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- 2002 (9) TMI 875 - ITAT AGRA
... ... ..... ; 40,000 and debited account of M/s. Kushwaha & Kushwaha Co. This amount has directly been credited in account of Shri Suresh Chand Goyal by M/s. Kushwaha & Kushwaha Co. and further given note in the ledger folio "through Goyal Construction" and it has not routed through the Savings Bank account of Shri Suresh Chand Goyal. Meaning thereby, the account of Loaner and Loanee do not show the transaction of ₹ 40,000 correctly and prima facie appear non-genuine transaction. But it is a fact that loan of ₹ 40,000 was received in cash by assessee firm and not by account payee cheque as indicated in books of account. 5. In view of these factual position and the reasons discussed in the appeal order and the provisions of law in the light of various rulings mentioned by CIT(A) in his order, we uphold the order of the CIT(A) and confirm the penalty levied under section 271D for ₹ 40,000. 6. In the result both the appeals of the assessee are dismissed.
- 2002 (9) TMI 867 - ITAT MUMBAI
... ... ..... ce of this case to the facts of the present case. Similarly, the other cases relied upon by the learned counsel are not relevant to the facts of the present case. In the present case, the learned CIT resorted to the provisions of section 263 because the Assessing Officer accepted the contention of the assessee without making any enquiries regarding the nature of payments made through two different Agreements entered into on the same date. The Assessing Officer also did not make any efforts to find out the nature of the goodwill paid by the assessee. Therefore, the learned CIT was fully justified in setting aside the order passed by the Assessing Officer. In view of the discussion above and also keeping in view the various cases relied upon by the learned DR, we find full justification on the part of the learned CIT for resorting to the provisions of section 263 of the Income-tax Act. His order is, therefore, upheld. 25. In the result, the appeal of the assessee is dismissed.
- 2002 (9) TMI 864 - ITAT MUMBAI
... ... ..... relied upon by the learned counsel for the assessee has held that the assessee can change the method of accounting of duty drawback and cash incentive from Government from mercantile to cash basis on ground that (i) it was not statutory but gratuitous concessions and amount could not be known beforehand with certainty and (ii) amounts involved were received irregularly and was late from Government. In the present case, the Assessing Officer has not pointed out any mala fide intention on the part of the assessee to change the method of accounting. From the facts of this case, it appears that the method of accounting has been changed by the assessee on the basis of receipt till the realization of the said amount has become ascertained. The bona fide of the assessee, therefore, cannot be doubted. In view of the court cases discussed above and keeping in view the facts of this case, we decide this issue in favour of the assessee. 17. In the result, the appeal is partly allowed.
- 2002 (9) TMI 856 - ITAT MUMBAI
... ... ..... t the Explanation appears to have been added "for the removal of doubts". However, the fact remains that prior to the insertion of the Explanation, there was no express provision by which depreciation could be fictionally deemed to have been claimed and granted." 13. Taking into consideration the entire conspectus of the case and the precedents available on the point, Expln. 5 in s. 32(1)(ii) cannot be held to be retrospective. As such, it is not relevant for deciding the present issue. 14. The apex Court in the case of CIT vs. Mahendra Mills (supra) has clearly laid down that a privilege cannot be to a disadvantage and an option cannot become an obligation. If the assessee does not wish to avail the benefit of depreciation for some reason, the benefit cannot be forced upon him. I, therefore, respectfully following the precedent, decide this issue in favour of the assessee and against the Revenue. 15. In the result, appeal of the Revenue stands partly allowed.
- 2002 (9) TMI 854 - ITAT JAIPUR
... ... ..... his order. As a result the assessee's grounds stand allowed. 11. Ground No. 8 of the assessee in terms of order vide para 34 of the order forming part of this order stands disposed of. 12. In ground No. 9, the Tribunal directed the AO to charge interest under s. 234B on the total income as returned by the appellant and not on the income so determined by the AO. In accordance with the order forming part of this order, the ground of the assessee, therefore, stands allowed. 13. Ground Nos. 10.1 and 10.2 were restored back to the learned CIT(A) as per directions contained in para 38 of the order forming part of this order. The grounds so raised by the assessee, therefore, stand disposed of. 14. Ground Nos. 11 and 12 stand dismissed as the same were not pressed. 15. The orders of the learned AM, learned JM, dt. 26th July, 2001, and the order of the Third Member dt. 22nd May, 2002, shall form part of this order. 16. As a result the appeal of the assessee stands partly allowed.
