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Case Laws
Showing 141 to 160 of 865 Records
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2012 (5) TMI 730 - ITAT AHMEDABAD
Penalty u/s 271(1)(b) - Held that:- Assessee attended the assessment proceedings from time to time and furnished the details as called for by the Assessing Officer by issuing notice under Section 142(1) of the Act and on the basis of those details, the income shown by him was accepted. In the light of this undisputed fact of the case, it cannot be said that the assessee did not comply with the notices served upon him by the Assessing Officer. We further find that the provisions of Section 271(1)(b) do not make it compulsory for the Assessing Officer to impose the penalty in such cases of technical lapse as the word used are “may direct” for imposition of penalty. Since, the Assessing Officer has discretion in the matter, we are of the considered opinion that the Assessing Officer should have exercised his jurisdiction and should not have imposed the penalty, as this is not a fit case for such imposition of penalty. - Decided in favour of assessee.
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2012 (5) TMI 729 - ITAT MUMBAI
Disallowance of depreciation in respect of certain assets given under ‘sale and lease back basis’ by treating the lease transactions as finance transactions - Held that:- In the case of finance lease depreciation is not admissible to the lessor who is simply a nominal and symbolic owner of the asset, whereas the real owner who bears all the risks and rewards incidental to the ownership is the lessee. It has thus been held that it is only the lessee who is the actual and real owner of the asset in case of a finance lease, who is eventually entitled to depreciation and not the lessor. In view of the foregoing reasons, we are of the considered opinion that the ld. CIT(A) was justified in denying depreciation to the assessee.
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2012 (5) TMI 728 - ITAT MUMBAI
Disallowance of interest and other operating expenses treating that the expenses were incurred for earning income exempt u/s. 10 - Held that:- We are of the opinion that matter should be restored to the file of the CIT(A) for adjudicating the issue of disallowance afresh. Assessee is directed to furnish the details like availability of interest free funds, reserves, self generated fund etc., during the hearing proceedings to be held by the CIT(A).
Applicability/non-applicability of Section 115JA - Held that:- MAT cannot be applied to electricity companies for mutually similar reason we uphold the plea of the assessee. We decided the issue in favour of the assessee. As we have held that provisions of Sec. 115JA are not applicable in the case under consideration.
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2012 (5) TMI 727 - ITAT KOLKATA
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... ... ..... s in the present case, MAT provision u/s. 115JB of the Act will not apply. In our view, the tax payable as referred to in section 115JB of the Act is gross tax payable and not the tax after rebate under other provisions of the Act. In view of the above, we are of the view that the tax payable on the income computed under normal provisions, in the case of the assessee, is much greater than 10 of book profit and, therefore, the findings of CIT(A) are clearly within the provisions of the Act. Appeal of the revenue is dismissed.” Being the facts of the present case are akin to that of the one which was decided by this Tribunal wherein the Tribunal has followed the Jurisdictional High Court in the case of ITO vs Advent Stock Broking Pvt. Ltd. (supra) we find no infirmity in the order of ld. CIT(A) to be interfered with. We confirm the same and dismiss the appeal of revenue. 5. In the result the appeal of the Revenue is dismissed. Order pronounced in the court on 04.05.2012.
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2012 (5) TMI 726 - ITAT AHMEDABAD
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... ... ..... the case, the assessee was entitled to netting of the income from loans and advances given to the “KBPL” of ₹ 35,203/- out of disallowed interest amount of ₹ 5,41,838/-, as there is no dispute between the parties on the basic facts that the interest of ₹ 35,203/- was earned by the assessee from M/s. “KBPL” against the loans and advances for which the interest expenditure was incurred by the assessee. The nexus between the two could not be controverted by the department. o p /o p In these facts of the case, we are of the view that the assessee is entitled to netting of interest earned of ₹ 35,203/- out of interest paid of ₹ 5,41,838./- and we direct accordingly and the assessee gets a relief of ₹ 35,203/-. Thus, the ground no.1 of the assessee is partly allowed. o p /o p 4. In the result, the assessee’s appeal is partly allowed. o p /o p Order pronounced in Open Court on the date mentioned hereinabove. o p /o p
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2012 (5) TMI 725 - ITAT DELHI
Interest on bank deposits and other interest receipts are to be considered as income from business and not under the head "income from other sources"
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2012 (5) TMI 724 - ITAT MUMBAI
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... ... ..... lding the view that income has escaped assessment that the re-assessment proceedings were vitiated in law and the very issuance of notice under section 147 is thus liable to be set aside.” 6. The ld. DR relied upon the assessment order. 7. We have heard the rival submissions and perused the orders of the lower authorities. It is not in dispute that proceedings under section 154 were initiated by the AO. It is also not in dispute that in the response filed by the assessee, there was no communication from the side of the A.O., therefore, the action of the A.O to subsequently issue notice under section 147 is bad in law. Accordingly, following the findings of the Tribunal in the case cited herein above, we quash the assessment proceedings. Since we have quashed the assessment, we are not deciding other issues emanating from the assessment order. The appeal is allowed. 8. In the result, assessee’s appeal stands allowed. Order pronounced on this 16th day of May, 2012.
