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Showing 81 to 100 of 1429 Records
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2014 (2) TMI 1352 - ITAT MUMBAI
Expenditure incurred for purchase of audio and video rights of feature films for production of cassettes and CDs - nature of expenditure - revenue or capital expenditure - HELD THAT:- Issue as considered by the Tribunal in assessee’s own case for earlier years [2013 (1) TMI 983 - ITAT MUMBAI] and after considering relevant facts held that expenditure incurred for purchase of master plates is revenue in nature. - Decided in favour of assessee.
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2014 (2) TMI 1351 - ITAT CHENNAI
Entitlement for deduction u/s 80-IA on the generation of power and utilized for captive consumption - HELD THAT:- As decided in TAMILNADU PETRO PRODUCTS LTD. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX [2010 (11) TMI 645 - MADRAS HIGH COURT] in the light of section 80-IA and in particular sub-clause (iv) of the said section which provides for the benefit even in respect of electricity generation plant established by the assessee and the income derived from such enterprise of the assessee, it will have to be held that the assessee fully complied with the requirements prescribed under section 80-IA in order to avail the benefits provided therein. Therefore, the contention based on the interpretation of the expression 'derived from' can have no application to the case where the provisions of section 80-IA get attracted - Decided against revenue.
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2014 (2) TMI 1350 - ITAT MUMBAI
Lease rent income - Correct head on income - income from house property OR business income - HELD THAT:- The issue is squarely covered by the decision of Hon’ble Supreme Court in the case of Sambhu Investment (P) Ltd. Vs. CIT (2003 (1) TMI 99 - SUPREME COURT), wherein held that when main intention of letting out the property or any portion thereof is to earn rental income, the income is to be assessed as income from house property and where the intention is to exploit the immovable property by way of complex commercial activities, the income should be assessee as income from business. Applying this proposition to the facts of the instant case, we found that the assessee has let out the property to earn the rental income. Accordingly, no infirmity in the order of CIT(A) for treating the lease income as income from house property
Deduction u/s 80IB(10) on stilt parking denied - HELD THAT:- As relying on assessee's own case infirmity in the order of CIT(A) for allowing claim of deduction under Section 80IB(10) as held that if some part of the flat is used for commercial purpose, the correct character of housing project is not vitiated, Assessing Officer has not brought on record that which part of expenditure claimed to have been incurred for parking is bogus. Hence, in view of the above said arguments, case laws and submissions of the appellant alone, the Assessing Officer could be directed to allow deduction to the appellant u/s. 80IB(10) on sale proceeds of stilt parking.
Addition of suppressed value of closing stock - AO has made addition in the valuation of closing stock by taking indirect expenditure as a part of cost of construction like interest expenses, depreciation, brokerage for lease etc. - CIT-A deleted the addition - HELD THAT:- AO has wrongly added expenses of previous year to the value of closing stock without finding fault in assessee’s method of valuation, which was consistently followed by it. The AO has wrongly included indirect cost of project which is not going to form part of value of work in progress. While computing value of closing stock the AO has not pointed out any particular expenses, which should have charged to closing stock and not added by the assessee to the closing stock. Accordingly, we do not find any reason to interfere in the findings of CIT(A) resulting into deletion of addition on account of valuation of closing stock.
Addition on account of allocation of common expenditure to Poisar Project and Sakinaka ‘D’ project - HELD THAT:- As the facts and circumstances during the year under consideration are pari materia to the facts and circumstances as considered and decided by the Tribunal in assessee’s own case, which has been elaborately referred by the CIT(A) in his impugned order Accordingly, we do not find any infirmity in the order of CIT(A) for deleting the addition made on account of allocation of common expenditure. - Decided against revenue
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2014 (2) TMI 1349 - ITAT MUMBAI
Gain from sale of the plots after claiming indexation benefit - income from business or LTCG - plot so sold constituted its stock-in-trade - correct head of income - HELD THAT:- The ledgers of the assessee firm in books of the partners shows that the plots were introduced as a capital contribution by the said partner, and the said plots of lands were introduced as capital assets and have been so held and shown as investments in the books of accounts since many years in the past and such position were accepted in earlier years. We also found that plots no. 23B and 23C were held for more than 5 years. Plots no. 256 and 257 were held for more than 3 years 5 months .Had it been held as stock in trade, no developer would held it vacant for such a long period clearly indicate that they were held as investment with a motive to earn profits. All these aspects were not considered by lower authorities while reaching to the conclusion that plots were held as stock-in-trade and not as investment.
