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Income Tax - Case Laws
Showing 21 to 40 of 641 Records
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2014 (12) TMI 1373 - ITAT PUNE
Deduction u/s 80IB(10) - project was constructed was less than 1 acre - Claim denied on profits derived from the housing project 'Ved Vihar' - CIT(A) held that the area of the plot on which the said project was constructed was less than 1 acre and hence, the deduction u/s 80IB(10) was not allowable to the assessee in respect of the said project - HELD THAT:- Assessee had bought the TDR rights and had been sanctioned to construct 12 additional flats in the existing building Nos.A and B of the said project and where it had already completed the originally sanctioned 80 flats within the stipulated period, the assessee was eligible to the claim of deduction under section 80IB(10) of the Act.
The assessee had constructed 80 flats originally sanctioned by the commencement certificate dated 21.05.2004 before 31.03.2009 and the PMC had issued occupancy certificate on 30.03.2009 for the said 80 flats in building Nos.A and B. The assessee thus, was entitled to the claim of deduction under section 80IB(10) of the Act in respect of the said 80 flats in building Nos.A and B which were completed within the stipulated period as provided under section 80IB(10)(b) of the Act, for which an occupancy certificate was also issued by the local authority.
Merely because the assessee had received the sanction for the construction of 12 additional flats in the same building itself against the purchase of TDR rights, which admittedly, was not constructed before 31.03.2009 does not dis-entitle the assessee to the claim of deduction under section 80IB(10) of the Act in respect of the originally sanctioned 80 flats. The provisions of section 80IB(10) of the Act are benevolent and have to be interpreted in the manner which is beneficial to the assessee.
The assessee admittedly, has not claimed any deduction in respect of balance 12 flats which were not constructed before 31.03.2009. In the entirety of the above facts and circumstances, we hold that the assessee is entitled to the claim of deduction under section 80IB(10) of the Act on the completion of the project which comprised of construction of 80 flats, which was originally sanctioned vide commencement certificate dated 21.05.2004 against which, the occupancy certificate dated 30.03.2009 has been issued. Under the provisions of section 80IB(10)(a) of the Act, the assessee had to complete the construction on or before 31.03.2009 and the assessee having been issued the occupancy certificate dated 30.03.2009 had also complied with the said provisions of the said Act and was entitled to the claim of deduction under section 80IB(10) of the Act, subject to fulfillment of the basic condition that the plot area of the project was one acre or more. We have also remitted the said issue of measurement of the plot back to the file of Assessing Officer and in case, it is established that the assessee has fulfilled the said condition, wherein area of the plot on which the project has been constructed is one acre or more, then the assessee would be entitled to the claim of deduction under section 80IB(10) of the Act.
Assessee's alternate plea as to allowance of proportionate deduction on account of the flats constructed, is not maintainable in either case, where the claim of the assessee under section 80IB(10) of the Act has been found to be maintainable. However, if the assessee fails to justify the basic condition of the area of plot being one acre or more, even the alternate plea of the assessee is not maintainable. Grounds of appeal raised by the assessee are thus, allowed as indicated above.
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2014 (12) TMI 1372 - ITAT MUMBAI
Disallowance of interest expenditure - rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA - HELD THAT:- As Revenue Authorities as well as the order of the Tribunal in the case of Hitesh S. Mehta [2013 (10) TMI 1065 - ITAT MUMBAI] Whether the interest liabilities constitutes ascertained one or not is also linked to the issue of rejection of books of accounts as the books of account is the basis for computation of book profits u/s 115JA of the Act. This is common issue qua the issue adjudicated in the case of the Hitesh S. Mehta (supra) and matter was set aside. Respectfully following the said order the issue raised in ground no. 4 should be set aside to the files of the CIT (A) for fresh adjudication.