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2012 (5) TMI 723 - ITAT DELHI
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... ... ..... f the assessee. 11. In the present case, the assessee had submitted all particulars regarding name, addresses and cheque numbers through which payments were received and he just could not file confirmations from them. The Assessing Officer had not brought any adverse remarks regarding these loans other than the fact that assessee could not file confirmations and agreement of loans. The Assessing Officer had made additions ignoring the vital information filed by assessee such As affidavit of Director of Kuber Group, copy of recovery proceedings initiated by lenders u/s 138 of Negotiable Instruments Act and as such additions made by the Assessing Officer are bad in law and against the facts of the case. In view of the above, we do not see any reason to interfere in the order of the Ld CIT(A) and hence the appeal filed by the revenue is dismissed. 12. In the result, the appeal filed by the revenue is dismissed. 13. Order pronounced in the open court on the 11th day of May,2012.
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2012 (5) TMI 722 - PATNA HIGH COURT
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... ... ..... oceeded to initiate process for their confiscation, confiscation would be justified only because the possessor does not have knowledge or documents to show how and who paid the duty for importation of such goods. No doubt, confiscation is a proceeding “in rem” against the goods but it also leads to deprivation of ownership over the goods and may also create liability for penalties. This cannot be permitted in a case of no evidence to show that the goods were of smuggled nature. A simple illustration may prove the point. Goods identified to be stolen goods when recovered soon after the occurrence of theft may create circumstantial evidence against the person in possession that he had a hand in the theft but the same principle cannot hold good when such goods may have passed several hands and are recovered after a lapse of considerable time. 7. In the present case, we find no substantial question of law to require determination. The appeal is, therefore, dismissed.
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2012 (5) TMI 721 - ITAT AHMEDABAD
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... ... ..... o the turnover of both the units, cannot be approved when as per the chart given by the assessee regarding profit percentage of both these units for earlier four years shows that profit of unit III was always around 67 whereas the profit of unit IV is around 40 in assessment year 2004-05. When there is so much difference in the profit percentage of both the units as per separate accounts maintained by the assessee in which no specific defect has been pointed out by the A.O., the entire profit of the assessee cannot be allocated to both these units in the ratio of turnover of these two units. Considering all these facts, we do not find any reason to interfere in the order of Ld. CIT(A) because his order is after considering all the relevant facts and, therefore, we decline to interfere in the order of Ld. CIT(A). 8. In the result, appeal of the revenue as well as C.O. filed by the assessee are dismissed. 9. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (5) TMI 720 - ITAT COCHIN
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... ... ..... ,000/- relating to Expenses absorption and ₹ 1,36,858/- relating to Prior period adjustment. 22. In the preceding paragraph, we have held that if the “Expenses absorption” is in the nature of recovery of part of expenses already booked in the Profit and Loss account, then there is no necessity to exclude 90 of the same under explanation (baa) to sec. 80HHC. Accordingly, we set aside the order of Ld CIT(A) in respect of this item and restore the same to the file of AO for fresh examination. 23. The prior period item is an income relating to the earlier year. The deduction u/s 80HHC is given to the current year’s eligible profit. Accordingly, we are of the view that the AO was right in excluding the same under explanation (baa) to sec. 80HHC. Accordingly, we uphold the order of Ld CIT(A) in respect of this item. 24. In the result, all the appeals of the assessee are treated as partly allowed for statistical purposes. Pronounced accordingly on 04-05-2012
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2012 (5) TMI 719 - ITAT CHANDIGARH
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... ... ..... nsidered at ₹ 3,80,000/-, the tax involved would be above the limits prescribed for filing appeal before the Revenue. 3. On perusal of the record we find that a mistake has occurred in mentioning the amount in ground No.(ii) consequent to which the appeal of the Revenue was dismissed for low tax effect. If the figure is adopted at ₹ 3,80,000/- in ground No.(ii), then the tax effect is above the limit prescribed for filing the appeal before the Tribunal. We find that the order of the Tribunal dated 26.8.2011 consequently needs to be recalled. In the entirety of the facts and circumstances of the case we recall our order dated 26.8.2011 and direct the Revenue to file amended ground of appeal No.(ii). 4. The appeal is fixed for hearing on 4.6.2012, for which the issue of formal notice is waived with the consent of parties. 5. In the result, the Miscellaneous Application filed by the Revenue is allowed. Order Pronounced in the Open Court on this 9th day of May, 2012.
