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2012 (4) TMI 466
Disallowance u/s.40(a)(ia) - reopening of the assessment – CIT(A) charging interest u/s.234B and initiating penalty proceedings u/s. 271(1)(c) – Held that:- Decided in Kanubhai Ramjibhai Makwana Versus ITO (2010 - TMI - 202951 - ITAT, AHMEDABAD) that provisions of section 40(a)(ia) as amended by Finance Act, 2010 w.e.f. 1.4.2010 are to be treated as having retrospective application with effect from 1st April, 2005 - Assessing Officer is directed to delete the disallowance of ₹ 3,69,568/- as made u/s. 40(a)(ia) of the Act – in favour of assessee.
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2012 (4) TMI 465
Deduction u/s 80 HHC on export incentives received by the assessee as a supporting manufacturer in the same manner as in the case of direct exporter, treating the supporting manufacturer at par with the direct exporter – revenue appeal - Held that:- Court being the jurisdictional Court has already decided the issue raised in Special Leave Petition against the revenue and the instant appeal will follow the suit – in favour of assessee. Addition of Rs. 8,38,77,635/- made by the AO on account of difference in the value of stock as per stock state....... + More
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2012 (4) TMI 464
Reopening - Deduction u/s 80IA - assessee having challenged the notice of reassessment in a proceeding under Article 226 of the Constitution - contractor or supplier of irrigation products versus developer of any new infrastructural facility. - held that:- It is now a settled law that if an explanation is added to a section of a statute for the removal of doubts, the implication is that the law was the same from the very beginning and the same is further explained by way of addition of the Explanation. Assessing Officer earlier did not arrive ....... + More
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2012 (4) TMI 463
Power to transfer case from Vapi to Surat - Principles of natural justice - Petitioners filed objections and for effective and coordinated investigation in the search cases of the same group, the order impugned in the applications was passed - held that:- the requirement of recording reasons under section 127(1) is a mandatory direction under the law and noncommunication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee as held by the Supreme Court in Ajantha Industries vs. Central Boa....... + More
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2012 (4) TMI 462
Deduction u/s 80-IB (10) - the sanction plan was issued on 4.4.2005 making it clear it comes into effect from 4 4.2005 and will be in force till 3.4.2007. Assessee contended as the approval was granted on 28.3.2005. he is entitled to the benefit under Section 80-IB(10) of the Act from the assessment year 2005-06 onwards - Held that: it was communicated to the assessee on 4.4.2005 and in law he should have 2 years time to complete the construction, the said communication and the sanctioned letter made it clear the time for completing the constr....... + More
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2012 (4) TMI 461
Whether lower rate of tax u/s 115E will be applicable to long term capital gains on sale of bonus shares where such bonus shares resulted out of original investments of shares made out of convertible foreign exchange - Held that: A conjoint reading of Section 115E and 115F clearly show that long term capital gains mentioned in clause (b) of Section 115E and investment made out of sale consideration received on transfer of foreign exchange asset mentioned in Section 115F, both relate to income arising out of transfer of foreign exchange asset -....... + More
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2012 (4) TMI 460
Writ petition - Assessee had asked the Commissioner of Customs at ICD, Tughlakabad, New Delhi to permit and allow import into India of the Data Graphic Display Tubes, which have been imported from Malaysia. It was claimed that these goods could be imported under the open general license - custom authority is delaying the release of the said consignment by taking the plea that the goods imported were old and used and therefore, they are “Electronic Waste” - The contention of the petitioner is that the consignment are lying since December, 2011 ....... + More
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2012 (4) TMI 459
Application of official liquidator alleging misfeasance on the part, of the erstwhile Directors of the Company-in-liquidation - held that:- KSFC has sold the plant and machinery and the issue is pending, the first respondent who was the Director in any event cannot be held liable for the said auction and the question as to whether the KSFC could have sold the machinery and as to whether it could have been sold for a better value and as to whether the valuation had been appropriately made by the KSFC are issues which would have to be inter se d....... + More
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2012 (4) TMI 458
Purchase of packing material against Form-H - Export of goods out of India - DVAT - assessee claimed input tax credit and asked for refund of the input tax on the ground that the packing material was used to pack rice which was exported out of India. - Section 9(1)(b) of DVAT - held that:- Section 9(7)(b) of the Act, when it says that no tax credit shall be allowed for the purchase of goods which are used exclusively for the manufacture, processing or packing of goods specified in the First Schedule, refers only to the sale of exempted goods w....... + More
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2012 (4) TMI 457
Liability of service recipient to pay (reimburse) service tax to the server provider - the appellant deducted the service tax from the bills of the respondent - the appellant deducted 5% tax on the bills of the respondent for the period 30.11.1997 to 6.8.1999 – respondent refused to accept the deductions as they are not "Assessee" under the Service Tax Act- the Appellants are being recipients resisted and have filed the return, thus the appellant's obligation to pay the Service Tax and not that of the Respondents – Held that:- Since clause 9.3....... + More