Vide Tripatite Deed dt.03.08.2005 CIDCO formally transferred the said plots in favor of the assessee firm effecting the full transfer of the plots by Shri. Rahimtulla Abdul Hamid Mukri and others to M/s Sea Queen Developers. The transfer of the said plots were further formalized by CIDCO by transfer order dt. 19.09.2005. Subsequently, the said plots held as Long Term Capital Asset and shown as such in the balance sheets of respective years were transferred under an Agreement of Sale dt. 01.08.2008 to M/s Ravechi Properties on consideration of ₹ 10,55,00,00 and the capital gains of ₹ 8,26,04,800 after deducting the indexed cost of ₹ 2,28,95,200 was offered for taxation by the assessee firm. All these important factual aspects and documentary evidences have not been properly appreciated by lower authorities which resulted into wrong conclusion of holding that profit arising on sale of plots held as investment is liable to tax as business income rather capital gains.
We set aside the orders of lower authorities and restore the matter back to the file of the AO for examining these documents in detail and for deciding afresh the taxability of profit arose on sale of plot as capital gains or as business income - Decided in favour of assessee for statistical purposes.
Deemed dividend addition u/s 2(22)(e) - advances received by the assessee as deemed dividend - whether shares were held by the firm in the names of the partners - HELD THAT:- No investment was made by the assessee firm in the shares of said SHIPL nor any shares were issued to the assessee firm which were held in the names of its partners. No merit in the action of Assessing Officer for applying provisions of Section 2(22)(e), when the assessee firm is neither a registered shareholder nor beneficial shareholder of shares of SHIPL. Accordingly, the Assessing Officer is directed to delete the addition made u/s 2(22)(e) of the Income-tax Act, 1961. - Decided in favour of assessee
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2014 (2) TMI 1348 - ITAT MUMBAI
Depreciation to assessee trust - Allowability of depreciation of capital asset acquired for the purpose of carrying out charitable activities and set off of deficit of earlier years against the income of current year - Held that:- The assessee is claimed for setting off of excess income over expenditure against the deficit of earlier years is correct. No illegality or infirmity in the order passed by DIT. See COMMISSIONER OF INCOME-TAX VERSUS INSTITUTE OF BANKING PERSONNEL SELECTION [2003 (7) TMI 52 - BOMBAY HIGH COURT] - Decided against revenue.
Allowance of carry forward deficit - Held that:- There is no error on the part of the CIT(A) in following the decision of the Hon'ble Bombay High Court in the case of Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] and allowing the stand of the assessee.
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2014 (2) TMI 1347 - ITAT PUNE
TPA - Computation of net operating margins for the purpose of comparability of its international transactions - determination of net operating profits and operating revenues for the purposes of computing PLI of the assessee company - Held that:- No difference in approach between the assessee and the Revenue on the aspect of excluding any item of income or expenditure for the purposes of calculating PLI so long as such item of income/expenditure is not linked to the international transactions under review.
Objection of the Revenue is quite misplaced inasmuch as the assessee had raised this plea before the TPO evidently inasmuch as the order of the TPO extracted above, is in response to such plea of the assessee. We are also satisfied that the no additional evidence within the meaning of rule 46A of the Rules has been accepted by the CIT(A) on this aspect inasmuch as the exclusion of income/expenditure canvassed by the assessee, are based on its financial statements, which are a part of record. Therefore, we find no justification for the Revenue to assail the directions of the CIT(A).
Ostensibly, the aspect involves a factual appreciation of the material on record, and therefore, we hereby uphold the direction of the CIT(A) to the Assessing Officer to re-determine the PLI by excluding items of income/expenditure which are not linked to the international transactions in order to compute the PLI of the assessee. The Assessing Officer shall allow the assessee a reasonable opportunity to make submissions to support its stand and thereafter the Assessing Officer shall pass an order on this aspect in accordance with law. Thus, on this aspect, assessee succeeds for statistical purposes and the Revenue fails in its Grounds of Appeal.
