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Income Tax - Case Laws

Showing 201 to 220 of 667 Records

• 2013 (10) TMI 1081 - ANDHRA PRADESH HIGH COURT
  

  Whether the assessees are entitled for investment allowance under section 32A(1)(2)(iii) or they should be denied on the ground that they manufacture articles specified in item 5 of the Eleventh Schedule - Legal fiction extension beyond legitimate field – Held that:- The Explanation under consideration has to be construed as expanding description or definition of "blended flavouring concentrates" so as to include synthetic essences in any form. If the blended flavouring concentrates includes synthetic essences by fiction, it is logical that such fiction would have applied even from the date anterior to the expression of intention by Parliament. The words "shall be deemed always to have included", therefore, have to be given a limited meaning of understanding the blended flavouring concentrates as always including the synthetic essences - In so far as denying the benefit of investment allowance under section 32A(2)(iii) is concerned, it can only be with effect from April 1, 1988 – Decisions of Madras High Courts in CIT v. Black Diamond Beverages Ltd. [1992 (2) TMI 17 - CALCUTTA High Court] and CIT v. Soft Beverages P. Ltd. [2003 (12) TMI 5 - MADRAS High Court ] distinguished - Decided against the Revenue.

  Disallowance of interest - the question was whether there is any nexus between the monies borrowed and advances made by the assessee - ITAT did not allow the revenue to produce additional evidence and decided in favor of assessee - Whether finding of fact can be a subject matter of reference under section 256(1) or 256(2) – Held that:- In a reference under section 256, the High Court must accept the finding of fact reached by the Appellate Tribunal - If a question of fact is examined, while answering reference, the High Court would be acting in excess of jurisdiction - Every question referred to the High Court ordinarily contains a phrase ". . . in the facts and circumstances of the case" or ". . . in the circumstances of the case". This means the question of law referred to in the background of the facts found by the Appellate Tribunal and not facts which are to be fished out by the High Court at the instance of either of the parties - The Appellate Tribunal is a final fact finding authority. The High Court cannot go beyond the facts found by the Tribunal. Whether it is an assessee or the Revenue, all questions of fact have to be raised at the time of hearing of the appeal before the Tribunal and in the reference, no fresh hearing of disputed questions of fact is possible nor permissible - The view taken by the Tribunal with reference to the question of fact is final and the question of law would not arise for opinion under section 256(2) of the Act – Decided against the Revenue.

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• 2013 (10) TMI 1080 - ANDHRA PRADESH HIGH COURT
  

  Whether assessee-firm is engaged in the business activity of manufacturing or producing articles or things and is entitled to investment allowance under section 32A of the Income-tax Act – Held that:- Assessee was engaged in the business of making products or things for which the raw material was milk. There is also no dispute that the assessee was employing machinery for making milk products like ghee, flavoured milk, butter milk, rose milk and kova. When once the milk was subjected to the process, in their factory, new products emerge which are altogether different from milk itself. Therefore, it cannot be said that the assessee was not in the business of manufacture or production of articles or things – Decided against the Revenue.

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• 2013 (10) TMI 1079 - ITAT MUMBAI
  

  Allowance of interest expenditure claimed by the assessee – Held that:- Relying upon the judgment in the case of M/s Topaz Holdings P. Ltd [2013 (10) TMI 1066 - ITAT MUMBAI], restored the matter to the file of the ld. CIT(A) for deciding the same afresh.

