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Income Tax - Case Laws
Showing 161 to 180 of 6519 Records
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2013 (12) TMI 1360
Validity of reassessment proceedings - Held that:- The assessee has submitted and disclosed fully and truly all material facts necessary for assessment such as enclosed copies of the detail of commitment charges paid, copies of the rental receipts and rental payments - The Assessing Officer had no reason to believe that the income chargeable to tax has escaped assessment due to non-disclosure - The Commissioner of Income Tax(A) rightly held that the assumption of jurisdiction u/s 147 and 148 of the Act was based on change of opinion - Having second thoughts on the same material and omission on the part of Assessing Officer to draw the correct legal presumption during the assessment proceedings cannot be a basis of initiation of reassessment proceedings u/s 147 of the Act - The Commissioner of Income Tax(A) rightly held that reassessment proceedings do not survive the test of judicial scrutiny and the same are not sustainable - Decided against Revenue.
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2013 (12) TMI 1359
Computation of Long term and short term capital gain (LTCG / STCG) - development of the property and to convert the house into apartments - Quantum of assessment u/s 147 of the act Held that:- Sale consideration received towards the land should be assessed as long-term capital gain and the profits arising out of the superstructure is to be assessed as short-term capital gain - the assessee is entitled to the benefit of exemption provided under sections 54 and 54F of the Act - The authorised representative has given detailed computation of long-term and short-term capital gain arising out of sale of land and built-up area falling in the share of the assessee - the assessee has conceded the short-term capital gain arising from sale of built-up area - As per the computation, the assessee has earned the long-term capital gain from the sale of land to the developer as Rs. 1,41,33,400 and the long-term capital gain arising out of sale of share of undivided land at the time of sale of built-up area was Rs. 1,14,81,000 - The assessee has invested a sum of Rs.1,60,00,000 in capital gains bonds and Rs. 1,15,00,000 in capital gains scheme totalling Rs. 2,75,00,000 and has claimed deduction under sections 54 and 54F of the Act Decided against Revenue.
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2013 (12) TMI 1358
Penalty u/s 271(1)(c) of the act Bogus and unexplained gifts Held that:- The assessee has furnished particulars of gifts in the return of income originally filed by him the particulars are not found false as no such satisfaction is found recorded in the orders of the authorities below - There is also no finding by the authorities below as to whether any details supplied in the return are incorrect, erroneous or false thus, it could not be a case of furnishing inaccurate particulars by the assessee for inviting penalty under section 271(1)(c) of the Act - Following CIT v. Reliance Petroproducts (P.) Ltd. [2010 (3) TMI 80 - SUPREME COURT] - The assessing authority made no enquiry but jumped to the conclusion of imposition of penalty on the basis of quantum addition sustained by the Appellate Tribunal - Even the satisfaction as envisaged by section 271(1B) of the Act is not discernable from the body of the assessment order - The explanation furnished by the assessee is found bona fide thus, the penalty imposed is set aside Decided in favour of Assessee.
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2013 (12) TMI 1357
Denial of claim of additional depreciation u/s 32(1)(iia) of the act New Plant and machinery eligible for depreciation Held that:- First requirement for being eligible for the claim of additional depreciation is that it should be on a new machinery or plant - A machinery is new only when it is first put to use - Once it is used, it is no longer a new machinery - the machinery on which additional depreciation has been claimed, was already used in various preceding previous years thus, for the assessment year, it is no more a new machinery or plant - Relying upon The Deputy Commissioner of Income-tax Versus M/s. Brakes India Ltd. [2012 (3) TMI 31 - ITAT, CHENNAI] - Once it is not a new machinery or plant, allowance under Section 32(1)(iia) cannot be allowed - There is nothing in the statute which allows such claim of additional depreciation every year on machinery acquired in earlier year - CIT(Appeals) was justified in confirming the disallowance of additional depreciation Decided against Assessee.
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2013 (12) TMI 1356
Transfer pricing adjustment on account of payment of royalty Held that:- Following M/s. SC Enviro Agro India Pvt. Ltd. Versus Dy. Commissioner of Income tax [2012 (11) TMI 1107 - ITAT MUMBAI] - there was no justification for payment of royalty on the ground that it was a case of contract manufacturing - under transfer pricing provisions, the TPO was required to determine arms-length-price and then recommend adjustment which had not been done - The disallowance had been made on the ground that there was no justification for royalty which was not correct - the royalty was payable as per agreement for using of technical know-how on value added price to the principal - Thus royalty payment was independent of manufacturing of goods - royalty had been paid not on entire sale price but only value added price which was worked out separately - The royalty had also been paid on sale to third parties which had been allowed but royalty on sales to AE had not been allowed when rate of royalty was the same - no disallowance had been made in the earlier year the order of CIT(A) set aside Decided in favour of Assessee.