Charging of interest u/s 234A & 234B - HELD THAT:- As assessee submitted that the assessee being a ‘notified person’, there is no change of interest. It is his further submission that the receipts of the assessee are subjected to TDS. On the contrary, Special Counsel for the Revenue filed various decisions of the Tribunal in support of the change of interest. The judgment of the jurisdictional High Court in the case of CIT vs. Devine Holdings Pvt Ltd [2012 (4) TMI 100 - BOMBAY HIGH COURT] was relied on by the Spl. Counsel for the Revenue. During the rebuttal time, Ld Counsel submitted that this issue should also revisit the file of the AO for removal of certain inaccuracies in calculating the interest. We order accordingly. Thus, ground is allowed for statistical purposes.
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2014 (12) TMI 1370 - ITAT MUMBAI
Revision u/s 263 - HELD THAT:- The section starts from the wordings, “The Commissioner may call for and examine the record of any proceeding under the Act …”. Here we have to make a distinction between record and order, because, both these terms have distinct connotations. An order is the mind of the AO/Officer to incorporate or not to incorporate any point in the order, whereas the record forms the basis for formation and construction of the order. It is the record of the case, from which, one can ascertain, as to whether the AO had conducted adequate enquiry to form a legally correct inference. It is, then upto the AO/revenue authorities to incorporate his inference drawn in the order.
DR could neither elaborate nor assist us to convince us that the inference drawn by the AO, after conducting exhaustive enquiry was an erroneous view.
We also find that the CIT did not initiate the proceedings himself but initiated the proceedings on the proposal received from the AO.
This in our opinion, too is against the legislative spirit, because, the provision contemplates independent application of mind by the CIT, because the section says “Commissioner may call for and examine the records of any proceedings under the Act and if he considers …”, which means that the proposal for initiation of revision proceedings must be initiated by the CIT, because, it is the CIT who has to call for examine the record”, as held by the Coordinate Bench in the case of Ashok Kumar Shivpuri [2014 (11) TMI 1176 - ITAT MUMBAI]
Looking at the issue from this angle also, the initiation of revision proceeding become infirm and illegal. - Decided in favour of assessee.
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2014 (12) TMI 1368 - GUJARAT HIGH COURT
Levy of penalty u/s 271(1)(c) - addition being confirmed in quantum proceedings before the Tribunal - HELD THAT:- Commissioner of Income-tax (Appeals) as well as the Tribunal committed grave errors in dismissing the appeals of the assessee, inasmuch as they failed to appreciate the material on record in its proper perspective. Commissioner of Income-tax (Appeals) as well as the Tribunal ought to have appreciated that addition of certain amount is not a ground to impose penalty on the assessee. He, then, invited our attention to a decision of this court in [2014 (11) TMI 1234 - GUJARAT HIGH COURT] wherein, under more or less similar circumstances, the assessee's appeal was allowed for the assessment year 1994-95.
In the result, this appeal is allowed and the question of law raised in this appeal is answered in favour of the appellant-assessee and against the Revenue
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2014 (12) TMI 1367 - ITAT BANGALORE
Addition to Interest Income - Additions made on account of accrued interest on loans and advances without appreciating that after the amendment to section 145 of the Act w.e.f. 1.4.1997, banks are required to follow the mercantile system of accounting.-CIT-A deleted that addition - DR submitted that the assessee has to follow the provisions of section 145 of the Act for the purposes of computation of income under the normal provisions of the Act - HELD THAT:- Respectfully following the decision of the Hon'ble High Court of Karnataka in the case of CIT V Urban Co-operative Bank [2014 (10) TMI 740 - KARNATAKA HIGH COURT] and the decision of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08 2014 (11) TMI 94 - ITAT BANGALORE], we decide the issue in favour of the assessee. Consequently, the grounds raised at S.Nos.3 & 4 and amended ground No.3 raised by revenue are dismissed.
Provision for Non-Performing Assets (‘NPA’) - HELD THAT:- Tribunal in the assessee's own case for Assessment Year 2007-08 [2014 (11) TMI 94 - ITAT BANGALORE], we uphold the order of the learned CIT (Appeals) in allowing the assessee's claim of deduction on account of provision for NPA.
