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Showing 81 to 100 of 1498 Records
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2015 (1) TMI 1426 - KARNATAKA HIGH COURT
Reopening of assessment u/s 147 - unexplained share purchases - addition based on sworn statement of Mukesh Choksi [accommodation entry provider] - as alleged by assessee for non providing any fair and reasonable opportunity of being heard to the petitioner - denial of an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount - HELD THAT:- Without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order. The entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner.
There was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India. See MR. ASHOK MITTAL VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX AND ANOTHER [2014 (4) TMI 208 - DELHI HIGH COURT] - Decided in favour of assessee.
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2015 (1) TMI 1425 - ALLAHABAD HIGH COURT
Maintainability of appeal - By the first order the stay application was dismissed for want of non-prosecution and, by the second order, the appeal was dismissed for not complying with the order of the Tribunal dated 30th August, 2013 - HELD THAT:- Admittedly, the order dated 30th August, 2013 was an ex parte order. Since certain directions were indicated in that order, which was not known to the petitioner, therefore, the question of its compliance on or before the next date of hearing could not arise.
The Tribunal was harsh in dismissing the appeal on a technicality - matter remanded to the Tribunal for deciding the appeal on merit after hearing the parties - appeal allowed by way of remand.
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2015 (1) TMI 1424 - SUPREME COURT
Bribe - demand of illegal gratification - Burden to prove - Offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - whether the concurrent findings on the charge under Section 13(1)(d) of the Act, recorded by the High Court against the appellant is legal and valid and whether the judgment and order of conviction and sentence under Section 13(2) of the Act, imposed upon the appellant by the High Court, warrants interference by this Court?
HELD THAT:- It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus, the burden to prove the accusation against the appellant for the offence punishable under Section 13(1)(d) of the Act with regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution - In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the appellant under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise.
The High Court on re-appreciation of evidence on record has held that the demand alleged to have been made by the appellant from the complainant PW2, was not proved and that part of the conviction and sentence was rightly set aside in the impugned judgment. However, the High Court has erroneously affirmed the conviction for the alleged offence under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act.
On a careful perusal of the entire evidence on record along with the statement of the prosecution witnesses, we have to hold that the prosecution has failed to satisfy us beyond all reasonable doubt that the charge levelled against the appellant is proved.
Since, the charge against the appellant is not proved, the conviction and sentence imposed upon the accused-appellant by the High Court under Section 13(1)(d) read with Section 13(2) of the Act is set aside - The jail authorities are directed to release the appellant forthwith, if he is not required to be detained in any other case - Appeal allowed.
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2015 (1) TMI 1423 - ITAT CHANDIGARH
Registration u/s 12A - charitable activity u/s 2(15) - CIT (Appeals) denied the registration because no activities have yet started - HELD THAT:- The aims and objects of the assessee trust clearly show that the assessee trust came into existence for providing medical assistance to the poor patients and to promote research work on medical side and to hold conference, etc., to create awareness and educating the doctors especially Pediatricians about the respiratory disorders/ disease of children which are on a rise these days. The aims and objects of the assessee and explanation given before the learned Commissioner of Income Tax clearly support the contention of learned counsel for assessee that the assessee trust is created for charitable purpose only.
Copy of registration granted under section 12AA in respect of Society of AROI-2001, Department of Radiotherapy, PGI, Chandigarh-PB-59 and order of Commissioner of Income Tax, Chandigarh granting registration under section 12AA of charitable Hematology Education & Research Trust of Chandigarh-PB-68. When the learned Commissioner of Income Tax had granted registration under section 12AA to these societies, the learned Commissioner of Income Tax should not distinguish the case of the assessee from the similarly situated assesses. Thus assessee trust existed for charitable purpose only and had done some activities in achieving its aims and objects also. Therefore, the assessee trust is eligible for registration under section 12AA
CIT(E) has not disputed in the impugned order as to the nature of the aims and objects of the society which are covered under the definition of charitable purposes as defined u/s 2(15) of the Income Tax Act. Further as discussed above, it cannot be said that the appellant society is not doing the activities in pursuance of its main objects or that the aims and objects of the society are not genuine. no justification on the part of the Ld. CIT (E) for rejecting the application of the appellant – society for registration u/s 12A - Decided in favour of assessee.