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2013 (12) TMI 1355
Whether transfer fees, non-refundable security deposit and nominee occupancy charges are exempt on basis of mutuality - Held that:- Following assessee's own case for the A.Y. 2007-08 - All these expenses are exempt form tax on account of principle of mutuality - Decided against Revenue.
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2013 (12) TMI 1354
Deletion on account of Short Term Capital Gains Difference of the value of transfer of shares - Applicability of Section 148 - Held that:- Section 153C in fact corresponds to earlier section 158BD relating to assets, documents etc. of any other person found during search or requisition as per chapter XIVB - In such a case, books, documents etc. have to be handed over to the AO having jurisdiction over such third person who will initiated the proceedings and issue a notice to such person u/s 153C of the Act Following MANISH MAHESHWARI and INDORE CONSTRUCTION P. LTD. Versus COMMISSIONER OF INCOME-TAX [2007 (2) TMI 148 - SUPREME COURT OF INDIA] - if procedure laid down in Sec.158BD is not followed, the block assessment proceedings would be illegal - The provisions of section 153BC are exactly similar to the provisions of section 158BD under block assessment proceedings - The AO has grossly erred in not issuing notice u/s 153C and in not making asstt u/s 153C read with section 153A of the Act - The provisions of section 153C specifically exclude the applicability of provisions of section 148 of the Act.
In the various statement recorded, none of the witnesses was questioned about the sale of shares by the appellant, much less any witness stating that the appellant had been paid any amount over and above the face value of the shares by the buyer of the shares - The AO could have summoned the persons who had negotiated the deal of purchase of shares from the appellant and ascertained whether any amount over and above the face value of the shares was paid to the appellant - there is not an iota of evidence to establish that the appellant received any money over and above the face value for the transfer of shares Decided against Revenue.
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2013 (12) TMI 1353
Professional and consultancy fee Held that:- Assessees business model is concerned of providing various support services to its parent company located in USA - Service Agreement clearly provides that assessee company would be reimbursed the expenditure incurred with the markup of 8% - The assessee has availed the services of Control Risk Group, Singapore in order to carry out the due diligence and risk analysis with the target hotels, for rendering service to its parent company - These expenses are incurred in the normal course of the business of the assessee and accordingly are revenue in nature.
Consultancy fee for office space Held that:- The brokerage has been paid for arranging the office space - The premises were not purchased during the year - It was only a case of rental of office space for a limited period Decided against Revenue.
Advertisement and sales promotion Held that:- Following C.I.T. vs. Salora International [2008 (8) TMI 138 - DELHI HIGH COURT] - There is no element of brand building or acquisition of brand by incurring such expenses - The concerned brands were not owned by the assessee, but it belongs to the assessee's overseas group entity - Assessee has been reimbursed the entire advertisement and sale promotion expenses by the overseas group entity on cost plus basis The total expenditure works out approximately 1.9% of the total expenditure - Decided against Revenue.
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2013 (12) TMI 1321
Carry forward of capital loss. - Whether sale of polymer division and sale of land in Gujarat are separate transactions Held that:- The polymer unit which is at Vizag was acquired in the year 1978 - The industrial land in Gujarat was acquired in the year 1997 to set up a polymer unit - The assessee has spent some money towards salaries, wages, conveyance, telephone, interest, etc., in connection with the land at Gujarat - That by itself would not make the said land the property of the polymer unit - These properties are separate and distinct - The first appellant authority as well as the Tribunal was justified in holding that it is not one and the same transaction - As they are two independent transactions, the loss sustained in one transaction cannot be set off against the profit made in the other transaction - Decided against Revenue.
Genuineness of commission - Held that:- Following assessee's own case [2006 (9) TMI 147 - KARNATAKA High Court] - The allowance of the commission payment requires interference - Decided in favour of Revenue.
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2013 (12) TMI 1320
Validity of proceedings u/s 263 - Held that:- Following Commissioner of Income Tax versus Atma Ram Tulsyan [2011 (5) TMI 820 - Allahabad High Court] - At no stage, except doubting the sale transactions, the Department doubted the documents which were produced by the assessee to substantiate his claim with regard to capital gains - The Tribunal on appreciation of evidence has rightly found that the transactions in question are genuine transactions - It is a finding of fact based on appraisal of evidence - In the absence of any contrary material
the assessment order was framed on presumptions and assumptions - Decided against Revenue.