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2014 (12) TMI 1366 - ITAT AHMEDABAD
No interest in prosecuting appeal by assessee - HELD THAT:- In this case, notice fixing hearing on 28.11.2014 was sent to Assessee on 10.10.2014 through Registered A.D. but the notice was returned unserved by postal authorities with the remark “Left”. On the date of hearing i.e. on 28.11.2014 none appeared on behalf of Assessee nor any adjournment application was filed on behalf of the Assessee.
Assessee has also not placed on record its present address and this indicates that the Assessee is no more interested in prosecuting the appeal, therefore, following the decision of ITAT Delhi Bench in the case of CIT Vs Multiplan India (Pvt.) Ltd.[1991 (5) TMI 120 - ITAT DELHI-D] we dismiss the appeal of the assessee. The assessee shall however be at liberty to approach the Tribunal for recalling of this order, if prevented by sufficient cause for non-appearance on the date of hearing. Appeal of the Assessee is dismissed.
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2014 (12) TMI 1365 - ITAT KOLKATA
Penalty levied u/s 271(1)(c) v/s 271AAA - search and seizure action carried out - As per revenue disclosure of the income was not made voluntarily by the assessee company and such income would not have been disclosed by the assessee in the absence of a search - Whether case comes under the purview of section 271AAA? - HELD THAT:- As per the mandate u/s 271AAA of the Act after search initiated u/s 132 on or after 1st June, 2007 but before 1st July, 2012 penalty was leviable u/s 271AAA of the Act. Sub-section (3) of 271AAA clearly provides that in such case no penalty u/s 271(1)(c) of the Act can be imposed.
We agree with the ld.counsel of the assessee that no penalty u/s 271(1)(c) of the Act was leviable, in as much as the case comes under the purview of section 271AAA of the Act. There is no ambiguity in this regard, and the view is also supported by the tribunal decision in the case of Cario International
[2013 (10) TMI 1543 - ITAT DELHI] - Decided in favour of assessee.
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2014 (12) TMI 1361 - ITAT AHMEDABAD
Unaccounted income deposited in undisclosed bank account - Whether only peak amount worked out, in accordance with accepted principles of accountancy, should have been added as income in the hands of the assessee - HELD THAT:- We are unable to accept the stand of the Revenue that the assessee should be put to prove that the there was a direct nexus between the debit and credit entries in the bank account of the assessee with ICICI Bank.
Assessee claimed that the peak amount in this case, with regard to ICICI Bank comes to ₹ 2,97,297/-. In these facts of the case, we restore the issue in the grounds of the appeal of the assessee to the file of the AO with direction to make the addition of only the peak amount in the bank account of the assessee with ICICI Bank. The claim of the assessee that the peak amount comes to ₹ 2,97,297/- should be verified by the AO and the after verification, the correct figure of peak amount may be added as income in the hands of the assessee. We direct accordingly, and the ground of the appeal of the assessee is partly allowed.
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2014 (12) TMI 1360 - GUJARAT HIGH COURT
Deduction u/s 80IA(4) - generation of power for captive consumption - HELD THAT:- Appeal ADMITTED to consider the following questions of law;
“(i) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in upholding the decision of CIT(A) that deduction u/s 80IA(4) is allowable to the assessee for generation of power for captive consumption?”
(ii) Whether the Tribunal was right in law in allowing the assessee’s claim of deduction of ₹ 1954 Crores u/s 80IA(4) of the I.T. Act, 1961, when the assessee had adopted rate of power generation at ₹ 4.73 per unit, rate on which the GEB supplied power to its consumers, ignoring the rate of ₹ 2.36 per unit, the rate on which power generating company supplied its power to GEB?
(iii) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that adjustment made on account of disallowance u/s 14A of the Act in computation of Book Profit u/s 115JB of the Act is not as per law without appreciating that the amount disallowable under section 14A is covered under clause (f) of Explanation 1 to section 115JB(2) and, thus, said amount has to be added back while computing amount of book profits?
(iv) Whether that ITAT was justified in law in not following the decision of its own division bench on this issue in the case of Gujarat State Fertilizers and Chemicals Ltd.[ 2013 (1) TMI 135 - ITAT AHMEDABAD ] which was also confirmed by the Hon’ble Gujarat High Court vide order [2013 (6) TMI 776 - GUJARAT HIGH COURT]?”
