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Showing 201 to 220 of 1239 Records
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2012 (12) TMI 1042 - ITAT MUMBAI
Addition in respect of Arm’s Length Price (ALP) determined by the TPO, comprising of two parts towards freight receipts and towards freight payments - Held that:- The assessee shared profit in the ratio of 50:50 both on the payments made by it and the receipts of freight from its AEs. We have perused the submissions and the finding of the CIT(A) on the functions performed, assets employed and risk undertaken by both the AEs in such transactions. DR could not controvert such finding that the functions performed, assets employed and risk undertaken in both the AEs is same. The assessee paid certain sum to its AEs abroad for doing the work similar to which it did for which it received freight revenue from its AEs.
The crux of the matter is that in both the situations, the total receipts are taken on one hand, from which all the expenses incurred in connection with the transportation of cargo in both the countries are excluded. The remaining amount is distributed between the entity of origin country and the entity of destination country in equal share. As the assessee has earned/paid revenue from/to its AEs in the same proportion, in our considered opinion, the transactions have been recorded at arm’s length price and there was no justification for making such addition. We do not see any reason to interfere with the impugned order.
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2012 (12) TMI 1041 - ITAT MUMBAI
Additions by way of Transfer Pricing adjustments on payment of royalty - Held that:- manufacturing of goods by the assessee was in any case not possible without the technical knowhow and assistance from SCJ (Associated Enterprise) in Japan - assessee entered into an agreement for obtaining license to manufacture specified insecticides and pesticides and agreed to pay 5% royalty on the value addition and RBI has approved it - is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years - The only condition is that the expenditure should have been incurred "wholly and exclusively" for the purpose of business - since royalty is paid for allowing assessee in utilizing the technical knowhow and the license for manufacturing activity, we are of the opinion that the payment of royalty is wholly and exclusively for the purpose of business - Hence AO to allow the royalty as claimed - following the order of coordinate bench of this Tribunal dated 7th November, 2012 (supra) passed in assessee’s own case - decided in favor of assessee
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2012 (12) TMI 1040 - ITAT AHMEDABAD
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... ... ..... sion cited by the Ld. A.R. of the assessee. We find that this is noted by Ld. CIT(A) in the impugned order that the facts are identical in para 2 of his order. He also noted that the A.O. made addition in both these years on account of difference in stock as per books and as per stock statement given to the bank. In assessment year 201-02, the tribunal has deleted the penalty and in holding so, the tribunal has followed the judgement of Hon’ble Calcutta High court rendered in the case of Bharat Minerals Sales Corporation as reported in 253 ITR 419. Since, no difference in the facts could be pointed out by the Ld. D.R., we find no reason to take contrary view in the present year and hence, respectfully following the tribunal order in assessee’s own case for the assessment year 2001-02, we delete the penalty in the present year also. 4. In the result, the appeal of the assessee stands allowed. 5. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (12) TMI 1039 - CESTAT MUMBAI
Cenvat Credit - construction services - Waiver of pre-deposit and penalty - Held that: - setting up modernization, renovation or repairs of a factory premises was covered under input service at the material time - the applicants are able to make out a prima facie case for total waiver of pre-deposit. Therefore, the pre-deposit of dues adjudged is waived and recovery thereof is stayed during the pendency of the appeal - petition allowed.
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2012 (12) TMI 1038 - CESTAT BANGALORE
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... ... ..... tter before the Bench has since relinquished the vakalatnama. We further come across a memo dated 24.9.2012 filed by someone claiming to be “counsel for the petitioner”. Even this memo was filed in appeal “No.ST/9511/2010” and does not mention the name of the “counsel”. Further, this memo prayed for extension of time for deposit by a period of one month. That period, to be reckoned from 24.9.2012, expired long ago. 3. In the absence of evidence of pre-deposit, we dismiss the appeal for non-compliance with Section 35F of the Central Excise Act as applicable to the captioned service tax appeal. (Pronounced and dictated in open Court)
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2012 (12) TMI 1037 - ITAT HYDERABAD
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... ... ..... the building was only exploiting the property as owner by letting out the same and realizing income by way of rent. Such rental income was liable to be assessed under the head ‘income from house property.’ The various assets let out to the tenants are incidental to letting out the building being integral part of the letting. Accordingly, we reverse the order of the CIT(A) and restore that of the assessing officer. This ground of the revenue is allowed.” 10. Since the issue under consideration is similar to that of the case decided by the Tribunal in assessee’s own case for AY 2005-06 and 2006-07 (supra), respectfully following the same, we uphold the order of the CIT(A) in confirming the action of the AO in treating the income in question as ‘income from house property’ and dismiss the grounds raised by the assessee in this regard. 11. In the result, appeal of the assessee is dismissed. Pronounced in the open court on 20th December, 2012.