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2015 (1) TMI 1422 - ITAT MUMBAI
TDS u/s 194C or 194J - payment made to cable operators/DTH operators for channel placement - assessee is engaged in the business of distribution of television channels - CIT(A) held that the payment for placement of channel falls u/s 194C for the purpose of deduction of tax and not u/s 194J - HELD THAT:- The issue is covered in favour of the assessee by the decisions of this Tribunal in the case of ACIT Vs. UTV Entertainment Television Ltd. [2014 (12) TMI 716 - ITAT MUMBAI] and ACIT Vs. M/s. NGC Networks (I) Pvt. Ltd. [2014 (11) TMI 484 - ITAT MUMBAI] wherein the Tribunal has held that the fee for placement of channel does not fall u/s 194J but the same falls u/s 194C. Hence the CIT(A) has rightly held that the TDS in respect of the payment has to be deducted u/s 194C.
TDS u/s 194J or 194C in respect of dubbing charges - HELD THAT:- Identical issue was considered and decided by this Tribunal in the case of ACIT Vs. Manish Dutt [2012 (7) TMI 186 - ITAT MUMBAI] wherein it was held that the payment made for dubbing work falls under section 194C and not u/s 194I. The Tribunal again in case of UTV Entertainment Television Limited [2014 (12) TMI 716 - ITAT MUMBAI] had decided a similar issue as held that assessee had thus carried out the work of dubbing by engaging services and the same was of the nature of getting work done through a sub-contractor. The findings of the CIT(A) in this regard are not in challenge before us. In such circumstances we are of the view that the provisions of section 194C were applicable
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2015 (1) TMI 1421 - KARNATAKA HIGH COURT
Reopening of assessment u/s 147 - Benefit u/s 54F - Tribunal held that only the expenses incurred to make the residential house habitable is entitled to benefit u/s 54F but not any additions made to the newly acquired building - HELD THAT:- Assessing authority, before issuing notice u/s 148 was satisfied that the assessee, while computing indexed cost of acquisition has taken the value as on 01.04.1981 as ₹ 280/- per sq.ft., but as per the Government notification, the value is at ₹ 45 per sq. ft. Therefore, he came to the conclusion that the assessee has taken higher value while working out indexation and therefore, he recorded an opinion that the income chargeable to tax has escaped assessment under Section 147 of the Act.
Merely because, he addressed a letter to the Sub-Registrar asking him to furnish the particulars would not lead to the conclusion that on the day he issued notice, he had no material to show that the assessee has over valued the asset. Rightly, the authorities have rejected the said contention and the proceedings initiated is valid and legal and do not suffer from any. legal infirmity. Therefore, the first substantial question of law is answered in favour of the revenue and against the assessee.
Benefit u/s 54F - it is not in dispute that the property purchased by the assessee was habitable but had lacked certain amenities. The assessee has spent nearly about ₹ 18 lakhs towards removal of mosaic flooring and laying of marble flooring, alteration of the kitchen, putting up compound wall, protecting the property with grill work and attending to other repairs.
Section 54F of the Act provides that if the cost of the new asset, which is to be taken into consideration while determining the capital gain, the words used is "cost of new asset" and not "the consideration for acquisition of the new asset". In law, it is permissible for an assessee to acquire a vacant site and put up a construction thereon and the cost of the new asset would be cost of land plus (+) cost of construction.
On the same analogy, even though he purchased a new asset, which is habitable but which requires additions, alterations, modifications and improvements and if money is spent on those aspects, it becomes the cost of the new asset and therefore, he would be entitled to the benefit of deduction in determining the capital gains. The approach of the authorities that once a habitable asset is acquired, any additions or improvements made on that habitable asset is not eligible for deduction, is contrary to the statutory provisions. The said reasoning is unsustainable.The impugned order passed by the Tribunal as well as the Lower authorities require to be set-aside and it is to be held that in arriving at cost of the new asset, ₹ 18 lakhs spent by the assessee for modification, alterations and improvements of the asset acquired is to be taken note of. Thus, the second substantial question of law is answered in favour of the assessee
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2015 (1) TMI 1420 - SUPREME COURT
Demand of service tax - Sponsorship Service - sponsorship of a sports event, which has a commercial element - HELD THAT:- Issue decided in the case of CITIBANK NA VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2015 (12) TMI 146 - CESTAT MUMBAI] whereby the demands were made on the same grounds - appeal dismissed.