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2014 (12) TMI 1359 - ITAT MUMBAI
TDS u/s 194J - payments to the stockiests - order u/s 201(1) read with section 201(1A) - Whether relationship between the assessee and the stockiest is of “principal to principal‟ basis ? - HELD THAT:- As decided in PIRAMAL HEALTHCARE LTD. [2012 (5) TMI 203 - ITAT MUMBAI] relationship between the assessee and the stockiests is in the nature of “principal to principal‟ relationship and not that the appointment of the Manager by the assessee. The same was answered by the assessee and against the Revenue. It is the finding of the Hon‟ble High Court [2015 (1) TMI 873 - BOMBAY HIGH COURT] .that the provisions of section 194J of the Act are not to be invoked with assessee is not making any payments to the stockiests. When the provisions of section 115J are not attracted by such transactions, it is the finding of the Hon‟ble High Court that the question is to whether there is a relationship of “principal to principal‟ or relationship of Manager becomes academic.
TDS u/s 194J to the payments made by the assessee towards “Director‟s Sitting Fees" - Non deduction of tds - HELD THAT:-Provisions of section 194J of the Act need not be invoked in respect of the payments made to the Director‟s sitting fees considering the newly inserted provisions of section 194J(1)(ba) of the Act. Accordingly, we grant relief to the assessee in respect of ground no.2.
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2014 (12) TMI 1357 - ITAT MUMBAI
Disallowance of Lease Equalization Reserve - Disallowance of expenditure it is not a prescribed expenditure u/s 30 to 37 - HELD THAT:- We have gone through the order passed by the Tribunal for AY 1998-99, wherein the Tribunal has extracted the observations made by the co-ordinate bench in the order passed for AY 1994-95 to 1997-98, wherein the Tribunal has explained the concept of Lease equalization charge and accordingly restored the matter back to the file of the assessing officer for carrying out fresh examination. Consistent with the view taken by the Tribunal in the earlier years, we set aside the orders of Ld CIT(A) in this year and restore the same to the file of the assessing officer with the direction to decide the issue afresh in the light of discussions made by the Tribunal in AY 1994-95 to 1997-98.
MAT Computation - addition of “Provision for Non-Performing Assets” while computing the book profit u/s 115JB - assessing officer added the same by treating as “unascertained liability” - HELD THAT:- We notice that the Finance Act 2009 has made amendment in sec. 115JB of the Act with retrospective effect from 1.4.2001 by inserting the following item to be added to the book profit:- “(i) the amount or amounts set aside as provision for diminution in the value of any asset.”
Hence, the provision for non-performing assets”, being a provision for diminution in the value of asset, the same is required to be added to the book profits. Accordingly, we confirm the order of Ld CIT(A) on this issue.
Addition of “Provision for diminution in the value securities” - HELD THAT:- We notice that the claim of the assessee that the securities are forming part of stock in trade has not been examined by the tax authorities. Further the claim of the assessee that it was following the system of valuing the securities under the principle, viz., “cost or market value whichever is lower” also requires examination at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer to examine the claim of the assessee afresh and take appropriate decision in accordance with the law.
Expenditure incurred on clubs - Allowable revenue expenditure u/s 37 - HELD THAT:- A.R submitted that this issue is now covered by the decision of Hon’ble Supreme Court in the case of CIT Vs. United Glass Mfg. Co. Ltd [2012 (9) TMI 914 - SUPREME COURT] as held that the club membership fees paid for employees is allowable u/s 37 of the Act. Hence, we are of the view this issue requires fresh examination in the light of decision rendered. Accordingly, we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the AO for fresh consideration.
Claim of depreciation made on leased assets - HELD THAT:- Tribunal has allowed the claim of depreciation on leased assets by following the decision of Hon’ble Supreme Court in the case of ICDS Limited [2013 (1) TMI 344 - SUPREME COURT] There should not be any dispute that the assessee is entitled to depreciation, if it has leased out the assets under operating lease. AO had taken the view that the lease transactions entered into by the assessee were not genuine lease transactions. CIT(A) has come to the conclusion that the lease transactions were genuine in nature and he held so by placing reliance on the decision rendered in the preceding years. It was submitted that the lease transactions has been accepted by the Tribunal in the earlier years and accordingly depreciation was allowed. Accordingly, consistent with the view taken in the earlier years, we uphold the order of Ld CIT(A) on this issue.
