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Showing 61 to 80 of 2843 Records
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2015 (10) TMI 2793 - ITAT AHMEDABAD
TP Adjustment - Selection of MAM - TNMM OR Cost Plus Method (CPM) - what is the most appropriate method, on the facts of this case, for determining the arm’s length price of the exports made by the assessee to its associated enterprises (AEs) abroad - HELD THAT:- Whether the transactions are with associated enterprises resident in India or with associated enterprises resident outside India, the prices at which such transactions are entered into with such enterprises cannot be taken as “comparable uncontrolled price” for the purpose of determining the arm’s length price.
As for the question as to whether the transactions with associated enterprises can, in any situations, be considered as a valid input for ascertainment of arm’s length price under the CUP method, we find the issue is covered, in favour of the assessee, by decision of a coordinate bench in the case of Sabic Innovative Plastic India Pvt Ltd Vs DCIT [2013 (9) TMI 596 - ITAT AHMEDABAD].
No reasons to take any other view of the matter than the view so taken by us in the case of Gemstone [2015 (11) TMI 185 - ITAT AHMEDABAD]. Respectfully following this decision, we hold that the authorities below indeed erred in not applying the TNMM for ascertaining the arm’s length price of assessee’s transactions with the associated enterprises. We direct the AO/TPO to compute the ALP on the basis of the transactional net margin method. With these directions, we remit the matter to the file to the assessment stage for fresh determination of arm’s length price. As the matter is being remitted to the assessment stage, it will be open to the assessee to take such other plea, on merits, on ascertainment of ALP under the TNMM as the assessee may deem fit and the same will have to be disposed of by way of a speaking order, in accordance with the law and after giving a fair and reasonable opportunity of hearing to the assessee. All those issues regarding computation part, as on now, are quite academic and wholly hypothetical.
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2015 (10) TMI 2792 - ITAT INODRE
Revision u/s 263 - CIT(A) has dismissed the appeal of the assessee on the basis that the assessee has not challenged the order of the CIT u/s 263 - HELD THAT:- As gone through the order of the CIT(A) and find that the CIT(A) has not decided the appeal but has held the order of the AO as erroneous and set aside the same to the Assessing Officer for de novo consideration.
CIT(A) was not justified in dismissing the appeal of the assessee on the basis that the order of the CIT u/s 263 of the Act has become final as no appeal is preferred against the same.We restore this appeal to the file of the learned CIT(A) to decide the same on merits. Appeal is allowed for statistical purposes.
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2015 (10) TMI 2791 - ITAT RAIPUR
Addition u/s 68 on account of unexplained capital - CIT(A) deleted the addition - HELD THAT:- Since in the remand report the Assessing Officer himself has accepted that the assessee has explained the details of the source of capital introduced, no addition in this case is warranted. In fact, Revenue’s grievance in filing the appeal, while the Assessing Officer himself is accepted the veracity, is not justified. Hence, we uphold the order of the learned CIT(A).
Difference in loan account as per bank statement and balance-sheet - CIT(A) deleted the addition - we find that when in the remand report the Assessing Officer himself has accepted the veracity of the assessee’s claim that this addition has been made by oversight of the Assessing Officer, we find that the learned CIT(A) was justified in deleting the addition.
Disallowance of payment of wages - CIT(A) deleted the addition - HELD THAT:- The assessee derives income from the supply of labours for industrial operation. The percentage of wages to the gross receipt is consistent with that returned in the preceding assessment year, except for marginal increase. In the subsequent assessment year also, the Assessing Officer has accepted the wages paid, except a minor disallowance of ₹ 70,000/-. Under these circumstances, in our considered opinion, the ad-hoc disallowance is not sustainable
When confronted in this regard that there has been a marginal increase in the percentage of wages to the gross receipt and the fact that wages are not 100% verifiable, the learned Counsel of the assessee agreed for a small disallowance. We also find that one of the pleas in support of the deletion of the addition taken by the learned Counsel of the assessee relied upon the learned CIT(A) is the fact that in the subsequent assessment year the payment of wags was accepted by the Assessing Officer, except for the minor disallowance of ₹ 70,000/- - Disallowance of wags to the extent of ₹ 1 lac will meet the ends of justice. Accordingly, we modify the order of the learned CIT(A) and hold that the disallowance to the extent of ₹ 1 lac out of wage expenses is sustainable and accordingly, the disallowance of ₹ 1 lac is upheld.