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• 2013 (10) TMI 1078 - ITAT HYDERABAD
  

  Exercising power u/s 263 of the Income Tax Act – TDS not deposited within the due date – Disallowance u/s 40(a)(ia) of the Income Tax Act – Held that:- Reliance has been placed upon the Delhi High Court judgment in the case of CIT vs. Rajinder Kumar [2013 (7) TMI 454 - DELHI HIGH COURT], wherein it has been held that impugned amendment to section 40(a)(ia) permits remittance of TDS to the Central Government account on or before the due date of filing return of income u/s. 139(1) of the Act is retrospective in nature – In the present case, though deducted TDS before 31st March of the previous year relevant to the assessment year and paid the same in to the Central Government Account before the due date of filing of return of income, the expenditure cannot be disallowed u/s. 40(a)(ia) of the Act - There is no dispute regarding the payment of TDS amount in to the Central Government account before the due date of filing the return of income of the assessee. Being so, exercising the power u/s. 263 of the Act by the CIT on this issue is not justified – Decided in favor of Assessee.

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• 2013 (10) TMI 1077 - ITAT HYDERABAD
  

  Definition "charitable purposes". u/s. 2(15) of the Act - Exclusion of Element of profit – Held that:- Legislative intent disclosed in section 10(22) wherein it has been clearly provided that income of any educational institute cannot be exempted unconditionally if such institution also exists for deriving of profit. According to this provision, if any educational institution is running on commercial basis then income of such educational institution cannot be exempted from taxation. However, such institution can claim exemption u/ss. 11 and 12 as element of profit is not excluded by the Legislature. The reason is obvious because of financial affairs of such institution are well controlled by the provisions of sections 11 and 13 of the Act. Section 11 clearly provides that in order to claim exemption such institution must apply 75% of its income for charitable purposes. The surplus if any has to be invested in specified bonds.

  Further, exemption can be denied if the provisions of section 13 are violated. Therefore, if there is any violation of either section 11 or section 13, then, the profits of such institution would be taxable. Further the fact that, only 75% of the income is to be applied for charitable purposes itself shows that element of profit is not excluded from the definition of charitable purpose for the purpose of sections 11 and 12. Because some profit has been earned by an educational institution registration u/s. 12AA cannot be denied so long as provisions of sections 11, 12 and 12AA are complied with. So long as it is established that income of the assessee society has been applied for the purpose of education in terms of section 11(2) and there is no violation of section 13, the assessee would be entitled to enjoy the benefit of registration u/s. 12AA of the Act – Reliance has been placed upon the case of M/s. Saivani Educational Society, Hyderabad [2013 (10) TMI 824 - ITAT HYDERABAD].- Appeal allowed – Decided in favor of Assessee.

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• 2013 (10) TMI 1076 - ITAT AHMEDABAD
  

  Disallowance u/s 14A of the Income Tax Act – Held that:- Assessee had sufficient profit, capital and reserves which are more than investment made by the assessee in mutual fund, it cannot be presumed that investment in mutual fund made by the assessee were out of interest bearing borrowed funds - Hon. Supreme Court in the case of Munjal Sales Corporation vs. CIT [2008 (2) TMI 19 - Supreme Court] (SC) held that where the assessee had capital and profits more than the interest free funds advanced then it has to be presumed that such interest free advances were given out of interest free capital available with the assessee - Hon'ble Bombay High Court in CIT vs. Reliance Utilities and Power Ltd [2009 (1) TMI 4 - HIGH COURT BOMBAY] held that if there are funds available, both interest-free and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company, if the interest free funds were sufficient to meet the investments – Decided in favor of Assessee.

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• 2013 (10) TMI 1075 - ITAT CHANDIGARH
  

  Addition of unrealized rent under the head ‘Income from House property’ – Held that:- Section 25AA states that where the assessee cannot realize rent from a property let to a tenant and subsequently the assessee has realized any amount in respect of such rent, the amount so realized shall be deemed to be income chargeable under the head "Income from house property " and accordingly charged to income-tax as the income of that previous year in which such rent is realized whether or not the assessee is the owner of that property in that previous year - In terms of the said section the impugned amount cannot be brought to tax in the instant year – Decided against the Revenue.