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2015 (1) TMI 1419 - SC ORDER
Cancellation of registration u/s 12AA(3) - activities of the appellant could not be said to be genuine after the amendment of the definition of 'charitable purpose'? - Cricket Association - HELD THAT:- Delay condoned. Leave granted.
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2015 (1) TMI 1418 - BOMBAY HIGH COURT
DTAA benefit - Proof of establishments abroad - Permanent establishments or branches outside India generated income - HELD THAT:- AO was satisfied that the benefit of the Double Taxation Avoidance Agreement is admissible provided the proof is produced in relation to payment of taxes by the Assessee abroad. If the Assessee has permanent establishment abroad, then, the Assessee would have to produce evidence regarding payment of taxes pertaining to the income of these establishments abroad.
On production of such evidence, the Assessee would be entitled to the benefit. That evidence was always available and as noted by the CIT (Appeals) and the Tribunal. The authorities did nothing but follow their earlier orders based on identical facts and circumstances. The finding of fact, therefore, cannot be termed as perverse or vitiated by any error of law apparent on the face of the record.
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2015 (1) TMI 1417 - ITAT AHMEDABAD
Benefit of Section 11 & 12 - charitable activity as per Section 2(15) - HELD THAT:- The proviso to Section 2(15) is applicable to objects of general public utility. The same was also clarified vide CBDT Circular No. 11 dated 19.12.2008. Since assessee company is directly engaged in preservation of environment as per Section 2(15), the proviso as pointed by AO is not applicable in the instant case. Accordingly, AO was not justified to conclude that assessee is not doing any charitable activity.
With regards to AO’s contention that assessee is carrying out business activity and is in the nature of profit making, we find that benefit of exemption cannot be denied on the ground that it had made surplus/profits as long as it is not meant for private profit of seller. Profit making is not predominant object of activity. CIT(A) was justified in holding that assessee is doing charitable activity as per Section 2(15), benefit of Section 11 & 12 of the Income-tax Act is available to it. CIT(A) was justified in directing AO to treat the activity of assessee company as charitable and further rightly directed to delete the addition. This reasoned finding of CIT(A) needs no interference from our side. - Decided against revenue.
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2015 (1) TMI 1416 - ITAT DELHI
Addition of loan - two loans from parties who are regular assesses and confirmations were fully filed before AO as well as before CIT(A) - whether appellant has discharged the primary onus and AO has nothing against it? - difference in PAN is because in top of the certificate PAN of appellant is given and near the signature PAN of party is given - HELD THAT:- In the application it is, inter alia, stated that the evidences filed by the assessee were not placed on record and in the remand report called for by CIT(A) it was, inter alia, stated that assessee did not file any particulars/ source of income of parties, their creditworthiness etc. and accordingly CIT(A) observed that no confirmation letters from the creditors were filed before the AO and the assessee failed to prove the identity of the creditor, creditworthiness of the creditor and the genuineness of the transaction.
After hearing both the parties, as the evidences filed by assessee before AO were not considered, we admit the additional evidence filed by the assessee and restore the matter back to the file of AO for deciding the issue de novo after affording reasonable opportunity to the assessee of being heard - Assessee’s appeal is allowed for statistical purposes only.
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2015 (1) TMI 1415 - ALLAHABAD HIGH COURT
Imposition of tax on advertisement - Vires of Section 193 (1), 193 (2) (i) of the Act read with Section 541 (48) of the Act - Held that:- It is well settled law that while interpreting a statute, meaning should be assigned to each and every word, line by line, word by word and the statute as a whole - According to Maxwell, a construction which would leave without effect any part of the language of a statute will normally be rejected.
Hon'ble Supreme Court by catena of judgment held that while interpreting any section of a statute, every word and provision should be looked into in context to which it is used and not in isolation - reliance placed in the case of Grasim Industries Limited v. Collector of Customs [2002 (4) TMI 52 - SUPREME COURT OF INDIA].