Disallowance of adjustment on account of difference in levels of risk assumed by the assessee vis-à-vis comparable companies - Held that:- Our attention was invited to the written submissions wherein assessee had raised the issue of working capital adjustment and also wherein the issue of allowing risk adjustment wa1s raised. The assessee pointed out that aforesaid two aspects have not been adjudicated by the CIT(A) and that they have a bearing on the determination on the final tax liability. The learned counsel also furnished a copy of the order of the TPO u/s 92CA(3) of the Act for the subsequent assessment year of 2006-07 wherein the plea of the assessee for allowing of adjustment on account of working capital differences has been accepted. It was therefore contended that omission to deal with such Grounds of Appeal by the CIT(A) is unjustified.
Factually speaking, the points raised by the learned counsel for the assessee have not been controverted by the learned Departmental Representative appearing for the Revenue. In background of the aforesaid factual matrix, it is evident that the grievance raised by the assessee in terms of the Grounds of Appeal Nos. 9 and 10 have not been adjudicated by the CIT(A) and, therefore we deem it fit and proper to restore the same back to the file of the CIT(A) for adjudication afresh
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2014 (2) TMI 1346 - ITAT AMRITSAR
TDS u/s 194 - Disallowance u/s 40(a)(ia) - interest payments to the nominal members without deduction of tds - Held that:- We are of the view that nominal members are to be considered as members in view of the decision of Hon'ble Punjab & Haryana High Court in the case of CIT vs. Punjab State Co-operative Bank Ltd. (2008 (3) TMI 45 - HIGH COURT PUNJAB AND HARYANA). Accordingly, the assessee was not required to deduct tax at source on interest payments to the nominal members, who are members therefore, no disallowance under section 40(a)(ia) of the Act can be made.
Also in the case of Jalgaon District Central Co-operative Bank Ltd. v. Union of India [2003 (9) TMI 56 - BOMBAY HIGH COURT] held that where the legal validity of Circular No.9 of 2002 dated 11.9.2002 was questioned and the said circular was quashed and set aside. Accordingly, there is no distinction between member and nominal member as far as provisions of section 80P and 194(3)(v) are concerned. In the facts and circumstances of the case, the order of the ld. CIT(A) is reversed and the A.O. is directed to delete the disallowance so made. - Decided in favour of assessee.
Also disallowance on account of admission fees cannot be disallowed
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2014 (2) TMI 1345 - GUJARAT HIGH COURT
Unutilized CENVAT/MODVAT credit - Revenue submitted that section 145A was introduced with effect from 1st April 1999 which would govern the present situation and not the decision of Commissioner of IncomeTax v. Indo Nippon Chemicals Company Limited [2003 (1) TMI 8 - SUPREME COURT] which was rendered in background of the statutory provisions prevailing before that date - Held that:- Tax Appeal is admitted for consideration of the following substantial question of law :
“Whether the Appellate Tribunal has substantially erred in upholding the order of the CIT [A] in deleting the addition made by the Assessing Officer on account of unutilized Cenvat/Modvat credit of ₹ 1,98,868/- ?”
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2014 (2) TMI 1344 - GUJARAT HIGH COURT
Bogus purchases - ITAT restricting the addition made by AO to 5% of the total bogus purchases - Held that:- In the present case, though it may appear that the purchases have been shown to have been made through M/s. Vishal Traders but supplied by some other agency, in absence of other additional facts noted by this Court in case of Sanjay Oilcake Industries[2008 (3) TMI 323 - GUJARAT HIGH COURT] gross ad hoc addition of 25% may not be justified.
In the present case, the assessee could produce before the authorities the precise rate at which the purchases were made from M/s. Vishal Traders and other suppliers to demonstrate that the purchases made on the same day carried the same price. This would substantially eliminate the angle of the purchase price being artificially inflated. Additionally, the Tribunal also noted other parameters such as higher net and gross profit rates of the present year compared to the earlier years of the recent past. No question of law arises.
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2014 (2) TMI 1343 - SC ORDER
Depreciation on computer peripherals like CD writer, Printer, Network Cables, switches, isolators etc. - entitled to depreciation @ 60% or depreciation at the normal rate applicable to plant and machinery - Held that:- SLP dismissed.