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• 2013 (10) TMI 1074 - ITAT COCHIN
  

  Application of section 69 of the Income Tax Act - Addition on account of Deposits in the bank account of Francis Joseph - Rs.3,00,000/- - Held that:- Tax authorities have not placed reliance solely on the sworn statement given by Shri Francis Joseph – They have taken into consideration the conduct of the assessee, capacity of the assessee, capacity of Shri Francis Joseph and the surrounding circumstances also in deciding this issue - Under these circumstances, the question of violation of natural justice does not arise by not providing opportunity of cross examination to the assessee - AO issued summons to Shri Francis Joseph more than one time, but the said person declined to appear before the AO, as he was scared of the assessee. Thus, it cannot be said that the AO did not offer opportunity of cross examination, but the external circumstances blocked the AO to provide such an opportunity to the assessee. It is also pertinent to note that the assessee, being brother in law of Shri Francis Joseph, could not produce him before the AO to retract the statements already given by him before DDIT. On the contrary, Shri Francis Joseph, despite the alleged threat from the assessee, has firmly stood by his statement that the impugned bank account belongs to the assessee only.

  Tax authorities have corroborated the statement given by Shri Francis Joseph with sufficient material and surrounding circumstances. Accordingly held that the transactions found in the bank account, except the first two transactions, belong to the assessee only – Thus, confirmed assessment of deposits found in the bank account standing in the name of Shri Francis Joseph, in the hands of the assessee.

  Addition u/s 68 of the Income tax act - Unexplained credit in the capital account of the firm - Rs.5,60,000/- - Amount found credited in the capital account of the assessee in the books of partnership firm - Held that:- Assessee did not claim that he received a sum of Rs.10,15,000/- on slaughter tapping and sale of trees before the AO either during original assessment proceeding or during reassessment proceeding. He has made this submission for the first time before Ld CIT(A). In any case, the assessee could not substantiate his submissions with any credible evidence. On the contrary, the Ld A.R has only presumed that the copies of agreements might be available in the assessment record - Assessee did not make any attempt to inspect the assessment record in order to find out the availablity of the three agreements – Decided against the Assessee.

  Addition of loan of Rs.4.00 lakhs taken from Shri George Joseph – Held that:- It is well settled proposition that the initial burden of proof is placed upon the assessee u/s 68 of the Act, i.e., the assessee has to discharge three main ingredients viz., the identity of the creditor, genuineness of transactions and credit worthiness of the creditor - Assessee has failed to prove the credit worthiness of the creditor and also the genuineness of the transaction - Ld CIT(A) was justified in confirming the addition of Rs.4.00 lakhs made u/s 68 of the Act. The Ld A.R contended that the provisions of sec. 68 cannot be invoked in the absence of credit in the books of account. However, assessee cannot use the fact of his failure to maintain the books to his advantage to raise contentions to suit his purpose – Decided against the Assessee.

  Addition of interest income of Rs.15,911/- - Held that:- Assessee has declared the above said interest income in cash flow statement, but it was not included in the return of income - Assessing officer did not include the above said income in the reasons recorded for re-opening of assessment - AO is very much entitled to assess the escaped income during the reassessment proceedings, which comes to his notice during the course of assessment – Decided against the Assessee.

  Interest u/s 234B of the Act – Held that:- Charging of interest is consequential in nature, therefore interest to be charged on the assessee – Decided against the Assessee.

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• 2013 (10) TMI 1073 - ITAT COCHIN
  

  Undisclosed investment u/s 69B of the Income Tax Act – bank account in question belong to other person - Held that:- Shri Francis Joseph has only implicated the partnership firm, i.e., the deposits were made by the assessee from out of the income relating to the partnership firm - Statement given by Shri Francis Joseph, which is placed in the paper book filed by the assessee - It is well settled proposition of law that the income is required to be assessed in the hands of right person – In the present case, assessee is the right person to be assessed – Reliance has been placed upon the judgment in the case ITO Vs. Ch. Atchiah reported in [1995 (12) TMI 1 - SUPREME Court]. - Decided against the revenue.

