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Showing 81 to 100 of 1465 Records
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2016 (3) TMI 1395 - ITAT AMRITSAR
Estimation of income - Rejection of books of accounts - net profit rate of 2% on the gross receipts - assessee did not produce all the vouchers for the expenses, nor any evidence was led to establish the payments made to the truck operators - HELD THAT:- All the expenses incurred by the Union are small expenses, for which, it is not possible to maintain vouchers. The payments were made through cheques, the details whereof were maintained and presented before the Taxing Authorities. The factum of the assessee having made the payments could not be doubted, since the respective accounts would be credited and debited accordingly. The cheque payments render any other evidence of the payments irrelevant and the Taxing Authorities have erred in rejecting the assessee’s books on this score also.
Finding merit in the additional ground raised by the assessee, the same is accepted. It is held that the AO went wrong in rejecting the assessee’s books of account for non-maintenance of vouchers of expenses and absence of evidence regarding payments made to the truck operators. The ld. CIT(A) erred in confirming the action of the AO. To reiterate, no defects were pointed out by either of the Authorities below in the books of account maintained by the assessee.
On the additional ground, the addition made by applying net profit rate on the gross receipts of the assessee is deleted. Accordingly, none of the original grounds raised survives for adjudication, having been rendered academic in nature. Decided in favour of assessee.
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2016 (3) TMI 1394 - SUPREME COURT
Seeking declaration of title and joint possession over the said suit property - Whether the High Court has erred in upsetting the findings of facts by reversing the judgment and decree of the first appellate court? - HELD THAT:- The High Court has erred in reversing the judgment and order passed by the first appellate court. The High Court should have noticed that the Plaintiffs/Appellants are the owners of the suit land by way of registered sale deed. The non-application of mind on the part of the High Court on the aforesaid vital aspect of the case is erroneous in law as it is not based on the correct appreciation of facts and evidence on record.
Whether the plea taken by deceased Respondent No. 1/defendant No. 1 being in possession as a lessee could claim the alternate plea of adverse possession taken by Respondent No. 1 or vice-versa? - HELD THAT:- Respondent No. 1 has no right to claim ownership over the suit property on the ground of adverse possession by taking a plea of sham transaction. This plea of the Respondent is not only prohibited by the Benami Transactions (Prohibition) Act, 1988, but makes the Appellants absolute owner.
In the case of Guru Amarjit Singh v. Rattan Chand and Ors. [1993 (8) TMI 317 - Supreme Court], this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v. Hakam Singh and Ors. [1993 (9) TMI 370 - Supreme Court], this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records.
The impugned judgment and order passed by the High Court is erroneous in law and suffers from infirmity and is required to be interfered with by this Court - Appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1393 - DELHI HIGH COURT
TP Adjustment - whether the ITAT was correct in accepting the Assessee’s contention regarding the application of the resale price method (‘RPM’) for determining the arm’s length price (‘ALP’) of the international transaction entered into by the Assessee with its associated enterprise (‘AE’)? - HELD THAT:- The Court finds that the ITAT has, in the impugned order, held that even if the ALP is determined by applying the Transactional Net Margin Method (‘TNMM’), the gross profit margin earned by the Assessee in respect of export of motorcycles to its AE is 15.83% as compared to 10.75% in respect of export of motorcycles to unrelated parties. It was also seen that the export price realised per motor bike in the case of Assessee was much better when compared to that realised by other companies in the same line of business. These findings of fact have not been specifically assailed by the Revenue. Consequently, the Court declines to frame a question on this issue. Appeal dismissed.
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2016 (3) TMI 1392 - SC ORDER
Transfer pricing adjustment - arm‘s length pricing of international transactions - AMP expenses - Whether AMP Expenses incurred by the assessee in India can be treated and categorized as an international transaction under Section 92B? - Chapter X of the Income Tax Act, 1961 - Comparability - HELD THAT:- Delay condoned.
Permission to file lengthy list of dates is granted. Leave granted.
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2016 (3) TMI 1391 - SC ORDER
CENVAT Credit - inputs - final goods exempt form duty - HELD THAT:- The assessee had been rightly held entitled to reversal of the Cenvat credit in respect of the inputs which were produced with effect from 1-8-2004 the date from which the assessee was granted exemption from payment of Excise duty in respect of final products. Thus, when the reverse of Cenvat credit was given to the assessee on that date, final product was not exempted - In view thereof, Rule 6(1) of the Cenvat Credit Rules, 2002/2004 shall not be applied since the present cases are squarely covered by the judgment dated 11-8-1999 passed by this Court in COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT].