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2014 (12) TMI 1356 - ITAT CHENNAI
Disallowance of provision for gratuity u/s 43B - ascertained liability as allowable as deduction under section 40A(7)(b) - HELD THAT:- On a perusal of the decisions relied on by the assessee, we find that this issue has been considered by various High Courts and held that the provision made by the assessee towards contribution to approved gratuity fund is an ascertained liability and is allowable as deduction under section 40A(7)(b)of the Act. It was further held that the provisions of section 40A(7)(b) overrides section 43B of the Act - See MEWAR SUGAR MILLS LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX [1998 (2) TMI 169 - ITAT JAIPUR], BECHTEL INDIA (P) LTD [2007 (11) TMI 2 - HIGH COURT , DELHI] and COMMON WEALTH TRUST (P.) LTD., COMMISSIONER OF INCOME-TAX VERSUS COMMON WEALTH TRUST (I.) LTD. [2004 (4) TMI 51 - KERALA HIGH COURT]
Thus we uphold the order of the Commissioner of Income Tax (Appeals) in deleting the disallowance made for approved gratuity funds. -Decided in favour of assessee.
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2014 (12) TMI 1354 - GUJARAT HIGH COURT
Deduction u/s 80I - Does the Income derived from an industrial undertaking include income from service/maintenance contracts in respect of the goods manufactured and supplied by the industrial undertaking so as to be eligible for deduction ? - HELD THAT:- The Apex Court in the case of Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT] held that in several assessment Years, the Department accepted the order of the Tribunal in favour of the assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the High Court. The Department could not be allowed to flip flop on the issue and it ought let the matter rest rather than pursue litigation.
The Bombay High Court in the case of International Data Management Ltd. [2003 (2) TMI 50 - BOMBAY HIGH COURT] held that the assessee derived income as it rendered services and maintenance facility to its clients for which it charged for maintenance and services. Therefore, there was a direct nexus between the receipts from rendering services and maintenance facility to its clients and lease rent and the main business activity of the assessee. There was also recorded as a finding of fact by the Tribunal. The assessee was entitled to deduction under Section 80I in respect of that income.
Considering above we are of the considered opinion that the Tribunal ought to have granted the benefit to the assessee under Section 80I of the Income Tax Act for the assessment Year 1992-92 also. - Decided in favour of assessee.
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2014 (12) TMI 1353 - ITAT RAIPUR
Addition on account of suppressed sales - GP on the suppressed sales - HELD THAT:- The assessee had maintained regular books of account and the AO had not come across any unaccounted purchase or suppressed sales. Only on the basis of power consumption, no addition could be made or sustained. It is a known fact that several factors affect the consumption of electricity-like loss of heat, poor quality of raw material inputs, poor workmanship/supervisory skills, presence of moisture, contents and fluctuation in the electricity supply. Most of the above factors are beyond management’s control and explanation cannot be pinpointed to any single reason. It is also a fact that the assessee was not manufacturing one item. Therefore, arithmetical formula should not have been applied for arriving at a conclusion. In our opinion, the FAA was fully justified in holding that the assessee had explained the variation in power consumption citing cogent reasons. The cases referred by the AR also support the views taken by us - FAA does not suffer from any legal infirmity. Upholding his order, we decide first ground of appeal against the AO.
Disallowance u/s. 40A(2)(b) - HELD THAT:- Selective study of the transactions in the year concerned is not appropriate for arriving at a definite conclusion. He should have considered the average price for the whole year before making the disallowance. FAA has given a categorical finding of fact that in certain months, the average prices of goods/material purchased from the sister concern of the assessee was less or equal to the market rate. We have also taken note of the fact that the assessee has purchased the goods on credit from its sister concern.