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• 2013 (10) TMI 1072 - ITAT MUMBAI
  

  Determination of income of insurance business - actuarial valuation made in accordance with the Insurance Act, 1938 - Held that:- the 'actuarial valuation made in accordance with the Insurance Act, 1938' do mean that the actuarial valuation done in accordance with the Insurance Act, 1938. - actuarial valuation has to be done in accordance with the Regulations contained in erstwhile Fourth schedule Part-I and Part-II - following the decision in ICICI PRUDENTIAL INSURANCE CO LTD [2012 (11) TMI 13 - ITAT MUMBAI] followed - Decided in favor of assessee.

  Whether treatment given to negative reserves by actuary cannot be disturbed by the AO - If an insurer had two policies, one with a reserve of 100 and the other with a reserve of10, it might think of its liabilities at100 rather than 90 to take into account the eventuality in case the second policy lapsed. This process is called eliminating negative reserves – Held that:- Assessing Officer has no power to modify the amount after actuarial valuation was done, which was the basis for assessment under Rule 2 of 1st Schedule r. w. s. 44 of the I. T. Act. The principle laid down by the Hon'ble Supreme Court in LIC vs. CIT [1963 (12) TMI 5 - SUPREME Court] about the power of the Assessing Officer also restricted the scope and adjustment by the AO – Decided against the Revenue.

  Loss from pension income to be adjusted from the business income – Exemption u/s 10(23AAB) – Held that:- Reliance has been placed upon the case of Life Insurance Corporation of India [2011 (8) TMI 47 - BOMBAY HIGH COURT], wherein it has been held that The fact that the income from such fund has been exempted under section 10(23AAB) with effect from April 1, 1997, does not mean that the pension fund ceases to be insurance business, so as to fall outside the purview of the insurance busi- ness covered under section 44 of the Income-tax Act, 1961 - pension fund like the Jeevan Suraksha Fund would continue to be governed by the provisions of section 44 of the Income-tax Act, 1961, irrespective of the fact that the income from such fund are exempted, or not. Therefore, while determining the surplus from the insurance business, the actuary was justified in taking into consideration the loss incurred under the Jeevan Suraksha Fund. The object of inserting section 10(23AAB) was to enable the assessee to offer attractive terms to the contributors. Thus, the object of inserting section 10 (23 AAB) was not with a view to treat the pension fund like the Jeevan Suraksha Fund outside the purview of insurance business but to promote the insurance business by exempting the income from such fund – Decided in favor of Assessee.

  Disallowance u/s 14A of the Income tax in Insurance Business – Held that:- Provisions of section 14A of the Act did not apply to the assessee carrying of insurance business. As the assessee is engaged in the business of Life Insurance so provisions of section 14A r. w. r 8D of Rules (supra) cannot be applied in its case - Sec. 14A contemplates an exception for deductions as allowable under the Act are those contained under ss. 28 to 43B of the Act. Sec. 44 creates special application of these provisions in the cases of insurance companies – Decided in favor of Assessee.

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• 2013 (10) TMI 1071 - ITAT DELHI
  

  Accrual of income - Addition on account of advance received from the patients by the doctor-assessee - The facts of the case are that the assessee is a doctor by profession. He is a surgeon specialized in liver transplant. In the case of a liver transplant patient, regular consultancy and check up for several years is required. During the year under consideration, the assessee has received the sum of Rs. 69,29,500/- from patients which was accounted for as advance from patients – Held that:- The scheme of life time consultancy has been perused in detail. The name is only life time, whereas services are meant for a period of 48 months post surgery with a period of 12 months immediately after the surgery as free of charge, meaning there by the amount of advance would have to be exhausted with in a period of three years from surgery or else would have to be returned in case of non utilization of the same or in case of death of the patient. The appellant has done exactly the same. The appellant has accounted the said advances as and when realized. The same are accounted in the years of realization. Sufficient proof in the name of balance sheet and P & L account and Form 3CD to support the case of the appellant has been filed, which is enough proof to accept that what has been received as advance under the life time consultancy fee is only to be taxed as income when services to that effect are offered. Till then the amount remains a liability in the books of the appellant. Considering the details filed it is found that the advance need not be booked at the time of receipt nor it is a registration charge. The appellant has strictly followed the principles of mercantile system of accounting.