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2012 (5) TMI 718 - ITAT KOLKATA
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... ... ..... the nature of expenditure of ₹ 43,26,760/-. According to Assessing Officer, these were connected with such other expenses which does not fall under section 115WB(2)(Q) of the Act. According to Assessing Officer, the nature of expenses were cost of stay, local conveyance, fooding expenses and entertainment, refreshment etc and hence, it falls under the bracket of 20 and not 5 . Accordingly, he further disallowed 15 of such expenses which comes to ₹ 6,49,014/-. We find that the nature of expenses is not explained by assessee neither before Assessing Officer nor before CIT(A) and even now before us. Hence, we set aside this issue to the file of Assessing Officer and direct the assessee to explain the nature of these expenses and Assessing Officer will decide accordingly. This ground of appeal of revenue is allowed for statistical purposes. 8. In the result, appeal of revenue is partly allowed for statistical purposes. 9. Order pronounced in open court on 25.05.2012.
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2012 (5) TMI 717 - ITAT INDORE
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... ... ..... ,041/- and the provisions of section 13 were made applicable by the A.O. Hence the assessee was not allowed deduction as an application of income u/s.11(l)(a). In this appellate order, vide Ground No.(3), I have held that the assessee has not violated the provisions of Section 13 and is entitled for the deduction u/s.11 & 12 of the Income-tax Act, 1961. Therefore, I hold that the assessee is eligible for the deduction u/s 11(1)(a) of the Income-tax Act, 1961.” 24. We have considered the rival contentions. As already discussed hereinabove provisions of Section 13 was not applicable to the assessee. As the assessee has not violated the pro visions of Section 13, therefore, deduction u/s 11(1)(a) cannot be declined. The ld. CIT(A) was justified in holding that the assessee was entitled for deduction u/s 11 & 12 of the Income-tax Act, 1961. 25. In the result, the appeal of the Revenue is dismissed. This order has been pronounced in the open court on 7th May , 2012.
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2012 (5) TMI 716 - ITAT AHMEDABAD
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... ... ..... ujarat High Court and the same was dismissed by the Hon’ble Gujarat High Court in tax appeal No.742/2010 dated 25.01.2012. He submitted a copy of this judgment of Hon’ble Gujarat High Court also. 3. We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below. Admittedly, Ld. CIT(A) had decided this issue by following the tribunal order in the assessee’s own case for the assessment year 2002-03 and this order of the tribunal had been duly confirmed by the Hon’ble Gujarat High Court by way of dismissing the appeal of the revenue. Ld. D.R. of the revenue could not point out any difference in the facts of the present year and hence, we do not find any reason to take a contrary view in the present year. We, therefore, decline to interfere in the order of Ld. CIT(A). 4. In the result, appeal of the revenue is dismissed. 5. Order pronounced in the open court on the date mentioned hereinabove.
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2012 (5) TMI 715 - ITAT CHANDIGARH
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... ... ..... 012. 13. In the facts of the present case and as brought out by the assessee before the authorities below, the assessee had deducted tax at source out of payments made to sub-contractors totaling ₹ 16,70,760/- which was due to be deposited by 31.3.2007 but was deposited on 31.5.2007. The due date for filing return of income of the assessee was 31.10.2007. Following the ratio laid down by the Hon'ble Calcutta High Court in CIT Vs. Virgin Creations (supra) and various Benches of the Tribunal we hold that once the tax has been deducted and deposited by the assessee before the due date of filing return of income, there is no merit in disallowing the expenditure relatable to such tax deducted at source. The assessee succeeds on both the counts. Accordingly, we direct the Assessing Officer to allow the claim of expenditure of ₹ 16,70,760/-. The grounds of appeal raised by the assessee are thus allowed. 14. In the result, the appeal filed by the assessee is allowed.
