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Showing 121 to 140 of 865 Records
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2012 (5) TMI 750 - ITAT AHMEDABAD
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... ... ..... ad been made on the basis of estimate and not on account of any concrete evidence of concealment, then the penalty was not leviable. It is a settled law that both penalty proceedings and assessment proceedings are separate though findings recorded in the assessment order lay down a foundation for levy of penalty u/s 271(1)(c). The mere fact that the addition has been made and sustained in appeal does not by itself justify imposition of penalty. For levy of penalty the ingredients of sec 271(1)(c) pshould be satisfied. In the penalty proceedings there is no finding that the assessee has concealed particulars of income or furnished inaccurate particulars of income. In view of the totality of the facts and the judicial pronouncements, we are of the considered view that the CIT (A) was not right in confirming the levy of penalty. We accordingly direct the deletion of penalty. 9. In the result, the appeal of the Assessee is allowed. Order pronounced in Open Court on 4 - 5 - 2012.
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2012 (5) TMI 749 - CESTAT NEW DELHI
CENVAT Credit - waste/by-product - bagasse and press mud - appellant during the period from 10-5-2002 to July, 2009 cleared bagasse as also press mud on payment but did not proportionately reverse the Cenvat credit - Rules 6(3)(i) and (ii) of CCR - Held that:- Although the adjudicating authority has observed that the appellant has used Cenvatable inputs “lubricant, etc.”, in the manufacture of bagasse (liable to nil rate of excise duty), the adjudicating authority has not referred to any evidence which formed basis of this conclusion. Thus in our view the findings of the Authority is not supported by evidence and is based on unwarranted assumption.
The department has failed to establish that the appellant used Cenvatable inputs for production of baggase. Once it is concluded that the department has failed to establish that the appellant used Cenvatable inputs for manufacture of bagasse, Rule 6(2) and Rules 6(3)(i) & (ii) of Cenvat Credit Rules, 2004 are not attracted.
Appeal allowed - decided in favor of appellant.
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2012 (5) TMI 748 - ITAT MUMBAI
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... ... ..... n travelling for the purpose of export and looking for the business avenues abroad. The details submitted by the assessee though only provides the date of travelling, details of country visited and amount of fare, visa charges and other miscellaneous expenses incurred, however, the Assessing Officer has not brought anything in record to show that the foreign travelling was for personal purposes. Once the foreign travelling has been accepted for the purpose of business then part of the amount cannot be disallowed on account of personal user unless it is established that there was personal and non business expenditure. Since no basis has been given nor anything adverse has been brought on record, the ad hoc addition of ₹ 5,00,000/- cannot be disallowed. Thus, the order of the CIT(A) confirming the addition is set aside and accordingly, ground of appeal No.2 is allowed. 14. Resultantly, the appeal of the assessee is allowed. Order pronounced on this 11th day of May, 2012.
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2012 (5) TMI 747 - ITAT AHMEDABAD
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... ... ..... 11 for the assessment year 2008-09. 2. The assessee vide its application dated Nil sought permission to withdraw the appeal filed 9-8-2011. The permission sought to withdraw the appeal is granted. 3. In the result, the appeal is dismissed as withdrawn. Order pronounced in Open Court on - - 2012.
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2012 (5) TMI 746 - ITAT AHMEDABAD
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... ... ..... ,000/- were in relation to College of Business studies for supporting management education which is not at all related to the business of the appellant. Accordingly, the disallowance of ₹ 13,000/- is confirmed being not incurred fully and exclusively incurred for business purpose.” 65. Before us the Ld. A.R. contended that the expenditure of advertisement should be allowed as Revenue expenses as it is for the purpose of business. On the other hand the Ld. D.R. relied on the orders of the lower authorities. 66. We have heard the rival contentions and perused the material on record. Before us the Ld. A.R. could not furnish any tangible evidence to prove its contentions. In view of the foregoing, we are of the considered opinion that no interference to the order of the CIT(A) is called for and accordingly dismiss this ground of the assessee. 67. In the result, the appeal of the Revenue and the Assessee are partly allowed. Order pronounced in Open Court on 11-5-2012.