  Appellant has correctly followed the principles of mercantile system of accounting and the amount of advance received during the year cannot be booked as income – Decided against the Revenue.

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• 2013 (10) TMI 1070 - ITAT MUMBAI
  

  Validity of writing off bad-debts after the end of financial year - Whether the decision by the management of the debt/s becoming bad, though made subsequent to 31.03.2008, is based on evidence/s or event/s prior or subsequent thereto – Held that:- In the case evidence is post 31.13.2008, the assessee's claim would be valid only where the event/s enables assessment of the position as obtaining on 31.03.2008, and not otherwise. The nature of the events or the account behavior post the year-end (31.03.2008) would, therefore, require being examined to see if they have in any manner influenced the decision for the impugned write off. A decision guided by the said event/s, being after the year-end, could only be recognized after its occurring, while where it is reflective of a state of affairs as at the year-end, the entry would relate back to the year- end. Reliance in this context is drawn to Accounting Standard (AS) 4 [Contingencies and Events occurring after the Balance-Sheet date] issued by the ICAI, also relied upon by the assessee. Where there are no such circumstances, so that the decision for write off is based on the events up to the relevant year-end (31.03.2008), the fact of passing the entries after the said date, becomes irrelevant.

  Matter being essentially factual, is accordingly restored to the file of the first appellate authority to decide the same in light of our foregoing observations, by issuing definite findings of fact, and after hearing the parties, including on the satisfaction of s. 36(2) (qua the claim for bad debts).

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• 2013 (10) TMI 1069 - ITAT DELHI
  

  Suppressed valuation of bagasse - CIT deleted disalloance - Held that:- in the instances given by the assessee during the assessment proceedings there are some instances of lower yield also as compared with that of assessee, which the AO has ignored. The submission of the assessee during the preceding years that certain portion of preceding March month were also taken into account in the concerned year have not been considered by the authorities below. AO has also not given any finding on the assessee's contention that production of baggase and its consumption into the boiler is a continuous process and it is not practically possible to maintain any stock record in this regard. AO has not addressed this also - Matter remitted back.

  Income from Business or agriculture income - Net cane nursery farm income - Held that:- it is not disputed that income from cane nursery was on account of growing of cane and sale thereof. This is admittedly an agricultural income. Only because as a result of this operation, good quality of cane can also be identified can not lead to the conclusion the activity it is not an agricultural income - Decided against Revenue.

  Disallowance u/s 36(1)(va) - Employees contribution towards EPF - amount for the month of June,2007, August, 2007, September, 2007, December, 2007, January, 2008, February, 2008 and March, 2008 received from employees as contribution towards Provident Fund on or before due date specified under Employee's Provident Fund Act/Rule - Held that:- The deductions made from the employees' salary for employees provident fund has been paid before the due date of filing of return. It is clear from the table submitted before the Assessing Officer which has been reproduced in its order. Proof of payment was also submitted along with the return of income - CIT (A) has allowed the relief in Uttaranchal jurisdiction when such payments were made before due date of filing return of income and such relief has been finally upheld by the ITAT. Considering these facts and amendment in Act by Finance Act, 2003 w.e.f. 01.04.2004 and various case laws - Decided against Revenue.