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2014 (2) TMI 1342 - TRIPURA HIGH COURT
Refund of the amount deducted as sales tax - Despite repeated demand of the petitioner, the respondents have failed to refund the amount - Mr. S. Chakraborty, learned Addl. G.A., has put in appearance on behalf of the respondents and submits that he has been instructed to state that the Commissioner of Taxes & Excise has written a letter to the Food Corporation of India (FCI) asking them to inform as to what amount was deducted from the bills of the petitioner in connection with the work order. We are not at all happy with this state of affairs.
Held that:- The department maintains records assessee-wise also as to how taxes have been deposited and if the department looks into its own records, it can easily find out what is the amount of tax deducted by the FCI and deposited into the accounts of the petitioner. The respondents are just trying to shift the burden to the FCI and to the petitioner and not shouldering their own responsibility.
At the request of Mr. Chakraborty, learned Addl. G.A., we give last opportunity of three weeks to refund the entire amount along with statutory interest as payable from time to time up to 25-05-2008.
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2014 (2) TMI 1341 - ITAT MUMBAI
TDS u/s 194J - non deduction of tax at source on the hospital charges - disallowance made u/s 40(a)(ia) - Held that:- As decided in the assessee’s own case the assessee is only facilitating the payments by insurer to the insured for availing the medical facilities. Assessee has not rendered any professional services to the insurer or insured and only collecting the amount from the insurer and passing it on to various hospitals who were providing medical services to the insured.
Since, there is no claim of expenditure by the assessee, disallowance u/s 40A(a)(a) as was done by the AO does not arise. It may be different issue that the amounts paid may be covered by provisions of sec. 194J as was held by the Hon’ble Karnataka High Court in the case of – The MediAssesst India TPA P Ltd vs DCIT-18(1), Bangalore (2009 (8) TMI 85 - KARNATAKA HIGH COURT) relied upon by the AO. In that case, provisions of section 201 was applicable but certainly disallowance u/s 40(a)(ia) does not arise as assessee is not claiming any such expenditure in its P&L account. Moreover, revenue accepted the order of CIT(A) in earlier year.- Decided against revenue
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2014 (2) TMI 1340 - ITAT AMRITSAR
Additions towards capital expenses - current repairs - purchase of particular tube which is a part of the CT Scanner - purchase of UST-5299, PGS online UPS, Water flow PCB and PCB INJ LV - CIT(A) accepted the contention of the assessee with regard to the Dura 352-X-Ray Tube for CT Scanner amounting to ₹ 19,75,000/- and deleted the disallowance and confirmed the rest of the disallowance for the reasons mentioned in his order. - Held that:- We concur with the views of the ld. CIT(A) with regard to deletion of addition of ₹ 19,75,000/- which was a part of the C.T. Scanner and is not a machinery by itself. But at the same time, the ld. CIT(A) is not justified in confirming the addition of UST-5299, PGS online UPS, Water flow PCB and PCB INJ LV control - additions on account of UST-5299, PGS online UPS, Water flow PCB and PCB INJ LV control deleted - Decided in favor of assessee and against the revenue.
Disallowance of expenses - catering expenses - hotel bills expenses - Held that:- These expenses claimed by the assessee have been incurred for the first time for starting cancer unit during the impugned year and earlier the patients were making their own arrangements for meals. The system adopted by the assessee that during the period of admission no separate charges for food were billed and the same were inclusive in the package/room rent. One half meal or tea is taken at ₹ 80 and ₹ 30 on the day of discharge. The Ld. CIT(A) has rightly scrutinized the bills which were also before the AO and has rightly come to the conclusion that no addition can be made by the AO - Decided in against the revenue.
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2014 (2) TMI 1339 - SUPREME COURT
Validity of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to the State of Gujarat - Gujarat Tenancy and Agricultural Lands Act, 1948 - rates of premium to be paid to the State Government for converting, transferring, and for changing the use of land from agricultural to non-agricultural purposes - minimum valuation of land as per the rates contained in the list called as “Jantri” prevalent since 20.12.2006.