Appeal dismissed.
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2016 (3) TMI 1390 - ITAT MUMBAI
Reopening of assessment u/s 147 - tax liability u/s 115JB is more than the normal provision of the Act and further, assessee is not liable for deduction of rebate under section 88E while determining the tax liability under section 115JB - HELD THAT:- It is an admitted position that, there is neither any failure on the part of the assessee either to furnish the return of income under section 139(1) nor any failure to disclose fully and truly all material facts necessary for the assessment which is evident from the bare perusal of the “reasons recorded” and even from the assessment order. The assessee has duly shown the tax liability under the normal provisions and also as per under section 115JB.
AO while computing the income in the original assessment under section 143(3) has taken note of this fact. So now, the AO cannot hold that such a tax liability computed by the AO is erroneous or there is any failure on the part of the assessee to disclose fully and truly all material facts. Conclusion of the CIT(A) for holding that, reopening of the assessment is bad in law is thus affirmed. Accordingly, we also direct that such an action initiated under section 148 should be quashed.
CIT(A) has decided this issue in favour of the assessee after following the decision of Horizon Capital Ltd [2011 (10) TMI 489 - KARNATAKA HIGH COURT] wherein it has been held that, the assessee is entitled to rebate under section 88E of the Act in respect of STT paid where the income is assessed under section 115JB. Without there being any contrary decision brought to our notice, we do not find any reason to deviate from such a finding of the CIT(A). Accordingly, the grounds raised by the revenue stands dismissed.
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2016 (3) TMI 1389 - ITAT MUMBAI
Disallowance u/s 14A read with Rule 8D - whether the AO is allowed to disallow the expenditure, which is debited to the P & L Account? - assessee submitted that the disallowance made by the AO has far exceeded the total claim of expenditure in the P & L Account - HELD THAT:- As relying on assessee's own case [2014 (1) TMI 1183 - ITAT MUMBAI] we agree with the Ld Counsel’s argument and remand the matter to the file of the AO. We direct the AO to apply the said ratio to the facts of the present case and other decisions, if any, in force and decided the issue in accordance with law.
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2016 (3) TMI 1388 - ITAT DELHI
Validity of reopening of assessment - assumption of jurisdiction by the Id AO u/s 147 - Addition towards income from house property - HELD THAT:- No mention of the Annexure or reference to any material found during the course of search or any statement recorded of the seller or the broker in reasons recorded by AO for reopening of assessment It is also not mentioned that on which date the alleged cash have been paid by the assessee and to whom. It is also not available that from whose possession this information was found and what he had to say on these details.
AO according to material available before us shows that based on the information received from the Investigation Wing notice u/s 148 has been issued. According to us the aforesaid reasons do not satisfy the requirement of section 147 as information referred to is very vague and without reference to any documents or statement. Even the Annexure which has been reproduced is not mentioned in the reasons, even otherwise this annexure cannot be considered as a material or evidence with prima facie shows or establishes a nexus which shows escapement of income. Further it is apparent that the AO did not apply his own mind to the information and examined either the builder or the broker on the alleged cash payment but accepted the information in a mechanical manner. Reopening is improper and illegal and therefore cannot survive. - Decided in favour of assessee.
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2016 (3) TMI 1387 - ITAT MUMBAI
Disallowance u/s 14A read with Rule 8D - assessee submitted that the disallowance made by the AO has far exceeded the total claim of expenditure in the P & L Account - HELD THAT:- As decided in assessee's own case for the AY 2008-2009 [2014 (1) TMI 1183 - ITAT MUMBAI] a reasonable allocation of expenditure has to be made which can be attributed to the income which is chargeable to tax particularly bank interest income as against dividend income.
We agree with the Ld Counsel’s argument and remand the matter to the file of the AO. We direct the AO to apply the said ratio to the facts of the present case and other decisions, if any, in force and decided the issue in accordance with law. - Decided in favour of assessee for statistical purposes.
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2016 (3) TMI 1386 - ITAT MUMBAI
Disallowance u/s 14A - indirect expenses of the dividend income - HELD THAT:- As noted that for A.Y. 2009-10 also, there is observation that the entire investment was made out of own funds and simply because the assessee had borrowed funds in the balance sheet does not mean that the assessee made investment out of borrowed capital. As further observed that the assessee made disallowance at the rate of 1%, which was considered to be towards lower side, therefore, the AO was directed to restrict the disallowance on account of indirect expenses at the rate of 5% of the dividend income and since the assessee had suomotu disallowed the Assessing Officer was directed to restrict the disallowance at ₹ 4,14,921/-. The ld. DR had also no objection to the aforesaid reasoning, if followed. - Appeal of the assessee is partly allowed.