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2012 (5) TMI 745 - ITAT MUMBAI
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... ... ..... own case by the Hon’ble High Court of Bombay reported in CIT vs. Kotak Securities Ltd. 62 DTR (Bom) 339 and it is held that ‘transaction charges’ are paid to the stock-exchange for rendering managerial services which constitute fees for technical services u/s.194J r.w. Expl.2 to sec.9(1)(vii) and the assessee was liable to deduct the tax at source before crediting the transactions charges to the stock-exchange. So far as the issue of VSAT charges are concerned, the same is covered in favour of the assessee by the decision of the ITAT, Mumbai. We, therefore, partly allow ground no.2 and reverse the order of the Ld. CIT (A) on the issue of the transaction charges of ₹ 10,92,90,077/- and restore the order of the A.O. Accordingly, ground no.2 is partly allowed. 19. In the result, assessee’s appeal is partly allowed for statistical purposes and revenue’s appeal is partly allowed. Order pronounced in the open court on this day of 21st May, 2012.
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2012 (5) TMI 744 - ITAT MUMBAI
Allowance of the claim of exemption u/s. 54F - Held that:- Hon’ble Supreme Court in the case of Vania Silk Mills P. Ltd. Vs Commissioner of Income-tax (1991 (8) TMI 2 - SUPREME Court) has laid down the principle that extinguishment of right on account of destruction or loss of asset does not amount to transfer as the assessee has invested the amount as per provisions of Sec. 54F in the residential house, the exemption cannot be denied. - Decided in favour of assessee.
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2012 (5) TMI 743 - ITAT JAIPUR
Levy of penalty u/s. 271(1) (c) - higher g.p. rate - Held that:- For both the years, the clear finding by the tribunal for sustaining a higher g.p. rate is to plug a possible leakage of revenue on account of unverifiable purchases; the assessee having exhibited the purchase of goods against its unverifiable purchases. The assessee can under the circumstances only be considered as having substantiated it explanation, if not to the hilt, substantially so, with all the facts material to the computation of income being on record. Once it is accepted as a fact that the goods had indeed been purchased, an addition on account of a possibility of having incurred a higher expenditure than claimed, though definitely valid for effecting a disallowance of the claimed expenditure; the assessee having failed to prove their actual cost as incurred, cannot lead to the inference of a wrong claim, justifying the levy of penalty. That is, the very fact of the tribunal sustaining a higher g.p. rate only to plug a possible leakage of revenue on account of unverifiable purchases, proves the assessee’s claim of absence of any charge of having not disclosed its correct income, and of having a plausible explanation in support of the returned income. The same, though, would not prove its case as regards the claim of expenditure (or income), yet remains a valid claim for the purpose of levy of penalty. No penalty is exigible in the instant case - Decided in favour of assessee.
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2012 (5) TMI 742 - ITAT CHENNAI
Registration under section 12A - Held that:- We have also gone through the documents placed on record. We are of the opinion that trusts with similar objects have been granted registration under section 12AA of the Act. In order to meet the ends of justice, we set aside the impugned orderpassed by the CIT-I, Coimbatore and remit the matter back to the CIT-I, Coimbatore to decide the matter afresh after taking into consideration the order/registration certificates granted by the Director of Income Tax (Exemptions), Kolkata and Commissioner of Income Tax, Mysore respectively. The assessee is directed to produce all necessary documents as may be required by CIT-I, Coimbatore while deciding the application for registration afresh.
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2012 (5) TMI 741 - CESTAT, NEW DELHI
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... ... ..... on in the case of ABB Ltd. vs. Commissioner 2009 (15) STR 23 (Tri-LB) . However, Commissioner (Appeals) has not followed the said decision of the Larger Bench by observing that the same stand stayed by the Honble High Court of Karnataka vide its order dated 11.12.09. 3. Now the Karnataka High Court decision upholding the judgement of Larger Bench is available as reported in 2011 (23) STR 97 (Kar) . Inasmuch the issue stands decided by the above referred decision, I set aside the impugned orders and allow both the appeals with consequential relief to the appellants. 4. Stay petition as also appeals gets disposed of in the above manner. (Pronounced in the open court )
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2012 (5) TMI 740 - ITAT MUMBAI
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... ... ..... n of disallowance of ₹ 22,867 at the rate of 20 of car expenses, telephone expenses and depreciation on car. Since the assessee did not maintain log book for usage of car or any call register for telephone, the Assessing Officer made disallowance at 20 of such car expenses, telephone expenses and depreciation on car by invoking the provisions of section 38(2). The learned CIT(A) sustained the addition at the same level. 6. After considering the rival submissions and perusing the relevant material on record it is obvious that the assessee did not maintain any log book for car or any call register for telephone to indicate the usage of car / telephone for business / personal purposes. Considering the overall conspectus of the case, we are of the considered opinion that it will be in the fitness of things if the said disallowance is reduced from 20 to 15 . We order accordingly. 7. In the result, the appeal is partly allowed. Order pronounced on this 31st day of May, 2012.
