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Income Tax - Case Laws

Showing 101 to 120 of 594 Records

• 2014 (5) TMI 1030 - ITAT COCHIN
  

  Disallowance of employees' contribution to provident fund and ESI - assessee could not furnish the approval for deduction u/s 35(2AB) - Held that:- If the claim of the assessee u/s 35(2AB) is allowed, then the assessee may not be eligible for further deduction u/s 35(1) of the Act. In this case, the claim of the assessee u/s 35(2AB) was not allowed. Therefore, the provisions contained in section 35(2AB) may not prevent the assessing officer to consider the claim of the assessee u/s 35(1) of the Act. Hence, in exercise of the appellate powers of this Tribunal, the alternative claim of the assessee u/s 35(1) of the Act is remanded back to the file of the assessing officer. The assessing officer shall consider the claim of the assessee u/s 35(1) and decide the same in accordance with law after giving reasonable opportunity of hearing to the assessee. - Decided against Revenue.

  Disallowance u/s 14A - assessee has not apportioned any expenditure towards this investment and earning of income therefrom - Held that:- even though no expenditure was incurred by the assessee, the Income-tax rules provide for computation of expenditure with regard to the investment made for earning exempted income. The earning of income or actual incurring of expenditure is immaterial for application of Rule 8D of the IT Rules. Therefore, this Tribunal cannot appreciate the contention of the assessee that there was no expenditure claimed. Rule 8D would come into operation irrespective of the claim of the assessee for expenditure. Therefore, this Tribunal do not find any infirmity in the order of the lower authorities. - Decided in favour of Revenue.

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• 2014 (5) TMI 1029 - ITAT DELHI
  

  Income or not - Whether excise duty refund claim made by the assessee is income under the Act u/s 28(iii) - Held that:- CIT(Appeals) held that when the business of the assessee is not yet set up then the question on assessing income of the assessee company to the Previous Year does not arise. Even otherwise the excise duty on the question was of material used for construction/erection of the project, which is in the capital filed and the refund of the same goes to reduce the cost of the assessee. Hence we uphold the order of the First Appellate Authority and dismiss this appeal by the Revenue. - Decided against Revenue.

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• 2014 (5) TMI 1028 - ITAT COCHIN
  

  Disallowance of depreciation - Lease rental income - Income from house property - Held that:- Since both parties have accepted that the assessee herein has leased out only building during the years relevant to the assessment years 2007-08 and 2009-10, the rental income is assessable under the head "Income from house property" only. Hence, we do not find any infirmity in the decision of the learned Commissioner of Income-tax (Appeals) in confirming the assessment of rental income under the head "Income from house property" - Admittedly, the assessee is submitting certain facts which were not considered by the Assessing Officer. According to the learned authorised representative the assessee has leased out building and plant and machinery during the year relevant to the assessment year 2004-05. However, the assessment order is silent about the receipt of rental income. It is seen that the Assessing Officer has disallowed the depreciation only for the reason that the assessee did not carry on any manufacturing activity and hence the assets were not put to use. If the assessee has let out the building and plant and machinery together, then the decision rendered by this Bench of the Tribunal in the assessee's own case for the assessment year 2005-06 is applicable to this year. However, as stated earlier, the Assessing Officer has not examined these aspects. - Matter remanded back - Decided partly in favour of assessee.

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• 2014 (5) TMI 1027 - ITAT CHENNAI
  

  Disallowance of unabsorbed depreciation - Whether it is proper on the part of the Assessing Officer to disallow a sum of ₹ 13,71,60,209 from unabsorbed depreciation eligible to be carried forward and set off against future profits of the assessee-company - Held that:- Ongoing through the orders of the Assessing Officer and the Commissioner of Income-tax (Appeals), we find that both authorities have considered different case law not relevant for the issue in hand. It is true that for an interregnum period, the eligibility of unabsorbed depreciation to be carried forward was limited for a period of eight years. But, the old position that unabsorbed depreciation becomes the current depreciation under section 32(2) and therefore eligible for carry forward and set off without any limitation, was restored by the amendment brought in with effect from the assessment year 2002-03.