AO has not brought on record comparable cases to justify the disallowance. In our opinion, the provisions of section 40A(2)(b) can be invoked in special circumstances where considering the market rate of goods/services, the AO arrives at a conclusion that the price charged by the assessee was at variance to the market rate. In the case before us, the AO has not brought on record any facts which prove that he had undertaken such an exercise. In the present case no evidence whatsoever was brought on record by the AO to prove that the justification assigned for making payment to the sister concern was false and the same was not proved to have been made for extra commercial considerations. For all the reasons mentioned above, the impugned disallowance, made on mere hypothetical estimations, cannot be endorsed
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2014 (12) TMI 1352 - ITAT RAIPUR
Addition on account of lower rice yield shown by the assessee - HELD THAT:- While making the addition AO had applied a mathematical formula claimed to have been adopted from FCI guidelines. It is very strange that before fastening tax liability to the assessee he did not consider it necessary to incorporate the reply of the assessee and rebut it. Principles of natural justice demand that the assessee is entitled to get a reasoned and speaking order.
A reasoned order cannot be passed without considering the reply of the assessee filed by the assessee and without giving reasons as to why the reply was not acceptable. Once the assessee had made submission about the FCI Web site it was duty of the AO to give a clear finding about it, but he chose to remain silent about it. He had the case records of the assessee of earlier assessment years and he could have easily found as what was the yield for those years.
Without referring to the statistics available with him, the AO made the addition. He has not referred to any comparable case that could prove that the stand taken by him about the yield of broken-rice and rice was based on any scientific or logical basis. In short, there was no justification of any kind to hold that the yield shown by the assessee about broken rice and rice was lower as compared to other comparable cases or yield shown in earlier years. - Decided against revenue
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2014 (12) TMI 1351 - KARNATAKA HIGH COURT
Government securities allowable deduction - when it as kept under the classification ‘available for sale’ was not in the nature of stock-in-trade by ignoring the subsequent RBI guidelines - allowing the claim of the assessee without taking into consideration the instructions of the RBI dated 2.9.2003 and the CBDT Circular 665 dated 05.10.1993 which did not contemplate such an allowance? - HELD THAT:- This Court had an occasion to consider similar questions in the case of Karnataka Bank Ltd. –vs- Assistant Commissioner of Income Tax [2013 (7) TMI 656 - KARNATAKA HIGH COURT] assessee has maintained the accounts in terms of the RBI Regulations and he has shown it as investment. But consistently for more than two decades it has been shown has stock-in-trade and depreciation is claimed and allowed.
Therefore, notwithstanding that in the balance sheet, it is shown as investment, for the purpose of Income tax Act, it is shown as stock-in-trade. Therefore, the value of the stocks being closely connected with the stock market, at the end of the financial year, while valuing the assets, necessarily the Bank has to take into consideration the market value of the shares. If the market value is less than the cost price, in law, they are entitled to deductions and it cannot be denied by the authorities under the pretext that it is shown as investment in the balance sheet - Decided in favour of the assessee and against the revenue
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2014 (12) TMI 1350 - MADHYA PRADESH HIGH COURT
Profit offered on sale of assets being STT paid on listed shares - “income from business” OR “income from short term capital gains” u/s 111 (1) (I) on which tax is leviable at flat rate of 10% - HELD THAT:- In the present appeal, we note that the assessee made investment in shares with intention to earn dividend income on appreciation of price shares. Therefore, it cannot be said that the assessee was doing business. More specifically when the assessee either utilized his own funds / family funds or did not pay any interest and depicted the transactions in shares under investment portfolio. During hearing, it was also explained by the learned counsel for the assessee that accounts were maintained by the assessee in two separate capacities i.e. trader and investment and never treated the same as holdings of shares as stock in trade which clarifies the intention of the assessee. - Decided in favour of assessee.