Unexplained cash credit u/s 68 - CIT(A) has given a finding that the fresh loan taken during the year was only ₹ 2,00,000/- - AO has rejected the same on the ground that the assessee’s creditors are persons of little means having yearly income of ₹ 1 lacs and bank statement reflects cash deposit - HELD THAT:- CIT(A) has held that, on perusal of bank statements, he found that the assessee had made cash withdrawal from the same bank account and the assessee has discharged the burden of proving the creditworthiness of the lender and the genuineness of the loan transaction; hence, the CIT(A) deleted the addition. There is no presumption that persons with smaller incomes cannot make any savings whatsoever. Doubts raised by the Assessing Officer regarding the bank statement with regard to the deposit can be subject matter of verification in the hands of the lender and not the assessee. This is more so when the lender is filing the income-tax return. In these circumstances, in our considered opinion, there is no infirmity in the order of the learned CIT(A); accordingly, we uphold the same.
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2015 (10) TMI 2790 - ITAT COCHIN
TP Adjustment - Determination of ALP under TNMM - MAM selection - Accurate adjustments if CUP method is followed - HELD THAT:- There are a number of differences in the international transaction and the non AE export rates considered by the TPO for comparability analysis. As put forth by the assessee, these differences, inter alia, include impact due to adopting simple average instead of weighted average, quantity based price variation, quality based price variation, analysis cost absorption based price variation, market based price variation, key customer based price variation, forward contract based price variation etc.
These differences materially affect the computation of ALP of the international transaction. Even though the assessee has computed the adjustments to be given for these differences, the same will not make the ‘Internal CUP’ as the most appropriate method. Reasonably accurate adjustments cannot be made to eliminate these differences. Internal CUP fails to be a most appropriate method on the basis of facts and circumstances of the case and law applicable.
DRP as to how TNMM is the most appropriate method. As rightly observed by the DRP, TNMM requires establishing comparability at a broad functional level. It requires comparison between net margins derived from the operation of the uncontrolled parties and net margin derived by an associated enterprise on similar operation. The assessee in the present case has chosen comparables in the similar industry under the TNMM. The DRP had directed the TPO to make comparability analysis under the TNMM and subsequently the TPO has not determined any TP adjustment thereby concluding that the international transactions are at ALP even under the TNMM.
As concluded that the TNMM is the most appropriate method. The assessee has relied on various decisions in support of the proposition that accurate adjustments should be given if CUP method is followed. Regarding adjustments to be given under the internal CUP. Since it is held that TNMM is the most appropriate method on the basis of facts and circumstances of the case and law applicable, the decisions relied on and the assessee’s cross objections are not being dealt.
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2015 (10) TMI 2789 - ITAT JAIPUR
Trading addition - Estimation of income - contract receipts - rejection of books of assessee - case was selected for scrutiny and an order u/s 143(3) passed - CIT-A allowed net profit rate at 6% of the gross receipts, before depreciation, interest and remuneration to partners - HELD THAT:- We find from the records that in the absence of the any specific findings by the AO, the ld. CIT(A) has rightly applied the net profit rate of 6% by deleting the addition made by the AO considering the past history of the assessee.
In absence of any specific finding by the AO to justify increase in net profit rate from 5.72% to 8% and in light of past assessment history of the assessee which has been duly considered by the ld. CIT(A) and following the decision of Gupta K.N. Construction Company [2015 (5) TMI 315 - RAJASTHAN HIGH COURT] we find no infirmity in the order of the ld. CIT(A) where net profit rate of 6% before depreciation, interest and remuneration to partners had been adopted. - Decided against revenue.