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2012 (5) TMI 714 - ITAT MUMBAI
Penalty u/s.271(1)(b) - conduct of the assessees or their Chartered Accountant in the proceedings - Held that:- On the careful perusal of the assessment order it is seen that nowhere any grievance is raised by the A.O. that the assessees or their Chartered Accountant were ‘non-cooperative’ or made any conscious defiance of noting dt. 14.10.09. As stated above, in fact, it is seen that the assessee’s responded on all the dates as required by the A.O. Merely because on 20.10.2009 the Chartered Accountant of these assessees has not appeared or filed some details as asked by the A.O., the extreme step is taken to penalise these assessees by levying the penalty u/s.271(1)(b). In the present cases, nowhere it is alleged that the conduct of the assessees or their Chartered Accountant in the proceedings was deliberate defiance of law on their part.
There was no justification on the part of the A.O. to levy penalty on all these assessees for the non-compliance by filing the details on 20.10.2009. Therefore, allow all these appeals filed by the assessees and delete all the penalties levied by the A.O. u/s.271(1)(b) of the Act.
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2012 (5) TMI 713 - ITAT HYDERABAD
Allowance of commission expenses - Held that:- There was no agreement between the assessee and the commission agents and there was no document on the basis of which it could be said that the commission was due and payable. As it has been already pointed out, even the agreements do not bind the Assessing Officer from enquiring into deductibility of commission. In this case there are no agreements and also there was no evidence of any correspondence or any personal meetings between the assessee and the commission agents to suggest that there was any relationship on the basis of which the commission agents procured customers for the assessee for which they were entitled to receive commission.
The understanding between the parties was an oral understanding and it was doubtful that such an oral understanding could have been arrived at without any longstanding relationship having been established between the assessee and the commission agents involving such huge amounts of money over a period of time. Further, the assessee is unable to furnish the details of customers introduced by each agent and also the exact working of commission payment made to each of the agents. Mere payment of commission through account payee cheque after deduction of TDS does not absolve the assessee from discharging its burden with regard to proving business purpose of the payments.
In the absence of any credible evidence for making such payments, we are inclined to disallow the same.
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2012 (5) TMI 712 - ITAT HYDERABAD
Default of non-payment of taxes due on the returned income - Form of appeal and limitation - Held that:- This is a case of deemed payment. In the situation, to our mind, the expression ‘paid’ used in the Act is inclusive of all kinds of payments including ‘deemed payment’, if any, and that being so, the case of the assessee must be considered as covered by the said expression and consequently, assessee must be deemed to have paid the taxes due on the income returned by him for the years under appeal.
It is trite law that right of appeal is a precious right, which must be protected and should not be taken away from the assessee for the reasons discussed by the authorities below. Therefore, we are of the opinion that the impugned orders of the CIT(A) are required to be reversed. We accordingly set aside the impugned orders of the CIT(A) for both the years, and restore these matters to the file of the CIT(A), with a direction to condone the delay in the payment of taxes on admitted income by the assessee, which has taken place only on account of late adjustment of cash seized at the time of search, by the Revenue towards the taxes due from the assessee for the years under appeal, and proceed to dispose off the appeals for both he appeals before him afresh on merits in accordance with law and after giving reasonable opportunity of hearing to the assessee.
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2012 (5) TMI 711 - ITAT MUMBAI
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... ... ..... s.55A, to find out whether the assessee has declared excess FMV as cost of acquisition for claiming the deduction towards cost of acquisition. Now, we find that the issue stands fairly covered in favour of the assessee by the decision of the Hon'ble High Court of Bombay in the case of Daulal Mohata HUF (supra) in which the Hon'ble High Court has referred to the decision of Hon'ble High court of Gujarat in the case of Hiaben Jayantilal Shah (supra). We, therefore, respectfully following the decision of the Hon'ble jurisdictional High Court hold that in the A.Y. 2005-06 the reference made by the A.O. to the Valuation Officer u/s.55A is with due authority of law and without jurisdiction. We, therefore, direct the A.O. to accept the valuation declared by the assessee in respect of the cost of acquisition to the extent of her share in the property. 5. In the result, assessee's appeal is allowed. Order pronounced in the open court on this day of 28th May, 2012.
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