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2012 (5) TMI 739 - SC ORDER
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... ... ..... through the review petition and the relevant documents. In our opinion, no case for review of order dated 21st February, 2012, is made out. The review petition is dismissed accordingly.
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2012 (5) TMI 738 - ITAT CHANDIGARH
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... ... ..... ance is warranted in the hands of assessee. 17. The third addition is in view of the provisions of section 41 (1) (a) of the Act. The assessee had during the year made payments to contractors against the liability outstanding as on 01/04/2005. The said payment was reflected in the books of account of assessee which have been rejected. Even otherwise the provisions of section 41 (1) (a) of the Act are applicable, where there is cassation or remission of liability as held in CIT Vs Bharat Iron & Steel Industries 199 ITR 66 (Guj). Both the said conditions are not satisfied in the present case, since this is case of payment of outstanding liability. In view thereof no addition is warranted u/s 41(1)(a) of the Act. 18. In view thereof, we find no merit in the grounds of appeals raised by the revenue in these regards and ground Nos. 1 to 3 are dismissed. 19. In the result, the appeal filed by the revenue is dismissed. Order pronounced in open Court on this day of 2nd May, 2012
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2012 (5) TMI 737 - ITAT DELHI
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... ... ..... is in appeal before us. 6. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that the only grievance of the Revenue is that the amendment brought in the Income Tax Act u/s. 40(a(ia) was only effective from 1.4.2010 and not retrospective in nature. However, we find that in a catena of case laws as mentioned, it has been held that the amendment in section 40(a)(ia) is remedial and curative in nature and has retrospective effect. In this case, admittedly, the TDS deducted was deposited before the date of the filing of the return and under such situation, there cannot be any disallowance u/s. 40(a)(ia). Thus we find that Ld. Commissioner of Income Tax (Appeals) has taken a correct view in the matter, which does not need any interference on our part. Accordingly, we uphold the same. 7. In the result, the appeal filed by the Revenue stands dismissed. Order pronounced in the open court on 21/5/2012, upon conclusion of hearing.
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2012 (5) TMI 736 - ITAT MUMBAI
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... ... ..... ds having been utilized by the assessee for making investment in shares, the AO was fully justified in computing the interest expenses on prorate basis and allocating the same towards dividend income thereby allowing only net dividend income as exempt u/s 10(33). It was also held by the Tribunal that interest bearing funds having been utilized by the assessee for investment in shares for the purpose of earning dividend income which was exempt u/s 10(33), the corresponding interest expenditure on such borrowings could not be allowed as business expenditure. Respectfully following the said decision of the coordinate bench of this Tribunal in assessee’s own case for assessment year 1999-2000, we uphold the impugned order of the learned CIT(Appeals) confirming the addition made by the AO on this issue and dismiss ground Nos. 3 and 4 of the assessee’s appeal. 6. In the result, the appeal of the assessee is partly allowed. Order pronounced on this 9th day of May, 2012.
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2012 (5) TMI 735 - ITAT MUMBAI
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... ... ..... R. In our opinion, ordinarily a person competent to file an appeal should also have the liberty to withdraw its appeal unless there are genuine reasons pointed out by the Revenue to show as to why the appeals deserve to be continued. In fact, if the Department is aggrieved by the orders of the lower authorities, they could have either filed cross objections or moved appropriate petitions accordingly. But no such material is available on record which may indicate that they are aggrieved by the impugned orders. Since the assessee is also not aggrieved by the impugned orders, in the form of filing an application seeking withdrawal of its appeals, we do not find any reason as to why the appeals should be kept pending for a formal nod of the concerned D.R. Having regard to the circumstances of the case we permit the assessees to withdraw their appeals. 4. In the result, appeals filed by the assessees are dismissed as withdrawn. Order pronounced in the open court on 31st May 2012.