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2015 (10) TMI 2788 - ITAT JAIPUR
Disallowance deduction u/s 54F - apply provisions of Section 50C for computing the capital gain - As per AO property was commercial plot and lease deed was issued for the use of commercial activity only. There was no evidence with the assessee that any construction has been done on it - nature of investment was commercial, which cannot be considered for deduction u/s 54F - HELD THAT:- The plot was allotted by the JDA itself shows that it was a commercial plot and on that the assessee constructed some room - copy of agreement dated 31/7/2010 made with M/s Kalyani Engineering, Jhotwara, Jaipur for construction as per map provided by the assessee. The total contract amount was ₹ 10.50 lacs. There was a receipt for payment of ₹ 19,281/- for filling the soil.
Another evidence is a copy of boundary constructed on the plot, which shows that the assessee had made some investment in construction, therefore, the ld AO is directed to verify these detail payments and construction made by M/s Kalyani Engineering, Jhotwara, Jaipur and also consider the case law cited by the assessee i.e. ACIT Vs. Om Prakash Goyal [2012 (8) TMI 547 - ITAT JAIPUR] - set aside this issue to the file of Assessing Officer to reconsider all the evidences furnished by the assessee and make spot inquiry for use of the plot, electricity connection and other facilities created by the assessee to decide the nature of building. Assessee’s appeal is allowed for statistical purposes only.
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2015 (10) TMI 2787 - ITAT DELHI
Disallowance u/s 14A - Assessee submitted disallowance cannot exceed the amount of dividend income - HELD THAT:- As relying on JOINT INVESTMENTS PVT LTD VERSUS COMMISSIONER OF INCOME TAX [2015 (3) TMI 155 - DELHI HIGH COURT] by no stretch of imagination can Section 14A or Rule 8D be interpreted so as to mean that the entire tax-exempt income is to be disallowed. The window for disallowance is indicated in Section 14A, and is only to the extent of disallowing expenditure “incurred by the assessee in relation to the tax-exempt income”. This proportion or portion of the tax-exempt income surely cannot swallow the entire amount as has happened in this case.”
Respectfully following the decision of Hon’ble High Court, direct for restricting the disallowance u/s 14A to ₹ 28,55,485/-. - Decided partly in favour of assessee.
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2015 (10) TMI 2786 - ITAT RAJKOT
TDS u/s 195 - payment made for rendering of any managerial or consultancy service rendered by non resident agent without TDS - Addition u/s. 40(a)(ia) - whether or not the payments in question can be treated as managerial or consultancy service rendered by non-resident? - HELD THAT:- The facts of the present case are akin to the facts of the decision in Toshoku Ltd.'s case [1980 (8) TMI 2 - SUPREME COURT]. In the instant case also the assessee engaged the services of non-resident agent to procure export orders and paid commission. The assessee is not liable to deduct tax at source when the non-resident agent provides services outside India on payment of commission.
Services rendered by the non-resident agent can at best be called as a service for completion of the export commitment and would not fall within the definition of fees for technical services, we are the firm view that section 9 of the Act is not applicable to the case on hand and, consequently, section 195 of the Act does not come into play. In view of the above finding, the decision of the Supreme Court in Transmission Corporation of A.P. Ltd.'s [1999 (8) TMI 2 - SUPREME COURT] relied upon by the learned standing counsel for the Revenue is not applicable to the facts of the present case. We find no infirmity in the order of the Tribunal in confirming the order of the Commissioner of Income-tax (Appeals).' - Decided against revenue.
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2015 (10) TMI 2785 - ITAT CHANDIGARH
TDS u/s 194C - CIT(A) held that the definition of goods carriage as provided in section 44AE(7) also applicable u/s 194C(6) since the payment have been made to the agencies not to persons who plied the trucks - HELD THAT:- CIT(A) has correctly observed that the inference drawn by the AO that for the purpose of claiming the benefit of sub section (6) of section 194C, the assessee is required to satisfy the ownership criteria mentioned in Explanation (b) below section 44AE(7) is not correct.