  When the quantum of unabsorbed depreciation is computed after the amendment, whatever balance of unabsorbed depreciation is available to the credit of the assessee, must be determined as unabsorbed depreciation eligible for carry forward and set off. The interregnum restriction of limiting the claim for an eight-year period does not take away the right of an assessee to claim the balance of unabsorbed depreciation, forever. The balance of unabsorbed depreciation revives back into life and becomes eligible for carry forward and set off along with the other part unabsorbed depreciation available to the credit of the assessee. - Decided in favour of assessee.

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• 2014 (5) TMI 1026 - ITAT AGRA
  

  Determination of net profit rate - Rejection of books of accounts - Held that:- Authorities below have applied excessive net profit rate of 6.5% against total receipts before allowing interest and salary to the partners. History of the assessee clearly suggests that the assessee has reasonably declared profit rate of 2.49% as against 2.66% of the preceding assessment year. The total receipts of the assessee have admittedly exceeded very high as against the receipts declared in the last year. Therefore, when the receipts have exceeded, there is bound to be fall in the net profit. The explanation of the assessee also suggests that labour/wages paid was a necessary component for the purpose of executing the contract.

  Profit rate applied by the authorities below at 6.5% is very excessive and unreasonable. The assessee has agreed for application of net profit rate of 4% of the gross receipts before salary and interest to the partners before the AO, which in our view is most reasonable and appropriate considering the previous history of the assessee and facts and circumstances of the case. Therefore, to meet the ends of justice, we modify the orders of the authorities below and direct the AO to apply net profit rate of 4% of the gross receipts before salary and interest to the partners for the purpose of estimating business income of the assessee - Decided partly in favour of assessee.

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• 2014 (5) TMI 1006 - ALLAHABAD HIGH COURT
  

  Maintainability of writ petition - order of settlement commission - Non-disclosure of income – Penalty u/s 271(1)(c) of the Act – Commission found that since the petitioner had committed a default and did not truly disclose his income, the penalty could not be waived. - Held that:- Even if there is an error of law or fact in calculating the penalty, where the assessee volunteered to appear before the Settlement Commission for settlement of his matter, the discretion exercised by the Settlement Commission requires no interference unless the exercise of power made by the Settlement Commission was perverse requiring interference under Article 226 of the Constitution - The Writ Court, under Article 226 of the Constitution is not bound to interfere in its discretionary remedy even if there was an error of law or fact - Article 226 merely vest a discretion to the Court to interfere in exceptional cases and even if the impugned order was not in conformity with law, the Court was not bound to set aside the order - an order passed by the Settlement Commission attains finality u/s 245(i) of the Act - the Court is not inclined to exercise its discretionary jurisdiction under Article 226 of the Constitution to interfere in the orders passed by the Settlement Commission – Decided against Assessee.

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• 2014 (5) TMI 1005 - ALLAHABAD HIGH COURT
  

  Reassessment - Validity of notice u/s 148 of the Act – Reason to believe – Held that:- Under Section 147 of the Act, proceedings initiated for re-assessment proceedings can only be done if the Assessing Officer had reasons to believe, namely, that any income chargeable to tax had escaped income in any assessment year - The assessee had disclosed the gift cheques in his return filed u/s 139 of the Act - no notice was issued to the petitioner u/s 143(2) of the Act by the AO and the returns were accepted by issuance of an intimation u/s 143(1) of the Act – u/s 143 of the Act, it is the discretion of the AO to accept the return as it is or to proceed further with the assessment of income - once the AO decides to proceed, he has to issue notice u/s 143(2) of the Act within the prescribed period, at the relevant moment of time, was 12 months to make the assessee aware that his return has been selected for scrutiny assessment.

  The material came into existence during post search enquiry when it became known that the gift cheques shown in the return filed u/s 139 of the Act were not regular transactions but were purely arranged transactions to avoid income tax - income disclosed in the return filed u/s 139 of the Act could not become "undisclosed income", merely because in post search enquiry, it came known that the gift cheques was a sham transaction - An amount which has already been included in the regular assessment cannot be assessed again in the course of block assessment - The gift cheques, having been disclosed in the return u/s 139 of the Act could not be re-assessed in block assessment proceedings u/s 158BC - The authorities were justified in not including the gift cheques in block assessment proceedings.