The respondents cannot exclude the proviso while interpreting Section 192 of the Act while framing Rules in question. The respondents while framing Rules, have not considered the proviso which provides that no tax shall be levied on any advertisement which is not a sky-sign. Accordingly, the Rules seems to be comprehensive in nature and inclusive of sky-signs hence suffer from violation of statutory mandate.
Petition allowed - decided in favor of appellant.
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2015 (1) TMI 1414 - PUNJAB & HARYANA HIGH COURT
Winding up of the company - Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 - Held that:- Since, none of the secured creditors objected to winding up of the company, namely, M/s Electronic System Punjab Limited, the recommendation made by BIFR is hereby accepted - Accordingly, the company, namely, M/s Electronic System Punjab Limited is ordered to be wound up. The Official Liquidator is appointed as Liquidator of the company and he is directed to take over the charge of the records, moveable and immovable assets of the company.
Let notice of the winding up be published in the newspapers namely, 'Indian Express' (English) and 'Dainik Bhaskar' (Hindi) both Punjab editions and in the Official Gazette of Government of Punjab.
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2015 (1) TMI 1413 - ITAT BANGALORE
Validity of reopening of assessment - non-supply of reasons for re-opening - Held that:- The Hon’ble Supreme Court, in the case of GKN Driveshafts (India) Pvt. Ltd. (2002 (11) TMI 7 - SUPREME COURT) has clearly held that where the AO issues notice u/s 148 and the assessee seeks the supply of reasons for reopening of assessment after filing a return of income in response to notice u/s 148, then, the AO must supply the same and if the assessee files any objections thereto, the AO has to first dispose of the objections before proceeding with the re-assessment of income.
As relying on case of VSNL [2011 (7) TMI 715 - BOMBAY HIGH COURT] and also Alana Cold Storage vs. ITO ( [2006 (9) TMI 123 - BOMBAY HIGH COURT]) holding that the re-assessment is bad in law for non-supply of reasons for re-opening. - Decided in favour of assessee
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2015 (1) TMI 1412 - ITAT MUMBAI
Nature of receipt - entertainment duty collected by the assessee - revenue or capital expenditure - Held that:- After considering the impugned order and on perusal of record, we are of the opinion that the ld.CIT(A) is justified in holding entertainment duty collected by the assessee is a capital receipt as it is in conformity with the decision of the jurisdictional High Court in CIT V/s Chapahalkar Brothers [2013 (6) TMI 73 - BOMBAY HIGH COURT]. Accordingly, we affirm the order of ld. CIT(A) and dismiss the ground taken by the revenue.
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2015 (1) TMI 1411 - SUPREME COURT
Invocation of revisional jurisdiction Under Section 166B of A.P. (Telangana Area) Land Revenue Act - period of limitation prescribed for invoking the revisional powers - Held that:- In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the Respondents. The attempt of the Appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business.
In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed.
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2015 (1) TMI 1410 - ITAT LUCKNOW
Addition u/s 68 - bogus share transactions - Held that:- AO has not doubted the purchase of the shares. He has doubted the sale consideration of the shares, as there was substantial increase in the value of shares. In order to establish the sale transaction to be genuine, the assessee has placed copy of the quotations of the Stock Exchange as on 12.3.2003, in which the rate of shares of Nageshwar Investment was shown at 58.20 and 64. The shares were sold on 23.3.2003 at ₹ 67.05 per share, though the quotation as on 23.3.2003 is not available on record, but in the light of the quotation dated 12.3.2003, the contention of the assessee that shares were sold at ₹ 67.05 per share cannot be doubted.
No doubt was raised by the AO in the purchase of shares. The sale consideration declared by the assessee should not be doubted only for the reason that the value of the shares have been increased to 30 times within a span of 15 months. In the case of share transaction, sometimes the value of shares may increase many fold within a span of short period. But for this reason, the transaction cannot be doubted - Decided against revenue.