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2016 (3) TMI 1385 - ITAT CHENNAI
Additional depreciation claim @ 50% - HELD THAT:- It is not in dispute that the assessee has installed the machinery during the earlier assessment year and the machinery installed is entitled for additional depreciation. However, the Assessing Officer restricted additional depreciation @ 10% since the machinery was used by the assessee for less than 180 days. The question arises for consideration is whether the balance 10% of the additional depreciation can be allowed during the year under consideration or not. This issue was examined by the Cochin Bench of this Tribunal in Apollo Tyres Ltd. [2014 (1) TMI 33 - ITAT COCHIN]. The Cochin Bench found that the additional depreciation can be allowed in the next year in case the same cannot be allowed in the earlier year.
Assessee is eligible for additional depreciation which was not allowed in the earlier year. Accordingly, the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the balance additional depreciation.
Computation of capital gains - ‘transfer’ u/s 2(47) - year of assessment - HELD THAT:- The physical possession of the property was handed over for carrying out the development activities. The assessee has also granted exclusive right to the developer to sell the property to various prospective purchasers. A bare reading of this agreement clearly shows that the assessee can get back 30% of the constructed area in lieu of 70% of the undivided share in the land given to the developer. Therefore, by way of an arrangement, the property was handed over to the developer for development. This kind of arrangement may not be ‘transfer’ under common law. However, Income-tax Act, 1961, specifically defines an arrangement between the parties as ‘transfer’ u/s 2(47) of the Act. This arrangement enables the developer to enjoy the property as its own or to sell the property as its own. Therefore, in view of this specific definition in sec. 2(47)(vi) of the Act, this Tribunal is of the considered opinion that there was a transfer of property during the year under consideration within the meaning of sec. 2(47) of the Act. Therefore, the capital gain has to be assessed only during the year under consideration. This Tribunal do not find any reason to interfere with the order of the CIT(A). Accordingly, the same is confirmed.
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2016 (3) TMI 1384 - ITAT BANGALORE
Deduction u/s 10A - exclusion of telecommunication expenses incurred in foreign currency from the export turnover as well as from total turnover - HELD THAT:- Issue decided in ACIT v. Tata Elxsi Ltd [2011 (8) TMI 782 - KARNATAKA HIGH COURT]uniformity in the ingredients of both the numerator and the denominator of the formula, Section 10-A is a beneficial section. It is intended to provide incentives to promote exports. If the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. The reason being the total turnover includes export turnover - substantial question of law framed is answered in favour of the assessee and against the revenue.
Negative working capital adjustment - HELD THAT:- No need for making any negative working capital adjustment when assessee does not carry any working capital risk. In fact, TPO should have done necessary working capital adjustment to the profits of the selected comparables so as to make them comparable to the assessee. In view of this, we direct the TPO not to make negative working capital adjustment.
It is undisputed that the Assessee is also a captive service provider such as the Assessee in the case decided by the Adaptec (India) P. Ltd. [2015 (6) TMI 288 - ITAT HYDERABAD] and therefore making a negative working capital adjustment without appreciating the fact that the company does not bear any working capital risks, was not correct. There is no allegation in the case of the assessee that the assessee has used any borrowed fund for working capital or there is any risk of money lost in credit time provided to the customers. - Decided in favour of assessee.
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2016 (3) TMI 1383 - SUPREME COURT
Election of the RETURNED CANDIDATE - challenge on the grounds that the RETURNED CANDIDATE is guilty of commission of two corrupt practices falling under sub-sections (1) and (6) of Section 123 of the Representation of the People Act, 1951, i.e. (1) making appeal to the voters in the name of religion and bribery; and (2) incurring expenditure in contravention of Section 77 of the RP Act respectively - RETURNED CANDIDATE could not be served with the summons in the normal course by the High Court.
Whether the election petition was accompanied by an affidavit which is compliant with the requirement of statute under the proviso to Section 83(1)(c)?