  The material found in post search enquiries could form a "reason to believe" that income had escaped assessment by issuance of a notice under Section 143(2) of the Act - the period u/s 143(2) of the Act had expired, the AO having genuine reasons to believe that income had escaped assessment and consequently, could issue a notice u/s 148 of the Act - Such notices so issued were perfectly justified and was within the powers of the Assessing Officer – Relying upon Assistant Commissioner of Income-Tax Versus Rajesh Jhaveri Stock Brokers P. Limited [2007 (5) TMI 197 - SUPREME Court] - the expression "reason to believe" in Section 147 of the Act would mean cause of justification to know that income had escaped assessment - at the stage of issue of notice, the only question is, whether there was relevant material on which a reasonable person could form the requisite belief that income had escaped assessment - the AO was justified in forming an opinion, that income had escaped assessment and was justified in issuing notice u/s 148 of the Act – thus, the notice u/s 148 of the Act is upheld – Decided against Assessee.

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• 2014 (5) TMI 1004 - DELHI HIGH COURT
  

  Settlement commission - deduction u/s 80IB - Material placed by the CIT under Rule 9 not considered – Held that:- The contention of the revenue cannot be accepted that Settlement Commission had not examined and overlooked the material placed before the Settlement Commission in support of their contentions that the respondent was not entitled to the deduction under Section 80-IB of the said Act - the new unit should not have been made by splitting up or reconstructing an already existing business - the new business should not have been formed by transfer if the plant or machinery which had been previously used for the purpose - Insofar as these conditions are concerned, there is no material to show that they have not been satisfied.

  There is evidence of the fact that the AO, in respect of the AY 2005-06, 2006-07 and 2007-08, has allowed the deduction u/s 80-IB of the Act - The presumption is that an AO is aware of the conditions stipulated in sub-section (2) of Section 80-IB of the Act and that those conditions have been met - It is his duty to do so - the AO allowed the deduction u/s 80-IB of the Act for the three AY- 2005-06, 2006-07 and 2007-08 - he had checked and verified that the conditions stipulated in Section 80-IB (2) had been satisfied - There is nothing on record to rebut this presumption - it cannot be contended that the conclusion arrived at by the Settlement Commission that the respondent was entitled to the deduction u/s 80-IB of the Act was arbitrary or perverse – thus, there was no reason for interference in the order of the Settlement Commission – Decided against Revenue.

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• 2014 (5) TMI 1003 - BOMBAY HIGH COURT
  

  Reassessment - Validity of notice u/s 148 of the Act – Held that:- Relying upon Associated Stone Industries V/s. Commissioner of Income Tax, Jaipur [1997 (2) TMI 6 - SUPREME Court] - the information obtained by the Income Tax Officer need not be one outside the record; it may be one obtained from the assessment records already available - the facts which were revealed to the AO who carried out the assessment for A.Y. 2010 – 2011 was the 'information' as is contemplated by Section 147 of the Act leading the officer to form a belief that the income had escaped the assessment for the A.Y. 2006 – 2007 and 2008 – 2009.

  Whether the ‘information’ received to the AO is relating to A.Y. 2006-2007 and 2008-2009 – Held that:- On perusal of the reasons given by the respondents for reopening the assessment for A.Y. 2006 – 2007 and 2008 – 2009, it cannot be said that there was no information with the AO relating to the said assessment years - the information is received to the officer during the course of the assessment proceedings for A.Y. 2010 – 2011 – the information does not seem to be restricted only to A.Y. 2010 – 2011 - Material on record shows that petitioner company has debited the order procurement charges in the AY 2010 – 2011 and the deduction of the amount was claimed u/s 37(1) of the Act as business expenditure - The information received to the AO from the statement of Anil Asarkar is sufficient to draw a prima facie inference that Anil Asarkar (H.U.F.) might not have worked for the petitioner company and further that it was receiving the cheques from the petitioner company and giving them the cash back from the financial year 2006 – 2007 - the information which was received to the AO was sufficient for him to reasonably believe that the income had escaped assessment for the respective assessment years.