Reference of Explanation to section 44AE(7) in section 194C is only in the context of definition of ‘goods carriage’. Clause (a) of Explanation to Section 44AE(7) defines ‘goods carriage’ and clause (b) defines ‘deemed ownership’. CIT(A) has correctly held that clause (a) is applicable to both sections i.e. section 194C and 44 AE, clause (b) is applicable only to section 44AE, since for the benefit of presumptive taxation the assessee should not own more than ten goods carriages.
Assessee is not required to satisfy the ownership criteria as mentioned in clause (b) of Explanation to section 44AE (7). On a perusal of section 194C (6) read with Explanation (II) to section 194C, it is crystal clear that the transport contractor is not required to be the owner of goods carriage for applicability of section 194C(6) - At this stage, we may observe here that an amendment has been made vide Finance Act, 2015 in section 194C (6) wherein it is specifically stated that w.e.f. 1.6.2015, the benefit of non deduction of tax on payment made to transport contractors would be applicable only if the transport contractor owns ten or less goods carriages at any time of the previous year and a declaration to this effect is furnished.
Legislature has intentionally inserted the ownership condition for claiming the benefit of non deduction of tax which was not existing in the erstwhile section 194C(6) - Assessee (Person responsible) cannot be treated as ‘assessee in default’ for not deducting tax on the payments made to the Bilaspur District Truck Operators Co-operative Society thus, we do not find any infirmity in the order of CIT(A) and accordingly we uphold the same. The appeal of the Revenue is dismissed.
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2015 (10) TMI 2784 - BOMBAY HIGH COURT
Payment of salary and perquisites to the Respondent - HELD THAT:- The impugned order of the CLB dated 26 March 2004 is set aside and the matter is remanded to the CLB for a fresh hearing in accordance with law on the question of payment of salary and perquisites to the Respondent, who is the original Petitioner before the CLB.
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2015 (10) TMI 2783 - KERALA HIGH COURT
Transfer of right to use - Levy of KVAT - Deemed sale - treatment by respondents of the petitioners as dealers for the purposes of the KVAT Act - HELD THAT:- It will be apparent from a consideration of the various clauses in the Master Services Agreement that, what is contemplated therein is the provision of certain infrastructural facilities by the petitioner, which could be tapped into by various mobile services operators, who have entered into an agreement with the petitioners, on payment of a fee as consideration. What is evident from a perusal of the various clauses is that the ownership of the infrastructural facility continues to be with the petitioners. The obligation to maintain and control the passive infrastructure is also retained with the petitioners. The risk attached to the maintenance of the infrastructural facility continues to lie with the petitioners and for this reason, the obligation to take out an insurance in respect of the passive infrastructure is also with the petitioners. The mobile service operators are given only a limited permission to use the infrastructural facility in accordance with the terms and conditions in the agreement.
Applying the said test, a Division Bench of Karnataka High Court in the case of INDUS TOWERS LTD. VERSUS DEPUTY COMMR. OF COMMERCIAL TAXES, BANGALORE [2013 (6) TMI 81 - KARNATAKA HIGH COURT], considered the scope and ambit of a Master Services Agreement, identical to the agreements entered into in the instant writ petitions, and found that the terms of the said agreement could not be construed as having transferred a right to use passive infrastructure to the mobile service operators.
The Master Services Agreement was found to have merely permitted access to the sharing telecom operators to the passive infrastructure to the extent it was necessary for the proper functioning of the active infrastructure - The possession of the passive infrastructure was found to have always remained with the provider of the passive infrastructural services and therefore, the sharing telecom operators did not have any right to use the passive infrastructure.