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• 2013 (10) TMI 1068 - ITAT KOLKATA
  

  Penalty u/s 271(1)(c) - Recasting of deduction u/s 80IB - Held that:- The AO in the assessment made u/s 144/147 of the Act on 31.2.2009 reduced the claim u/s 80IB of the Act by Rs.233,67,497/- and thereafter levied penalty u/s 271(1)(c) of the Act on the assessee for furnishing of inaccurate particulars of income being 100% of the tax sought to be evaded amounting to Rs.85,50,751/- which was deleted by the ld.CIT(A) on appeal filed by the assessee. The ld. CIT(A) observed that deduction u/s 80IB of the Act was claimed by the assessee because the return of income for A.Yr.2005-06 was filed by the assesee in 2005. The deduction u/s 80IB of the Act was claimed by the assessee on the basis of relief granted to the assessee in A.Yr.2004-05 by the ld. CIT(A) - where the income computed in accordance with the normal procedure is less than the income determined by local fiction, namely, the book profits u/s 115JB of the Act and the income of the assessee is assessed u/s 115JB of the Act and not under the normal provision, the tax is paid on the income assessed u/s 115JB of the Act. Concealment of income would have no role to play and would not lead to tax evasion therefore, penalty cannot be imposed on the basis of the disallowance or additions made under regular provision - Following decision of CIT vs Nalwa Sons Investment Limited [2010 (8) TMI 40 - DELHI HIGH COURT] - Decided against Revenue.

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• 2013 (10) TMI 1067 - ITAT MUMBAI
  

  Allowability of liabilities towards interest expenditure – Assessee made a claim of interest on the basis of the stand taken by the Custodian that the Assessee has to pay interest @ 18% per annum - Held that:- reliance has been placed upon the judgment in the case of Hitesh Mehta [2013 (9) TMI 1110 - ITAT MUMBAI]. – Interest expenditure is allowed – Decided in favor of Assessee.

  Levy of interest u/s 234A, 234B, 234C of the Income Tax Act – Held that:- Relying upon the judgment in the case of CIT vs. Divine Holdings Pvt. Ltd[2012 (4) TMI 100 - BOMBAY HIGH COURT], it has been held that levy of interest u/s. 234A, 234B and 234C is mandatory – Decided against the Revenue.

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• 2013 (10) TMI 1066 - ITAT MUMBAI
  

  Allowability of liabilities towards interest expenditure – Held that:- In view of the fact that the present assessee is also linked to the group assessee connected with the similar set of facts and issues as that of the present assessee – Also, reliance has been placed upon the judgment in the case of Hitesh Mehta [2013 (10) TMI 1065 - ITAT MUMBAI]. – Interest expenditure is allowed – Decided in favor of Assessee.

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• 2013 (10) TMI 1065 - ITAT MUMBAI
  

  Disallowance of interest as expense – Held that:- Not allowing the provisions of interest claimed by the assessee is that the books of accounts produced by the assessee during the assessment proceedings has been held to be unreliable - Issue is set aside to the file of the Ld.CIT(A) to adjudicate afresh on merits in respect of the issue pertaining to the rejection/reliability of the books of accounts produced by the assessee after giving due opportunity of being heard to the assessee – Decided in favor of Assessee for statistical purpose.

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• 2013 (10) TMI 1039 - ITAT MUMBAI
  

  Whether sale of assessee’s OHB to Colgate Palmolive is a slump sale as contended by the assessee or an itemized sale as contended by the Revenue – Held that:- A perusal of the sale agreement shows that the business sold included: (a) Goodwill (b) all tangible assets including the enhance packing , machinery and equipments (c) all rights, title , interest , benefit and advantages in under all agreements or arrangements pertaining and relating to or concluded with the business, authorized dealers, manufacturers (d) Distributors and customers (e) all rights , title, interest and benefits in relation to copy rights, trades, design and trade marks connected with the business (f) all rights , title , interest and benefits in respect of process know how technology (h) all other immovables , including tangible and intangible assets right and interest of any nature. The sale agreement further stated that in consideration of the sale of OHB to Colgate Palmolive (I) Limited India as going concern , CPL shall pay to assessee a sum of Rs. 99.54 crores – Reliance has to be placed upon the judgment in the case of CIT Vs. Artex Manufacturing Company [1997 (7) TMI 7 - SUPREME Court] - Transaction has to be taken a slump sale and the capital gains have to be computed accordingly as per the provisions of Section 45 to 50 – Decided in favor of assessee.