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2012 (12) TMI 1036 - ITAT CHANDIGARH
Disallowance of interest u/s 36(i)(iii) - Held that:- As far as the advance to M/s Devbhumi Spinning & Weaving Mills is concerned, no purpose for the same was given before the Assessing Officer or the ld. CIT(A). Though before us, it was stated that the same was for the purpose of purchase of property but no evidence was filed before us, therefore, in the absence of any evidence it has to be concluded that money has been diverted for non business purpose. Since the assessee has admittedly borrowed huge amounts on interest, the proportionate interest has to be disallowed in respect of the advances made to M/s Devbhumi Spinning & Weaving Mills - remit the issue relating to the disallowance of interest on account of advance to M/s Balwindra Tools Pvt Ltd to the file of Assessing Officer to examine the iqrarnama filed before the first appellate authority and decide the issue in accordance with law.
Disallowance of expenses of interest u/s 14A - Held that:- Investment made in a firm is to be treated as investment for earning exempt income - after introduction of Section 14A, it was possible to apportion the expenditure between taxable income and exempted income.
The perusal of the assessment order shows as observed earlier, no where before the Assessing Officer or the ld. CIT(A), the assessee has made a specific mention to show which particular funds were borrowed for which particular requirement and in the absence of such specific utilization Rule 8D, would be applicable. Perusal of the assessment order shows that disallowance u/s 14A has been worked out on the basis of Rule 8D which is as observed earlier applicable in case of the assessee. Therefore, we set aside the order of the ld. CIT(A) and restore that of the Assessing Officer.
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2012 (12) TMI 1034 - ITAT PUNE
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... ... ..... of reasoning laid down by the Hon’ble Bombay High Court in the case of Brahma Associates (supra) is wholly applicable. The project before us has been approved by the local authority i.e. PMC as a residential-cum-commercial project and therefore, it qualifies to be seen in the same manner as explained by the Hon’ble Bombay High Court in the case of Brahma Associates (supra). Therefore, the aforesaid objection raised by the Revenue to dis-entitle the assessee from claiming of deduction u/s 80- IB(10) of the Act is untenable.” 14. In view of the above precedent, we reverse the order of the CIT(A) and direct the Assessing Officer to allow the claim of deduction u/s 80-IB(10) of the Act as the restriction in section 80- IB(10)(d) of the Act is prospective in nature and shall not be applicable to projects approved and commenced prior to 1-4-2005. 15. In the result, the appeal of the assessee is allowed. Decision pronounced in the open court on 31st December 2012.
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2012 (12) TMI 1033 - SUPREME COURT
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... ... ..... hat the rule is in the nature of a concession shown to the judgment debtor, so he has to strictly comply with the requirements thereof and a sale will not be set aside unless the entire amount specified in rub-rule (1) is deposited within 60 days from the date of the sale and, if it is beyond 60 days, the Court cannot allow the application. We have already found that the appellant-judgment debtor did not pay the amount within the stipulated time and he only made an application on 1.12.2010 without depositing the amount and hence the Court cannot entertain such an application and bound to confirm the sale which, in this case, the Court did on 23.10.2010. 21. We, therefore, find no error in the judgment and orders of the Executing Court as well as the High Court and the belated offer made by the appellant for depositing the amount now cannot be entertained and the same is rejected. 22. The appeal, therefore, lacks in merits and the same is dismissed, with no order as to costs.
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2012 (12) TMI 1032 - ITAT JODHPUR
Revision u/s 263 - Held that:- A.O. has examined each and every of the issues, as per law. The order of ld. CIT is directory in the nature which is based on his own view as against the taken by the A.O. We don't find any lack of inquiry or even a case of inadequate inquiry. Under section 263, the commissioner cannot substitute his own view.
He has not given any valid reason as to how the assessment order is erroneous. He has simply stated that the assessment order dated 7.1.2011 is erroneous and prejudicial to the interest of the revenue to that extent. The intention of this section is somewhat different. In case the A.O. has not made enquiries and taken an erroneous decision regarding an item of income, only then the order can be said to be erroneous on that point. A.O. takes a possible view qua a claim made and the ld. CIT takes another possible view, the order cannot be said to be erroneous.
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2012 (12) TMI 1031 - ITAT NAGPUR
Grant of registration u/s. 12A - proof of charitable activities - Held that:- Main activity of the trust was to provide education to students of architecture as per the course approved by the appropriate authorities and the admission policy, the fee structure endorsed by the Government of India. - The objects, cannot be said to be the objects, which run against public policy or do not fall within the category of activities, which are for charitable purposes. Education in itself is a charitable purpose and activities related thereto, cannot, in any manner, be described as a non-charitable purpose or much less a non-educational activity. It has also not been brought on record that the fees collected by the assessee was for any other object-except that mentioned in the objects of that society.