There is no transfer of the right to use the passive infrastructure, that is made available by the petitioner to the various mobile service operators. As already noted above, the petitioners retained control over the passive infrastructure that was maintained by them and this degree of control, that was exercised by the petitioners over the passive infrastructure, ensured that the mobile service operators, who were given permission to use the infrastructural facility, obtained only a licence to access the infrastructural facilities offered by the petitioner, and did not get a right to use the goods transferred to them in the process - there is no transfer of the right to use the infrastructural facilities, from the petitioners to the mobile services operators, that could be brought to tax under the KVAT Act.
Petition allowed.
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2015 (10) TMI 2782 - GUJARAT VALUE ADDED TAX TRIBUNAL
Maintainability of appeal - requirement of pre-deposit - input tax credit - levy of tax and interest - HELD THAT:- Since the appellant has not pressed his challenge for disallowance of input tax credit and consequent levy of tax and interest, there is no need to decide the said issue.
However, so far as the retention of the balance penalty of ₹ 74,573/- is concerned, there are substance in the submission of Mr.Shukla and the authorities below have failed to justify the levy and / or retention of penalty as per the settled legal position and following the consistent practice of this Tribunal to delete the penalty if tax and interest have been paid by the appellant, we deem it fit to delete the entire penalty levied and / or retained by the learned Deputy Commissioner.
Appeal allowed in part.
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2015 (10) TMI 2781 - DELHI HIGH COURT
Condonation of delay - extraordinary delay of 795 days in re-filing this appeal - HELD THAT:- Turning to the application the Court finds that the reasons adduced for the delay of 795 days (i.e. over two years and one month) is not convincing at all. The only explanation is that delay occurred in curing the defects pointed out by the Registry. By no stretch of imagination, can a delay of over two years and one month in curing defects be countenanced.
The Court is, therefore, not inclined to condone the delay of 795 days in re-filing the appeal. This is one of several instances of the Revenue's appeals being re-filed with extraordinary delay ranging between one and three years. This Court has in certain other cases issued detailed directions on this aspect and it is expected that the Revenue will take corrective steps without delay.
Search and seizure operation - Whether mere surrender of undisclosed income by Mr. Brij Mohan Gupta did not automatically establish the liability in the hands of the Assessee “unless he is evidently linked with the accounts of certain "M.P. Gupta" in a third party search - HELD THAT:- Concurrent findings of fact have been rendered by the CIT (A) as well as by the ITAT. Nothing has been pleaded in the memorandum of appeal to persuade the Court to hold that those findings are perverse or contrary to the facts on record. Secondly, there is not a whisper in the order of the AO about any bag recovered from the premises of the Assessee during the search of the Assessee's premises on 22nd March 2006. There is no such averment even in the memorandum of appeal filed before this Court. The material referred to in the order of the AO is that which was recovered from the premises of Mr. Brij Mohan Gupta and nothing else. That material has been discussed threadbare in the order of the CIT (A). Detailed reasons have been given as to why that material was insufficient to link the Assessee with "MP Gupta" whose name finds mention in the diary and the documents seized from the premises of Mr. Brij Mohan Gupta.
The Court is not persuaded to permit the Revenue, for the first time, before this Court to set up an entirely different case of there having been a bag seized from the premises of the Assessee which according to the Revenue contained incriminating material against the Assessee.
As regards the second plea, it is trite that the Revenue has to make out a case against each Assessee separately. The mere fact that the Revenue's appeal against Atul Gupta, the son of the Assessee, has been admitted cannot ipso facto mean that the appeal against the Assessee should also be admitted. The Revenue's case against the Assessee has to be substantiated by the material seized. For the reasons already noted, the Court finds no case made out for interference with the factual findings on the basis of the analysis of the said material in the impugned orders of the ITAT and the CIT (A).
No substantial question of law arises for determination by the Court.