  The reasons recorded by the AO nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year - the reasons are required to be read as they were recorded by the AO - No substitution or deletion is permissible - No additions can be made to those reasons - No inference can be allowed to be drawn based on reasons not recorded - the reasons were recorded before issuance of the impugned notices - no malafides seen in the delay caused in communicating the reasons - the facts revealed to the AO during the assessment proceedings for A.Y. 2010 – 2011 is an ‘information’ contemplated by Section 147 of the Act - the information so revealed pertains to the assessment years to which the impugned notices relate - the information has direct nexus and/or live link with the tax liability for A.Y. year 2006 – 2007 and A.Y. 2008 – 2009 - the material in the hands of A.O. is prima facie sufficient for him to form a belief that income had escaped assessment of the assessment years to which the impugned notices relate and therefore, reassessment is needed - the issuance of notices is not an outcome of change in opinion of the successor AO but is based on tangible material received to him during the assessment proceedings of the subsequent year - The other two objections raised by the petitioner, first about the competence to issue the notice and the other that the action is beyond the period of limitation are kept open to be agitated before the appropriate authority – there was no fault with the notices – Decided against Assessee.

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• 2014 (5) TMI 1002 - RAJASTHAN HIGH COURT
  

  Addition of unexplained jewellery – Proper explanation made or not – Held that:- The jewellery which has been found in possession of the family members is in accordance with customs and practice prevalent in the community and in accordance with status of the family - the Tribunal was rightly of the view that the Central Board of Direct Taxes keeping in view the status of the family, customs and practice of the community, came down with the circular and one has to go with the weight and not with the value as the value may fluctuate over the years - the marriage of three sons were performed in the year 1996, 2000 and 2003 and all the marriages including the assessee and three sons were performed prior to 2003 - the statement of various family members were recorded and none has stated that these are not personal wearing jewellery and same were received by the respective ladies/daughter-in-law on/or at the time of their marriages either from the parental side or in-laws side and even subsequently at the time of birth of their children - Looking to the status of the family and the jewellery found in possesssion of four ladies, was held to be reasonable and the authorized officers, in the first instance, did not seize the jewellery as it was being within the tolerable limit or the limits prescribed by the Board - the Tribunal has correctly analyzed the Circular of the Board and there was no infirmity in the order of the Tribunal – Decided against Revenue.

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• 2014 (5) TMI 1001 - ITAT DELHI
  

  Jurisdiction of the CIT u/s 263 of the Act – Held that:- After enquiry conducted by the CIT, he has recorded a bald statement that he was not satisfied with the explanation offered by the assessee - During the revisional proceedings the assessee has brought to the notice of the CIT, that the issue was inquired into by the AO and it has filed the said reply before the AO during the course of assessment proceedings, so the reply submitted to the AO must have been part of the assessment records - the AO had conducted enquiry into this issue - it is not a case wherein, no enquiry whatsoever was carried out by the Assessing Officer - in the original assessment order there is no mention of this claim at all.

  The CIT after examining the agreements and the explanations furnished before him ought to have recorded reason to demonstrate that the view taken by the AO is incorrect, and unsustainable in law and consequently ought to have recorded a finding that the order of the AO was erroneous and prejudicial to the interest of Revenue - CIT did not record any reason to hold that the implied view of the AO is unsustainable in law and therefore erroneous and prejudicial to the interest of the Revenue, which exercise has not been found to have taken place - the order of the CIT without recording the reason to demonstrate that the view of the AO after enquiry as incorrect, unsustainable in law and consequently ought to have recorded a finding that the implied view of the AO was erroneous and prejudicial to the interest of Revenue, which is absent in the order and therefore vitiates the revisional order – thus, the order of the CIT is set aside – Decided in favour of Assessee.

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• 2014 (5) TMI 1000 - ITAT DELHI
  

  Amendments made to Section 40(a)(ia) by Finance Act, 2010 - Retrospective effect or Prospective effect - Deletion made u/s 40(a)(ia) of the Act – Existence of contract/sub-contract between assessee and the payee – Obligation to deduct TDS – Held that:- The TDS deducted for the period April 2008 to February 2009 was deposited before the due date of filing of return u/s 139 (1) of the Act – there was no infirmity in the order – Following CIT vs. Naresh Kumar [2013 (9) TMI 275 - DELHI HIGH COURT] - the amendment made to Section 40(a)(ia) by the Finance Act 2010 should be given retrospective effect.