- 2002 (9) TMI 850 - ITAT MUMBAI
... ... ..... t is difficult to deny that a valuable asset has been transferred. When membership of the Bombay Stock Exchange is put on sale through the nomination, a personal privilege is converted into an asset and the consequential gain is exigible to tax. This would be in line with the legislative intent as apparent from the provisions of section 47(xi) and the CBDT Circular quoted in para 14 above. This would also be in conformity with the ground realities which show that membership cards are being sold for substantial consideration. 17. In view of the foregoing, we find no infirmity in the order of the learned Assessing Officer and the learned CIT(A) on this point. The grounds raised by the assessee in regard to taxability of long-term capital gains are accordingly rejected. 18. The next ground relates to levy of interest under sections 234A, 234B and 234C. These are consequential grounds and do not need any specific order. 19. In the result, the appeal of the assessee is dismissed.
- 2002 (9) TMI 795 - ITAT AMRITSAR
... ... ..... n other words, he estimated the wastage without any basis. 4.1 Before us, it was the contention of the learned counsel for the assessee that in the subsequent years i.e., assessment years 1990-91 to 1992-93, the wastage claimed by the assessee were 2.01 , 1.89 and 1.74 respectively and the same were accepted while framing the assessments under section 143(3) of the Act. The above contention of the learned counsel for the assessee was not controverted by the learned D.R. From the above facts, it would be clear that the wastage on higher side in the subsequent years has been accepted by the Department. So, there was no justification on the part of the Assessing Officer in not believing the contention of the assessee that the wastage shown 1.44 was reasonable. In our view, the CIT(A) was fully justified in stating that the provisions of section 145(1) were not applicable to the facts of the present case. We accordingly uphold her order. 5. In the result, the appeal is dismissed.
- 2002 (9) TMI 794 - ITAT AMRITSAR
... ... ..... she paid to the previous owner and the same was found during the course of search, as such the Assessing Officer was not justified in enhancing the value on the basis of valuation determined by the D.V.O. As regards to the remaining addition of Rs. 11,38,990, the learned CIT(A) was justified in restoring the matter back to the file of the Assessing Officer with certain directions as the Assessing Officer made the addition without appreciating the facts available on the record but merely on the basis of the valuation determined by the D.V.O. Considering the totality of the facts in the present case as discussed above, we find no infirmity in the order of the learned CIT(A) and as such we have no hesitation in rejecting the ground raised by the Department. We accordingly, find no merit in the ground No. 3 raised by the department. 5. Ground Nos. 4 and 5 are general in nature so do not require any comments on our part. 6. In the result, the appeal of the Department is dismissed.
- 2002 (9) TMI 793 - ITAT MUMBAI
... ... ..... ncludible in the total turnover for deduction under section 80HHC. This issue is squarely covered with the decision of the Bombay High Court in the case of CIT v. Kantilal Chhotalal 2000 246 ITR 439 wherein the Hon rsquo ble Court has laid down that the reading of clauses (b) and (ba) of the Explanation to section 80HHC clearly indicates that the Legislature has brought on par the components of export turnover and sale turnover. Both the numerator and denominator show that they refer to sale proceeds. Any receipt which does not form part of sale proceeds cannot come within the ambit of the above ratio. In view of the above decision, the Assessing Officer directed to exclude both the freight and insurance charges from the export turnover and total turnover, as these items are not having any nexus either with the export sales or with the total sales. The Assessing Officer would, accordingly, recompute the deduction under section 80HHC. 9. In the result, the appeals are allowed.
- 2002 (9) TMI 417 - ITAT MUMBAI
... ... ..... rrounding the case lead to a suspicion - in fact a strong suspicion - regarding the genuineness of the assessee rsquo s claims. Both the mother and the son won first prize in the same lottery and such prizes have been claimed after lapse of more than 45 days are all circumstances, which are abnormal and are unlikely. However, suspicion cannot form the basis of assessment. There has to be some documents or, some evidence to show that the claim made by the assessees was erroneous or false. The assessees have furnished number of lottery tickets, have produced the Xerox copy of the drafts under which the prizes were received and filed the TDS Certificate in original. The mere fact that M/s. Chandra Agency were not subsequently found at the address originally given cannot be held against the assessee. We, therefore, find no infirmity in the orders of the learned CIT(A) and accordingly, decline to interfere with the same. 8. In the result, the Revenue rsquo s appeals are dismissed.