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2013 (12) TMI 1319
Undisclosed investment in property - Held that:- The Tribunal recorded finding of fact that the document of possession (kabzanama) dated 16.1.1992 in respect of the house contained agreement with the vendor agreeing to pay Rs.2,60,000/- on her behalf to the Kanpur Development Authority for discharging liabilities of the vendor - The purchaser of the property were not party to the 'kabzanama' and no amount was paid by them in cash - Decided against Revenue.
Estimation of cost of construction on reference to valuation officer - Held that:- The Tribunal rightly held that the appellant assessee's assessment was being made in consequence of the search - The assessment was to be limited on the basis of the material discovered or information received in the search - The A.O. could not have referred the matter and relied upon the report of the Valuation Cell to work out the unexplained investment - The A.O. could not have referred the matter and relied upon the report of the Valuation Cell to work out the unexplained investment which could be relied upon under Section 158BB - Decided against Revenue.
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2013 (12) TMI 1318
Validity of reopening of assessment - Held that:- The AO has wrongly calculated the deduction u/s 80HHC - He did not examine the issues claimed in regard to various expenses despite the fact that the respondent-assessee had clearly disclosed under the head "other income" various items of income, which were mentioned in Explanation (baa) - It was a case of remissness on the part of AO or wrong application of law to the primary facts available on record - The assessee had disclosed the material facts and there was no dispute regarding the nature and quantum of other income - When the material facts were available on record, the AO was required to apply the law correctly on the material facts available for assessment - When all materials were disclosed on the basis of which the assessment under Section 143 (3) was completed, and the revised return was treated as non-est, as it was beyond limitation - It could be taken as information only if the AO could form the opinion that the material facts were not placed on record and that the revised return contains those facts which are sufficient to form an opinion that the income had escaped assessment; or that the assessee had understated the income, or claimed excessive loss, deductions, allowance or relief in the return or on any of such grounds under Explanation-2 - Decided against Revenue.
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2013 (12) TMI 1317
Writ petition against Notice u/s 194C and 148 - TDS on transportation charges and service charges, and on royalty under Sections 194C and 194J - alternative remedy - Held that:- When a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the notice is to file return and if assessee so desires, to seek reasons for issuing notices - The AO is bound to furnish reasons within a reasonable time - On receipt of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order - As the reasons have been disclosed in proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.
The notices both under Section 194C, where the objections are yet to be decided, and the notices under Section 148 of the Act - All the writ petitions are thus premature - No prejudice has been caused to the petitioners at this stage nor any demands have been created, to interfere and to decide factual issues, calling for interpretation of the conditions of contract and verification of payment - All the writ petitions dismissed on the ground of alternative remedy. - Decided against petitioner.
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2013 (12) TMI 1316
Penalty u/s 271(1)(c) - Held that:- The bald allegations against the counsel do not lend credence to the story of the assessee - He had not only made claim for false refund but had also received the refund and encashed it - If he was cheated, he should have been made complaint against the counsel - He did not make any complaint or refer the matter to any of the authorities to investigate the offence - The Tribunal has further found that the circumstance of the case shows that the assessee had connived with his Advocate - He not only claimed and filed false return but also received and encashed it - The Tribunal has rightly found that if he had voluntarily returned the amount, he could have proved the benefits - The imposition of penalty does not suffer from any error of law - Decided against assessee.
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2013 (12) TMI 1315
Taxability of reimbursement of excise duty - Held that:- this amount has not been debited in the P & L A/c, and it was only balance sheet entry which reflected this amount - The Excise Duty was never charged from the Govt. Department to whom the goods were supplied by the appellant - On the removal of goods from the premises of the appellant, Excise duty was kept by the appellant as per the requirement from the concerned Government Department in lieu of Central Excise Duty paid earlier - In the net result, the appellant was not in receipt of any amount from the Government Department to whom goods were sold - Decided against Revenue.
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2013 (12) TMI 1314
Deduction u/s 80I - Whether industrial alcohol is covered by the word "other alcoholic spirit" under Schedule 11 of the Act - Held that:- As per the doctrine of ejusdem generis which means"of the same kind" - It means words of similar class - Where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the some general class as those enumerated - On perusal of Item 1 of Schedule 11 of the Act, there appears to be no ambiguity - Language is clear and speaks for beer and wine followed by the words 'other alcoholic spirits' - The latter words indicate the same species i.e. of liquor falling within the category of beer and wine fit for human consumption - Legislature to their wisdom points out beer and wine and other identical or alcoholic spirits - Industrial alcohol constitute separate class seems to be undisputed fact - The order passed by tribunal does not suffer from any impropriety or illegality - Decided against Revenue.