Held that:- The amount which is being charged is not a tax but a fee. It is a premium for granting the sanction. This is because under this welfare statute these lands have been permitted to be purchased by the tenants at a much lesser price - The tenant is supposed to cultivate the land personally. It is not to be used for non agricultural purpose. A benefit is acquired by the tenant under the scheme of the statute, and therefore, he must suffer the restrictions which are also imposed under the same statute. The idea in insisting upon the premium is also to make such transfers to nonagricultural purpose unattractive. The intention of the statute is reflected in Section 43, and if that is the intention of the Legislature there is no reason why the Courts should depart therefrom while interpreting the provision.
Jantri rates - Held that:- The Jantri rate to be applied will be on the date of the sanction by the Collector, and not on the date of the application made by the party.
Rule 25C of the Rules makes it clear that transfer of an agricultural land for non-agricultural purpose is not easy. It is only sub-clause (e) thereof under which such a transferor will have to make his case which is when a transfer is sought for a bonafide purpose. Even so, this does not absolve one from taking any prior sanction. It will only mean that if the application is bonafide, normally the transfer will be sanctioned, because as such there is no right to insist on a transfer for non-agricultural purpose.
Period for considering the application, and granting the sanction - Held that:- Such application cannot be kept pending indefinitely, and therefore we would expect the Collector to decide such applications as far as possible within 90 days from the receipt of the application - In the event the application is not being decided within 90 days, we expect the Collector to record the reasons why the decision is getting belated.
Appeal dismissed - decided against appellant.
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2014 (2) TMI 1338 - KERALA HIGH COURT
Levy of Service Tax - Chitty transaction being pursued by the parties - Held that:- The instance is accessible to 'Service Tax' as per the decision in the case of ALL KERALA ASSOCIATION OF CHIT FUNDS VERSUS UNION OF INDIA [2013 (6) TMI 53 - KERALA HIGH COURT] - petition dismissed - decided against petitioner.
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2014 (2) TMI 1337 - ITAT KOLKATA
Income from industrial sheds and godowns - taxable as income from house property OR busniss income - Held that:- It is necessary to find out the primary object of assessee while exploiting the property. If it is found that the main intention is for letting out the property or any portion thereof the same must be considered as rental income or income from house property. In case, it is found that the main intention is to exploit the immovable property by way of complex commercial activities, in that event it must be held as business income".
Referring to Rule of Consistency and bearing in mind the fact that it was a case of rental or commercial utilization of properties, which has been accepted, we are of the considered view that there is no reason to uphold this deviation. In view of the above discussions, we uphold the grievance of the assessee and direct the Assessing Officer to treat the income in question as income from business as has been in preceding and subsequent assessment year. This issue of assessee's appeal is allowed.
Disallowance of municipal taxes - Held that:- Now Ld. counsel for the assessee Shri S. K. Tulsiyan argued that the deduction qua interest should be allowed to the assessee and he stated that the addition of ₹ 64,389/- pertains to penalty and interest and the penalty is to the extent of ₹ 10,455/- but interest is to the extent of ₹ 53,934/-. Ld. counsel for the assessee made submission that this should be allowed. On query from the bench, the Ld. Sr. DR stated that this issue needs to be set aside as to the verification of facts by AO. On this, Ld. counsel for the assessee fairly conceded that the issue can be set aside.
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2014 (2) TMI 1336 - CESTAT MUMBAI
Refund claim - duty paid under protest - rejection on the ground of time limitation and unjust enrichment - Held that:- Since the payment was under protest, question of time-bar would not arise.
Unjust Enrichment - the claim has been rejected for non-production of evidences in respect of the appellant's claim that they have not passed on the duty incidence to anybody else - Held that:- The matter has to go back to the adjudicating authority to consider the claim of the appellant that the claim is not hit by the bar of unjust enrichment.
Appeal allowed by way of remand.
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2014 (2) TMI 1335 - ITAT MUMBAI
Penalty proceedings u/s 271(1)(c) - adhoc disallowance at the rate of 20% of the various expenses - Held that:- AO has made adhoc disallowance at the rate of 20% of the various expenses without pointing out any specific expenses being in the nature of non business purpose or for personal use. If the accounts have been audited, then the normal presumption is that the expenses are verifiable vis-a-vis the documents maintained by the assessee. Even though disallowances have been made in the quantum proceedings, due to non verifiability of expenses through corroborative evidences and the same has not been challenged, however this does not lead to any inference that assessee is liable for levy of penalty for either furnishing of any inaccurate particulars or for concealment of particulars of income. The disallowance is purely based on adhoc basis, dehors any adverse material on record, therefore, no penalty is warranted u/s 271(1)(c) on adhoc disallowance of the expenses claimed by the assessee in the profit & loss account.