HELD THAT:- When the appeals were argued before this Court on 20.08.2015, the ELECTION PETITIONER made a submission that two separate affidavits were filed along with the election petition and the High Court’s observation (supra) are based on an erroneous identification of the affidavit. The RETURNED CANDIDATE took a stand that there was no 2nd affidavit as alleged by the ELECTION PETITIONER in compliance with the proviso to Section 83(1) of the RP Act filed along with the election petition - The fact that the ELECTION PETITIONER chose to file yet another affidavit pursuant to the order dated 25.8.2014 is another circumstance sought to be relied upon by the RETURNED CANDIDATE in support of his submission that there was no second affidavit filed along with the election petition,
In the circumstances of the case, the inference such as the one suggested by the RETURNED CANDIDATE cannot be drawn because the ELECTION PETITIONER in his reply to the OR VII R 11 petition (specifically stating that he had filed an affidavit in Form 25 along with the election petition) took a stand by way of abundant caution that if the court comes to a conclusion that his affidavit is found to be defective for any reason, he is willing to file further affidavit to cure the defect. Unfortunately, the High Court took a shortcut without examining the question whether the affidavit at page nos.394- 395 satisfies the requirement of Form 25 and (without recording a definite finding in that regard) simply recorded a conclusion that the defect is curable and the same can be cured by filing an affidavit in the Form 25”.
Appeal dismissed.
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2016 (3) TMI 1382 - DELHI HIGH COURT
Apart from unsecured creditors of transferor company no.2, meetings of all classes of persons / entities were dispensed with - The learned counsel for the petitioners further states that in so far as the meeting of the unsecured creditors of transfer company no.2 is concerned, the report of the Chairperson would show that 77.48% (in value) of the total unsecured creditors attended the meeting and cast their votes in favour of the proposed scheme.
HELD THAT:- Ms. Mudiam, who appears for the Regional Director and Mr. Rajpal Singh, who appears for the Official Liquidator says that they have no objection to the scheme being sanctioned.
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2016 (3) TMI 1381 - ITAT CHENNAI
Penalty levied under section 271E - violation of Section 269SS - reasonable cause to be entitled to the benefit of Section 273B - accepting and repayment of loan in cash in excess as permitted by law - HELD THAT:- As decided in P. MUTHUKARUPPAN VERSUS THE JOINT COMMISSIONER OF INCOME TAX, PONDICHERRY RANGE, PONDICHERRY [2015 (7) TMI 848 - MADRAS HIGH COURT] appellant having taken loan amount by cash in contravention of the provisions of Section 269SS and repaying the same by cash in contravention of the provisions of Section 269T, cannot seek the support of Section 273B. The appellant has not explained as to the urgency, compulsion or any other important circumstance for the breach and that too repeatedly. Taking into account the conduct of the assessee, the assessing authority, after giving repeated reasonable opportunities, finding no explanation whatsoever, was unable to exercise his discretion under Section 273B and accordingly imposed the penalty under Sections 271D & 271E of the Act.
Penalty orders confirmed - Decided against assessee.
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2016 (3) TMI 1380 - BOMBAY HIGH COURT
Rectification u/s 254 - HELD THAT:- AO did not furnish any details as indicated in the order of the Tribunal, rather it called for details from the Petitioners, and in turn, by letter dated 14th October 2009 the Petitioners pleaded ignorance of the Trust. The Rectification Application filed by the Petitioners sought to rectify the aforesaid error apparent on the face of the order.
Impugned order does not deal with the aforesaid objection of the Petitioners and the order dated 31st October 2014 of the Tribunal passed under section 254(1) on the above issue. It is the Petitioners' case that there are such other glaring errors in the impugned order. However, looking at the entire controversy in the Petitions, it would be appropriate that the Petitions be disposed of finally at the stage of admission. This is particularly because the Petitions arise from an order rejecting the Rectification Application and admitting the Petition would unduly delay the proceedings.
Parties are put to notice that the Petitions are fixed peremptorily on 12th April 2016 at 3.00 p.m. at which stage it may be disposed of finally
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2016 (3) TMI 1379 - ITAT MUMBAI
Disallowance of expenses claimed as professional fees - application of provisions of sec. 40A(2)(a) - HELD THAT:- In the instant case the submission of the assessee that Shri Adiya Mitra Anand is not a person specified in sec. 40A(2)(b) has not been controverted. Hence the question of application of provisions of sec. 40A(2)(a) does not arise.
As pertinent to note that the agreement is between the assessee and Shri Aditya Mitra Anand and the assessee shall normally expect the quality professional services from him, i.e., any businessmen shall not be bothered as to how the professional assignment is executed so long as they were satisfied with the quality of service.
AO has not doubted about the genuineness of the expenditure, but was suspicious about the reasonableness of the expenditure. However, since the expenditure has been incurred by the assessee out of commercial expediency and since the payments have been made by the assessee in accordance with the agreed terms, it is not correct on the part of the AO to question the correctness of the decision taken by the assessee out of commercial expediency. Accordingly, we are of the view that the Ld CIT(A) was justified in deleting the impugned disallowance. - Appeal filed by the revenue is dismissed.