  Excess depreciation on vehicles – Held that:- CIT(A) rightly was of the view that the Principle laid down in the circular and judicial precedents clearly reiterates intention of legislature to allow benefit of higher depreciation to the persons involved in the business of running motor cars, motor lorries etc. on hire as well as using these vehicle for transporting goods on hire - The word ‘hired’ used by statute was only to indicate that some income should be rendered to taxation by utilization of those assets in fact tippers/trucks were used in appellant’s business of transportation and income from such activity was duly included in business income as appellant had entered into a composite contract - The Tax Auditor has duly certified depreciation claim - the facts are not in dispute in as much as that the assessee entered into a transportation contract with M/s East India Minerals Ltd. for transportation of Iron ore etc. from crusher stockpile to railway sidings which has not been assailed by the revenue by way of any argument on fact or any evidence led to show that a fact has been wrongly taken into consideration, in the absence of the same, the commercial heavy goods vehicles belonging to the assessee have been used for hire for transporting the goods from one place to the other - Considering the Circular No. 652 dated 14/6/1993, the order of the CIT(A) is upheld - Decided against Revenue.

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• 2014 (5) TMI 999 - ITAT DELHI
  

  Genuineness of expenses not proved – Commencement of business - Determination of specific date - Held that:- There is no reference to any agreement entered into by the assessee - the CIT(A) has made reference to two agreements however has not given any conclusive finding or has cared to examine them so as to come a finding as to when they were entered into and on the basis of the agreements on which specific date he has come to the conclusion that business has commenced in April 2006 - The CIT(A) should have come to a specific finding discussing the facts as to on what specific date in April 2006 he has come to the conclusion that business has commenced - business is a continuous course of activities and it has been variously held that for commencement of business all the activities which go to make up the business need not be started simultaneously.

  The assessee is engaged in the business of software development in the field of information technology, there is no such finding - No specific date has been considered to be the date on which considering the material on record the business can be said to have commenced - it is necessary for the assessee to lead the specific evidence in support of the arguments that the essential activity has started evidenced by some document on a specific date - The issue has not been considered in the proper perspective and only general argument has been advanced which has been accepted that business commended in April 2006 - No effort has been made to point out that on which specific date the business has commenced – thus, the matte is remitted back to the AO for fresh adjudication – decided in favour of Revenue.

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• 2014 (5) TMI 998 - ITAT DELHI
  

  Addition u/s 41(1) - Remission / cessation of liability - Book adjustment of advance received from customers – Held that:- CIT(A) was of the view that JGW actually received the money due to it by the assessee from L &T, and L &T in turn, owed money to the assessee - The balance standing credit to the a/c of JGW in the books of assessee in no way can be treated as income of the assessee in view of the fact that JGW has actually received this amount on a/c of the assessee from L&T - the amount of Rs.76,90,367/- has already been received by JGW from L &T on a/c of the assessee to give effect to this transaction in books of assessee all that is needed to be done is that the amount will be debited to the a/c of JGW and credited to the a/c of L &T in the books of the assessee - It will have the effect of reducing the debit balance of rs.11,65,00,000/- of L &T by Rs.76,90,367/- and balance of JGW to NIL. Rs.76,90,367/- will not be written back and treated as income u/s 41 of the Act but will be adjusted to the account of L &T in the books of assessee - Section 41(1) will not be attracted as there has been no remission or cessation of such liability – there is no reason to interfere in the order of the CIT(A) – Decided against Revenue.

  Deletion of bad debts – Held that:- There is no infirmity arrived at in the impugned order as the assessee has shown the amount as sales in the previous years which has formed part of its income - when the bad debts claimed have formed part of sales of the assessee in the previous year the occasion for it not forming part of its income does not arise - claim of bad debts cannot be disallowed and added to its income as it fully meets the requirement of Section 36(2) (i) of the Act - The CIT(A) has rightly allowed the assessee’s claim – Decided against Revenue.

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• 2014 (5) TMI 997 - ITAT DELHI
  

  Sale/purchase of shares under the head capital gains - Held that:- Primarily the intention of assessee is of paramount importance in determining whether the shares were held by it as investment or as stock in trade - All the attendant circumstances have to be taken into consideration to find out the true intention of assessee - there is no dispute that in earlier years the assessee had treated all share holdings as its investment and never traded in shares - the intention of assessee in acquiring shares was always as investor and not as trader - In the current assessment year also the shares were acquired in respect of one company only but the number of shares was considerable due to which brokers note were running into several pages which probably triggered the entire controversy and in culminating into the observations of AO that assessee had entered into hundreds of transaction on day to day basis.

