- 2016 (6) TMI 1409 - KARNATAKA HIGH COURT
TDS u/s 194A - Co-operative Bank liability to deduct tax on the interest paid to its members - Non deduction of TDS - Whether the Tribunal is right in law in overlooking the established principle of ‘generalia specialibus non derogant’ vis-à-vis the specific provisions of Sec.194A(3)(viia)(b) and general provisions of Sec.194A(3)(v)? - HELD THAT:- We find that, the issues which arise for consideration in the present appeal are already covered by the decision of this Court in case of The Commissioner of Income Tax and others Vs. The National Co-operative Bank Limited [2016 (6) TMI 1118 - KARNATAKA HIGH COURT] we hold that the Assessee which is a co-operative society carrying on banking business when it pays interest income to a member both on time deposits and on deposits other than the deposits with such co-operative society need not deduct tax at source Under Section 194A by virtue of the exemption granted vide Clause (V) of Sub Section (3) of the said section.
- 2016 (6) TMI 1395 - KERALA HIGH COURT
Deduction u/s 36(1)(iii) - interest expenses relatable to interest free advances - ITAT allowed the deduction - HELD THAT:- In the judgment in CIT v. V.I.Baby and Co. [2001 (10) TMI 58 - KERALA HIGH COURT] a Division Bench of this court considered this provision and held that in a case where interest free advance was given by the assessee and deduction is claimed, the question to be considered is what is the benefit that is derived by the assessee by giving such interest free advance. It was also held that so long as the assessee is not the beneficiary of the investments made by the partners, their relatives and the sister concerns from out of the interest free advances, the Assessing Officer is perfectly justified in disallowing interest in proportion to the advances made. Subsequently, the Honourable Supreme Court also had occasion to c....... + More
- 2016 (6) TMI 1392 - KARNATAKA HIGH COURT
Set off losses (depreciation/business) pertaining to non-10A unit against profit of 10A unit - HELD THAT:- Question of law is covered by the judgment of this Court in the case of Commissioner of Income-Tax & Another vs. Yokogawa India Ltd. & Ors. [2011 (8) TMI 845 - KARNATAKA HIGH COURT] When the question is already covered by the decision of this Court, we do not find any substantial question of law would arise for consideration. Hence, the present appeal is dismissed.
- 2016 (6) TMI 1390 - GUJARAT HIGH COURT
Addition u/s 68 - unexplained share capital - HELD THAT:- Supreme Court has in the case of Commissioner of Income - tax v. Lovely Exports (P) Ltd., [2008 (1) TMI 575 - SC ORDER] held that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the Assessing Officer, then the Department is free to proceed to reopen the individual assessments in accordance with law. Such amounts cannot be regarded as undisclosed income u/s 68 of the assessee company. Applying the said principles to the facts of the present case, the Assessing Officer having traced out the source of funds to specific persons who had invested the same in share of the assessee company, it was open for the Assessing Officer to proceed against the said persons. The funds not having emanated from the assessee co....... + More
- 2016 (6) TMI 1377 - GUJARAT HIGH COURT
Revision u/s 263 - addition on account of bogus share application and premium investment - Commissioner who was of the opinion that inquiries were not made in respect of 11 share and premium applicants therefore restored the matter back to the AO for carrying out necessary inquiries with respect to identity and creditworthiness of these 11 share applicants and then to decide about genuineness of the share application transactions - HELD THAT:- Tribunal in impugned judgment upon perusal of the record, particularly of the assessment proceedings held that the Assessing Officer had in fact, made inquiries with these 11 applicants also. The Tribunal held that even the Commissioner did not dispute this fact. The Tribunal was therefore of the opinion that this was not a case where it can be said that the Assessing Officer failed to carry out any....... + More
- 2016 (6) TMI 1372 - GUJARAT HIGH COURT
Disallowance of deduction u/s 10B - claim allowed for initial assessment year - HELD THAT:- the provision envisaged is for a period of ten consecutive years commencing from the first year during which the undertaking begins to manufacture or produce articles, things or computer software, as the case may be. When the Revenue therefore, did not question the certification by the Director, Software Technology Park of India, in the initial year of the claim made by the assessee as well as in the subsequent years, it would not be open for the Revenue to pick one year out of a total of ten consecutive years for different treatment that too without offering any explanation for the same - Decided against revenue
- 2016 (6) TMI 1355 - CALCUTTA HIGH COURT
Income from sale of shares - Capital gain or business income - assessee is interested in contending that he is an investor whereas the revenue is interested in contending that the assessee is a dealer in shares - HELD THAT:- Whether the assessee is a trader in shares or is an investor is essentially a question of fact. That question has been decided by both the CIT(A) and the learned Tribunal by holding that the assessee is an investor. That finding has now become final. We cannot interfere with the finding. Therefore, the questions formulated do not really arise for determination so far the aforesaid finding is not disturbed
- 2016 (6) TMI 1352 - GUJARAT HIGH COURT
Demand u/s 201(1)/201(1A) - inquiry is time barred - period of limitation - HELD THAT:- The admitted facts emerging from the record are that as per sub-section (3) of section 201 which stood prior to 1.10.2014, the initiation of action for failing to deduct tax at source is barred by limitation. The amended sub-section(3) of section 201 with effect from 1.10.2014 enlarges the period of limitation to seven years which, as held by this Court in the case of Tata Teleservices [2016 (2) TMI 414 - GUJARAT HIGH COURT] cannot be applied retrospectively. For such reason, the petitions are allowed. The impugned notices dated 15.9.2015 are quashed. Petitions disposed of accordingly.