Disallowance u/s 40(a)(ia), on account of payment of technical and professional fees and publicity expenses, it is seen from the record that the AO has made the disallowance on the ground that TDS has not been deducted on such payment - The disallwoance has been made merely on account of technical default of non deduction of TDS. Under the Income Tax Act, failure to deduct TDS, entails levy of interest and penalty under different provisions of the Act and certainly not u/s 271(1)(c), which can be levied only if the assessee has concealed particulars of his income or has furnished inaccurate particulars of income.
In this case assessee has neither furnished any inaccurate particulars of income nor has concealed any particulars of income because all the details of expenses, genuineness of the payment and quantum has been accepted. Once the payments made to professional and technical persons have not been doubted and on the basis of such payments the assessee has debited the said amount in the P&L account, it cannot be held that assessee is liable for penalty within the ambit of section 271(1)(c).
Disallowance of claim of deduction u/s 35D, it is seen that assessee has furnished the necessary information with regard to claim of such expenses, in the audited statement of account duly disclosed in the return. Even if the entire claim of the assessee has not been found to be sustainable, then also it cannot be held that assessee has furnished inaccurate particulars of income. To attract the provisions of section 271(1)(c), the assessee must be held to have concealed the material particulars or to have furnished inaccurate particulars - it cannot be held that assessee is guilty of furnishing of inaccurate particulars so as to attract the penal provisions of section 271(1)(c). Hence on this disallwoance also no penalty is warranted. - Assessee appeal allowed.
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2014 (2) TMI 1334 - ITAT AMRITSAR
Non charging of interest from debtors - Held that:- No part of the paper book has been pointed out to us how the interest free funds available were advanced to these persons - since nothing has been brought on record by the assessee or by the CIT(A) with regard to the purpose for which the various persons to whom money has been advanced has actually used the money. The advances given mostly are to the persons in their personal capacity and in the absence of any material or cogent explanation on record, the same have to be treated to have been advanced for personal benefit of such persons - thus this ground of revenue is allowed.
Disallowance u/s 40A(3) made for payment in cash for purchase of property - Held that:- In the proviso to section 40A(3) the exceptions are prescribed under Rule 6DD of the having regard to the nature and extent of banking facilities available for consideration of business expediency and other relevant factors and nothing beyond that - Ld. CIT(A) has not taken the said proviso in the right spirit and has deleted the addition, which is against the facts of the case and against the provisions of law - thus the order of the CIT(A) is reversed - appeal of Revenue is allowed.
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2014 (2) TMI 1333 - ORISSA HIGH COURT
Whether provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 can be invoked with reference to the loan transaction entered into prior to coming into force of the said Act?
Held that: - the statute intends to remedy a situation where recovery of loans of specified financial institutions were held up and are intended to be speedily recovered, without reference to procedure of the Court, by way of Securitization, by a substituted procedure and forum. Such statute applies to pre existing rights and may not be held to be retrospective so as to be hit by presumption of prospectivity. Moreover, presumption in respect of a procedural statute is that such statute is retrospective and can apply to existing cause of action even if it has reference to past transactions.
A Division Bench of this Court in Subash Chandra Panda v. State of Orissa and others [2008 (2) TMI 930 - ORISSA HIGH COURT], held in the negative - it was held prior to the notification dated 10.11.2003, the opposite party No. 6 was not a financial institution within the meaning of Section 2(m)(iv) of the Act. Since it was not a financial institution, it was not a secured creditor and it cannot invoke the provisions of the said Act in respect of a loan transaction of a prior date.
The provisions of the SARFAESI Act apply to existing debts even if loan was advanced earlier similarly, as soon as by a notification of Central Government, a financial institution is notified for purposes of Section 2(m), the machinery of the Act becomes available to recover any outstanding and legally recoverable debt even if such loan was advanced earlier - appeal allowed.
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