Sec. 12AA does not speak anywhere that the CIT, while considering the application for registration, shall also see that the income derived by the trust or the institution is either not being spent for charitable purpose or such institution is earning profits. In these circumstances, CIT was not justified in refusing registration under sec.12AA to assessee. His observation with regard to alleged accounting irregularities are not relevant for deciding the issue of registration.
As perused the Trust Deed of the Assessee-Trust. In our opinion, nature and activities of the Trust prove that it is an institution covered by the provisions of Sec. 2(15) of the Act.
As a result, appeal filed by the assessee stands allowed and CIT-III, Nagpur is directed to grant registration u/s. 12A of the Act to the Assessee-Trust.
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2012 (12) TMI 1030 - ITAT DELHI
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... ... ..... AYs 2000-01, 2002-03,2004-05 & 2005-06 did not make even a whisper on the issue raised by the assessee in their appeal for the AY 2003-04 in ground nos.1 and 2 relating to addition of ₹ 5,60,117/- nor the assessee in his MA raised any such issue about this claim. Apparently, the ITAT did not adjudicate the issues raised in this appeal of the assessee for the AY 2003-04 in their order dated 30.4.2010 . Moreover, when appeal of the Revenue for the same assessment year was pending, in terms of decision of Hon’ble Supreme Court in CST vs. Vijai Int. Udhyog,152 ITR 111(SC) and decision of Hon’ble Punjab & Haryana High Court in CIT vs. Balwant Singh Arora (1989) 180 ITR 400 (P&H)., cross appeals have to be heard simultaneously. In view of the foregoing, plea of the assessee that a mistake requiring rectification has crept in the aforesaid order dated 30th April, 2010 is baseless and devoid of merit. 6. In result, miscellaneous application is rejected.
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2012 (12) TMI 1029 - ITAT DELHI
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... ... ..... ence, the amount added back to the book profit u/s. 115JB of the I.T. Act. 14. Upon assessee’s appeal in this regard, Ld. Commissioner of Income Tax (A) held that the provision was expressly not allowable as per the Act on the date of assessment, the action of the Assessing Officer is considered justified and accordingly the addition was upheld. 15. Against the above order the assessee has filed the cross objection before us. 16. We have carefully considered the submissions and proposition in this regard. We find that the amendment which led to the disallowance in this regard was operating as per the Act on the date of assessment and the previous year under consideration was also included. Accordingly, we do not find any infirmity in the order of the Ld. Commissioner of Income Tax (A) and hence, we uphold the same. 17. In the result, the revenue’s appeal as well as assessee’s cross objection stand dismissed. Order pronounced in the Open Court on 14/12/2012.
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2012 (12) TMI 1028 - ITAT DELHI
Disallowance u/s 40A(3) - assessee made the payment in cash which was to be made through cheque, therefore, there is a contravention to the provisions of Section 40A(3) - advance given to the farmers for acquisition of land - Held that:- As advances paid to the land owners for purchasing the land have not resulted in any stock in trade/work in progress for the year under consideration, therefore, on that particular date, it would not qualify for disallowance as expenses or payment within the meaning of Section 40A(1) read with Section 40A(3) - in such a situation, we are in agreement with the argument of the learned counsel for the assessee that the claim of expenditure/payment has to form part of the profit & loss account in the first place before the question of its disallowance arises. We are also in agreement with the finding of the learned CIT(A) that the advance given to the farmers for acquisition of land does not form part of stock in trade as on 31.3.2007. Therefore, the provision of Section 40A(3) would not apply. - Decided against revenue
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2012 (12) TMI 1027 - ITAT MUMBAI
Validity of the reassessment - Held that:- The consequences of failure to supply the reasons recorded u/s 148 of the Act to the assessee when asked for, the reassessment is required to the quashed. Considering the undisputed facts of repeated requests for supply of reasons by the assessee and the AO’s blanket failure to supply the reasons recorded u/s 148 the impugned reassessment is bad in law and the same is required to be quashed. Ground no.1 raised by the assessee is allowed.