- 2016 (6) TMI 1350 - BOMBAY HIGH COURT
TP adjustment - selection of comparable - functinal similarity - inclusion of 'SIRO Clinpharm Pvt. Limited' as a comparable - Tribunal while upholding the inclusion of 'SIRO Clinpharm Pvt. Limited' as a comparable, was justified in directing the Assessing Officer to make certain adjustment on account of different business model adopted by the said comparable - HELD THAT:- We are unable to understand how the Revenue could have any grievance to the impugned order of the Tribunal on the above account. Further, we find that the impugned order has relied upon the decision of the Tribunal in ITO Vs. M/s. Zydus Altana Healthcare Pvt. Ltd. [2010 (4) TMI 883 - ITAT MUMBAI] wherein on similar facts the Tribunal had restored the issue to the Assessing Officer to make suitable adjustment in view of M/s. Siro Clinpharm Pvt. Ltd. who conduct clinical t....... + More
- 2016 (6) TMI 1347 - UTTARAKHAND HIGH COURT
Taxability of Amounts paid to the non-resident assessees /foreign companies for providing various services in connection with prospecting, extraction or production of mineral oil - Fees for technical services under Section 44D read with Explanation 2 to Section 9(1)(vii) OR payments be taxable on a presumptive basis under Section 44BB - HELD THAT:- As appellant would submit that the questions of law which are raised in this appeal are to be answered in favour of the appellant in view of the judgment of Apex Court in the Case of Oil And Natural Gas Corporation Limited vs. Commissioner of Income Tax and Another [2015 (7) TMI 91 - SUPREME COURT]. There is not much dispute about this proposition. In such circumstances, the appeal is only to be allowed. Accordingly, we allow the appeal and answer the questions of law in favour of the appellant.
- 2016 (6) TMI 1341 - GUJARAT HIGH COURT
Disallowance being 70% of the expenditure in respect of Physicians' Sample - allowable business expenses - Held that:- Perusal of the orders on record would demonstrate that the issue is primarily in the realm of appreciation of material on records. Even the Assessing Officer allowed part of the expenditure, thereby indicating that he would not averse to the expenditure in the nature of free samples being related to assessee's business. He only disputed the quantification. When Commissioner of Income Tax (Appeals) concurrently found sufficient reason to accept the assessee's claim, we do not see any question of law arising.
- 2016 (6) TMI 1316 - GUJARAT HIGH COURT
Adjustment made on account of excess credit period - associate enterprise was bound o compensate the assessee for funds lying at the AE's disposal for a period beyond a credit period allowed by the assessee to third partner - exclusion of export benefits such as DEPB and duty draw back from the profit eligible for deduction under Section 80IB - Held that:- this issue is mainly remanded by the Tribunal to the Assessing Officer. Such question is, therefore, not considered in this tax appeal.
- 2016 (6) TMI 1313 - BOMBAY HIGH COURT
Application for rectification under Section 254(2) - penalty under Section 221 - Held that:- Tribunal in the impugned order has dealt with the issue of imposition of penalty being imposed under Section 221 of the Act even without service of demand notice under Section 156 of the Act upon an assessee. This the Tribunal could have only done while passing an order in appeal. The consequent order which would has been passed in appeal would enable the parties to challenge the same before this Court in an appeal under Section 260A of the Act. The procedure adopted by the Revenue in this case has deprived the right of statutory appeal to the petitioner. No appeal is entertained by this Court from an order dismissing the Miscellaneous Application for rectification under Section 254(2) of the Act (see Chem Amit (2004 (11) TMI 24 - BOMBAY HIGH COUR....... + More
- 2016 (6) TMI 1306 - GUJARAT HIGH COURT
Allowing set off capital expenditure from the revenue income - admitting the additional ground - Held that:- In the case of Commissioner of Income Tax-IV v. Shree Rama Multi Tech Ltd. reported in [2012 (12) TMI 984 - GUJARAT HIGH COURT] and submitted that as the issue is already covered by these decisions, the questions raised in this appeal be answered in favour of the assessee. We are of the view that the Tribunal has not committed any error while remanding the matter back, and, we see no infirmity in the impugned order. Without adjudicating the question posed for our consideration, we confirm the order of the Tribunal remanding the matter and we make it clear that we have not expressed any opinion on the merits and it will be open for both the sides to raise their contentions before the concerned authority. It is further clarified that....... + More
- 2016 (6) TMI 1302 - GUJARAT HIGH COURT
Re-opening of the assessment order u/s 147 - Held that:- the notice for re-opening should be withdrawn based on the reasons supplied to the petitioner, with a view to issuing a fresh notice after recording fresh reasons - thus if fresh notice is issued, the petitioner may consider challenging it in accordance with law - Petition is disposed.