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2016 (3) TMI 1378 - ITAT CHANDIGARH
Revision u/s 263 - Low profit shown in the period subsequent to the survey - CIT enhanced the income - HELD THAT:- The Hon'ble Gujarat High Court in the case of CIT Vs. Amit Corporation [2012 (6) TMI 593 - GUJARAT HIGH COURT] held that where the Assessing Officer after detailed verification of record and making enquiries had framed assessment, the Commissioner of Income Tax cannot revise under section 263
The enhancement of income by the CIT is wholly unjustified because it is not pointed out in the impugned order as to what is the basis for enhancing the income and what more material was found during the course of survey against the assessee over and above the surrendered income of ₹ 1.05 crores, which would also show that the CIT has disbelieved the entire survey proceedings conducted against the assessee. AO took possible view on examination of record with which the CIT did not agree, it cannot be treated that assessment order was erroneous and prejudicial to the interests of the Revenue.
AO examined the details at assessment stage after calling for details from the assessee through questionnaire time to time. AO verified all the facts at assessment stage and completed the assessment in accordance with law after applying his mind. Mere fall in GP/NP is no ground to make addition against the assessee. Even if the books of account are rejected, it is not always necessary to make addition against the assessee. Therefore, the assessment order could not be treated as erroneous in-so-far as it is prejudicial to the interests of the Revenue - Decided in favour of assessee.
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2016 (3) TMI 1377 - ITAT JODHPUR
Validity of reopening of the assessment u/s 148 - valid approval accorded u/s 151 - As per assessee the approval for reopening of the assessment to the Assessing Officer was granted by the JCIT without stating the reasons and without application of his mind - HELD THAT:- It is not in dispute that the approval by the JCIT given to the reasons recorded by the Assessing Officer for reopening of the assessment for the Assessment Year 2006-07 was by writing below the reasons “yes I agree‟, there was no set out of brief reasons by the JCIT as to why he agreed with the reasons of reopening as stated by the Assessing Officer. Therefore, the approval granted by the JCIT for reopening of the assessment for the Assessment Year 2006-07 was not valid under sec. 151 of the Act. Hence, we quash the issue of notice under sec. 148 of the Act by the Assessing Officer for reopening of the assessment under sec. 148 of the Act and consequently, the assessment order passed, pursuant to such notice, is bad in law and hence, the same is annulled. - Decided in favour of assessee.
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2016 (3) TMI 1376 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Violation of Takeover Regulations, 1997 - acquiring additional shares upto 5%, without making a public announcement - HELD THAT:- Admittedly, the additional shares have not been acquired through open market in normal segment on the stock exchange, but the said shares have been acquired by the appellants through off market. Thus, the acquisition of additional shares by the appellants cannot be said to be in compliance with the provisions contained in the second proviso to Regulation 11(2) of the Takeover Regulations, 1997.
Argument of the appellants that since the trading in the shares of the company were suspended during the relevant period, the appellants bonafide believed that the shares could be purchased through off market is without any merit, because, under the second proviso to Regulation 11(2) exemption from making open offer is available only if the acquisition is made through open market purchase in normal segment on the stock exchange and not by any other method. Therefore, if the trading in the shares of the company were suspended during the relevant period it could not be presumed that the appellants could acquire shares through off market. The language of the second proviso to Regulation 11(2) being clear and unambiguous, the appellants are not justified in contending that in the absence of trading in the shares of the company on the stock exchange, the appellants could acquire shares in the off market.
In the instant case, SEBI by misconstruing the provisions contained in Section 15H(ii) of SEBI Act, has erroneously imposed penalty of ₹ 25 lac by treating the above factors as mitigating factors.
In view of the decision of the Apex Court in case of SEBI vs. Roofit Industries Ltd.[2015 (11) TMI 1387 - SUPREME COURT] which holds that mitigating factors set out in Section 15J are not applicable to violations covered under Section 15H(ii) as it stood prior to September 8, 2014, we were inclined to remand the matter to enable SEBI to take corrective measures. However, counsel for SEBI was not in favour of remand and sought dismissal of the appeal. Thus, in the facts of present case, where penalty of ₹ 25 lac is imposed as against the imposable penalty of ₹ 25 crore, the appellants are not justified in contending that the penalty imposed is disproportionate to the violations committed.
On account of certain arguments advanced by the counsel for appellants which were inconsistent with the pleadings on record, we, on conclusion of arguments had declared that we are dismissing the appeal with costs quantified at ₹ 15,000/-.
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