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2014 (12) TMI 1345 - ITAT MUMBAI
Admission of additional evidence under Rule 46A of the Act - CIT-A refusing to take into consideration the relevant documents admitted - HELD THAT:- While refusing to take into consideration the relevant documents which were very much necessary for the just decision of the case CIT(A) failed to exercise his appellate jurisdiction u/s 250 of the Act. The duty was also cast upon the Ld. CIT(A) to admit and consider the evidence produced before him by the assessee. As in the case of Smt. Prabhavati S. Shah Versus Commissioner Of Income-Tax - [1998 (2) TMI 107 - BOMBAY High Court]
Powers conferred on the first appellate authority under sub-section (4) of section 250 of the Act, being a quasi-judicial power, it is incumbent on him to exercise the same, if the facts and circumstances justify.
Even otherwise under Rule 46A(4) of the Income tax Rules, CIT(A) has been given power to call for production of any document or the examination of any witnesses to enable him to dispose of the appeal. There is no doubt about the legal position that if any document furnished by the assessee before the CIT(A) is in the nature of clinching evidence which goes to the root of the case then in the interest of justice such types of evidence should not be rejected. The documents relied upon by the assessee are very much relevant and necessary for the just and proper decision of the case, hence, we set aside the findings of the CIT(A) on these issues and remand back the matter to the file of AO with a direction to admit the additional evidences sought to be furnished by the assessee.
Non granting TDS credits - HELD THAT:- As we already restored the matter to the file of the AO while allowing the prayer of the assessee for furnishing of additional evidence on the above stated issues. This issue is also restored to the file of the AO for decision a fresh after verifying the claim of the assessee in this respect.
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2014 (12) TMI 1343 - GUJARAT HIGH COURT
Deduction u/s 80IB(10) - HELD THAT:- Present Tax Appeal is ADMITTED to consider the following substantial questions of law:
“(1) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the project was sanctioned with commercial area more than the specified limit as prescribed in clause (d) of section 80IB(10) of the Act and therefore not eligible for deduction?
(2) Whether the ITAT was justified in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the completion certificate for the shops as well as the residential flats had not been obtained before the prescribed time limit i.e. 31.03.2008 as stipulated in clause (a) of section 80IB(10) of the Act?
(3) Whether the ITAT is correct in facts and circumstances of the case in allowing the deduction u/s 80IB(10) of the Act, without appreciating the fact that the assessee has entered into separate agreements with individual buyers for construction works and thus carried out construction of residential houses as a contractor, rendering it ineligible for deduction u/s 80IB(10) of the Act?”
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2014 (12) TMI 1341 - KARNATAKA HIGH COURT
Disallowance u/s 40A(3) - payment in cash exceeding permissible limits - scope of amendment to act - retrospective effect of amendment - HELD THAT:- The proviso 40A(3) prior to amendment only prohibited incurring of expenditure in respect of which a payment is made in a sum exceeding twenty thousand rupees otherwise than by an account payee cheque drawn on a bank or account payee bank draft was not allowed of the deduction, when the law was amended on 1.4.2009 by Finance Act, 2008, when the word 'aggregate of payments' made to a person in a day was incerted.
It means till the date even if such payment is made by virtue of the earlier provision, the assessee would not denied the benefit of deduction. When the assessee was enjoying the benefit till the date of amendment, by this amendment tax cannot be levied retrospectively, it would cause great hardship. Therefore, the authority were not justified in holding that the said provision is restrospective and levying taxes on the basis of the said amended provision. In that view, certainly it was not clarificatory in nature. Therefore, the first substantial question of law is answered in favour of the assessee
Income from sale of shares - busniss income or short term capital gain - correct head of income - HELD THAT:- The assessee is an ayurvedic Doctor and he is in the business of purchase and sale of ayurvedic preparations. He has in all invested about 2.2 lakhs rupees in purchase of shares. The evidence on record shows the said investment is not paid from the borrowed capital. When the Tribunal holds a sum of ₹ 16,665/- is to be treated as LTCG and do not fall under the heading of Income from business or profession, we do not find any justification to bring the remaining income under the said head. No logic or reason for making the distinction. In the facts of this case, we are satisfied that the Income derived by the assessee from sale of shares would not fall within the head of Income from business or profession and therefore, the impugned order passed by the Tribunal is hereby set aside. - Decided in favour of assessee.
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