  Whether the amount received by the assessee as non-compete fee is a revenue or capital in nature for the purpose of taxability – Held that:- This issue to be decided on the basis of the facts and circumstances of each case as per the pre-amendment provisions of the Act. It is settled proposition on the point that if the compensation/receipt for refrain from carrying on business which effects the profit making structure of the assessee than such restriction will lead to loss of enduring trading asset by depriving the assessee from the future income and the receipt would be capital in nature. If the profit making structure is not affected as no loss of source of income resulted by putting such restrictions under the negative covenant then the receipt for agreeing such restrictive covenant would be revenue. Therefore, the principle is based on the test whether agreeing to the negative covenant, the assessee is deprived of a source of future earnings being the structure of the whole business or not.

  In the present case, assessee has refrained from competing same business which has been sold to CPL for which it has received this compensation. By doing this the assessee has given up one of its source of income and therefore it has to be treated as a capital receipt – Decided in favor of Assessee.

  Addition of freight in Closing stock – Held that:- Addition is being deleted following the reasoning given for the deletion of the addition on account of modvat – Reliance has also been placed upon the judgment in the case of Indo Nippon Chemical Co. Ltd.[ 2000 (8) TMI 69 - BOMBAY High Court] – Decided in favor of Assessee.

  Exclusion of sales tax and excise duty from the total turnover from the computation of deduction u/s 80HHC of the Act – Held that:- Deduction u/s 80HHC to be computed by excluding the amount of sales tax and excise duty from the total turnover – Reliance has been placed upon the judgment in the case of in the case of M/s Sudarshan Chemical Industries ltd. [2000 (8) TMI 73 - BOMBAY High Court], which is decided in favor of Assessee.

  Nature of expenditure, whether ‘Capital’ or ‘Revenue’ – Expenditure on production of advertisement films, On production of TV films, On production of cinema slides etc. – Held that:- expenditure is revenue in nature – Decided in favor of Assessee.

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• 2013 (10) TMI 1038 - GUJARAT HIGH COURT
  

  Low Tax Effect - Notional tax effect - loss return / negative income - Whether the appellate tribunal is right in dismissing the appeal filed by the revenue that in the appeal, tax effect was below Rs.2 lakh, the revenue could not have preferred the same in view of the instructions of the CBDT, thereby entitling the appellate tribunal not to decide the same on merits – Held that:- Following Commissioner of Income Tax-II Versus Good Luck Marketing Ltd. [2013 (10) TMI 641 - GUJARAT HIGH COURT] the Tax Appeal is required to be allowed and the order passed by the tribunal is to be quashed and set aside and the appeal is required to be remanded to the tribunal to decide the same on merits – Decided in favour of Revenue.

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• 2013 (10) TMI 1037 - CALCUTTA HIGH COURT
  

  Loss of sale of shares (long term loss) - set off with the long term capital gains - genuineness of transaction - As per AO sale was a colourable transaction considering the fact that the assessee purchased the selfsame scrip after some time and the sale to the group company was financed by the assessee himself - Strong suspicion to replace the evidence – Held that:- On the basis of a suspicion howsoever strong it is not possible to record any finding of fact. As a matter of fact, suspicion can never take the place of proof - The finding arrived at by the Tribunal was not even alleged by Mr. Dutta to have not been based on evidence. In the teeth of the aforesaid findings made by the Tribunal on the basis of evidence, it is difficult, if not impossible, to hold that the transaction of buying and selling of shares of Hindustan Development Corporation Ltd. was a colourable transaction or was resorted to with any ulterior motive of reducing the tax payable for long term capital gain – Decided against the Revenue.

  Decision in the case of CIT vs. Shekhawati Rajputana Trading Co. (P) Ltd. [1998 (4) TMI 106 - CALCUTTA High Court] distinguished.

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