- 2016 (6) TMI 1235 - BOMBAY HIGH COURT
Deemed dividend u/s 2(22((e) - amounts received as share application by companies from companies in both of which the assessee has beneficial interest - whether is not loans and advances for the purposes of invoking section 2(22)(e) - Held that:- We have today passed an order in respect of the same respondent- assessee for the assessment year 2006-07 [2016 (6) TMI 1225 - BOMBAY HIGH COURT] as held that the share application money cannot be treated as loans and advances for purposes of section 2(22)(e) of the Act. Moreover, on examination of the facts, both the Commissioner of Income-tax (Appeals) and the Tribunal have held that what was received was share allotment money and, therefore, could not be considered to be a loan and/or advance. It is to be further noted that it is not the case of the Revenue that the transaction of taking money for allotment of shares was a colourable device to evade taxes. - Decided in favour of assessee.
- 2016 (6) TMI 1226 - KARNATAKA HIGH COURT
Entitled to deduction under section 80P(2)(a)(i) - whether assessee is a co-operative bank mainly involved in lending credit facilities to its members in nature of bank transaction treated on par with the new clause introduced in the definition of income in section 2(24)(viia) and comes under the purview of section 80P(4), with effect from April 1, 2007 - Held that:- A co-operative bank as defined under the Banking Regulation Act includes the primary agricultural credit society or a primary co-operative agricultural rural development bank. The Legislature did not want to deny the said benefit to a primary agricultural credit society or a primary co-operative agricultural and rural development bank. They did not want to extend the said benefit to a co-operative bank which is exclusively carrying on banking business, i.e., the purport of th....... + More
- 2016 (6) TMI 1225 - BOMBAY HIGH COURT
Addition invoking section 2(22)(e) - amounts received as share application money by companies from companies in both of which the respondent assessee has beneficial interest - Held that:- On similar facts, the Delhi High Court and Madras High Court in Sumit Chopra (2011 (4) TMI 1374 - DELHI HIGH COURT) and Rugmini Ram Ragav (2007 (7) TMI 237 - MADRAS HIGH COURT) has also taken a view that the share application money cannot be treated as loans and advances for purposes of section 2(22)(e) of the Act. Moreover, on examination of the facts, both the Commissioner of Income-tax (Appeals) and the Tribunal have held that what was received was share allotment money and, therefore, could not be considered to be a loan and/or advance. It is to be further noted that it is not the case of the Revenue that the transaction of taking money for allotment....... + More
- 2016 (6) TMI 1213 - PATNA HIGH COURT
Denial of opportunity of cross-examination - Held that:- It is evident that the assessee had been given sufficient opportunity in the matter. At no point of time, did he raise the plea that copies of the statements of such persons or such evidence ought to be supplied to him or that he intended to cross-examine them. In the absence of any such stand by the assessee before the Assessing Officer or any such demand by the assessee before the Assessing Officer, it is not open to him to turn around and claim that he has been denied the opportunity of cross-examination and the statements in question could not be used against him. Considering the entirety of the evidence and materials which had come up against the assessee, including the huge amount of assets both moveable and immovable, investments made by the assessee, it could not be said tha....... + More
- 2016 (6) TMI 1184 - CALCUTTA HIGH COURT
Government subsidy received - capital receipt or revenue receipt - Held that:- Revenue did not seriously dispute that the subsidy received by the assessee was a capital receipt. Therefore, the same could not have been subject to taxation. Bogus share capital addition - assessee failed to furnish evidences of identity and creditworthiness of the persons from whom share capital was claimed to have been received and also genuineness of the said transaction - Held that:- When any sum is found credited in the books of accounts of the assessee, either on account of a capital receipt or a revenue receipt, the assessee is liable to prove that the money was actually received. The assessee is also liable to prove the nature of receipt. Therefore, the Assessing Officer was well within his right to make enquiry. Upon enquiry, it transpired that the s....... + More