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2013 (12) TMI 1313
Validity of recalling its own order by Tribunal - Held that:- The AO wrongly allowed the credit of TDS to the assessee which was later on rectified by ITAT as per the provisions of Section 154 of the Income Tax Act, 1961 that mistake was rectifiable after giving an opportunity of hearing - The credit of which could not be given u/s 199 because the Sikkim state did not credit the amount deducted to the account of Government of India - As the credit of T.D.S. was wrongly given to the assessee which was subsequently rectified invoking powers under Section 154 of the Act, hence the assessee is not liable to pay interest for the late payment of Income Tax - Decided partly in favour of Revenue.
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2013 (12) TMI 1312
Whether deduction u/s 16 is allowed on remuneration paid to directors - Held that:- There was no appointment letter or agreement specifically laying down the terms of the so-called appointment of the assessee/appellant as an employee/whole time Director - The only material placed before the Tribunal to prove the relationship of the employer and employee was in the form of Article of Association and resolutions - The Tribunal further observed that in the said resolution, there is no mention of duties and functions assigned to the assessee/appellant - The appellants failed to establish the relationship of an employee and employer - The Directors appointed as Whole Time Director cannot be considered to be the employee of the Company - Tribunal has approved the findings recorded by the Commissioner, Income Tax - Commissioner of Income Tax (Appeals) as well as the Tribunal has recorded a concurrent finding of fact that the appellant has failed to bring on record any document to prove the relationship of Master and Servant between the assessee and the company - Decided in favour of Revenue.
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2013 (12) TMI 1311
Validity of recalling its own order by Tribunal u/s 254(2) - Held that:- Though the Tribunal had referred to the judgment in M/s. Swadeshi Cotton Mills [1979 (9) TMI 26 - ALLAHABAD High Court], but later on, on the application given by the assessee that it wrongly applied the principle of law in M/s. Swadeshi Cotton Mills to the present case, found that there is difference between hypothecation and pledge of the stock - The hypothecation of the goods could not be treated as same as in the case of pledge - The Tribunal realized its mistake in wrongly applying the principles laid down in M/s. Swadeshi Cotton Mills, and rectified the mistake - In the absence of power of review, where the tribunal finds that there was apparent mistake in its order, which has caused serious prejudice to the assessee, in view of the judgments in Honda Siel Power Products Ltd [2007 (11) TMI 8 - Supreme Court of India], it could have rectified the mistake, which was apparent on record - Decided against Revenue.
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2013 (12) TMI 1310
Addition on gift - creditworthiness and genuineness - Onus to prove - financial capability of the donor - Word 'creditworthy'.
HELD THAT:- Once genuineness of return is not in dispute then there appears to be no reason to disbelieve that the amount was paid by Dr. Chitranjan Jain. The CIT Appeal after considering the evidence on the ground had noted that Dr. Chitranjan Jain and Nisha Jain are NRI and they have been settled in the United States of America and their income in the assessment year was 1,16,680 $. Once the income of the donor i.e. Dr. Chitranjan Jain and Mrs. Nisha Jain has not been disbelieved by the Assessing Authority then payment of meager amount of Rs. 10,00000/- by Dr. Chitranjan Jain should not be doubted.
Merely because the entire transcript of NRE account was not furnished shall not make out a case to disbelieve the amount paid by Dr. Chitranjan Jain to the assessee. It may be noted that Assessing Authority was concerned only to verify the genuineness of amount paid by Dr. Chitranjan Jain and once the income tax return filed by Dr. Chitrajan Jain was found to be genuine then there was no occasion for the assessing authority to proceed further asking to supply the entire transcript of the account of Dr. Chitrajan Jain who is not residing in India but in the United States of America. Assessing authority was not seized with the case of Dr. Chitranjan Jain to assess his income under the Income Tax Act. He was only to verify the genuineness of transaction and creditworthiness.
Thus, a finding recorded by the CIT Appeal and Tribunal does not seem to suffer from any impropriety or illegality. The appeal is devoid of merit. Dismissed.
Question answered in favour of assessee against the revenue.
No order as to costs.
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9911796707