  The assessee has clearly demonstrated that the observations were not correct and nothing has been brought on record by the Department to controvert the finding of the CIT(A) - The magnitude of transaction does not alter the nature of transaction that does not decide the intention of assessee - The total number of purchase transactions were only six and the sale transactions were only eight - By no stretch of reasoning, this frequency can be said to be very frequent so as to lead to the conclusion that assessee was trading in shares.

  Merely because the assessment of speculation profit is as per the provision contained u/s 43(5) would not lead to ipso facto conclusion that assessee’s intention was to trade in shares - Mere assessment under a particular head of income is no criteria for determining the overall intention of assessee - An investor also can enter into speculative transactions as there is no prohibition under the Act - Only the income is to be assessed as business income - this aspect cannot form the basis for deciding the intention of assessee in respect of those shares where assessee has taken delivery of shares and then sold them within a short gap of time – there is no reason to interfere with the order of CIT(A) – Decided against Revenue.

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• 2014 (5) TMI 996 - ITAT DELHI
  

  Deletion of penalty u/s 271(1)(c) of the Act – LTCG claimed inspite of STCG – Intention to evade tax - Held that:- The assessee had treated the entire capital gain as long term capital gain for the reason that ESOPs remained vested with him for more than 12 months - the date of acquisition of shares has been considered with reference to the date of which assessee had exercised the option by making payment for shares - the issue is highly debatable as to whether date of acquisition of shares is to be reckoned from the date when the assessee exercised its option to acquire shares in pursuance to the rights vested in him by virtue of allotment of ESOP or from the date from which the right vested in him by allotment of ESOP entitling him to acquire the shares, which is also a capital asset - there can be two views on the issue and it cannot be said that assessee’s action in returning the income as long term capital gain was illegal - The assessee had not concealed any particulars of its income - The facts were duly disclosed before the Department and only on account of different interpretation, the capital gain was treated as short term capital gain – thus, there is no reason to interfere in the order of the CIT(A) – Decided against Revenue.

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• 2014 (5) TMI 995 - ITAT DELHI
  

  Addition made on account of entry tax – Lack of supporting evidences – Held that:- Revenue was required to explain the figure of Rs. 71,763/- as appearing in the ground of appeal – but, the revenue could not explain the amount - CIT(A) has recorded a categorical finding that all the evidences are available on record which has not been controverted by Department – there was no reason to interfere with the order of CIT(A) – Decided against Revenue.

  Addition in Partners Capital Account – Held that:- CIT(A) considered the submissions advanced by assessee and has found that the source of deposit of cash stands duly explained in case of all the three parts - The powers of CIT(A) are coterminous with the powers of AO and if AO without making any specific query makes the addition, then assessee is entitled to assail the addition before CIT(A) and substantiate the same also by furnishing necessary evidence - The department has not brought on record any evidence to controvert the findings of CIT(A) – there was no reason to interfere in the order of the CIT(A) – Decided against Revenue.

  Addition on account of unsecured loans – Held that:- Cash of Rs. 1,50,000/- was deposited in accounts of creditors just one day before the issuance of cheque in favour of assessee firm - The proximity of cash deposit just before issuance of cheque requires credible evidence for establishing the genuineness of transaction - CIT(A) has merely observed that both were returning reasonable amounts of income every year but he has not given as to how much income was returned by the two creditors and has not demonstrated whether they were in a position to save so much cash for depositing the same in their account for issuing cheque in favour of firm – the entire evidence requires proper scrutiny – thus, the matter is remitted back to the AO for fresh adjudication – Decided in favour of Revenue.

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• 2014 (5) TMI 994 - ITAT DELHI
  

  Disallowance of commission – Admission of additional evidences – Held that:- CIT(A) was rightly of the view that there is no evidence with the revenue to show that expenses were not incurred for the purposes of the business of the assessee or that services were not rendered by any of these persons - the assessee has been paying commission in past also and no disallowance has ever been made - the department has not raised any issue challenging the admission of additional evidence, the contention of revenue in this context cannot be entertained – there was merit in the contention of the assessee that there is no allegation about payments having been made to specified parties u/s 40A(2)(b) - The fact that payments are through a/c payee cheques, payees are assessed to tax, TDS has been deducted, relevant details filed, have not been disputed - unless a specific payment is pointed out to be non-genuine or not incurred for the purpose of business, the business expenditure cannot be disallowed on ad hoc basis – thus, there is no reason to interfere in the order of the CIT(A) – Decided against Revenue.