- 2002 (9) TMI 416 - ITAT JAIPUR
... ... ..... n the case of appellant. We have also thoughtfully considered the provisions of section 158BC of the Income-tax Act, 1961 as contained under Chapter XIVB which is a special procedure for assessment of search cases. Conducting of search under section 132 or requisition of books of account, other documents or assets under section 132A of the Income-tax Act, 1961 are the essential conditions for initiating proceedings under section 158BC of the Income-tax Act. None of these conditions on perusal of facts are found satisfied in this case. Accordingly, no notice could have been issued legally for completion of assessment under section 158BC read with section 143(3). We, therefore, quash the notice so issued and hold that the assessment so made is bad in law and accordingly stands annulled. As the assessment stands annulled, we do not consider it necessary to advert upon the other grounds taken by the appellant on merits. 6. In the result the assessee rsquo s appeal stands allowed.
- 2002 (9) TMI 415 - ITAT AMRITSAR
... ... ..... ults should be rejected before getting the power to estimate the cost of construction. However, in the instant case, both the authorities below have not rejected the book results. In our considered view, the Assessing Officer has failed to examine and consider the book version. Similarly, the CIT(A) was not justified while relying upon the report of the V.O. regarding certain defects in the books of account. He himself should have examined the book version after affording an opportunity of being heard to the assesee. At the same time, both the authorities below have not rejected the book results as we have already noted hereinabove. 10.1 In view of the above, discussion, the orders of the authorities below are not tenable in law. In our considered view, the learned CIT(A) should have deleted the entire addition. We accordingly delete the addition of Rs. 2,72,454 abstained by CIT(A) and the assessee gets further relief of Rs. 2,72,454. 11. In the result, the appeal is allowed.
- 2002 (9) TMI 414 - ITAT AGRA
... ... ..... plying the magazine to the life members. The CIT(A) did not make any attempt to work out the average expenditure of magazine supplied to life members to arrive at the conclusion whether the interest accrued on paltry sum of Rs. 150 was sufficient to meet the expenses attributable to paper used, ink used, expenditure of proof reading, royalty payment, printing expenditure, distribution expenses etc., which has been debited to P and L account against other receipts. Further, when 10 years subscription and annual subscription are considered as revenue receipt, then why a different treatment is being given to life membership subscription in the circumstances that no amount have been refunded so far since last 15 years to any subscriber. Hence, we are unable to agree with the CIT(A). Therefore, we hold that it is a revenue receipt. Accordingly, we reverse the order of the CIT(A) and restore the order of the Assessing Officer. 4. In the result, the appeal of the revenue is allowed.
- 2002 (9) TMI 413 - ITAT DELHI
... ... ..... as also not fully aware of the provisions regarding issue of the TDS certificates. Thus, there was bona fide reasons for the delay. The decisions cited by the ld. AR of the assessee in this regard support the assessee rsquo s case. The amount of TDS involved in the case was Rs. 4,105 only. As per the amended provisions vide the proviso inserted by Finance (No. 2) Act, 1991 w.e.f. 1-10-1991 to section 272A(2)(g), penalty should not exceed the amount of TDS. This amended provision was applicable to the present case. Moreover, the present case is fully covered by the ITAT, Delhi Bench C , New Delhi order dated 15-7-1998 in the case of M/s. Guru Nanak Construction (P.) Ltd. in ITA No. 3019/Del/97 for the assessment year 1992-93. 9. In the above view of the matter, I hold that there were bona fide reasons for the delay and penalty under section 272A(2)(g) was not exigible in the case. Accordingly, the penalty is cancelled. 10. In the result, the assessee rsquo s appeal is allowed.
- 2002 (9) TMI 390 - ITAT DELHI
... ... ..... en from the accounts of the donors. No other enquiry was made by Assessing Officer. On these facts and circumstances of the case, we are in agreement with the order of CIT(A) that the initial burden which lies on the assessee has been discharged and the same was shifted to the Assessing Officer to disprove the same by bringing sufficient material on the record. As observed by the CIT(A), the Assessing Officer has not doubted the genuineness of any of the documents and the addition cannot be made merely on the basis of suspicion or surmises. The identity and capacity of the donors are well established. Since the money had come from NRE account, the genuineness of the transaction can also not be doubted. There is no material on the record to even suggest that any unaccounted money of the assessee was siphoned to the donors. Therefore, we do not find any error in the order of CIT(A). The order of CIT(A) is, therefore, upheld. 6. In the result, appeal of the revenue is dismissed.