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2015 (10) TMI 2780 - SUPREME COURT
Benami purchase of property - purchase of property by a husband in the name of his wife is a specie of Benami purchase - Did the suit property belong to Jagannath Joshi or his wife Moni Debi? - HELD THAT:- High Court was perfectly justified in coming to the conclusion that the property though purchased from the funds of Jagannath was really for the benefit of his widow Moni Debi and therefore Moni Debi was the real owner of the property. In this regard the entries of the name of Moni Debi in Municipal and Land Revenue records; the fact that the brothers of Jagannath were no longer alive (according to the plaintiff the property was purchased by Jagannath in the name of his wife to protect the same from his brothers) are relevant facts that have been rightly taken into account by the High Court. The fact that the property was managed by Jagannath which fact accords with the practice prevailing in a Hindu family where the husband normally looks after and manages the property of the wife, is another relevant circumstance that was taken note of by the High Court to come to the conclusion that all the said established facts are wholly consistent with the ownership of the property by Moni Debi.
We have no reason to disagree with the conclusion of the High Court that the property was owned by Moni Debi although consideration money for the same may have been made available by her husband, Jagannath.
Validity of the adoption of Sitaram, the husband of the original plaintiff, as claimed by the plaintiff in the suit - The letter dated 20.7.1945 (Exb.2) does not lead to any clear/firm conclusion with regard to the adoption of Sitaram and had been rightly discarded by the High Court. In the above conspectus of facts the evidence of the plaintiff regarding the adoption of her husband stands isolated and cannot, on its own, sustain a positive conclusion that her husband Sitaram was adopted by Jagannath. If the suit property was owned by Moni Debi and not by Jagannath and Sitaram was not the adopted son of Moni Debi and Jagannath it must be held that the suit property devolved on Gomati on the death of Moni Debi. The claim of the defendant No.1 to be the adopted son of Gomati could have been challenged only by such legal heirs on whom the property would have devolved following the death of Gomati in the event the adoption of the defendant No. 1 is to be held to be invalid. In this context, the next legal heir who would have been entitled to succeed to the property of Gomati Debi if the adoption of defendant No.1 is to be treated as invalid would not be the original plaintiff inasmuch there was another heir who could have claimed a better title in such a situation, namely, one Chouthamal Sharma, the son of one of the brother’s of Sitaram. No such challenge was made by the aforesaid legal heir who had a better/preferential claim.
In view of the above position demonstrated by the evidence on record the High Court was fully justified in not entering into the issue of validity of the adoption of defendant No.1 or the gift deed executed in his favour by Gomati as the said issues had become redundant/inconsequential for the reasons noted above.
We have to hold that these appeals are without any merit.
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2015 (10) TMI 2779 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- We find that the assessee had received dividend of ₹ 1.06 lakhs during the year hat the AO and FAA had applied the provisions of section 14A of the Act r.w. Rule 8D hat the arguments of strategic investment and availability of funds were not dealt with. If the shares were not purchased from the borrowed funds then there was no justification in making disallowance of interest expenditure. The provisions of section 14A were brought in to Act to prevent the mischief of claiming expenses against the exempt income. But that does not mean that whenever an assessee claims exempt income automatic disallowance has to be made. The AO and the FAA have without considering the relevant facts made the disallowance. - Decided in favour of assessee.
TDS u/s 194J or 192 - TDS on fee paid to the directors - disallowance made u/s. 40(a)(ia) - HELD THAT:- sitting fees paid to the directors does not amount to fees paid for any professional services as has been mentioned in the explanation to section 194J(1). We further find from the memorandum explaining to provisions of the Finance Bill 2012 that as per clause No.71 it was specifically mentioned that there was no specific provision for deduction of tax on the remuneration paid to a director which is not in the nature of salary. We find the provisions of section 194J(1)(ba) speaks of any remuneration or fees or commission by whatever name called other than those on which tax is deductible u/s.192 to a director of a company on which tax has to be deducted at the applicable rate and the above provision has been inserted by the Finance Act, 2012 w.e.f., 01-07-2012. We, therefore, find force in the submission of the learned counsel for the assessee that no tax is required to be deducted u/s.194J out of such director's sitting fees for the A.Y. 2007-08. In this view of the matter, the order of the CIT(A) is set-aside and the ground raised by the assessee on the issue of TDS on sitting fees paid to Directors is allowed.