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2012 (4) TMI 456
Separate and distinct contracts or composite contract - the activity of civil work and electrical work - Erection, Commissioning or Installation service - abatement under Notification No.19/2003-ST dated 21/8/2003 - services of erection, commissioning or installation of WTG and establishment of Wind Farm Project - civil foundation is an integral part of erection and installation of the wind mill and the control room and electrical yard etc. also form an integral part for commissioning of the wind mill without which the commissioning of wind mi....... + More
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2012 (4) TMI 455
Jurisdictional pre-conditions for reopening under Section 147 – ITAT held that conditions were not satisfied in the present case - Revenue submitted that if the by mistake or lapse he does not examine a particular entry or a note in the return and overlooks it, there is no application of mind and thus it is not a case of mere change of opinion – Held that:- The matter should be examined by a larger Bench for elucidation and examination as the proposition clearly envisages a formation of opinion by the Income-tax Officer on the basis of materia....... + More
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2012 (4) TMI 454
Deduction u/s 80I - Invoking and exercise jurisdiction under Section 263 interest income on short term bank deposits and tank hire charges - ITAT confirmed CIT order Held that:- Immediate and first source of receipt of interest income is the deposit of money and not the industrial activity. Manufacturing activity, or profit earned therefrom, is not the proximate source of the interest earned. The said interest income, therefore, cannot be treated as income earned or derived from manufacturing activity undertaken by the industrial unit. Tank hi....... + More
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2012 (4) TMI 453
Writ of certiorari - assessee contested that the AO completed the assessment ex-parte under Section 144 – delay in filing the revision petition before the CIT- Held that:- Assessment order dated 28.2.2003 was never served on the petitioner firm or any of its partners and that it was for the first time that the petitioner firm came to know of the passing of the assessment order when the application filed by the income tax department before the Debt Recovery Tribunal came up for hearing - there existed reasonable cause for the delay in filing th....... + More
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2012 (4) TMI 452
Whether the assessee is entitled to the exemption under Section 10(20)- Held that:- Since the AMC(s) is neither a Municipal Committee nor a District Board under the said Explanation to section 10(20)of the 1961 Act no question arises whether the AMC(s) is legally entitled to the control of the local fund i.e.Market Fund - AMC(s) is therefore not entitled to exemption under section 10(20) after the insertion of the said Explanation, vide the Finance Act, 2002, with effect from April 1, 2003 - against assessee.
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2012 (4) TMI 451
Deemed income – addition made on account of sundry creditors under Section-41(1)(a) - Appellate Tribunal deleted addition – Held that:- Decision in CIT, Calcutta vs. Sugauli Sugar Works (P) Ltd (1999 (2) TMI 5 - SUPREME Court) taken that only if the assessee has made an entry of transfer in his accounts unilaterally will not enable the Department to say that S. 41 would apply and the amount should be included in the total income of the assessee - expiry of period of limitation did not extinguish the debt but only prevented the creditor from enforcing the debt – in favour of assessee.
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2012 (4) TMI 450
Set off of brought forward unabsorbed depreciation and losses of the unit the Income which is not eligible for deduction under Section 10A of the Act – Held that:- Section 10A is a provision which is in the nature of a deduction and not an exemption - the deduction under Section 10A has to be given effect to at the stage of computing the profits and gains of business - Section 80B(5) defines for the purposes of Chapter VI-A “gross total income” to mean the total income computed in accordance with the provisions of the Act, before making any deduction under the Chapter – against revenue.
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2012 (4) TMI 449
Disallowance of ₹ 58,05,328/- u/s 40(a)(ia) – Held that:- Decided by the Hon’ble Calcutta High Court in the case of CIT vs. Virgin Creators (2011 - TMI - 210395 - CALCUTTA HIGH COURT) confirming retrospective effect of section 40(a)(ia) on tax deducted at source and paid before the due date of filing of the return of income – in favour of assessee.
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2012 (4) TMI 448
Disallowance of expenses for the period prior to date of Set up of business by AO – Held that:- It cannot be said that the business had commenced only from 1st June, 2001, when the assessee acquired the rights under the agreement dated 21st May, 2001 - Tribunal has rightly kept in mind the difference between setting up of business and commencement of business - the assessee is in a complete state of readiness to undertake its activity, it can be said that it has set up its business, the actual commencement of business may be at a later date – ....... + More
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2012 (4) TMI 447
Commissioner (Appeals) dismissed his Appeal dismissed on ground of limitation – Assessee contested that no show-cause notice and order-in-original received – Held that:- The department issued show-cause notice to the appellant on 25.10.1990 and order-in-original dated 15.10.1991 through registered post, the same was returned un-served with remarks “unclaimed” - it is an admitted fact that the appellant is residing on the address mentioned in the show-cause notice/order-in-original – against assessee.
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