- 2002 (9) TMI 389 - ITAT JABALPUR
... ... ..... he gold bars, we are of the opinion that it was a separate issue which has to be challenged by the assessee before a court. Our findings in the assessee rsquo s appeal does not in any way prejudice the assessee in claiming the ownership of the gold bars at the appropriate court. The ground directed by the assessee in respect of addition of Rs. 1,20,196 is deleted. 8. Ground No. 7 relates to the initiation of penalty proceedings under section 271(1)(a), 271(1)( b), 271(1)(c) and 273(2)(b) of the Income-tax Act. As no prejudice is caused to the assessee by initiation of penalty proceedings, the ground raised by the assessee is dismissed. 9. The ground of appeal No. 8 relates to the levy of interest under sections 215, 217 and 139(8) of the Act. As this ground of appeal is only consequential in nature, the Assessing Officer is directed to calculate interest, if any, under the above sections on the basis of income determined by us. 10. In the result, the appeal is partly allowed.
- 2002 (9) TMI 388 - ITAT AMRITSAR
... ... ..... v. Late Rattan Lal Jain (supra) we are opinion that in the instant case, the assessee was prevented by sufficient cause from filing the return for block period in time. In our view reasonable cause can be reasonably set to be a cause which prevents a man of average intelligence or ordinary prudence, acting, under normal circumstances, without negligence or inaction or want of bona fides. 18.1 In view of the above we do not find any justification in levying the interest under section 158BFA of the Income-tax Act, 1961.We accordingly direct the Assessing Officer not to charge interest under section 158BFA of the Act. It is stated that the facts of the present case are similar to the facts of M/s Narula Transport Co., Amritsar (supra). In that view of the matter, we, by respectfully following the order of Tribunal dated 26-6-2002 (supra) hold that the there was no justification in charging interest under section 158BFA of the Act. 23. In the result, the appeal is partly allowed.
- 2002 (9) TMI 387 - ITAT JABALPUR
... ... ..... stated that the expenditure was incurred by Shri Sada Sukh Jaiswal was not enough to hold that the investment in the marriage expenses of Shri Virender Kumar Jaiswal was met by Shri Sada Sukh Jaiswal. As only protective addition has been made in the case of assessee, the necessary addition of being undisclosed income of the assessee under Chapter XIV-B was not satisfied and accordingly the addition made by the Assessing Officer is deleted. 11. While holding so, we have also noted that in the original assessment under Chapter XIV-B, no such addition was made by the Assessing Officer. The Tribunal vide its order dated 23-2-2002 had set aside the original assessment made by the Assessing Officer in respect of addition of Rs. 75,000 only. Thus, the addition of Rs. 1 lakh cannot be made in the fresh assessment which was not inconsequence to the order of the Tribunal. The addition made by the Assessing Officer is, therefore, deleted. 12. In the result, the appeal is partly allowed.
- 2002 (9) TMI 386 - ITAT JABALPUR
... ... ..... ficer is totally on wrong impression and misunderstanding, we find no cogent reason to interfere with the order of Ld. CIT(A) on this particular ground. The ground is dismissed in favour of the assessee. 7. As regards ground No. 2, the Hon rsquo ble Rajasthan High Court in the case of CIT v. Relaxo Foot Wear 123 Taxman 322 (Raj. HC) opined that when there is difference between the statement submitted to the bank and actual statement of accounts no addition is justified because the very purpose of the statement given to the bank is just to have the loan and could not be used for other purpose. When the difference in between these two statements are fully explained no addition can be called for (210 ITR 627). The CIT(A) has rightly appreciated the facts and deleted the addition. We therefore find no reason to interfere with the order of Ld. CIT(A) on this ground also. 8. The ground is dismissed in favour of the assessee. 9. In the result appeal directed by Revenue is dismissed.
- 2002 (9) TMI 385 - ITAT JABALPUR
... ... ..... r individual cases. As the amount was introduced in the accounts of the firm, the onus of the assessee limited to explain the sources from where the amount has come to the firm. Once the immediate source was already disclosed, the question of any further investigation could have arisen in the case of the individual partner and not in the case of the firm. As the assessee had already discharged his onus cast on it under section 68 of the Act, the question of making further investigation in the matter and that too in the case of a firm did not arise. We, therefore, hold that the Assessing Officer had applied his mind before coming to the conclusion and, therefore, his order cannot be said to be erroneous in so far as prejudicial to the interest of the revenue. The order passed by the Commissioner in respect of those issues where he has directed the Assessing Officer to examine the matter afresh in cancelled. 15. In the result, the appeal filed by the assessee is partly allowed.