Disallowance of bad debts written off u/s 36(2) - HELD THAT:- We find that the assessee had claimed bad debts of ₹ 57.73 lacs only in the books of accounts and the AO and the FAA had not considered the amounts added back by it that it had written off only net amount receivable from BEST Undertaking. In our opinion he assessee is the right person to decide as to whether a particular amount has become bad or not. The AO/FAA cannot decide the issue referring to the entity from whom money is to be received. If the assessee had in its books of accounts written off an amount he revenue authorities cannot disallow in light of the judgment of the Hon’ble Apex Court delivered in the case of TFR Ltd.[2010 (2) TMI 211 - SUPREME COURT] - There is no doubt about the writing off the amount in question in the books of accounts. So, reversing the order of the FAA, we decide ground in favour of the assessee.
Provision for doubtful debts written back - HELD THAT:- We find that the assessee and added back the two sums i.e. ₹ 7.17 lacs and ₹ 5.91 lacs under the head provisions for doubtful debts and service tax payable respectively. Therefore, we are of the opinion that the action of the AO/FAA has resulted in taxing the same sum twice. Reversing the order of the FAA ground decided in favour of the assessee .
Disallowance of interest on interest free loan granted - HELD THAT:- We find that assessee had advanced money to Ferrari on account of purchase of shares of Radio Midday, that in the date wise summary a credit entry is appearing on 30th June 2008, that from the said entry it is clear that the shares of Radio (West) were bought by the assessee from Ferrari. Considering these facts we are of the opinion that money advanced by the assessee to M/s. Ferrari was solely for the purpose of buying the shares and that the transactions could not be termed as advance of interest free loan. Therefore, reversing the order of the FAA, we decide the last ground of appeal in favour of the assessee.
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2015 (10) TMI 2778 - ITAT CHANDIGARH
Disallowance on tax free investment u/s 14A rw. rule 8D - HELD THAT:- It is true that Rule 8D is not applicable for assessment year 2007-08. To the above extent, the Ld. CIT(A) is absolutely correct.
We set aside the findings of the Ld. CIT(A) on this issue and remand the matter to CIT(A) with the direct ion to decide the same afresh keeping in view the observations of the Hon'ble Bombay High Court in the case of Godrej and Boyce Manufacturing. Co. Ltd Vs. DCIT [2010 (8) TMI 77 - BOMBAY HIGH COURT]. The CIT(A) shall provide an opportunity of being heard to the assessee in the matter. For statistical purposes, the ground No.1 of the appeal is allowed.
Disallowing the claim of the assessee u/s 80IC on job work - Whether income from job charges cannot be treated to have been derived by the undertaking by manufacturing or producing any article or thing not prohibited by 13th Schedule - HELD THAT:- We by our order of even date in the case of ACIT Vs. M/s Cremica Agro Foods Pvt Ltd., Ludhiana [ 2015 (10) TMI 2703 - ITAT CHANDIGARH] have set aside the order of CIT(A) and remanded the identical issues to the file of the CIT(A) for a fresh decision in accordance with law. For the detailed reasons given therein, we set aside the order of CIT(A) and remand the issues to the file of CIT(A) with a direction to decide the same afresh in accordance with law after affording due and reasonable opportunity of being heard to the assessee.
