory authorities who manage and lease out such assets - no infirmity with the reasoning of the Tribunal no infirmity with the reasoning of the Tribunal - against assessee.
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2012 (11) TMI 324
Non-compete fee - Revenue v/s Capital - Held that:- The appellant is in a joint-venture between M/s. Sharp & L&T. Apparently, the agreement entered into with the L&T in view of the changed relationship ensures that the latter does not enter into the same business. Although it is contended that the advantage is only by way of facilitation of the appellant's business and ensuring greater efficiency as well as profitability, on the other side, what can be seen is that the arrangement is to endure for a substantial period, i.e. 7 years. Coupled with the fact that the L&T has its own presence in consumer goods sector and would be, if it chooses - able to put up an effective competition for business engaged in by the assessee, there is no doubt that the amount is to ensure a certain position in the market by keeping-out L&T. Applying the test indicated in the Empire Jute Company Limited Versus Commissioner of Income-Tax (1980 (5) TMI 1 - SUPREME COURT) have emphasized that a single test, i.e. whether the payment results in an enduring benefit cannot be conclusive in a decision as to whether an expenditure qualifies as one falling or in the capital field - this Court is the opinion that the deduction cannot be claimed as a revenue expenditure, it clearly falls within the capital field - in favour of the Revenue.
Whether a non-compete right acquired for seven years amounts to a depreciable intangible asset - Held that:- Each of the species of rights spelt-out in Section 32(1)(ii), i.e. know-how, patent, copyright, trademark, license or franchise as or any other right of a similar kind which confers a business or commercial or any other business or commercial right of similar nature has to be "intangible asset". The nature of these rights mentioned clearly spell-out an element of exclusivity which enures to the assessee as a sequel to the ownership - the 7 years period spelt-out by the non-competing covenant brings the advantage within the public policy embedded in Section 27 of the Contract Act, which enjoins a contract in restraint of trade would otherwise be void.
very species of right spelt-out expressly by the Statute - i.e. of the intellectual property right and other advantages such as know-how, franchise, license etc. and even those considered by the Courts, such as goodwill can be said to be alienable. Such is not the case with an agreement not to compete which is purely personal. - Thus it is to concluded that the words "similar business or commercial rights" have to necessarily result in an intangible asset against the entire world asserted to qualify for depreciation under Section 32(1)(ii) - depreciation not allowed - in favour of the Revenue.
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2012 (11) TMI 323
Annual letting value of unsold flats - flats lying under the head "Income from house property" - inventory of stock in trade v/s let out - Held that:- ALV is a method to arrive at a figure on the basis of which the impost is to be effectuated. The existence of an artificial method itself would not mean that levy is impermissible. Parliament has resorted to several other presumptive methods, for the purpose of calculation of income and collection of tax. Furthermore, application of ALV to determine the tax is regardless of whether actual income is received, it is premised on what constitutes a reasonable letting value, if the property were to be leased out in the marketplace - While there can be no quarrel with the proposition that “occupation” can be synonymous with physical possession, in law, when Parliament intended a property occupied by one who is carrying on business, to be exempted from the levy of income tax was that such property should be used for the purpose of business. The intention of the lawmakers was that occupation of one’s own property, in the course of business, and for the purpose of business, i.e. an active use of the property, (instead of mere passive possession) qualifies as “own” occupation for business purpose. Thus, this question is answered in favour of the revenue.
Deduction u/s 32 AB on interest income - Held that:- As decided in Apollo Tyres Ltd v CIT [2002 (5) TMI 5 - SUPREME COURT] if a business qualifies for the benefit granted under Section 32AB, if an assessee carries on business covered by that provision, and has utilized any amount during the previous year for the purchase of new plant or machinery then it is entitled to a set off of a sum equal to 20 per cent of the profit of such eligible business accordance with sub-section (5) of Section 32AB. As the eligibility or entitlement of the assessee to claim the benefit, was never questioned in the proceedings before the lower authorities the question is answered in favour of the assessee.
Admissibility of 100% depreciation for plant - Held that:- In view of the settled position decided in JCIT Vs. Anatronics General Co. (P) Ltd. [2000 (8) TMI 38 - DELHI HIGH COURT] that each bottle constituted plant and was eligible for 100% depreciation the value of the shuttering in the present case would have been written off within a couple of years, this Court is of the view that the impugned order and finding of the ITAT do not call for any interference - in favour of the assessee
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