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2012 (5) TMI 734 - ITAT JAIPUR
Disallowances of expenses on wages, petrol hire charges etc. - non deduction of tds - Held that:- ‘Provisions of Section 40(a)(ia) of the Act are applicable only to the amount of expenditure which is payable as on 31st March of every year and cannot be invoked to disallow the expenditure which had been actually paid during the previous year without deduction of TDS.’’ In the present case also, there is no outstanding payment as on 31-03-2008 as the entire payment has already been paid during the year under consideration. Therefore, no disallowance can be made u/s 40(a)(ia) of the Act.
Addition u/s 40A(3) - Held that:- If the profit of the assessee has been estimated by applying net profit rate than no separate disallowance can be made on account of any expenditure claimed under profit and loss account. In the present case, we have already held that the ld. CIT(A) was correct in applying the net profit rate. Therefore, no separate disallowance u/s 40A(3) can be made. In view of these facts and circumstances of the case, we hold that the ld. CIT(A) was justified in deleting this addition also.
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2012 (5) TMI 733 - CESTAT BANGALORE
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... ... ..... t on the alleged ground of suppression of facts by the noticee (Unit-I). The allegation of suppression of facts with intent to avail inadmissible CENVAT credit was denied by the assessee in their reply to the show-cause notice. They also contended that the demand raised on them was time-barred. This plea of limitation, however, was not considered by the original authority as that authority having allowed the benefit of CENVAT credit on merits to the assessee did not find it necessary to look into the plea of limitation. The same was the approach of the appellate authority. Now that I have held against the assessee on merits, it is incumbent on the original authority to examine the limitation issue and take a decision thereon in accordance with law and the principles of natural justice. Accordingly, I set aside the orders of the lower authorities and allow this appeal by way of remand to the original authority for the aforesaid purpose. (Pronounced and dictated in open Court)
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2012 (5) TMI 732 - SUPREME COURT
Challenging the order of detention - Habeas Corpus petition - Arms Act - the appellant’s son is concerned, he had been arrested for the offence related to FIR u/s 302 IPC r/w Section 25(1-A) Arms Act. Subsequently, the detention order was passed by the District Magistrate under N.S. Act on various grounds, inter-alia, that the appellant’s son was involved in extorting of money and giving shelter to underground members of unlawful association, as his activities were pre-judicial to the security of the State and maintenance of public order. In support of the detention order, a large number of documents had been relied upon and supplied to the appellant’s son including the copy of FIR u/s 17/20 of the Unlawful Activities (Prevention) Act, 1967 (UA (P) Act).
HELD THAT:- In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in other cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law.
The appeal succeeds and is allowed. The impugned judgment and order is hereby set aside and detention order is quashed.
the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
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2012 (5) TMI 731 - SUPREME COURT
Whether on a complaint made to the Copyright Board under Section 31 of the Copyright Act, 1957, the said Board under Clause (b) of Sub-Section (1) can pass an interim order in the pending complaint - Held that:- In the instant case, the power being sought to be attributed to the Copyright Board involves the grant of the final relief, which is the only relief contemplated under Section 31 of the Copyright Act. Even in matters under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, an interim relief granting the final relief should be given after exercise of great caution and in rare and exceptional cases. In the instant case, such a power is not even vested in the Copyright Board and hence the question of granting interim relief by grant of an interim compulsory licence cannot, in our view, arise. Mr. Salve’s submission that the substratum of the scheme of Section 31 is commercial in nature and only involves computation of the charges to be paid to the holder of the copyright who withholds the same from the public, is no answer to the proposition that under Section 31 only an ultimate relief by way of grant of a licence on payment of reasonable charges to the copyright owner to publish and/or broadcast the work could be given. To grant an interim compulsory licence during the stay of the proceedings would amount to granting the final relief at the interim stage, although the power to grant such relief has not been vested in the Board.
It is no doubt true, that Tribunals discharging quasi-judicial functions and having the trappings of a Court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such Tribunal would have the power to grant at the interim stage the final relief which it could grant.
Such incidental powers could at best be said to exist in order to preserve the status-quo, but not to alter the same, as will no doubt happen, if an interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant mandatory injunction at the interim stage, it would have vested the Board with such authority. The submission made that there is no bar to grant such interim relief in Section 31 has to be rejected since the presence of a power cannot be inferred from the absence thereof in the Statute itself. Appeal allowed.
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