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• 2014 (5) TMI 993 - ITAT DELHI
  

  Deletion of extra depreciation on computer peripherals – Held that:- Following Container Corporation of India Ltd. Versus Assistant Commissioner of Income-tax, Circle 3(1), New Delhi [2009 (2) TMI 499 - ITAT DELHI] - CIT(A) has rightly allowed the depreciation claimed by the assessee @ 60% - The accessories and peripherals of computers provide input processing, storage and various output devices - The output devices such as printer, scanner, etc. are computer peripherals and form essential parts of PC - These output devices cannot work in isolation and also working on computer system without an output device such as printer would be futile – the order of the CIT(A) is upheld – Decided against Revenue.

  Deletion of non-deduction of TDS – Payment made to NSE – Held that:- Following Merilyn Shipping & Transports Versus Assistant Commissioner of Income-tax, Range-1, Visakhapatnam [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] and in assessee’s own case for the previous assessment year, it has been held by the CIT(A) that no material has been brought on record to show that the payments on account of transaction charges, V-SAT charges, lease line charges and misc. Charges were made in Pursuance of a contract - The payments were made to NSE in the normal course of business and these payments do not fall within the scope of section 194C of the Act - the provision of section 40(a)(ia) cannot be invoked with respect to the payments which are actually paid during the financial year, but it can be invoked only with respect to the payments not actually made - all the payments were made during the year and nothing was payable at the end of the year, no disallowance is called for - the order of the CIT (A) is upheld – Decided against Revenue.

  Rebate u/s 88E of the Act – Computation of book profits u/s 115JB of the Act – Held that:- The AO has computed the taxable income of the assessee company under the normal provisions of the Act as well as under the special provisions of section 115JB of the Act - While computing the book profit u/s 115 JB, the AO has not allowed the rebate on account of STT u/s 88E of the Act from the book profit of the assessee company – Relying upon M/s Horizon Capital Limited, the ITAT Bangalore [2011 (10) TMI 489 - KARNATAKA HIGH COURT] - tax rebate in respect of STT u/s 88E is available even against tax liability u/s 115JB – the order of the CIT(A) is upheld – Decided against Revenue.

  Disallowance u/s 14A read with Rule 8D of the Act – Held that:- Following Maxopp Investment Ltd. Vs. Commissioner of Income-tax (2012) 2011 (11) TMI 267 - Delhi High Court ] the AO if not satisfied with the correctness of the claim of the assessee, the AO gets jurisdiction to determine the amount of expenditure incurred in relation to such income which does not form part of the total income under the Act in accordance with the prescribed method - when there is no amount of expenditure is incurred directly relating to the exempt income which does not form part of the total income, Rule 8D(ii) & (iii) cannot be applied when the shares are held as stock-in-trade and no notional expenditure could be deducted from the income - the dividend income is incidental to its business of sale of shares which remained unsold by the assessee - expenditure estimated invoking rule 8D above are set aside – Decided in favour of Assessee.

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• 2014 (5) TMI 992 - ITAT DELHI
  

  Verification of claim - Whether the CIT(A) has erred in directing the AO to verify the claim of the assessee – Held that:- Section 251 clearly states that when an appeal is preferred against the assessment order, CIT(A) has the power to confirm, reduce, enhance or annul the assessment – the order of the CIT(A) is from an appeal preferred against an order passed by AO u/s 154 of the Act - An appeal against section 154 order of the Act of the AO does not fall under section 251(1)(a), the power of the CIT(A) has to be drawn from section 251(1)(c) which clearly states that in any other case he may pass such orders as he thinks fit - the order before the CIT(A) falls under the category “in any other cases” envisaged u/s 251(1)(c).

  Only one notice was send by AO, to assessee on 15.06.2012 fixing the matter on 30.05.2012 - no reply or none appeared on behalf of the assessee, the AO passed an ex-parte order u/s 154 of the Act - the CIT(A) has not set aside the order of the AO Officer which was passed u/s 154 but he has only remitted the case back to the file of the AO to verify the claim of the assessee on the ground of violation of natural justice – thus, there was no infirmity in the direction passed by the CIT(A) – Decided against Revenue.

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