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2012 (12) TMI 1026 - CESTAT MUMBAI
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... ... ..... confirmed. 3. The ld. consultant for the applicant submits that the transportation charges of empty container has been included in the service charge and service tax has been paid, and they are entitled for input service credit. It is further submitted that same are covered under storage and warehousing service. 4. Heard the ld. consultant. 5. I find that it is not disputed that the amount of transportation paid by the applicant are included in the service charges and service tax has been paid. If service tax payment has been received by the department and same was included in the assessable value of the services provided. In these circumstances, I am of the view that the appellant are entitled for input service credit. Therefore, applicant has made out a case for 100 waiver of pre-deposit. Accordingly, I waive the pre-deposit of entire amount of service tax, interest and penalty and stay recovery thereof during the pendency of the appeal. (Dictated in Court)
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2012 (12) TMI 1025 - MADRAS HIGH COURT
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... ... ..... t of the Counsel in choosing the forum of appeal. The delay it is stated by Mr. Sathish Sundar, Advocate is due to inadvertence. 8. Though no reason has been given in the affidavit , the learned Counsel for the petitioner Mr. Sathish Sundar owns responsibility for the delay and the Court is inclined to accept the same and the apology. Accordingly, the impugned order is set aside and the writ petition is allowed directing the Commissioner, Central Excise (Appeals) the third respondent herein, to dispose of the appeal filed by the petitioner on merits, after considering the prima facie case as is prevalent at the time of disposal of the appeal. It is clarified that if the order of the Commissioner (Appeals) said to be in favour of the petitioner has been reversed or modified by higher forum then the same will be binding. 9. In the result, the writ petition is allowed as above. However, is no order as to costs. Consequently, connected miscellaneous petition is closed.
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2012 (12) TMI 1024 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... s 27 and 33 of the Act. 32. The hardship which the manufacturers would have faced if they were required to obtain verification from the Controller of every State, has been effectively redressed by the Government of India through its Circular dated 31-5-2012. That hardship, in any case would not render the provisions of the Statute unconstitutional though it could be a ground to seek appropriate modulation in the Model Rules circulated by Union of India. Suffice it would be at this stage to observe and grant liberty to the petitioners that if they are aggrieved by any provision of the Model Rules or instructions issued thereunder by the Central or the State Government, they may firstly represent the Competent Authority against such offending provisions and if still dis-satisfied, may resort to the recourse as may be available in law. 33. Save the afore-stated liberty, we do not find any merit in this writ petition and the same is dismissed in limine. 34. Dasti.
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2012 (12) TMI 1023 - ITAT BANGALORE
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... ... ..... red the rival contentions, we find that the AO has made the addition on difference between the purchases and sales. Both the authorities below seem to have overlooked the fact that the sales also included the gross profit and that the same will have to be excluded from the sales for arriving at the net taxable income. Neither the AO nor the CIT(Appeals) have really applied their mind to the above legal position. In view of the same and in the interest of justice, we deem it fit and proper to remand the issue to the file of the CIT(Appeals) to verify the statement of the assessee with regard to the wrong entries made in its books of accounts and after examination of the same to also look into the proportion of the gross profit embedded in the sales. Needless to mention that the assessee shall be given a fair opportunity of hearing. 8. In the result, the assessee’s appeal is allowed for statistical purposes. Pronounced in the open court on this 26th day of December 2012.
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2012 (12) TMI 1022 - ITAT BANGALORE
Entitled to the benefits of section 11 - Whether Extra Tuition Fee[ETF] has to be assessed in the hands of the Society or in the hands of Mr. MJB? What is the quantum of EFT that has to be taxed, whether the entire receipt in the form of ETF or whether any deduction has to be allowed on account of refund of ETF? - Held that:- AO having accepted that ETF is refundable and going by the prevailing practice that when a student does not avail of admission to the college, the same has to be refunded, it would be just and fair to resort to an estimate. No doubt the CIT(Appeals) has no basis for estimating the ETF refunded at 40%. Thus, we are of the view that it would be just and fair, if 45% of ETF collected has been refunded. Thus, this ground of appeal of the assessee is partly allowed.
The claim of the revenue that the entire ETF has to be brought to tax cannot be accepted for the reason that ETF by its nature is refundable and it is common practice that students who do not get admission, seek refund of ETF. We therefore reject the grounds of appeal of the revenue in this regard and partly allow the grounds of appeal raised by the assessee.
We also find that the AO assessing the Society has denied exemption u/s. 12 on the ground that the Society was collecting capitation fee. Since we have found that the Society was not collecting ETF, the benefit of section 11 of the Act should not be denied to the assessee Society. We therefore hold that the Society would be entitled to benefit of section 11.
In conclusion on the issues, we hold that it is only MJB who was collecting ETF and not the Society. We also hold that ETF to the extent of 55% of the total collections of ETF as evidenced by the seized documents should be brought to tax in the hands of MJB on a substantive basis. The additions made in the hands of Society is directed to be deleted. It is also held that the benefit of section 11 of the Act cannot be denied to the Society as there are no circumstances justifying the denial of benefits of section 11 of the Act to the Society. Accordingly, the grounds of appeal of the revenue in the case of the Society and MJB are dismissed, while the grounds of appeal of the assessee in the case of MJB are partly accepted.
Depreciation - Income derived from properties held under trust should be arrived at in the normal commercial manner and that a charitable institution running a school should be allowed depreciation
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