Investments in shares and mutual funds which was exempt u/s 10(34) - HELD THAT:- It is apparent from the order of the CIT(A) that assessee earned dividend income of ₹ 53,11,447/- which was claimed exempt u/s 10(34) & 10(35) of the Act, during the course of assessment proceedings. It was shown as taxable in the return of income as the assessment has been made u/s 115JB, it did not affect any taxability of the income. Considering the entire facts and circumstances of the present case, we are satisfied that the assessee was prevented by sufficient cause from filing the present appeal. At the same time, it is also well settled law that length of delay is not to matter in the context of condonation of delay. The jurisdiction to condone delay should be exercised liberally. The matter relating to Condonation of Delay should be judged broadly and not in a pedantic manner. In the case of Collector, Land Acquisition Vs. Mst. Katji [1987 (2) TMI 61 - SUPREME COURT] the Hon'ble Supreme Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. It is also well settled that ordinarily, a litigant does not stand to benefit by lodging an appeal late. In fact, he runs a serious risk. In view of the above, we condone the delay in filing the appeal.
Since we have restored the main issue to the CIT(A) and, therefore, we think it appropriate to remand this issue also to the CIT(A) with the direction to consider the content ion of the assessee and dispose of the same in accordance with law.
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2015 (10) TMI 2777 - ITAT MUMBAI
Disallowance of loss claimed on cancellation of forward exchange contracts - HELD THAT:- On a perusal of the list of forward contract and related transactions it is noticed that all such contracts were cancelled after maturity. Only in respect of two contracts, dated 11th April 2007 and 26th April 2007, which are for export of goods, the contracts were cancelled before maturity but the assessee has booked profit.
Forward contract dated 23rd August 2007, for import was also cancelled before maturity but the assessee has again booked profit. Thus, from the aforesaid fact, it is very much clear that forward contracts, except the above referred three contracts were cancelled after maturity. Therefore, the allegation of the Department that forward contracts were cancelled prematurely is without any basis. That being the case, the principle laid down by the Hon'ble Jurisdictional High Court in Badridas Gauridu India Ltd. [2003 (1) TMI 61 - BOMBAY HIGH COURT] clearly applies. Therefore, factually as well as by applying the principle of law, we are of the view that the loss claimed by the assessee cannot be treated as speculative loss and as a consequence it has to be allowed
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2015 (10) TMI 2776 - SC ORDER
Constitutional validity of Rule 8(3A) of the Central Excise Rules, 2002 - Violation of Article 14 - HELD THAT:- Issue notice.
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2015 (10) TMI 2775 - DELHI HIGH COURT
Assessment u/s 153A - whether the proviso to Section 153C (1) of the Act is confined to the second proviso to Section 153A (1) of the Act, and therefore, applies on to cases of abatement of pending assessments? - HELD THAT:- In decision in SSP Aviation Limited v. Deputy Commissioner of Income Tax [2012 (4) TMI 335 - DELHI HIGH COURT] it was categorically held that, in the case of the other person, the question of both pendency and abatement of the proceedings of assessment or reassessment would be examined with reference to the date of handing over the books of account or documents or Assessing Officer having jurisdiction over such other person.
No substantial question of law arises in the facts and circumstances of the present case.
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2015 (10) TMI 2774 - CALCUTTA HIGH COURT
Jurisdiction - power of Company Law Board lacked authority in receiving the petition - time limitation - whether the Company Law Board lacked authority in receiving the petition under Section 58 of the Companies Act, 2013 beyond the period envisaged in sub-section (4) thereof? - HELD THAT:- Section 58(4) of the Act permits an application to be filed by a person within the time stipulated in such provision. The provision is for the benefit of the transferees of shares in a public company and the time-limits are 60 days from the date of the refusal to register the transfer or 90 days of the delivery of the instrument for transfer to the company without any intimation as to its fate - Though the provision sets the time-limits as above, nothing therein prevents the Company Law Board from receiving a petition or application thereunder beyond the stipulated period.
Since it is now judicially recognised that the principles contained in the Limitation Act, 1963 would be applicable to matters before the Company Law Board, irrespective of the use of the word “appeal” in the relevant provision, it would appear that the Company Law Board would have the authority to receive a petition after the expiry of the specified period, by applying the principles of the Limitation Act as may be applicable - The question of law sought to be raised is of no consequence since the provision does not prohibit the receipt of a petition or application thereunder after the expiry of the time limits indicated therein.
Application dismissed.
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