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2015 (1) TMI 1409 - ITAT MUMBAI
Deduction u/s 80IA for Captive Power Plant - whether no profit derived from the Power Plant as the power was not sold but stood consumed in manufacturing units of the assessee company - expression derived of - Held that:- The expression “derived” used in the said section 80- IA(1) in the beginning as well as in the last part of sub-section (4) makes it abundantly clear that such profit or gain could be obtained by one’s own consumption of the outcome of any such undertaking or business enterprise as referred to in sub-section ( 4) of section 80-IA. The dictionary meaning of the expression ‘derive’ in the New Oxford Dictionary of English states ‘obtaining something from a specified source’. In section 80-IA(1) also no restriction has been imposed as regards the deriving of profit or gain in order to state that such profit or gain derived only through an outside source along would make eligible for the benefits provided in the said section
Following the decision of this Tribunal in the case of sister concern of the assessee we do not find any error or illegality in the order of the CIT(A) qua the issue of deduction under section 80IA in respect of captive power plant as well as the valuation of power by applying the tariff charged by the state electricity Board. Accordingly, the ground No. 1 and 2 of the revenue’s appeal are dismissed.
Deduction u/s 801A in respect of power generated from steam - whether steam is a by-product of the power generated and hence cannot be considered a power? - Held that:- As noted the decision of the Delhi Tribunal in Sial Sbec's case [2004 (3) TMI 342 - ITAT DELHI-C] and held that steam generated by the Industrial Undertaking comes within the meaning of power as per section 80IA, and would hence qualify for benefit. - Decided against revenue
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2015 (1) TMI 1408 - SUPREME COURT
Possession of property - Restrain from interfering in possession of the premises in occupation - defendant denied the title and possession of the Plaintiff over land in suit - Relief of permanent prohibitory injunction in respect of the land - Held that:- The argument of defendant cannot be agreed, for the reason that had it been a case of mandatory injunction requiring restoration of possession of land to the Plaintiff or demolition of the construction raised by the Defendants, what the Defendants have pleaded before us, could have been accepted but the present suit is for the relief of permanent prohibitory injunction in respect of the land which is described with boundaries and its municipal number. Therefore, it cannot be said that the decree passed by the trial court is un-executable.
Advocate Commissioner's report, in the present case, is against the weight of the oral and documentary evidence on record which sufficiently proves that Plaintiff was in possession over plot No. 358, and for several years he was paying the house tax as was found by the trial court on the basis of house tax receipts and extracts of house tax Assessment Register. It is not disputed that plot No. 357 belonging to the Defendants was in south of plot No. 358, and house of the Defendants was situated over their plot. The trial court has decreed the suit only in respect of plot No. 358.
The decree passed by the trial court is restored - appeal dismissed.
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2015 (1) TMI 1407 - ITAT PANAJI
Accrual of income - Addition on account of accrued interest on loans which are classified as "Non-performing Assets" - applicability of provisions of sec. 43D - assessee is a Co-operative Bank carrying on the business of banking - Held that:- Merely because the said amount, accrued was not realized immediately cannot be a ground to avoid payment of tax, but if in his account it is clearly stated though a particular income is due to him but it is not possible to recover the same, then it cannot said to have been accrued and the said amount cannot be brought to tax. Therefore, we reverse the finding of CIT(A) and restore the issue back to the file of Assessing Officer to verify whether the assessee has followed the mercantile system of accounting or not? Secondly, if this amount is accrued to the assessee, but it is not possible to recover the same then it cannot be said to have been accrued and the said amount cannot be brought to tax. The Assessing Officer should verify from the P & L a/c and decide the matter as per law after giving opportunity of hearing to the assessee. Appeal allowed for statistical purposes.
TDS u/s 194A - assessee is a cooperative society and has paid interest to its Members - disallowance of interest on term deposit in excess of ₹ 10,000/- u/s. 40(a)(ia) - Held that:- As decided in ACIT vs. The Belgaum District Central Cooperative Bank Ltd., Belgaum [2015 (1) TMI 743 - ITAT PANAJI] terms clause (v) which is general in nature will not apply to the co-op bank. The provisions of Section 194A (1)(viia) is clearly applicable and therefore the ‘assessee’ has to deduct T.D.S. on income credited or paid in respect of deposits except which falls under that provisions. Assessee cooperative bank is liable for TDS u/s. 194. We therefore, dismiss the appeal of the assessee.
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